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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.  
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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. 

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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.
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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.
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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.
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Continue Reading Are Mask Mandates a Reasonable Accommodation?

Over the summer, we reported on the passage of Public Act 102-0339, which aims to reduce and the use of time out, isolated time out, and physical restraint (referred to herein as “restrictive interventions”) in schools. In part, the new law requires ISBE to promulgate updated rules for the use of restrictive interventions, including documentation and reporting requirements, training requirements, and a procedure to file a complaint alleging a violation of the law related to the use of restrictive interventions. In addition, the new law requires ISBE to establish goals and benchmarks for schools to reduce the use of restrictive interventions within three years. Now, ISBE has released its goals and benchmarks, as well as new rules, which are currently pending approval. 
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Continue Reading ISBE Releases New Rules and Goals & Benchmarks Regarding Use of Isolated Time Out, Time Out, and Physical Restraint

In response to the chronic and acute shortage of approved residential placements for Illinois students with special needs, ISBE announced on Monday two steps to provide some, limited relief.

According to a letter from the ISBE General Counsel to the Illinois Council of School Attorneys Executive Committee, ISBE will reinstate its prior practice of reimbursing districts for room, board, and tuition at nonapproved residential schools when ordered by a hearing officer (after the district pays twice its per capita rate for tuition). This change is retroactive to February 2020 when the practice had been discontinued.…

Continue Reading ISBE Takes Steps to Increase Access to Residential Placements

In this third blog post in our series on the OSERS Question and Answer document on IDEA requirements related to returning to in-person instruction, we are focusing on an issue of special importance during and subsequent to the pandemic: assistive technology.

Even before schools shut their doors in the spring of 2020, many were already providing one-to-one devices for students. With the transition to virtual learning, even more schools provided students with laptops to enable them to participate in instruction from home. As more and more students are using technology in school, including software that provides supports like word prediction, speech-to-text, and text-to-speech, IEP team members may be unsure whether that technology should be recorded on the IEP as assistive technology for a student with a disability.…

Continue Reading OSERS Guidance on Assistive Technology