The United States Department of Education's (DOE) Office for Civil Rights recently released a guidance document: Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment. The guide provides some answers to common questions about schools' responsibilities under the civil rights laws with an emphasis on the different situations that have occurred or may occur with special education students.

One of the first questions is about each school’s obligation to provide FAPE under Sec. 504 of the Rehabilitation Act to eligible students with disabilities during a school closure when no remote learning is provided, such as occurred during the opening weeks of the pandemic? The answer is that Sec. 504 does not address this situation but generally states that, if no services are provided to any students, the district would not be required to provide service to students with Sec. 504 plans either. The DOE is aware of questions regarding compensatory services for students with disabilities and they plan to address those concerns in a separate guidance document.

Another frequently asked question is whether it is discriminatory for a school to prioritize students with disabilities in returning to in-person learning? The guidance document states that districts can consider whether a student has a disability when prioritizing students for in-person instruction. Among other topics, the guidance also discusses mask mandates and special education students, particularly those with hearing impairments, formatting instruction for remote learning, whether a school has adequate resources addressing COVID-19, remote learning sexual harassment issues, and how to file a complaint. 

As always, the OSBA division of legal services continues to monitor these DOE updates and will post information as it becomes available. If you have questions, please contact the division at 1-855-OSBA-LAW.

Posted by Ralph Lusher III on 5/21/2021