Study the Discipline/Behavior Guidance from OSEP/OCR
In July 2022, the federal Department of Education issued a series of five guidance documents from the Office for Civil Rights (OCR) and the Office for Special Education Programs (OSEP) related to discipline and behavior of students with disabilities. School administrators should reserve some time to study these guidance documents, particularly as the Department of Education described them as “the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline.”
The primary themes addressed in the guidance reflect concerns about the disparate impact of school discipline practices on students with disabilities and the need to follow the procedural and substantive requirements of the IDEA and Section 504 related to discipline and behavior.
In particular, the guidance outlines the requirements in the IDEA that when a student has behavior that interferes with their learning or the learning of others, districts should work through the FBA and BIP process to ensure that appropriate positive interventions are in place. The guidance reviews the requirements for conducting manifestation determinations under Section 504 and the IDEA, and emphasizes that districts must review their practices related to “informal removals” (which should be considered suspensions for purposes of MDR requirements – including, for example, requiring a parent not to send their child to school or to pick them up early, placing a student on a shortened school day without convening the Section 504 team to determine whether it is necessary to meet their disability-based needs, requiring a student to participate in a virtual learning program when other students are receiving in-person instruction, and informing a parent that the school will suspend or expel the student or refer the student to law enforcement if the parent does not pick up the student from school, agree to transfer the student to another school, agree to a shortened school day, or agreed to the use of restraint and seclusion).
The guidance also reviews the requirements for conducting threat assessments for students with disabilities, the process for determining appropriate behavioral interventions, and how both the IDEA and Section 504 apply to specific circumstances. These documents are a one-stop location for reviewing the position of OCR and OSEP over time on these important issues that schools are facing daily.