By William J. Zee and Megan E. Bomba

May 26, 2021

Last week, the U.S. Department of Education (ED) put out a 23-page guidance outlining how civil rights laws will apply as special education students return to in-class learning this fall. The document includes guidance for the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act among other laws.

With the 2021-2022 return to school to begin with restrictions for some school districts, the U.S. Department of Education addressed the responsibilities of the schools in remote, hybrid and in-person instructional models. The expressed purpose of the document is to provide information to all students, families and schools from K-12 to post-secondary institutions that may be helpful in addressing common questions.

Key portions of the Guidance include:

• When an institution was subject to Section 504 compliance before the pandemic, it must comply with Section 504 in all manners in which it provides services to ensure students with disabilities receive FAPE. This includes remote learning. Schools cannot limit services through state, district or school policies to those with disabilities that are outlined in an IEP according to one of the questions answered in the document.
• Schools may prioritize who will be able to access a traditional classroom setting first based on a student’s disability as well as other factors. Schools also must incorporate students with disabilities into cohorts or pods if chosen as a method to mitigate risk to the maximum extent appropriate for their needs.
• With respect to masking, individuals unable to wear masks or physically distance due to a disability should not be disciplined for not following certain safety procedures. However, the ED suggests discussion on whether in-person learning is necessary if the child cannot safely wear a mask during instructional time.

The guidance does not directly address how to handle compensatory education. Becoming an increasingly important issue for special education students who missed out on services due to the pandemic, the ED plans to address the issue by way of additional guidance.

Should you have any questions about the information laid out in this document, or any other issue impacting schools, please do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Education group.