DEVOS RESCINDS TITLE IX GUIDELINES AND DEAR COLLEAGUE LETTER

Commissioner Betsy DeVos and the Office for Civil Rights at the United States Department of Education have rescinded the Obama administration’s previous Title IX guidelines for sexual assault investigations on college campuses saying, “In order to ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence, we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”

The previous Title IX guidelines required schools that receive Federal funding to use the lowest standard of evidence in sexual misconduct investigations- preponderance of the evidence, strongly discouraged cross examination of accusers, were silent on the right of the accused to appeal an adverse determination, and encouraged investigations on an accelerated timeline.

While DeVos agrees that college campuses need to be held accountable for sexual assault reporting and investigating the sexual misconduct reports, the previous administration’s guidelines significantly limited due process for the accused in these quasi-criminal proceedings. “No student should be forced to sue their way to due process,-“ according to DeVos.

Under the new guidelines, according to DeVos, “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.” Schools now have the option of choosing between the preponderance of the evidence standard OR a higher standard: clear and convincing evidence. Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms, and each party must have the opportunity to present witnesses and other evidence.

DeVos and the Department of Education say that this change to the guidelines will create a “workable, effective, and fair system.”

72 Guidance Documents Rescinded for Students with Disabilities

More than 40 million Americans lived with a disability in 2016, according to the U.S. Census Bureau. As of October 2, 2017, the United States Secretary of Education, Betsy DeVos, has rescinded 72 guidance documents that outline and provide guidance for the rights of students with disabilities. Sixty-three of these documents are from the Office of Special Education Programs (OSEP), and nine are from the Rehabilitation Services Administration (RSA).

These 72 guidance documents include:

1-Transition programs & services: High School/High Tech & Vocational Rehabilitation (IM 07-08)

2-Factors State Vocational Rehabilitation Agencies should consider when determining whether a job position within a Community Rehabilitation Program is deemed to be in an integrated setting for purposes of the Vocational Rehabilitation program (TAC-06-01)

3– Whether Centers that do not receive Title VII, Part C Grants are included as centers for independent living under the Rehabilitation Act of 1973, as amended and the implications for SILC Composition, Network of Centers, and Part B and Part C funding (PD 03-06)

4– Satellite centers for independent living

5– Retirement of certain policy issuances (IM 00-30

6– Information on the provision of Vocational Rehabilitation Services to individuals with hearing loss (deaf and hard of hearing) IM 00-21

7– Employment goal for an individual with disability (PD 97-04)

8-What a designated Client Assistance Program Agency must do to satisfy the Mediation Procedures Requirement (TAC 97-01)

9– Retirement of policy issuances (PD 95-06)

10– OSEP Dear Colleague Letter: To Chief State School Officers (CSSOs) on Local Education Agency (LEA) Maintenance of Effort

11– Final regulations related to parental consent for the use of public benefits or insurance

12– OSEP Dear Colleague Letter: Preschool Least Restrictive Environment (LRE)

13– OSEP Memo: 11-06 American Recovery and Reinvestment Act (ARRA) Monitoring Announcement

14– Implementing Response to Intervention (RTI) using Title I, Title III, and CEIS Funds

15– Guidance on Procedural Safeguards and Due Process procedures for parents and children with disabilities

16– OSEP Memo: 08-08 implementing the funding formula under the IDEA- Year of Age Cohorts for which FAPE is ensured

17– OSEP Memo: 07-10 interpretation of 34 CFR §300.154(d)(2)(iv)(A)

18– Questions and answers on highly qualified teachers serving children with disabilities

19– Questions and answers on serving children with disabilities placed by their parents at private schools

20– Dear Colleague Letter addressing administrative costs added to the Individuals with Disabilities Education Act (IDEA) by the 2004 Amendment

21– OSEP Memo 05-10 Notice of Proposed Rulemaking (34 CFR Part 300, 301, and 304), assistance to states for the education of children with disabilities; and service obligations under special education- personnel development to improve services and results for children with disabilities

22– OSEP Memo: 05-09 obligations of states and local educational agencies to parentally-placed private school children with disabilities

23– OSEP Memo 04-09 implementation of OSEP’s continuous improvement and focused monitoring system during calendar year 2004

