Education Law Insights

U.S. Department of Education Closes 2014 with Prolific Guidance

Posted by EdLaw on January 22, 2015

With Guest Blogger Kendra Yoch

The U.S. Department of Education (DOE) was busy the last quarter of 2014, issuing guidance on six issues, plus another already in 2015. The Dear Colleague Letters (DCL), Frequently Asked Questions, and Fact Sheets provide an overview of the way the DOE interprets the federal civil rights laws in the school context and the steps schools should take to ensure compliance with these laws. In case you missed one, here is a recap.

Ensuring Students Have Equal Access to Educational Resources Without Regard to Race, Color, or National Origin

On October 1, 2014, the Office for Civil Rights (OCR) issued a DCL and Fact Sheet outlining the obligations of states, districts, and schools under Title VI of the Civil Rights Act. On the 60th anniversary of Brown v. Board of Education, OCR highlights the right of all students, regardless of race, color, or national origin, to equal educational opportunities. Title VI prohibits both intentional discrimination and the implementation of policies and practices that disproportionately affect minority students. The DCL explains how OCR investigates complaints and urges districts and schools to proactively identify and address any discrepancies in resources, such as access to advanced courses, arts, extracurricular activities, strong teachers, strong administrators, technology, and comparable learning environments.

Responding to Bullying of Students with Disabilities

On October 21, 2014, OCR issued a DCL and Fact Sheet providing guidance on responding to bullying of students with disabilities. OCR notes an increase in the number of complaints it has received on this issue. The guidance explains that failure to adequately address bullying based on a student’s disability may be a violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). Additionally, bullying of a student with a disability on any basis may cause a denial of a free and appropriate public education (FAPE), which the district must also address.

FAQ on State Plans to Ensure Equitable Access to Excellent Educators

On November 10, 2014, the DOE issued a FAQ to guide states in creating plans to comply with the requirement of the Elementary and Secondary Education Act to ensure that “poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.”

Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools

On November 12, 2014, the Department of Justice (DOJ) and DOE issued a DCLFAQ, and Fact Sheet related to meeting the communication needs of students under the IDEA and Title II of the ADA. The IDEA requires school districts to provide students with disabilities with FAPE, special education and related services reasonably calculated to enable the student to make educational progress. Under Title II of the ADA, school districts must provide appropriate auxiliary aids and services that ensure students with disabilities receive communication that is as effective as communication with other students. Providing FAPE to a student with a hearing, speech, or vision disability will often meet the requirements of Title II of the ADA, but sometimes, the ADA requires more (as discussed in a recent Ninth Circuit case, see this FR Alert). Notably, Title II requires school districts to give primary consideration to the auxiliary aid or service requested by the student with a disability (or his/her parent).

Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities

On December 1, 2014, OCR issued a Q&A explaining the requirements for offering single-sex classes in elementary and secondary schools: (1) an important objective either to improve student achievement through diverse educational opportunities or to meet particular educational needs, and (2) the single-sex class is substantially related to that objective. Additionally, the implementation must be evenhanded, participation must be voluntary, and a substantially equal coeducational class in the same subject must be offered. The guidance provides further explanation of these requirements as well as examples.

Applicability of Federal Civil Rights Laws to Juvenile Justice Residential Facilities and the Requirements of the IDEA to Address the Educational Needs of Students with Disabilities in Correctional Facilities

On December 8, 2014, the DOJ and the DOE issued a DCL reminding juvenile justice residential facilities of their obligation to provide students in confinement with educational services and supports in a nondiscriminatory manner. Specifically, the DCL addresses providing equal access to academic and vocational opportunities for students in single-sex settings; meeting the needs of English language learners; providing FAPE to students with disabilities; avoiding discriminatory discipline; responding promptly and effectively to violence and harassment based on a protected characteristic; and providing auxiliary aids and services to ensure effective communication for students and family members with hearing, vision, or speech disabilities.

Additionally, on December 5, 2014, the Office of Special Education Programs (OSEP) and the Office of Special Education and Rehabilitative Services (OSERS) issued a DCL regarding the provision of FAPE to students who are incarcerated. The DCL stresses the need for interagency cooperation and coordination to clarify the responsibility for providing and paying for services to students who are incarcerated. The DCL further outlines the IDEA obligations that continue to apply to such students, including child find, least restrictive environment, IEP review and implementation, and due process and disciplinary protections.

English Learner Students and Limited English Proficient Parents

On January 7, 2015, the DOJ and the DOE issued a DCL, a Fact Sheet Regarding Obligations to English Learner Students, and a Fact Sheet for Limited English Proficient Parents that highlight common civil rights issues related to English Learner (EL) students. The guidance explains the obligations of state education agencies and school districts to provide meaningful participation in educational programs and services to EL students.

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