During the Obama administration, the U.S. Department of Education’s office for civil rights has taken an activist stance on civil rights enforcement, especially when it comes to students with disabilities. And as the clock winds down on this presidency, the Education Department is continuing its efforts though the release Wednesday of three new guidance documents for schools.
The first document is a parent and educator resource guide on Section 504. Section 504 refers to a portion of the Rehabilitation Act of 1973, which prohibits discrimination by recipients of federal money, which includings public schools as well as charter schools.
Section 504 predates the Individuals with Disabilities Education Act, which was signed into law in 1975. Though the laws both deal with the civil rights of people with disabilities, they are different in several important ways. For example, Section 504 and IDEA define “disability” differently. IDEA has 13 disability categories, while Section 504’s definition is much more broad—it refers to a “physical or mental impairment that substantially limits a major life activity.” About 12 percent of students nationwide are covered by the IDEA, while about 1.5 percent of students nationwide are covered solely by Section 504.
The resource guide explains those differences and also offers examples of a district’s responsibility to evaluate students and to provide accommodations.
Restraint and Seclusion May Violate Students’ Rights
The second guidance package explains how the use of restraint and seclusion may be a violation of a student’s rights under Section 504.
The document notes that students with disabilities represent 67 percent of those who were restrained and secluded during the 2013-14 school year, while making up only 12 percent of the student population. “Data disparity alone does not prove discrimination. The existence of a disparity, however, does raise a question regarding whether school districts are imposing restraint or seclusion in discriminatory ways,” the document says.
In addition to the letter, the guidance package directs educators to a 2012 resource guide on limiting restraint and seclusion in schools.
Special Education Protections Apply to Charter School Students
The third guidance package notes that charter school students are afforded the same protections under IDEA and Section 504 as their peers who are enrolled in traditional public schools. This guidance was released jointly with the office of special education and rehabilitative services. The guidance is broken into two parts: one document, authored by OCR, spells out the responsibility of charter schools under Section 504. The second document outlines charter schools’ responsibility to follow the Individuals with Disabilities Education Act. The two laws are different enough that two documents were needed, federal officials said.
Notably, the charter school guidance restates that virtual schools are also responsible for providing accommodations to students with disabilities; for example, a school that offers web-based classes must insure that those classes are modified for students who are blind or who have visual impairments. Relatedly, individual school districts have already come to settlement agreements with the Education Department over inaccessible websites.
Education officials say these guidance documents do not create or impose new legal requirements. Rather, they are meant to clear up confusion about how existing laws are interpreted and enforced. (The department has used the same reasoning to say that Title IX requires schools to permit transgender students to use the restrooms and locker rooms that match their gender identity, a controversial reading of the law that is going to be heard by the U.S. Supreme Court in 2017.)
The civil rights priorities of the new administration are yet to be determined, but a member of President-elect Donald Trump’s education transition team has said that the role of the office for civil rights could be curbed.
A version of this news article first appeared in the On Special Education blog.