Before leaving office, President Obama’s Department of Education issued critical protections for students with disabilities in 4 key documents. Given the desire of the incoming administration’s proposed Secretary of Education Betsy DeVos to expand charter and voucher schools, these documents will provide important protections for students with disabilities in the coming years.
The Office of Civil Rights (OCR) issued a comprehensive 47 page Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools which provides important guidance especially because most states fail to enforce this important law in public schools and it is often ignored or misunderstood by public schools.
Key provisions include:
A school district must evaluate a student if it has reason to believe the student has a disability and the student needs special education or related services as a result of that disability, even if the student only exhibits behavioral (and not academic) challenges.
In OCR’s investigative experience, school districts sometimes rely on a student’s average, or better-than-average, classroom grades or grade point average (GPA) and, as a result, make inappropriate decisions. For example, a school district might wrongly assume that a student with an above-average GPA does not have a disability and therefore fail to conduct a Section 504 evaluation of that student, even if the school suspects that the student has ADHD or the school is aware that the student has been diagnosed with ADHD outside of school.
However, a student with a disability may achieve a high level of academic success but may nevertheless be substantially limited in a major life activity due to the student’s impairment because of the additional time or effort the student must spend to read, write, or learn compared to others.
School districts violate Section 504 when they deny or delay conducting an evaluation of a student when it would have been reasonable for a staff member to have suspected that a student has a disability and needs special education or related services because of that disability.
Section 504 is critically important for students with disabilities who need reasonable accommodations and/or modifications to receive a free appropriate public education (FAPE) but do not require special education. As OCR states:
To the extent that services and aids, or changes to policies and procedures (for example, allowing testing accommodations such as extended time for exams) for a student with a disability can be implemented by a student’s regular education teacher, the regular education teacher is responsible for implementing them.
For example, a regular education teacher may need to provide a student with a disability an outline of the teacher’s lecture, permit the student to sit in the front of the classroom, or allow the student to turn in homework late.
However, the school district is ultimately responsible for ensuring there are sufficient qualified personnel available to provide the supplemental and related aids and services.
Sec. 504 provides important protections for students with disabilities who are bullied or harassed due to their disabilities.
Appropriate steps to end harassment may include separating the student who was harassed and the student(s) engaged in the harassing behavior, providing counseling for the students, or taking disciplinary action against the harasser. These steps should not penalize the student who was harassed.
OCR also issued a comprehensive 23 page Dear Colleague letter on Restraint and Seclusion of Students with Disabilities. Key concepts include:
For a student already identified as a student with a disability, a school’s use of restraint or seclusion could be evidence that the student’s current array of regular or special education and related aids and services is not addressing the student’s needs. Because the Section 504 FAPE obligation is ongoing, when a school district has reason to believe that the student’s educational needs are not being met, it must consider different or additional approaches or services to address the student’s behavioral needs, and if necessary, reevaluate the student, which could include evaluating the need for positive behavioral interventions and supports and other strategies to address the student’s behavior that could mitigate or eliminate the need for restraint and seclusion.
In OCR’s view, persuasive indicators that a student’s needs are not being met appropriately would include: situations that would impede the student’s learning or that of others, such as new or more frequent emotional outbursts by the student, or an increase in the frequency or intensity of behavior; a sudden change into withdrawn, non-communicative behavior; and/or a significant rise in missed classes or sessions of Section 504 services. A notable drop in academic performance, such as a sudden decline in grades, could also be an indicator of the need to consider different or additional approaches or services, but a change in a student’s academic performance is not a necessary indicator in every instance. Alternatively, a student’s current array of services might only address the student’s academic challenges but now must be modified to address new or changed disability-related behavioral challenges that the student may be experiencing. These and other indicators that the student’s behavior is out of the expected range of behaviors of students that age could trigger a school district’s Section 504 obligation to determine if the student’s needs are being met appropriately, and whether a reevaluation is needed under Section 504.
While federal law does not prohibit the use of seclusion and restraint, the use of these aversive techniques in inappropriate or discriminatory circumstances can violate federal law.
