02 October 2020

OCR Releases Q&A for K-12 Schools Navigating the School Year in a Pandemic

The United States Department of Education’s Office for Civil Rights (“OCR”) recently released guidance as part of an effort to aid schools in prioritizing a return to in‑person learning.  Highlights of the guidance include the following:

  • Question: My school district is phasing in its return to in‑person learning.  Is it required to prioritize a return to in‑person learning for students with disabilities?
    • Answer: Yes, in certain instances, priority may be required for a student with a disability.  Any such requirement depends on a case‑by‑case determination of whether in‑person instruction (or services) would be a reasonable modification to a school district’s re‑opening plan, in view of the student’s educational and disability‑related needs.  Additionally, students with IEPs or receiving services under Section 504 who are advised to stay home for extended periods because of COVID-19 must continue to receive special education and related services.
  • Question: Does my school district need to make an accommodation for a student with a disability?
    • Answer:   In some cases, mask enforcement may interfere with FAPE.  For example, if a student with a disability has extreme sensory issues and cannot tolerate wearing a mask in school, enforcement could deny the student FAPE.  Schools must make modifications to a mask policy that both take into account the health, safety, and well-being of all students and staff and avoid discrimination on the basis of disability.
  • Question: My school district is only providing distance learning at this time.  Is it required to conduct evaluations and reevaluations under Section 504?  What about re/evaluations that need to be conducted in‑person?
    • Answer: School districts providing distance learning must continue to comply with Section 504 and the ADA, including making appropriate accommodations or modifications identified in a student’s IEP or 504 plan.  Similarly, a school district offering only distance learning is still required to conduct evaluations and reevaluations.  In cases where an in-person evaluation is not possible, schools should make good-faith efforts to conduct assessments virtually – parents and school districts can mutually to postpone Section 504 timelines, as well.
  • Question: Providing Section 504 services online is new and may be difficult.  My school district is worried a parent might not be understanding relative to the challenges we are attempting to navigate.  Can my school district require a parent to sign a waiver before the student receives online services?
    • Answer:   Parents may not be required to waive rights granted to students under Section 504 as a condition of receiving a FAPE.
  • Question: Does my school district need to keep accepting and investigating complaints made under Titles VI and IX?  For Title IX complaints, is there any flexibility in carrying out an investigation under the new regulations where we are understaffed as a result of closure and distance learning?
    • Answer: School districts must continue to accept complaints under Title IX and Title VI while providing distance learning.  The obligation to investigate Title IX complaints under the new regulations is not suspended as a result of distance learning.  Therefore, school districts should make a good-faith effort to respond to reports of sexual harassment, which would include documenting the steps the school took.

OCR has clarified that the pandemic may, in some circumstances, create good cause for reasonable, temporary delays or extensions of time frames and procedures for resolving complaints.  The guidance emphasizes that schools should promptly advise all parties of any pandemic‑related delays that are anticipated in an individual case, including the reasoning for the delay and the estimated length of the delay.

Specific questions relative to these topics or OCR guidance should be directed to legal counsel.