The Office of Civil Rights (OCR) has recently released its new case processing manual and the Civil Rights Data Collection (CRDC) from 2015-2016. Both documents have some interesting information we think school districts should know about.
Discipline for Students with Disabilities
According to the newly released data, students with disabilities make up 12% of the enrolled student population, but comprise 26% of the 2.7 million students who were suspended out of school during the 2015-2016 school year. Students with disabilities were also over-represented in students who were “police-involved” at 28%. Many parent-side advocacy groups are claiming that this data indicates that students with disabilities are being unfairly discriminated against in the imposition of discipline. Although we question that premise, the key question that districts must always ask when suspending a student with a disability for 10 days or more is: is the student’s conduct a result of his or her disability? This question can change the context surrounding student misconduct from one of discipline to one of placement under the student’s Individual Education Plan (IEP).
Placement and the Least Restrictive Environment
The Individuals with Disabilities Education Act, requires students with disabilities to be placed in the least restrictive environment “to the maximum extent appropriate.” This does not necessarily mean the least restrictive environment possible. A student’s behavior can play a major role in determining whether the general education setting is the least restrictive environment that is appropriate. We receive calls from clients all the time reporting extreme student behavior which can include throwing desks, chairs and other objects or even physically attacking staff or peers. Regardless of the causes of this kind of extreme behavior, it probably means that the student should be removed from the general education classroom. Schools will need to work through the LRE continuum to find a placement for these students which is appropriate, which could mean that the student is in a restrictive setting within the school or is placed out of the school building or district.
Behavior Interventions
This is not to say that any behavioral issue warrants removal from the classroom, or placement into a more restrictive environment. Sometimes, when behavior interventions are initially put in place a student’s behavior gets worse before it gets better. A district should not attempt a behavior intervention on a short-term basis and move the student to a more restrictive placement before the intervention has had time to take hold. When determining if an intervention has been effective it’s also important to remember that the IDEA has a “stay put” provision that keeps a student in the classroom if there is a dispute as to placement. The dispute can be resolved by an expedited hearing if the safety of other students is at risk in the current placement.
Office of Civil Rights Case Processing Manual
The other development out of the OCR is the release of a new Case Processing Manual under the Trump Administration. The new case processing procedures push back on frequent filers of civil rights complaints in an effort to decrease the burden on OCR’s resources. As evidence the rule was needed, the DOE stated three individuals had filed 41% of the the complaints in 2016, and 23% of the complaints in 2017. Hundreds of cases have been dismissed since March of this year under the case processing procedure. The focus of many of the mass filings was website accessibility for people with disabilities.
Take-Aways
The discipline imposed on students with disabilities can raise questions under the IDEA. In some cases, the district should discipline the student as it would a general education student, but the district should assess whether the student’s conduct is related to the student’s disability. If the conduct is disability-related a change in placement may be appropriate, if behavioral interventions are ineffective.
As for the new processing manual, we have seen a substantial shift in how OCR handles claims since the Trump Administration began. The new case manual shows that those changes are sticking and the OCR is operating differently than in previous administrations.