When a school district restrains or secludes a student with a disability for behavior that would not result in the restraint or seclusion of peers without disabilities, OCR would likely find that the school district engaged in unnecessary different treatment on the basis of disability prohibited by Section 504. Similarly, a school district that subjects a student to restraint or seclusion on the basis of assumptions or stereotypes about disability also engages in conduct prohibited by Section 504.
The repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way. Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE.
Last, but not least, the Department of Education issued two Frequently Asked Questions (FAQs) covering the rights of students with disabilities in charter schools under both Sec. 504 and the Individuals with Disabilities Education Act (IDEA).
While state laws vary resulting in complex charter school governing statutes, one key concept remains valid regardless of the nature of the charter school:
All children with disabilities in charter schools must receive special education and related services and supplementary aids and services in accordance with the child’s IEP.
Regarding students who are not yet eligible for special education but are suspected of having a disability, the child find requirements in IDEA require states and school districts to have policies and procedures in effect to ensure that all children with disabilities residing in the State who need special education and related services are identified, located, and evaluated, regardless of the severity of the disability. This responsibility includes highly mobile and migrant children with disabilities. The child find requirements apply to children enrolled in charter schools, regardless of whether the charter school operates as its own school district or is a public school within a school district.
In instances where charter schools are established to specifically serve students with disabilities,
Before a child with a disability is placed in a charter school established for a specific purpose related to the education of children with specific disabilities (i.e., to provide services for children in a specific disability category), the placement team must ensure that the child is able to receive a program of FAPE consistent with his or her IEP.
Given the growth of on-line virtual charter schools it is critical to understand that:
For example, virtual charter school LEAs must: (1) ensure that each eligible child with a disability has FAPE available to him or her; (2) implement evaluation and eligibility requirements; (3) carry out the IEP requirements, including those governing IEP content, IEP Team participants, parent participation, when IEPs must be in effect, consideration of special factors, the development, review, and revision of IEPs, secondary transition services and participation in State and districtwide assessment programs; and (4) implement the requirements regarding education in the least restrictive environment, including ensuring the availability of a continuum of alternative placements to provide special education and related services.
Regarding charter schools and Sec. 504, a key point is that regardless of whether it is a virtual on-line or bricks and mortar charter school:
Charter school students with disabilities, including current and prospective charter school students with disabilities, have the same rights under Section 504 as other current and prospective public school students with disabilities at the elementary and secondary school level.
Sec. 504 has broader coverage than the IDEA.
Section 504 protects all qualified students with disabilities in charter schools. Under Section 504, a student with a disability is a person who: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.
Similarly, charter schools cannot get around their obligations under Sec. 504 by contracting out their services to private entities.
The bottom line is the Sec. 504 prohibits discrimination against students with disabilities.
This prohibition applies to the content of recruitment materials and to all recruitment activities, including formal presentations to, and informal conversations with, parents of prospective students. Additionally, all recipients must ensure that recruitment materials include a notice that the recipient does not discriminate on the basis of disability in violation of Section 504 in, among other things, the admission and treatment of students.
Statements indicating discrimination in recruitment would include those:
- Based directly on disability (e.g., “students with an intellectual disability will not be accepted”);
- Based indirectly on disability (e.g., “all students are required to be present at school at least 170 of the 180 school days per year without exception” would indicate discrimination under Section 504 against prospective students with a disability that causes them to miss more than ten school days per year);
- Based on noncompliance with an obligation that is required of the recipient under Section 504 (e.g., “students with a current or previous IEP or Section 504 plan will not be admitted” or “students who require a sign language interpreter will not be admitted”).
This is just a summary of these 4 important pieces of federal guidance. Interested educators, parents and advocates would be wise to study the complete documents linked above, and show them to schools that may be operating contrary to the law. The bottom line is that with less than a month left in its administration President Obama’s Department of Education has provided critical protection to students with disabilities which educators must heed, and parents and advocates must work hard to protect when the new administration takes office.
For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.