The Department of Education, Office for Special Education and Rehabilitative Services (OSERS) and the Office for Civil Rights (OCR) released their long-anticipated Discipline Guidance Package in July, 2022. The guidance documents provide information and clarity on school-based discipline processes including: restraint and seclusion, informal removals, threat/risk assessments, and interactions with law enforcement and how those practices interact with a student’s right to a free appropriate public education (FAPE). The guidance makes clear that schools do not need to choose between complying with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act and keeping their school community – including students and staff – safe.
The Arc of the U.S., along with other disability, education, and civil rights advocates had numerous meetings with the Administration in the lead up to this release—while there are pieces that we wish went further, overall we are very pleased. We feel these guidance documents will help schools to provide students with a safer, more accessible, and more inclusive education for students with disabilities.
There are numerous pieces to this package, but to highlight a few key things:
- Details on the use of functional behavioral assessments (FBAs) and behavior intervention plans (BIPs)—when they should be completed, by whom, and their place in IDEA.
- Guidance on threat or risk assessments—that they may violate federal law if they are not done in conjunction with the school-based team responsible for a student’s educational program (i.e. if they are done solely by law enforcement or administration without input from those who know the student.)
- Clarification that schools do not NEED to wait ten days of aggregate suspension to conduct a manifestation hearing to determine if the student’s behavior was a result of their disability—it can occur any time the student’s behavior violates school rules.
- Explanation that the frequent use of “informal removals” (a shortened day or the “please pick your child up call”) can over time constitute a denial of FAPE.
- Reinforced that SEAs must ensure that discipline protections that apply to children with disabilities attending a public school must also be available to children with disabilities placed by an LEA in a private school or facility as a means of providing FAPE.
- Statement that there is no evidence base to support the use of restraint and seclusion as an appropriate measure to address student behavior and the use may be a denial of FAPE—the document also states that restraint and seclusion should never be used as punishment or for discipline purposes.
- While we had hoped the language on restraint and seclusion would be stronger, we are incredibly happy it was included—the previous discipline guidance package did not mention restraint and seclusion.
You can find the press release and all of the documents here.