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In the waning months of the Obama administration, the United States Department of Education (“DOE”) has released three distinct sets of guidance on December 28, 2016 to assist the public in understanding how it interprets and enforces federal civil rights laws protecting the rights of students with disabilities.

The first set of guidance, issued by the United States Department of Education Office for Civil Rights (“OCR”), is a parent and educator resource guide.  The guide provides a broad overview of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and highlights the key requirements of Section 504 in the area of public elementary and secondary education.  The resource guide is located HERE.

The second set of guidance, also issued by OCR, includes a Dear Colleague letter (DCL) and question and answer document on the use of restraint and seclusion in public schools.  OCR elected to release this additional guidance after new data collected during the 2013-2014 school year demonstrated that students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded those of other students, thereby raising a question as to whether school districts are imposing restraint or seclusion in discriminatory ways.

Importantly, this set of guidance highlights that Section 504 and Title II of the Americans with Disabilities Act (“Title II”) prohibits the use of restraint and seclusion that results in discrimination against students with disabilities.  While the use of restraint and seclusion may be appropriate in some circumstances, the guidance explains that the use of restraint or seclusion could violate Section 504 or Title II if the restraint or seclusion of a student with a disability: (1) constitutes unnecessarily treating students with disabilities differently from students without disabilities; (2) is based on a policy, practice, procedure, or criterion that has a discriminatory effect on students with disabilities; or (3) denies a student’s right to a free appropriate public education (“FAPE”).  The DCL is located HERE, and the question and answer document is located HERE.

Lastly, the third set of guidance, issued jointly by OCR and the Office of Special Education and Rehabilitative Services (“OSERS”), concerns the rights of students with disabilities in public charter schools under both Section 504 and the Individuals with Disabilities Act (“IDEA”).

In regards to Section 504, the guidance stresses that charter school students with disabilities have the same Section 504 rights as other public school students with disabilities at the elementary and secondary education levels.  Therefore, guidance applicable to the Section 504 rights of public elementary and secondary school students generally applies to charter school students regardless of whether charter schools or charter school students are specifically mentioned.

Furthermore, in regards to IDEA, the guidance explains that the primary purpose of the IDEA Part B program is for states and school districts to make FAPE available to all eligible children with disabilities.  Thus, the guidance ultimately concludes that children with disabilities who attend charter schools and their parents retain all rights and protections under Part B of IDEA just as they would at other public schools.

The DCL is located HERE.

How the Dear Colleague Letters issued over the past eight years by the Obama administration fare under a Trump administration remains an open question as we near inauguration day.   We will keep you apprised.

In the meantime, contact Bennett Rodick or Jen Deutch with your inquires.