On May 13, 2021, the Department of Education Office for Civil Rights published a Q&A on Civil Rights and School Reopening in the COVID-19 Environment. The document is aimed at “helping schools reopen safely and in ways that support equity among students” and addresses obligations under Section 504 (prohibiting discrimination on the basis of disability), Title VI (prohibiting discrimination on the basis of race, color, or national origin), and Title IX (prohibiting discrimination based on sex). In the disability section, most of the answers repeat or expand on prior guidance from the Department. And on the one question where we are anticipating new guidance, the answer: keep anticipating. “The Department is aware of important questions regarding compensatory services for students with disabilities and plans to address those in a separate guidance document.” A brief summary of the other answers follows.

To start, yes, public schools still have to comply with Section 504 (was there any doubt?). Given that obligation, when schools are operating remotely, students are still entitled to FAPE and Section 504 teams and IEP teams need to make individualized determinations about whether adjustments are needed in this new model. This guidance echoes what the Department has said since early in the pandemic. The Q&A also reiterates that remote learning services must be provided in a way that is accessible to students with disabilities (accommodations like captioning on videos and audio versions of written text).

The guidance goes on to explain that it is not discriminatory to prioritize students with disabilities for return to in-person learning. However, least restrictive environment principles continue to apply and students with disabilities must receive education in the same environment as their nondisabled peers to the maximum extent appropriate and as provided for in their IEPs or 504 plans (appropriate inclusive practices must also be applied when developing cohorts and pods). The guidance recognizes that schools might also choose to prioritize younger students, students without reliable access to internet or technology devices, students experiencing homelessness, or others for whom remote learning is particularly challenging. According to survey data in March, 47% of schools prioritized in-person learning for students with disabilities in 4th grade and 54% in 8th grade.

OCR next reminds us that state-wide, district-wide, or school-wide policies that are designed to reduce or limit services for students with disabilities, without regard to the individualized needs of those students, violate Section 504. Prior to the administration change, we are aware of several proactive OCR investigations into allegations of these type of practices.

The next questions and answers deal with accommodating students with disabilities who may struggle to follow COVID mitigation practices like masking and physical distancing. The answers, which track with the guidance in the COVID-19 Handbook, Volume 1, allow for individualized determinations regarding accommodations to the mitigation strategies considering both health/safety and FAPE. While these explanations are useful overviews, schools have been working through and finding solutions for these concerns for quite some time now.

The disability section of the Q&A concludes with a reminder that a school district may not refuse to deliver remote learning or other educational services, including related services, until parents or guardians of students with disabilities sign a waiver of their student’s right to services required by Section 504. While some districts experimented with this early in the pandemic out of concern that providing services remotely would be a denial of FAPE, that practice was quickly condemned.

None of this guidance on the application of Section 504 is groundbreaking; it likely is offered in an effort to demonstrate the administration’s commitment to equity and inclusion. We will be watching for the promised guidance on compensatory services and have updates when it is available.