24– OSEP Memo 04-04 New Technical Assistance Initiative

25– OSEP Memo 03-09 New Technical Assistance Initiative

26– OSEP Memo 03-05 implementation of OSEP’s focused monitoring during 2003

27– OSEP Memo 02-10 Medicaid and upcoming compliance deadlines under HIPAA and ASCA

28– OSEP Memo 02-06 implementing new funding formula under IDEA

29– OSEP Memo 01-09 information about new childhood regulations under the SSI program

30– OSEP Memo 01-06 guidance on including students with disabilities in assessments

31– OSEP Memo 01-05 questions and answers on mediation

32– OSEP memo 00-24 Q&A state/district wide assessment

33– OSEP Memo 00-20 Complaint resolution procedures under Part B

34– OSEP Memo 00-19 IEP guidance

35– OSEP Memo 00-17 implementing the new funding formula under IDEA

36– OSEP Memo 00-16 review of eligibility documents and issuance of grant awards

37– OSEP Memo 00-14 Qs & As on obligations of public agencies serving children with disabilities placed by their parents in private schools

38– OSEP Memo 00-10 revised Part B funding formula information request

39– OSEP Memo 00-08 school districts, state schools, and educational services agencies selected for National assessment study

40– OSEP Memo 00-07 OSEP Memo 00- enhancing coordinated services systems

41– OSEP Memo 00-04 clarification on state eligibility and public participation

42– OSEP Memo 00-03 school districts, state schools, and educational services agencies selected for national assessment study

43– OSEP Memo 99-14 guidance related to state program improvement grants

44– OSEP Memo 99-12 NPRM for charter school expansion act

45– OSEP Memo 99-11 final regulations

46– OSEP Memo 99-09 schools with IDEAs that work

47– OSEP Memo 99-01 continuous improvement monitoring process

48– OSEP Memo continuous improvement monitoring process

49– OSEP Memo 98-13 OSEP response to comment on the IDEA forms

50– OSEP Memo 98-08 effective date of the new IEP requirements

51– OSEP Memo 98-04 guidance related to state program improvement grants

52– OSEP Memo 98-01 information related to statutory changes to Part H

53– Joint DCL including students with disabilities in all educational reform activities

54– OSEP Memo 97-7 initial discipline guidance related to removal of children with disabilities for ten school days or less

55– OSEP Memo 97-5 changes in Part B of IDEA as required the IDEA amendments of 1997

56– OSEP Memo 95-2 information on the secretarial review process

57– OSEP Memo 94-19 availability of draft monitoring reports under FOIA

58– OSEP Memo 93-16 impact of the Cash Improvement Act on IDEA Part B state grants for FY 1994

59– OSEP Memo 93-09 provisions of services to Native American children aged birth through five residing on reservations

60– OSEP Memo 92-20 guidelines for implementing community-based educational programs for students with disabilities

61– OSEP Memo 91-22 summary of comments of special education for children with Attention Deficit Disorder

62– OSEP Memo 90-17 & 90-17A response to Pennsylvania questions on implementing a birth through Five Early Intervention Program

63– OSEP Memo 90-16 age of eligibility for FAPE of preschool aged children

64– OSEP Memo 89-21 states responsibility to make FAPE available to certain Indian children

65– OSEP Memo 88-17 use of tape recorders at IEP meetings

66– OSEP Memo 86-13 the 12% limitation on handicapped children counted for allocation purposes

67– OSEP Memo 85-23 cooperation in transition initiative and parent training

68– OSEP Memo 85-19 excess cost requirement under Part B

69– OSEP Memo 85-9 Grantback arrangements

70– OSEP Memo 85-5 use of EHA-B funds for equipment and certain costs allowable with prior approval

71– Informal letter to Chief State School Officers on data submissions due during FY 1983

72– Nondiscrimination on the basis of handicap in programs and activities receiving or benefiting from Federal Financial Assistance; and assistance to states for education of handicapped children

The Office of Special Education and Rehabilitative Services says that these 72 documents were rescinded due to being “outdated, unnecessary, and ineffective”, as part of The Trump Administration’s efforts to eliminate “superfluous” regulations . Betsy DeVos and the Office say that these regulations will still technically be enforced, and that this will not affect what services special education students will receive. However, the rescinding of these 72 documents does make it harder for schools and parents due to the lack of guidance.

