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.

A “Dear Colleague Letter” dated December 18, 2018 was recently received by all LEAs informing them the US Department of Justice (DOJ) and the US Department of Education (USDE) are withdrawing the statements of Policy and Guidance reflected in the following documents:

• Dear Colleague Letter on Nondiscriminatory Administration of School Discipline dated January 8, 2014; and
• Overview of the Supportive School Discipline Initiative dated January 8, 2014.

Additionally, the Department of Education is withdrawing the following related documents:

• Guiding Principles: A Resource Guide for Improving School Climate and Discipline, dated January 8, 2014;
• Appendix 1: S. Department of Education Directory of Federal School Climate and Discipline Resources, dated January 8, 2014;
• Appendix 2: Compendium of School Discipline Laws and Regulations for the 50 States, Washington D.C., and Puerto Rico, dated January 8, 2014; and
• School Discipline Guidance Package FAQs, dated January 8, 2014.

The Dear Colleague Letter on Nondiscriminatory Administration of Discipline (“Guidance”) discussed the legal framework that the Departments employ to analyze complaints of discrimination under Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., and Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq., and its implementing regulations, 34 C.F.R. Part 100. Title IV authorizes the Attorney General in certain circumstances to institute a lawsuit against public school boards, colleges, and universities upon receiving a complaint of discrimination. Title VI prohibits discrimination based on race, color, or national origin by recipients of Federal financial assistance. The Guidance presented and analyzed, under Titles IV and VI, a number of factual scenarios involving the application of school discipline, and indicated what conclusions the Departments might reach in each scenario.

On March 12, 2018, President Trump announced the formation of a Federal Commission on School Safety.  President Trump directed the Commission to study and make recommendations regarding several issues, including whether the Guidance and associated documents should be rescinded.  On December 18, 2018, the Commission recommended that the Departments rescind the Guidance and associated documents. 

On Tuesday, December 18, 2018, the Federal Commission on School Safety, established by the Trump administration following the mass shooting at the Marjory Stoneman Douglas High School in Parkland, Florida, made public its non-binding recommendations noting that, “[i]mplementation of the practices identified in [its] guide is purely voluntary, and no federal agency will take any action against schools that do not adopt them.”

Predictably, U.S. Secretary of Education Betsy DeVos noted that one of the report’s recommendations encourages schools “to seriously consider the option of partnering with local law enforcement in the training and arming of school personnel.” Another predictable recommendation is to roll back Obama administration school-discipline guidance that placed an emphasis on tracking school disciplinary actions by race in order to help ameliorate disparities in how suspensions or expulsions are doled out.  

The commission also recommended that Congress update the Family Educational Rights and Privacy Act (FERPA). The report avers that confusion regarding the application of FERPA can hinder the ability of schools and law enforcement to prevent shootings and other violence. For example, the report suggests that, in its current state, FERPA generally prevents schools from sharing students’ educational records with third parties without parental consent and that “[i]t is critical to recognize that some education records may contain information that, if disclosed to appropriate officials, could help prevent students from harming themselves or others.” Further, the report also recommends that the U.S. Department of Education (USDE) clarify how schools should apply FERPA’s existing provisions during safety emergencies. The report similarly recommends that the U.S. Department of Health and Human Services review laws and guidance related to the sharing of sensitive health information to help health care providers to share information regarding those who may be a safety threat in schools.

With regard to FERPA, the report also supports the notion that personnel such as a school resource officer be considered a “school official” and/or an “appropriate party” as an exception under the law and that such an officer could thus disclose personally identifiable information from a student’s educational record without parental consent to individuals determined to have a “legitimate educational interest” in such information when ensuring the health and safety of those within the school environment. The report also recommended that USDE provide technical assistance to schools specifying what they may disclose to such staff members with regard to relevant disciplinary information about students. The report also recommends USDE guidance be provided in certain circumstances, such as wide-ranging natural disasters or events that disable a school district’s data or communication centers, allowing a state department of education to invoke FERPA’s health and safety emergency exception to disclose students’ personal information on behalf of a school district that cannot do so itself.

The report also addresses the issuance of school surveillance footage with local law enforcement units and recommends that districts create a “media plan” to disseminate information in the event of a shooting.

The report further recommends analysis of the Health Insurance Portability and Accountability Act (HIPAA) to help facilitate greater coordination between mental health providers, school personnel, and law enforcement.

Whether or not the federal government looks at revising FERPA remains to be seen, since previous such efforts have not come to fruition.

The US Department of Education’s (USDE) Office for Civil Rights (OCR) released an updated Case Processing Manual, effective November 19, 2018. The manual, which provides guidance on how cases are to be handled, can be viewed at https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf

Of particular note is that OCR is in essence reversing itself in a number of areas pertaining to how it investigates civil rights claims. The changes eliminate language added in March 2018 that called for investigators to dismiss multiple complaints originating from the same source. Another change in language also now assures that OCR will conduct investigations of complaints that were dismissed as per the previous rule change. Many special education and civil rights advocates had decried the changes made in March, and many filed lawsuits to challenge those changes.

However, it is important to note that the newly revised manual continues to direct investigators not to consider each complaint for evidence of systemic discrimination. Instead, investigators will look for evidence of broader discrimination “only where it is appropriate to do so in light of the allegations or based on facts ascertained in the investigation.” This investigative approach is a holdover from the March revisions, which had reversed a much different approach previously put into place by the Obama administration.

In addition, USDE is also continuing with both a “rapid resolution process” and “facilitated resolution process” designed to help complainants and school districts to resolve issues quickly with help from OCR. It is also continuing an expanded time frame for negotiating agreements with school districts that have been the subject of complaints.

Many see the new manual changes as a USDE attempt to ease pressure brought on by lawsuits against it that stemmed from the March revisions.  However, some civil rights organizations are still demanding that nearly 700 complaints that were dismissed under the March revisions now be re-opened. Thus, it seems that there will continue to be legal challenges to how OCR will handle complaints as it moves forward with its current manual revisions.