July 2022 — 

The MLO Minute: “NEW FEDERAL GUIDANCE ON DISCIPLINE FOR STUDENTS WITH DISABILITIES” By Kimberly Caputo, Esq., MLO’s lead Philadelphia special education attorney, and Nancy Potter, Esq., MLO’s lead Pittsburgh area education attorney —

 

• • “Can you help? My child has an IEP and is being suspended over and over…..”

• • “I don’t know what to do. My employer is getting angry as I am frequently on the phone with my child’s school or being asked to pick him/her up early due to behavior.”

• • “My child has told me he/she is often removed from the lunchroom and/or sent to a seclusion room…”

 

These are just some of the concerns we frequently hear from parents/caregivers and recently published Guidelines from the United States Department of Education (“ED”) provide clear guidance to public schools and charters in the area of discipline for students with disabilities, including those with IEPs or Section 504 Service Agreements. This historic guidance is the first time ED has EVER issued guidance on the discipline of students with disabilities. This guidance makes clear that students with disabilities may be subject to school discipline, but that such discipline must be administered in a nondiscriminatory manner.

 

The important July 2022 ED Guidance package includes the following materials:

• • DEAR COLLEAGUE LETTER developed by ED’s Office for Civil Rights (OCR) outlining how Section 504 of the Rehabilitation Act of 1973 (Section 504), a Federal civil rights law that prohibits discrimination based on disability, applies to the use of student discipline

 

• • FACT SHEET from OCR specific to school discipline of students with disabilities, including those students with IEPs or 504 Plans;

 

• • QUESTIONS and ANSWERS (Q&A) developed by the ED’s Office of Special Education and Related Services (OSERS); and

 

• • STAKEHOLDERS GUIDE – Positive & Proactive Approach to Student Discipline.

Here are links to these valuable publications:  Dear Colleague Letter, fact sheet, a Q&A document, a guide for stakeholders. 

 

Some important takeaways from the July 2022 Federal Guidance are:

(1.) When a child misbehaves, and the conduct is related to the child’s disability there are specific steps a school district/charter must take to avoid imposing discipline that may be discriminatory.

 

(2.) The steps that must be taken apply to ALL public schools and Charters, their employees, AND any contractors such as: school police and school safety/resource officers.

 

(3.) “Informal discipline,” like exclusions from activities or restriction to certain areas during the school day, or requests that a student be picked up early, are specifically called out in the Guidance as potentially discriminatory and as consequences that must be carefully considered if a student has a disability.

 

(4.) School Districts and Charter Schools have an obligation to make reasonable modifications to disciplinary policies for students with disabilities.

 

We know through our extensive intake process and in speaking with the families and caregivers we support, that far too many students are placed into seclusion and/or separate locations when behavior arises. The Federal Guidance makes clear these responses are questionable:

ED is:  “…not aware of ANY evidence-based support for review that the use of restraints or seclusion is an effective strategy to modify behavior related to a child’s disability.”

Our firm believes that high quality information helps parents and caregivers advocate for their children! If you have concerns about discipline that your child has experienced at school, please do not hesitate to reach out to us. We are here to HELP!