These documents included clarification on the rights of disabled students and how schools could spend federal money for special education. Some of the rescinded documents had been “on the books” since the 1980’s, and helped parents translate legal jargon into plain English in order to better understand so they could assist and advocate for their children with disabilities.

Lindsay E. Jones, the chief policy and advocacy officer for the National Center for Learning Disabilities, says she is especially concerned that these guidance documents outlining how schools could use federal money for special education were removed. Advocates for people with disabilities do not know the full impact this will have on students yet, but there is concern while they continue to review the changes.

 

IEP Transition Services

A recent letter released by the United States Department of Education spells out the necessary steps an IEP Team must take to ensure that a child with a disability receives appropriate support to transition to life after high school. The following sets forth highlights from this letter:

As soon as a child turns 16, or younger if determined appropriate by the IEP Team, the child’s IEP must include: (1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and independent living skills (when appropriate); and (2) the transition services (including courses of study) to assist the child in reaching those goals.  Once created, the transition goals and services must be updated annually.

34 CFR § 300.43 defines transition services as “a coordinated set of activities for a child with a disability that:

  • Is designed to be within a result-oriented process that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including support employment), continuing and adult education, adult services, independent living, or community participation;
  • Is based on the individual child’s needs taking into account the child’s strengths, preferences, and interests and includes-
    1. Instruction;
    2. Related services;
    3. Community experiences;
    4. The development of employment and other post-school adult living objectives; and
    5. If appropriate, acquisition of daily living skills and provisions of a functional vocational evaluation.”

While it is up to the child’s IEP Team to determine the special education and related services that are needed to meet the child’s unique needs in order for the child to receive a free appropriate public education (FAPE), the team must consider the child’s preferences and interests when developing postsecondary goals and transition services.

The IDEA requires that the public agency invite a transition-age child to attend his or her IEP meeting if the purpose of the meeting will be the consideration of the child’s postsecondary goals and transition services needed to assist the child in reaching those goals. 34 CFR § 300.321(b)(1).  If the child does not attend the IEP meeting, the public agency must take other steps to ensure that the child’s preferences and interests are considered.  34 CFR § 300.321(b)(2)*.

Because it is natural for transition-aged youth to grow and develop different interests or changed preferences, the IEP Team should review and update the child’s postsecondary goals and transition services annually to reflect new or different activities  necessary to provide the child a FAPE.

*This requirement only applies in case of post-secondary goals and transition services; it is not mandatory with respect to other IEP goals and special education and related services.

Supreme Court Decision Raises the Bar for Students with Disabilities

In a landmark case decided on March 22, 2017, the United States Supreme Court set a higher standard for how public schools must educate students with disabilities. Previously, schools were held to a bare minimum standard; as long as a student with a disability received some educational benefit each year, his or her school met the federal requirement to provide a “free appropriate public education” under the Individuals with Disabilities Education Act.

The Supreme Court overruled the bare minimum standard holding that federal statute requires an educational program to be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court did not elaborate on what “appropriate” progress should look like from case to case, but did state that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,” and that “deference [should be] based on the application of expertise of judgment by school authorities.” If questioned, those school authorities must be able to offer a “cogent and responsive explanation for their decisions that shows the IEP is reasonable calculated to enable the child to make progress appropriate in light of his circumstances.”

Essentially, the decision requires school authorities to raise the expectations of students with disabilities. It no longer sufficient to point to one or two things a student is doing well, but necessitates an assessment of the overall substantive progress a child is making.

Ultimately, this increases a parent’s ability to hold districts accountable for ensuring that their child receives a meaningful education uniquely tailored to his or her unique needs.  Schools can no longer get away with doing the bare minimum.

For more information on the Endrew F. v. Douglas County School District Supreme Court decision, please follow this link.

