OCR, OSERS Release New Guidance on Disciplining Students With Disabilities

On July 19, 2022, OCR and OSERS jointly released new guidance focused on disciplining students with disabilities. You can find the guidance, factsheet, question and answers document and more here.

A few key takeaways from the guidance are as follows—we encourage you to share this with your special education team and lawyers as well. The guidance states:

• A school’s responsibility not to discriminate against students with disabilities applies to the conduct of everyone with whom the school has a contractual or other arrangement, such as lunch or recess monitors, cafeteria staff, bus drivers, security staff, private security companies or other contractors, school district police officers, or school resource officers (SROs). Schools cannot divest themselves of their nondiscrimination duty by relying on such personnel when the personnel operate under a contract or other arrangement, such as an MOU.
• Schools are discouraged from using exclusionary discipline for nonviolent offenses. 
• A school’s duty to evaluate whether a child has a disability could be triggered by ANY of the following: student behaviors that may harm the student or another person; information voluntarily provided by the student’s parents; frequent office referrals, demerits, notes to parents.
• A school may have to re-evaluate a student’s disability-based behavioral needs if they are dealing with mental health issues.
• Schools must ensure that they do not violate the rights of a student with a disability by creating a pattern of removals that constitutes a significant change in placement absent a manifestation determination. OCR considers a series of short-term nonconsecutive removals to also constitute a significant change in placement if combined they total more than 10 school days during the school year and create a pattern of removal. OCR determines whether a series of removals creates a pattern of removal on a case-by-case basis, considering evidence related to, among other factors: the length of each removal, the proximity of the removals to each other, the total amount of time the student is removed from school, and the nature of the behavior underlying each incident and giving rise to the series of removals.
• Section 504 FAPE requirements do not interfere with a school’s ability to address those extraordinary situations in which a student’s behavior, including disability-based behavior, is an immediate threat to their own or others’ safety. For example, nothing in Section 504’s FAPE requirements prohibits schools from contacting mental health crisis intervention specialists or law enforcement under such extraordinary circumstances, even if the result is that those professionals remove the student from school.
• Schools can consider the impact of the student’s disability-based behavior on other students. Where a student’s disability-based behavior significantly impairs the education of others or otherwise threatens the safety of the student or others, the Section 504 team’s placement determination could result in a change to the student’s services, supports, or educational setting to more effectively address the behavior and attempt to prevent it from recurring.
• A school district whose threat or risk assessment team does not coordinate with the Section 504 team of a student with a disability could risk violating the student’s FAPE rights. Schools should ensure that school personnel who are involved in screening for and conducting threat or risk assessments for a student with a disability are aware that the student has a disability and are sufficiently knowledgeable about the school’s FAPE responsibilities so that they can coordinate with the student’s Section 504 team.
• Informal exclusions are subject to the same Section 504 requirements as formal disciplinary removals, including the FAPE requirements discussed above and the nondiscrimination responsibilities discussed in Section IV
• OCR cautions schools that informing a parent or guardian that the school will formally suspend or expel the student, or refer the student to law enforcement, if the parent or guardian does not pick up the student from school or agree to restraint/seclusion could be a violation of FAPE.
• Schools may discipline a student with a disability who is currently engaging in the illegal use of drugs or the use of alcohol to the same extent that the school disciplines students without disabilities for this conduct.
• OCR applies the different treatment and disparate impact standard when reviewing discipline for students with disabilities.

AASA will be putting together a webinar for superintendents and special education directors on the new guidance soon. Stay tuned!