On July 19, 2022, the Department of Education’s Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) released new guidance. The guidance aims to help public elementary and secondary schools meet the needs of students with disabilities and avoid discriminating against children with disabilities when disciplining them. We quote the press release about these policies in italics below. We will share information from the documents in future issues of The Ally. This Fact Sheet highlights key points.
These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students and schools through pandemic recovery.
“All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline,” said U.S. Secretary of Education Miguel Cardona. “Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs – including their disability-based behavior. We also expect that districts utilize the federal American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders, and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral supports and special education services they need to thrive. “
The new resources reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability-based behavior.
The guidance makes clear that schools do not need to choose between complying with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act and keeping their school community – including students and staff – safe.
The new resources include:
- Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 and an accompanying Fact Sheet.
- Questions and Answers Addressing the Needs of Children with Disabilities and the Individuals with Disabilities Education Act’s (IDEA’s) Discipline Provisions.
- Positive, Proactive Approaches to Supporting the Needs of Children with Disabilities: A Guide for Stakeholders. And,
- A letter from Secretary Cardona to our nation’s educators, school leaders, parents, and students about the importance of supporting the needs of students with disabilities.
In developing today’s guidance and resources, the Department drew from experience with enforcing and administering federal laws relating to students with disabilities, including Section 504 and the IDEA. The Department also considered information shared by members of the public in response to the June 2021 Request for Information Regarding the Nondiscriminatory Administration of School Discipline.
Section 504 prohibits recipients of federal financial assistance from discriminating based on disability, and the IDEA guarantees that children with disabilities have available to them a free appropriate public education (FAPE). FAPE emphasizes special education and related services designed to the needs of children with disabilities and prepare them for further education and employment services and independent living.