Dear Colleague Letter on Restraint and Seclusion

Data collected by the Department’s Civil Rights Data Collection during the 2013-2014 school year shows that students with disabilities were more likely to experience seclusion and restraint than their non-disabled peers. In response to seclusion and restraint practices that are commonly used on children who have disabilities, the Office for Civil Rights (OCR) recently released a letter and a series of questions and answers about the use of these practices. OCR warns that schools who participate in restraint and seclusion practices may be violating Section 504 of the Rehabilitation Act of 1973.

OCR explains that “a student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response could be a sign that the student actually has a disability and needs special education or related aids and services to receive a FAPE [Free Appropriate Public Education].” In such a scenario, OCR explains that the appropriate response by a school district would be to evaluate the student for special education services.

Even a one-time restraint or seclusion experience can have a traumatic impact on a student. As a result of that experience a student may develop new academic or behavioral difficulties, which could result in a denial of a FAPE for that student. OCR lists “impaired concentration or attention in class” and “increased absences” as difficulties that could arise from restraint or seclusion practices. If a student develops severe behaviors and their school fails to address them, that student would be denied a FAPE.

Additionally, a student who has a disability could be denied a FAPE if they do not receive educational instruction or services when they are being secluded or restrained. A student may be denied a FAPE if they are continually secluded and restrained and the school is failing to comply with “the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting to receive those services.”

If your child is experiencing any of these issues, please contact the School Law Center.

Click here to access the Dear Colleague Letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf

Higher Rates of Arrests for African American Students

A recent study published in Education Week and on the website for the National School Boards Association concludes that African American students are more likely to be arrested at school. The study, conducted by Evie Blad and Alex Harwin, shows that African American students are arrested at disproportionately high levels in 43 states and the District of Columbia. In 28 of those states, the percentage of arrested African American students is 10 percent higher than their percentage of enrollment. In 10 of those states the disparity between the number of arrests and enrollment is over 20 percent.

In the 2013-2014 school year, roughly 8,000 schools reported a total of 70,000 arrests. Out of all of the racial groups, the study found that African American males face the greatest risk of being arrested at school. They are three times more likely to be arrested at school than their white male peers. African American females are also more likely to be arrested than their white male peers. Although African American females are not arrested at the same rate as African American males, they are still 1.5 times more likely to be arrested than white males.

There is still disagreement about why African American students are arrested at a disproportionately high rate, but zero tolerance policies and school resource officers are often cited as reasons for the disparity. Civil rights advocates are concerned that school resource officers can negatively impact other parts of student learning that data can’t quantify. For example, civil rights groups are worried about the “interactions between officers and students in hallways, at metal detectors, at school entrances, and in searches of students’ bags and lockers.” Furthermore, advocates argue that funding that is currently being used for school resource officers would be more beneficial if used towards school counselors or other student support services.  Civil rights advocates continue to push for a restructuring of zero tolerance policies and the role of school resource officers to decrease arrests at school.

Access the full article here: https://www.nsba.org/legalclips/2017/01/27/study-finds-african-american-students-are-more-likely-be-arrested-school

New Guidelines for SROs Mandated by Federal Funding

Due to concerns about the violations of students’ civil rights and the overuse of student arrests the U.S. Departments of Education and Justice created new resources about the hiring and training of school resource officers (SROs). These resources include guidelines that emphasize best practices for local schools and state policymakers. SROs that are hired through U.S. Department of Justice grants must follow these requirements in order to maintain funding. Federal grants are used by local law enforcement agencies around the country to hire between 100 and 150 school resource officers a year. The grants are administered on a three year cycle which means that roughly 450 positions are funded by the grant at any given time.

The rubric outlines five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments.

  1. Create sustainable partnerships and formalize memoranda of understandings (MOUs) among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
  2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
  3. Recruit and hire effective SROs and school personnel.
  4. Keep your SROs and school personnel well trained.
  5. Continually evaluate SROs and school personnel, and recognize good performance.

Furthermore, there is a separate document for local and state policy makers, which includes examples of state statutes that require schools to take such actions. For example, Broward County, Florida encourages alternatives to arrest for minor, non-violent misdemeanors, and clarifies that administrators are primarily responsible for discipline.

The U.S. Department of Justice hopes these resources will serve as a model for all U.S. public schools that have a SRO and decrease the number of civil rights violations and school related arrests.

