State and district officials who oversee policy on students with disabilities should be bracing for a slew of new guidance letters from the U.S. Department of Education in the next year to 18 months, said two school lawyers speaking to a gathering of state special education directors last week.
The department’s office for civil rights has already released an unprecedented number of what are called “Dear Colleague” letters, meant to offer its interpretation of finer points of federal civil rights law. There were 10 letters between January 2014 and September 2015, and four other guidance documents, according to presenters Jason Ballum and Kathleen Mehfoud, both partners with the Reed Smith law offices in Richmond, Va. The Reed Smith legal team represents 75 school boards throughout Virginia and in other states.
More than two dozen more guidance letters may be coming, as the Education Department seeks to make its mark on school governance in the waning days of the Obama administration, Ballum told the meeting of the National Association of State Directors of Special Education.
Here are examples of guidance in recent “Dear Colleague” letters that touch on disability issues:
• Behavior-focused treatments for children with autism should not take precedence over other therapies those children may need, such as speech and language therapy or occupational therapy, said a letter released in July.
• School districts and other public agencies should avoid short-circuiting a parent’s ability to complain directly to the state about a special education dispute, according to an April letter. The department said that some districts were filing due process complaints against parents who had filed state complaints; the law requires a due process complaint to be exhausted before a state complaint can be heard.
• Students who are English-language learners and are suspected of having a disability should be evaluated for special education in “the appropriate language based on the student’s needs and language skills.” That came from a joint letter released in January by the Education Department and the U.S. Department of Justice.
• School districts must follow both the Individuals with Disabilities Education Act and Title II of the Americans with Disabilities Act when it comes to supporting “effective communication” with students. This guidance, released in November 2014, stems from lawsuits filed by two hearing-impaired students in California.
• A school district that fails to stop bullying based on disability may be found to be denying disabled students their right to a free, appropriate public education. A letter released in October 2014 says that if a school “knows or should know of bullying conduct based on a student’s disability, it must take immediate and appropriate action to investigate or otherwise determine what happened.”
In addition, the Education Department is engaging in direct investigations of potential civil rights violations, which means opening up a case even if one has not been filed by a parent or another party.
The problem, according to Ballum and Mehfoud, is that guidance is being treated by the department and its investigators as if it has the force of law, and states and districts have little legal recourse if they disagree with the interpretation.
“Many of these ‘Dear Colleague’ letters, ... they’re not regulatory, they’re not statutory, they’re not binding, they’re advisory only. And OCR is being roundly criticized for adopting strong policies without ever putting it out for public comment,” Mehfoud said.
Fred Balcom, the California director of special education, said that the lack of state or district resources to fight the department’s legal interpretations is troubling.
“We can say, ‘We think you’re doing that wrong,’ ” said Balcom, who served as the president of NASDSE in 2013-14. “But we don’t have the right to take it to court.” States and districts need a right to due process, he said.
In some cases, the courts have rejected government guidance letters. For example, a transgender teenager sued to be allowed to use the boys’ restroom in his Gloucester, Va., school, instead of a unisex bathroom.
The Justice Department entered the case on the side of the teenager, citing guidance from the Education Department that transgender students are protected from sex-based discrimination through Title IX of the Education Amendments of 1972. But last month, a Virginia court ruled in favor of the district and said that the guidance represented an attempt to create a new regulation.
When asked, the Education Department did not say if it has more guidance letters coming. Department officials did note that in a March 2015 U.S. Supreme Court decision, the justices held unanimously that an agency’s interpretation of its own regulations do not have to go through notice-and-comment rulemaking that comes with issuing new regulations.
But the civil rights office has been clear, both in conversations with Education Week and in other venues, that it is taking an active role in enforcing civil rights statutes. In a report released this April, the department said it had received nearly 20,000 complaints about some form of discrimination in fiscal years 2013 and 2014, and anticipated similar or larger numbers of complaints in coming years.
“It is not my belief that there are more incidents of civil rights violations in the world today than there were in the past decade or more,” Catherine E. Lhamon, the assistant secretary of education for civil rights,when asked about the swelling docket of OCR cases that relate to disability issues. “It is my belief that there is greater community awareness that our office exists and is prepared to stand for students who need us.”
A version of this article appeared in the October 14, 2015 edition of Education Week as State, Local Officials Gird for Special Education Guidance Letters