State and district officials responsible for overseeing policies on students with disabilities should be prepared for a significant number of new guidance letters from the U.S. Department of Education in the next year to 18 months, according to two school lawyers who addressed state special education directors recently. The department’s office for civil rights has already issued an unprecedented number of “Dear Colleague” letters, which provide its interpretation of various aspects of federal civil rights law. Between January 2014 and September 2015, there were 10 letters and four other guidance documents. The Reed Smith legal team, which represents 75 school boards in Virginia and other states, expect that there may be over two dozen more guidance letters to come as the Education Department attempts to make an impact on school governance before the end of the Obama administration.
The absence of state or district resources to challenge the department’s legal interpretations is causing concern, according to Fred Balcom, the California director of special education. He stated that although they can express their disagreement, they do not have the right to take the matter to court. Balcom argues that states and districts should have a right to due process.
Sensitive Issues
Here are some examples of recent guidance in “Dear Colleague” letters that address disability issues:
– In a letter released in July, it was stated that behavior-focused treatments for children with autism should not be prioritized over other therapies they may require, such as speech and language therapy or occupational therapy.
– An April letter emphasized that school districts and other public agencies should not prevent parents from lodging complaints directly with the state regarding special education disputes. The department noted instances where districts filed due process complaints against parents who had already filed state complaints. The law requires that a due process complaint be exhausted before a state complaint can be heard.
– A joint letter from the Education Department and the U.S. Department of Justice, released in January, stated that students who are English-language learners and are suspected of having a disability should be evaluated for special education in the language that is most appropriate for their needs and language skills.
– In November 2014, a guidance letter was issued requiring school districts to comply with both the Individuals with Disabilities Education Act and Title II of the Americans with Disabilities Act in terms of supporting effective communication with students. This was a response to lawsuits filed by two hearing-impaired students in California.
– An October 2014 letter warned that a school district that fails to address bullying based on disability may be considered as denying disabled students their right to a free, appropriate public education. The letter stated that if a school is aware of or should be aware of bullying due to a student’s disability, it must take prompt and appropriate action to investigate the situation.
Additionally, the Education Department is initiating direct investigations into potential civil rights violations, which means initiating a case even if a parent or third party has not lodged a complaint.
The issue, as highlighted by Ballum and Mehfoud, is that the department and its investigators treat guidance as if it has the force of law. States and districts have limited legal recourse if they disagree with the interpretation. Mehfoud pointed out that many of these “Dear Colleague” letters are advisory only and are not regulatory, statutory, or binding. The Office for Civil Rights has been criticized for adopting strong policies without seeking public comment.
Fred Balcom expressed concerns about the lack of resources for states and districts to challenge the department’s legal interpretations. Although they can voice their disagreement, they do not have the ability to take the matter to court. Balcom argues that states and districts should have the right to due process.
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