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On May 23, 2024, Senate Bill 3606 (“SB 3606”) passed both houses. If signed into law by Governor Pritzker, SB 3606 will amend the Children with Disabilities Article of the Illinois School Code to provide for expanded state reimbursement opportunities to ensure that all children with disabilities receive the support and resources they need.Continue Reading Senate Bill 3606 Extends Reimbursement Eligibility for Public Special Education Programs

On January 22, 2024, the United States Department of Education (“USDOE”) issued a Dear Colleague Letter regarding supporting students with disabilities who require assistive technology (“AT”) in order to receive meaningful access to their education. In conjunction with the Dear Colleague Letter, the USDOE also released a guidance document, Myths and Facts Surrounding Assistive Technology Devices and Services.

In the Dear Colleague Letter, the USDOE emphasizes the importance of assistive technology in transforming education and reducing barriers in equity and accessibility. The guidance document provides more in-depth information with the aim of increasing understanding of the IDEA’s requirements regarding AT devices and services and dispels common misconceptions regarding AT devices. It is a helpful resource that discusses how AT devices allow children with disabilities to improve confidence, develop communication skills, participate in activities, access and understand course content, and more fully engage in the educational process, while simultaneously providing an important overview of the responsibilities assigned to schools by the IDEA related to AT devices. As the guidance document notes, AT devices should be included in all aspects of the students’ education programming and planning, including transition planning, state assessments, and across academic as well as non-academic environments.Continue Reading Department of Education Dear Colleague Letter Provides Updated AT Device Guidance

On May 19, 2023, the Department of Education Office for Civil Rights (OCR) and the Justice Department (DOJ) issued a joint letter addressing barriers that college students with disabilities face while accessing online services, programs, and activities—an issue that has become particularly acute since educational delivery moved online in response to the COVID pandemic. The letter acknowledges higher education’s increasing reliance on online platforms and the challenges that students with disabilities commonly encounter when engaging with these platforms. The letter also reminds institutions of their obligations under federal laws and recently issued guidance, highlights key enforcement actions by both departments, and provides information on where college students and members of the public can go to get help or file complaints related to digital access at higher education institutions.  Continue Reading OCR and DOJ Issue Joint Letter Addressing Online Accessibility in Higher Ed 

The U.S. Supreme Court unanimously ruled in favor of a deaf student in Perez v. Sturgis Public Schools, 143 S. Ct. 81 (U.S. 2022), where the Court held that the Individuals with Disabilities Education Act (“IDEA”) exhaustion requirement does not preclude claims under the Americans with Disabilities Act (“ADA”) for money damages because the relief sought under the ADA is not one that is available under the IDEA.Continue Reading U.S. Supreme Court Rules That IDEA Exhaustion Requirements Do Not Preclude Money Damages Under The ADA

The Biden Administration has recently taken steps through agency guidance, rulemaking and decision-making to highlight protections for students and employees with pregnancy-related conditions, including abortion, under the umbrella of Title IX. Against the backdrop of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization this past June overturning the 1973 ruling Roe v. Wade, which established a constitutional right to abortion, these recent actions by the Department of Education’s Office for Civil Rights (OCR) provide reminders to educational institutions that Title IX continues to guarantee certain protections under federal law for students and employees based on pregnancy and related conditions, including the termination of pregnancy.  
Continue Reading Title IX Protections for Pregnancy after Overturning of Roe v. Wade

On July 18, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released its revised Case Processing Manual (CPM), which was last updated in August 2020. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws it enforces, including Title IX, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973. The revised manual contains several noteworthy changes schools and colleges should be aware of, including the following highlighted below. 

Definition of “complaint” 

  • Defines “complaint” as “a written statement to the Department [of Education] alleging that the rights of one or more persons have been violated and requesting that the Department take action.” 
  • Expressly states that the following are not considered complaints: oral allegations, anonymous correspondence, courtesy copies of correspondence or a complaint filed or submitted somewhere else, and inquiries that seek advice/information but not action/intervention. Previously, OCR was permitted to determine on a case-by-case basis whether to process such correspondence or inquiries as a complaint. 
  • Clarifies that OCR may investigate Title IX complaints filed by employees as well as by students, parents, and applicants. 

Continue Reading OCR Releases Revised Case Processing Manual with New Updates to Complaint Process

On July 19, 2022, the Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) released several guidance documents concerning the civil rights of students with disabilities specific to student discipline. The resources are aimed at minimizing exclusionary discipline and supporting the pandemic-related mental health needs of students, particularly those with disabilities.  With respect to schools providing training on the how to address disability-based behavior and implement the guidance, U.S. Secretary of Education Miguel Cardona said, “we expect that districts utilize the federal American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders, and hire additional staff.” The guidance documents reiterate requirements under federal law for disciplining students with disabilities and offers best practices and considerations for ensuring school disciplinary policies and practices are implemented in a non-discriminatory manner.  Each guidance document is summarized below.
Continue Reading OCR and OSERS Issue Guidance on IDEA and Section 504 Requirements for Addressing Disability-Based Student Behavior

In March, the U.S. District Court of the Western District of Washington ruled against a school district in favor of a student with intellectual disabilities, who was awarded $500,000 by a jury based on the district’s failure to address repeated acts of peer sexual harassment against the student. In the lawsuit, the plaintiff alleged that the school district violated the student’s due process and equal protection rights, violated Title IX, violated the Washington Law against Discrimination, and was negligent. The jury returned a verdict in favor of the plaintiff on her due process, equal protection, and negligence claims, and the court denied the district’s motion to set the verdict aside. 

The case, Berg v. Bethel School District, is instructive on a range of issues relating to sexual misconduct involving students with disabilities, including a school district’s duty to protect a student with disabilities from sexual harassment even when the student does not explicitly object to the misconduct.  Continue Reading Federal Case Highlights Nuances of Addressing Sexual Harassment Involving Students with Disabilities

The Office for Civil Rights in the Department of Education recently issued a new Fact Sheet. The Fact Sheet repeats prior guidance that “the responsibility for schools to comply with Section 504 continues regardless of how schools provide education: virtually, in-person, or with a hybrid learning model.” Accordingly, the guidance provides that 504 teams should meet if needed to address changes in student needs related to the pandemic as well as to determine whether compensatory services are warranted. The OCR Fact Sheet follows the Q&A issued by the Office of Special Education and Rehabilitative Services last fall, which also called for IEP teams to make compensatory services determinations for students who missed services due to the pandemic.
Continue Reading OCR Issues Fact Sheet on Providing FAPE During the COVID-19 Pandemic and Addressing the Need for Compensatory Services Under Section 504

In Illinois, as universal masking is fading, the next question looms: what will the end of universal masking mean for staff and students with disabilities who are at high risk? Across the county, issues regarding universal masking have been hotly litigated. In this post, we focus on the issue of mask mandates as a reasonable accommodation for disability needs, and to date, the decisions paint a complicated picture. Districts planning or implementing mask optional plans should consider the needs of students and staff with disabilities who request continued masking of those around them to preserve their access to the district’s educational programs.
Continue Reading Are Mask Mandates a Reasonable Accommodation?