By Jim Gerl, Esq.
December 28, 2016
The U.S. Department of Education released three new sets of guidance today to assist the public in understanding how the Department interprets and enforces federal civil rights laws protecting the rights of students with disabilities. These guidance documents clarify the rights of students with disabilities and the responsibilities of educational institutions in ensuring that all students have the opportunity to learn.
The three new sets of documents include:
- Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools by OCR; and,
- a Dear Colleague letter (DCL) and question and answer document on the use of restraint and seclusion in public schools and when such seclusion or restraion may violate §504 and the ADA; and,
- a jointly-issued Dear Colleague Letter and question and answer documents to help update educators, parents, students, and other stakeholders to better understand the rights of students with disabilities in public charter schools under Section 504 and IDEA (issued by both OCR and OSERS).
The Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, issued by the Department’s Office for Civil Rights (OCR), provides a broad overview of Section 504 of the Rehabilitation Act of 1973 (Section 504).
The guidance describes school districts’ nondiscrimination responsibilities, including obligations to provide educational services to students with disabilities, and outlines the steps parents can take to ensure that their children secure all of the services they are entitled to receive.
Among other things, the Section 504 Parent and Educator Resource Guide:
- Defines and provides examples to illustrate the meaning of key terms used in Section 504.
- Highlights requirements of Section 504 in the area of public elementary and secondary education, including provisions related to the identification, evaluation, and placement of students with disabilities, and procedures for handling disputes and disagreements between parents and school districts.
The second guidance package released by OCR addresses the circumstances under which use of restraint or seclusion can result in discrimination against students with disabilities, in violation of Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA).
The Department’s May 15, 2012 Restraint and Seclusion: Resource Document suggested best practices to prevent the use of restraint or seclusion, recommending that school districts never use physical restraint or seclusion for disciplinary purposes and never use mechanical restraint, and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.
The DCL and question and answer document released today offer additional information about the legal limitations on use of restraint or seclusion to assist school districts in meeting their obligations to students with disabilities.
The third guidance package released today was developed by OCR and the Office of Special Education and Rehabilitative Services (OSERS). The jointly-issued Dear Colleague Letter and question and answer documents will help update educators, parents, students, and other stakeholders to better understand the rights of students with disabilities in public charter schools under Section 504 and IDEA.
These documents provide information about how to provide equal opportunity in compliance with Section 504 in key areas such as charter school recruitment, application, admission, enrollment and disenrollment, accessibility of facilities and programs, and nonacademic and extracurricular activities.
The documents are responsive to the U.S. Government Accountability Office’s 2012 report, Charter Schools: Additional Federal Attention Needed to Help Protect Access for Students with Disabilities, which included the recommendation that the Department issue updated guidance on the obligations of charter schools.
The Section 504 Charter guidance:
- Explains that charter school students with disabilities (and those seeking to attend) have the same rights under Section 504 and Title II of the ADA as other public school students with disabilities.
- Details the Section 504 right to nondiscrimination in recruitment, application, and admission to charter schools.
- Clarifies that during the admission process a charter school generally may not ask a prospective student if he or she has a disability.
- Reminds charter schools, other entities, and parents that charter school students with disabilities have the right to a free appropriate public education (FAPE) under Section 504.
The IDEA Charter guidance:
- Emphasizes that children with disabilities who attend charter schools and their parents retain all rights and protections under Part B of IDEA (such as FAPE) just as they would at other public schools.
- Provides that under IDEA a charter school may not unilaterally limit the services that must be provided a particular student with a disability.
- Reminds schools that the least restrictive environment provisions require that, to the maximum extent appropriate, students with disabilities attending public schools, including public charter schools, be educated with students who are non-disabled.
- Clarifies that students with disabilities attending charter schools retain all IDEA rights and protections included in the IDEA discipline procedures.