OCR and OSEP Issue Six Guidance Documents, Again Cautioning School Districts to Ensure Nondiscriminatory Practices in Discipline and Behavior Management for Students with Disabilities 

07.22.2022

July 19, 2022 was busy day for the U.S. Department of Education, Office for Civil Rights (OCR) and Office of Special Education Programs (OSEP).  All at once, the two agencies issued six guidance documents, all focused on behavior support and discipline of students with disabilities.  Each of these documents is linked below.

U.S. SECRETARY OF EDUCATION CARDONA LETTER
https://www2.ed.gov/policy/gen/guid/secletter/220719.html

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973                                                                                   https://www2.ed.gov/about/offices/list/ocr/docs/504-discipline-guidance.pdf

OCR FACT SHEET
https://www2.ed.gov/about/offices/list/ocr/docs/504-discipline-factsheet.pdf

OSEP DEAR COLLEAGUES LETTER                                                                                        https://www2.ed.gov/about/offices/list/ocr/docs/osers-dcl.pdf

QUESTIONS AND ANSWERS: ADDRESSING THE NEEDS OF CHILDREN WITH DISABILITIES AND IDEA'S DISCIPLINE PROVISIONS
https://www2.ed.gov/about/offices/list/ocr/docs/osers-qa.pdf

POSITIVE, PROACTIVE APPROACHES TO SUPPORTING CHILDREN WITH DISABILITIES: A GUIDE FOR STAKEHOLDERS
https://www2.ed.gov/about/offices/list/ocr/docs/osers-stakeholders.pdf

The not so gentle message from OCR and OSEP is the renewed, and ongoing, expectation that due to the increased mental health related concerns for our nation’s students, caused, in part by the COVID-19 pandemic, school districts must find ways to support behavior related needs without first resorting to suspension and/or expulsion.   Both OCR and OSEP note that they are especially concerned by the statistics surrounding suspension and expulsion of students with disabilities, compared to their nondisabled peers.  For example, in OSEP’s July 19, 2022 Dear Colleague letter, the agency notes, “[s]chool-age students with disabilities served under IDEA represented 13.2 percent of total student enrollment but received 20.5 percent of one or more in-school suspensions and 24.5 percent of one or more out-of-school suspensions.” 

To address these concerns, OSEP and OCR both strongly encourage use of proactive, Multi-Tiered Systems of Support practices, focused on the whole child, and inclusive of not just academic support, but also behavioral, social, and emotional support.   In addition, both agencies continue to remind school districts of their ongoing obligations to hold timely and thorough manifestation determinations for students with disabilities, under both Section 504 and IDEA, prior to enacting any disciplinary change in placement.

Mark your calendars for August 18, 2022 at 8:30 a.m. as attorney Alefia Mithaiwala further breaks down these six guidance documents, and offers insight on legally defensible practices with respect to disciplining of students with disabilities.  Registration information coming soon.

Administrators with questions regarding this alert may also contact the authors or their usual counsel at Atkinson, Andelson, Loya, Ruud & Romo.

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