Feds Urge Schools to ‘Redouble’ Efforts to Keep Students with Disabilities in Class

New Ed Dept. discipline guidance warns against ‘informal removals’ and finds no evidence supporting restraint and seclusion to improve behavior

Education Secretary Miguel Cardona (Tom Williams/Getty Images)

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Schools should “redouble” their efforts to keep students with disabilities from being removed from the classroom for behavior problems and modify their discipline policies to avoid discrimination, according to new U.S. Department of Education discipline guidance released Tuesday. 

Tardiness, absenteeism or “subjective” offenses like defiance or disrespect, should not result in a suspension, the guidance said. And children with disabilities removed from regular classrooms for more serious offenses, or because they could harm themselves or others, must continue to receive special education services. Officials touted the materials, including a Q&A and examples of how to provide behavior support, as the most detailed guidance on students with disabilities the department has released.

“This work is especially urgent now as our schools and our students and families continue to heal from the pandemic,” said Education Secretary Miguel Cardona. “The disruptions of the last two years have led to a sharp increase in students experiencing mental health challenges.”

Recent research shows that despite the drop in suspensions during remote learning — and recent trends toward restorative practices — students with disabilities have been disciplined more during the pandemic than their peers without disabilities. At the same time, educators said this past school year was marked by an increase in student misconduct. According to federal data, roughly half of schools surveyed blamed the “pandemic and its lingering effects” for increases in classroom disruptions, rowdiness and disrespectful behavior. Many students with disabilities, however, also missed out on services required by their individualized education program, or IEP, during the pandemic — services that could have mitigated behavior problems, data shows

The guidance also follows a May announcement that the Office for Civil Rights will update Section 504 — a 45-year-old civil rights law meant to protect students with disabilities from discrimination. 

Students with a 504 plan don’t always qualify for special education under the Individuals with Disabilities Education Act, or IDEA. But in their comments, Cardona and Catherine Lhamon, assistant secretary for civil rights, stressed that both are subject to laws preventing discrimination.

“The department is making a statement that school districts need to provide these protections even if they have not identified students with disabilities,” said Dan Stewart, an attorney with the National Disability Rights Network. 

The documents represent the first of two parts focused on discipline. Later this summer, the department is expected to release guidance focusing on racial disparities in discipline. Some expect it to echo Obama-era guidance that many thought overreached because it threatened schools that ran afoul of the policy with a civil rights investigation. 

Tuesday’s release notes that states, under the law, must measure whether there is significant disproportionality in discipline, based on race and ethnicity, of students with disabilities, and  raises the possibility that districts could be subject to a civil rights investigation “if there is question regarding whether school districts are imposing discipline in discriminatory ways.”

Michael Petrilli, president of the conservative Thomas B. Fordham Institute and a vocal critic of the earlier guidance, said there are students who are identified as having an “emotional disturbance” because of their behavior.

“We shouldn’t be surprised if they continue to misbehave, and get suspended or expelled at higher rates,” he said, adding that any civil rights investigation of a district is a “form of punishment” and that districts might “under-discipline their students with disabilities — especially those with emotional disturbance — in order to make their statistics look better.”

But he acknowledged the new document takes a more balanced approach. “[The Office for Civil Rights] is trying to be clear that it doesn’t want schools to be hamstrung in terms of dealing with safety issues, or kids that are disrupting the learning of others.”

Selene Almazan, legal director for the Council of Parent Attorneys and Advocates, agreed, noting that the guidance doesn’t “undercut” schools’ ability to remove a student with disabilities for disciplinary reasons. 

“Schools have always had at their disposal the ability to discipline students who present an immediate danger,” she said. “I don’t think this ties their hands.”

Daniel Losen, director of the Center for Civil Rights Remedies at the University of California Los Angeles, argued that the earlier guidance, which former Education Secretary Betsy DeVos rescinded, was not an overreach. Critics, he said, “complained that any disparity would be regarded as discriminatory.”

‘Didn’t have a full understanding’

Katy Neas, deputy assistant secretary for the Office of Special Education and Rehabilitative Services, noted that over the past year of reviewing comments and holding listening sessions with educators and parents that staff turnover was resulting in an increase in discipline that removed students from school.

“There are so many new people in new roles that didn’t have a full understanding of what the law required,” she said, adding that the guidance should help families and schools work toward appropriate services. “Behavior is often a sign of communication when something’s not right.”

The guidance, for the first time, addresses what are known as “informal removals,” such as shortening a student’s school day, even when parents haven’t agreed to a change in the student’s special education services. A normal school day for a student with disabilities shouldn’t be any longer or shorter than it is for those without disabilities, the guidance said.

“Informal removals have been lurking in the shadows for quite some time,” Stewart said, adding that the department’s attention to the issue is a monumental step forward” and “puts districts on notice that the department is going to take these things more seriously.”

The guidance also notes that students who have been removed from school while awaiting a threat or risk assessment — a practice that schools are increasingly using to prevent violence — are still protected under IDEA. 

“Sometimes districts say, ‘You can’t come back until you get a letter from a doctor or a psychologist that says you’re OK to return,’ ” Stewart said. “That places the burden on the parent. That’s a removal. That’s an expulsion.”

Advocates also praised the guidance for making a strong statement against restraint and seclusion of students, saying that the department is “not aware of any evidence-based support for the view that the use of restraint or seclusion is an effective strategy in modifying a child’s behaviors that are related to their disability.”

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