USDE Delay Tactic Vacated by Federal Judge, Significant Disproportionality Rule Now Goes Into Effect (March 9, 2019)

On Thursday, March 8, 2019, a federal judge in the United States District Court for the District of Columbia ruled that Education Secretary Betsy DeVos illegally delayed an Individuals With Disabilities Education Act rule under the Obama administration that required states to identify school districts with “significant disproportionality” in the number of minority students channeled into special education services, segregated in restrictive classroom settings, or disciplined. The ruling called the USDE’s delay of the special education rule “arbitrary and capricious.” The ruling also vacates the decision by Secretary DeVos to incur a two-year delay on the regulation, which instead must immediately go into effect as states are now required to identify school districts with “significant disproportionality.”

USDE Releases FAQs on School Safety and Student Privacy (February 24, 2019)

The U.S. Department of Education (USDE) has released a document titled School Resource Officers, School Law Enforcement Units and the Family Educational Rights and Privacy Act (FERPA), which contains frequently asked questions (FAQs) concerning the responsibilities of school districts with regard to the Family Educational Rights and Privacy Act (FERPA) pursuant to school safety. The FAQs in this document (available on the PAPSA website in “Downloads”) address the responsibilities of school districts under FERPA pertaining to disclosures of student information to law enforcement, including school resource officers (SROs), and others and highlights how FERPA protects student privacy while ensuring the health and safety of students and others in the school community. The document is in response to a report from the Federal Commission on School Safety (FCSS) that stated a “substantial misunderstanding remains at the local level among officials and educators concerning (FERPA), and in particular its application to school-based threats.”

Deadline Passes for Comment on New USDE Rules on Sexual Assault (February 22, 2019)

Recently, the deadline passed for the submittal of comments on draft rules promulgated by the Trump administration that will govern how accusations of sexual assault at the nation’s schools are handled. One of the new rules will allow for cross-examination of accusers in real time, which has alarmed victims’ advocates. Other changes also revise standards of notice, proof, and jurisdiction.

In 2011, the Obama administration issued a letter that required school administrators to effectively handle cases, but did not provide specific procedures. Also, school districts that appeared to be ineffective in handling such cases were at risk of losing Title IX federal funds. Those critical of that letter have espoused that school district officials often favor the accuser/victim, putting mostly males at a perceived unfair advantage. Conversely, others have pointed to a multitude of cases whereby accusers have experienced much difficulty with regard to being treated fairly, and that false complaints are in the great minority.

Now, the rules promulgated by USDE Secretary Betsy Devos are viewed as granting more protections to students alleged to have committed misconduct and easing up on the oversight of school districts. They would also allow cross-examination of the accuser and maintain that harassment must be “so severe, pervasive, and objectively offensive” that it denies a person equal access to education. A major point of contention centers on what qualifies as “pervasive”, particularly in an instance where there has been a single egregious act. Further concerns include that a school district’s purview is limited to acts committed on campus or at officially sanctioned school activities, and a victim must notify the applicable “corrective authority.” Thus, many believe that the new rules will deter reporting.

Once the USDE has considered comments received, a determination will be made as to what shape the final rules will take.

USDE Announces Annual Deaf-Blind Child Count for Infants, Toddlers, Preschoolers, and Students (February 3, 2019)

Annually, the U.S. Department of Education, Office of Special Education Programs (OSEP), requires the Pennsylvania Deaf-Blind Project to conduct the National Deaf-Blind Child Count, formerly called the National Deaf-Blind Census.  The Deaf-Blind Child Count records the number of infants, toddlers, preschoolers, and students who have dual sensory impairments or who are at risk of developing dual sensory impairments, and who are enrolled in early intervention or special education as of the December 1, 2017 Individuals with Disabilities Education Act (IDEA) child count. 

The count will be conducted beginning February 1, 2019.  Each Local Educational Agencies (LEA) must verify and submit their information no later than February 28, 2019.  It is important for Pennsylvania to have an accurate Deaf-Blind Child Count as this information is tied to funding research, training, and technical assistance for this population of children.

LEAs are advised that, regarding the Deaf-Blind Child Count, the federal definition of deaf-blindness is more inclusive and extensive than the one used for the IDEA child count.  Infants, toddlers, preschoolers, and students should be reported in the count if they meet one or more of the following criteria:

  • Infants, toddlers, preschoolers, and students whose primary or secondary diagnosis is deaf-blindness;
  • Infants, toddlers, preschoolers, and students who have a mild to severe hearing loss and some degree of vision impairment that requires adaptations or modifications;
  • Infants, toddlers, preschoolers, and students who have a diagnosis that places them at risk for developing a hearing loss and visual impairment; and
  • Infants, toddlers, preschoolers, and students with multiple disabilities who may demonstrate inconsistent responses to light and sound.

It is important for each Early Intervention Program and LEA to participate in the Deaf-Blind Child Count.

The Deaf-Blind Child Count website is: https://www.leaderservices.com/_DBcensus.

Questions regarding the data collection system or responsibilities for entering child data into the Deaf-Blind Child Count, should be emailed to dbchildcount@pattan.net.

DeVos Announces Initiative to Address Inappropriate Use of Restraint and Seclusion Regarding Children with Disabilities and to Ensure Compliance with Law (January 22, 2019)

On Thursday, January 17, 2019 U.S. Secretary of Education Betsy DeVos announced that the U.S. Department of Education (USDE) is launching an initiative to address the possible inappropriate use of restraint and seclusion in our nation’s schools. The Office for Civil Rights (OCR), in partnership with the Office of Special Education and Rehabilitative Services (OSERS), will oversee this initiative, which aims to protect students with disabilities by providing technical assistance and support to schools, school districts, and state education agencies, while strengthening enforcement activities.

USDE’s initiative will include three components, which are: Compliance Reviews conducted by OCR focusing on recipients’ use of restraint and seclusion on children with disabilities; CRDC Data Collection; and Support for Recipients.