LGBT Students Face Higher Rates of Depression, Bullying, and Violence

A recent study conducted by the Centers for Disease Control and Prevention (CDC) found that gay, lesbian, and bisexual teenagers face greater levels of violence than their straight peers. Out of the 1.3 million students across the country who identify as LGBT more than 40% of those students have considered committing suicide in the last year. Furthermore, almost 30% of those students actually attempted suicide. The percentage of straight students who contemplate and attempt suicide is significantly lower with 15% of straight students considering suicide and 6% attempting it. The report also found that bisexual and gay students are twice as likely as their straight peers to be physically assaulted, sexually assaulted, threatened or injured with a weapon on school property, and bullied. As a result, more than 10% of LGBT students have skipped school because they did not feel safe.

The director of CDC’s National Center for Injury Prevention and Control suggested that LGBT students could be at a higher risk for violence, “due to a lack of support in addition to not being looked upon as masculine or feminine enough.” As a result of this study, the CDC promises to increase the number of mental health services available to LGBT students by creating additional intervention and prevention programs.

Access the entire article here:  http://legalclips.nsba.org/2016/08/17/cdc-study-reports-that-lgbt-students-subjected-to-greater-levels-of-violence-than-straight-peers/

Recent Victory in Child Find and Private School Reimbursement Case

In a recent decision, a Minnesota administrative law judge held that by failing to affirmatively seek out and identify a student with disabilities at a private school, a Minnesota school district denied the student a free appropriate public education (“FAPE”) entitled to her by federal and state law. As a result of the District’s failure to identify the student and provide her with additional services, the student struggled academically and emotionally and made no meaningful progress throughout her elementary school years.  Due to the District’s indifference to the student’s needs, the student’s parents were forced to enroll the student in a private school specifically tailored for students with learning disabilities for the 2015-2016 school year. At the private school, the student has finally received the services she had been denied for several years and has made meaningful academic and emotional progress. The ALJ held that due to the District’s denial of a FAPE and dearth of services provided to the student, the District must reimburse the student’s parents for private school tuition for the past year, and must also maintain the student’s private school placement for the next two school years.

The School Law Center represented the student and her parents in their special education and private school tuition reimbursement claims against the District. This decision enforces school districts’ obligations to affirmatively seek out and identify all students with disabilities and provide them with a FAPE, and holds districts that fail to do so accountable for their inaction. This decision is a win for all students with disabilities in Minnesota and reinforces the School Law Center’s hard work and mission!

The full decision is available here: Child Find Decision

Supreme Court Win in High School Expulsion Case

On August 3rd, 2016, the Minnesota Supreme Court issued a favorable judgment in School Law Center attorney, Andrea Jepsen’s, high school expulsion case that had been ongoing the past two years. The case involved a high school student who was expelled after police found a small pocket knife in her purse in her locker after conducting a random search. After the knife was found, the student admitted that she had been using the pocket knife earlier to cut twine from hay bales at her boyfriend’s family farm and had forgotten that she’d put the knife in her purse when she came to school. In response, the school decided to expel her, reasoning that her unwitting possession of a pocketknife amounted to “[w]illful conduct that endangers the student, others, or property of the school” in violation of the District’s weapons policy and a “willful violation” Minnesota statute.  The Commissioner of the Department of Education affirmed the expulsion, which the student appealed at the Minnesota Court of Appeals. The appellate court looked no further than the plain language of the statute and found that the student’s conduct did not amount to a willful violation and reversed her expulsion. The District appealed the decision and the Supreme Court heard oral arguments on February 29th, 2016. The Supreme Court issued its opinion on August 3rd, 2016 affirming the Court of Appeals’ decision that a willful violation must be a “deliberate, conscious, and intentional choice to violate a reasonable school policy,” which the facts of this case simply do not support.

Although this case was decided after this student graduated high school, Andrea Jepsen noted after her win that this case addressed “a critical issue affecting students in Minnesota, including particularly students of color and students with disabilities, who make up the bulk of school dismissals. You’ll see from the order that we won in every respect.  It is a great day for our kids!”

The full opinion is available here: MN Supreme Court Expulsion Ruling.