Special Education Implications of Proposed Title IX Rule: Biden Administration Nods to the Complicated Intersections but Leaves the Hard Work to Schools  

On June 23, 2022, President Biden’s U.S. Department of Education released the much-anticipated proposed Title IX regulations. The proposed regulations are a major step by the Biden administration in its effort to overhaul the Trump-era Title IX regulations. The proposed regulations would make significant changes, including expanding the definition of hostile environment sex-based harassment; removing the requirement for a formal, written complaint; providing more flexibility in the grievance process for K-12 schools; adding new notice and training requirements; and providing explicit protections for LGBTQ individuals as well as students and employees who are pregnant or parenting. Additionally, the proposed regulations acknowledge the intersection between Title IX and special education laws but provide little guidance on how to navigate the complex questions that arise when students with disabilities are involved in Title IX complaints.  

Specifically, the proposed regulations define “student with a disability” and, to help ensure compliance with disability laws, require consultation between the Title IX coordinator and the IEP or 504 team when a complainant or respondent is a student with a disability. That’s it—An acknowledgment that students with disabilities may be involved in Title IX complaints and a directive for the Title IX coordinator to consult with the student’s special education team to figure out how to comply with both laws and meet the needs of the student. 

Great IEP, Consistent Implementation. Now What? Progress Monitoring.

Last week we talked about the importance of consistent IEP implementation. A strong IEP and consistent implementation are the basis for a free, appropriate public education (FAPE). Progress monitoring, while often underappreciated, can be a powerful tool to demonstrate implementation, provide evidence that the IEP is appropriate, and inform the development of the next IEP. Keep reading to see how progress monitoring fits into the IEP process and how teams can do it effectively.

Great IEP, Now What? Implementation.

ARD Committees put a lot of time and effort into drafting clear, ambitious, and supportive IEPs. We attorneys spend a lot of time training teams on drafting legally compliant IEPs, reviewing IEPs, and negotiating IEPs. But what happens next? Implementation is where the magic happens. And implementation lapses are frequently where due process and state complaints happen. Here are five tips to support consistent implementation and avoid trouble.

Don’t Let a Complicated Divorce Complicate the ARD Process

Divorce often complicates everything, including the special education process. Parents of students with disabilities are provided certain rights under the IDEA, but what happens to those rights when parents are divorced? To ensure compliance with the IDEA, school leaders need to fully understand the rights of each parent to participate in their student’s special education program.

Biological and adoptive parents are typically considered “parents” with the right to make educational decisions for their children under the IDEA. When the parents of a student with a disability are divorced and share custody, both parents generally hold parental rights under the IDEA. These parental rights include notice of ARD (IEP) meetings and attendance at ARD meetings, in addition to making educational decisions and filing a State or due process complaint if a dispute arises.

OCR Reviews Use of Restraint and Seclusion of Students with Disabilities

On May 24, 2022, the U.S. Department of Education’s Office for Civil Rights (“OCR”) announced that it resolved a compliance review of a South Carolina school district’s use of restraint and seclusion of students with disabilities. The investigation highlights OCR’s position that frequent or improper restraint and seclusion may deny students with disabilities a free, appropriate public education. As we prepare for the 2022-2023 school year, school districts should conduct a thorough review of their policies and procedures regarding the use of restraint and seclusion to ensure that they are clear, current, and compliant. 

U.S. Department of Education Announces Plans to Strengthen Section 504 in Upcoming Months

On May 6, 2022, the U.S. Department of Education announced its Intent to Strengthen and Protect Rights for Students with Disabilities by Amending Regulations Implementing Section 504, the landmark disability civil rights law prohibiting discrimination on the basis of disability in schools and postsecondary institutions. The U.S. Department of Education’s Office for Civil Rights (“OCR”) plans to gather public input on possible amendments to Section 504 to determine how to best improve current regulations to assist students with disabilities. As part of Mental Health Awareness Month and in accordance with President Biden’s strategy to address our nation’s mental health crisis, OCR will also gather input from individuals with disabilities who have mental health needs and their advocates.