Tardiness, absenteeism or “subjective” offenses like defiance or disrespect, should not result in a suspension, the guidance said. And children with disabilities removed from regular classrooms for more serious offenses, or because they could harm themselves or others, must continue to receive special education services. Officials touted the materials, including a Q&A and examples of how to provide behavior support, as the most detailed guidance on students with disabilities the department has released.

“This work is especially urgent now as our schools and our students and families continue to heal from the pandemic,” said Education Secretary Miguel Cardona. “The disruptions of the last two years have led to a sharp increase in students experiencing mental health challenges.”

Recent that despite the drop in suspensions during remote learning — and recent trends toward restorative practices — students with disabilities have been disciplined more during the pandemic than their peers without disabilities. At the same time, educators said this past school year was marked by an increase in student misconduct. According to , roughly half of schools surveyed blamed the “pandemic and its lingering effects” for increases in classroom disruptions, rowdiness and disrespectful behavior. Many students with disabilities, however, also missed out on services required by their individualized education program, or IEP, during the pandemic — services that could have mitigated behavior problems, . 

The guidance also follows a May announcement that the Office for Civil Rights will update Section 504 — a 45-year-old civil rights law meant to protect students with disabilities from discrimination. 

Students with a 504 plan don’t always qualify for special education under the Individuals with Disabilities Education Act, or IDEA. But in their comments, Cardona and Catherine Lhamon, assistant secretary for civil rights, stressed that both are subject to laws preventing discrimination.

“The department is making a statement that school districts need to provide these protections even if they have not identified students with disabilities,” said Dan Stewart, an attorney with the National Disability Rights Network. 

The documents represent the first of two parts focused on discipline. Later this summer, the department is expected to release guidance focusing on racial disparities in discipline. Some expect it to echo Obama-era guidance that many thought overreached because it threatened schools that ran afoul of the policy with a civil rights investigation. 

Tuesday’s release notes that states, under the law, must measure whether there is significant disproportionality in discipline, based on race and ethnicity, of students with disabilities, and  raises the possibility that districts could be subject to a civil rights investigation “if there is question regarding whether school districts are imposing discipline in discriminatory ways.”

Michael Petrilli, president of the conservative Thomas B. Fordham Institute and a vocal critic of the earlier guidance, said there are students who are identified as having an “emotional disturbance” because of their behavior.

“We shouldn’t be surprised if they continue to misbehave, and get suspended or expelled at higher rates,” he said, adding that any civil rights investigation of a district is a “form of punishment” and that districts might “under-discipline their students with disabilities — especially those with emotional disturbance — in order to make their statistics look better.”

But he acknowledged the new document takes a more balanced approach. “[The Office for Civil Rights] is trying to be clear that it doesn’t want schools to be hamstrung in terms of dealing with safety issues, or kids that are disrupting the learning of others.”

Selene Almazan, legal director for the Council of Parent Attorneys and Advocates, agreed, noting that the guidance doesn’t “undercut” schools’ ability to remove a student with disabilities for disciplinary reasons. 

“Schools have always had at their disposal the ability to discipline students who present an immediate danger,” she said. “I don’t think this ties their hands.”

Daniel Losen, director of the Center for Civil Rights Remedies at the University of California Los Angeles, argued that the earlier guidance, which former Education Secretary Betsy DeVos rescinded, was not an overreach. Critics, he said, “complained that any disparity would be regarded as discriminatory.”

‘Didn’t have a full understanding’

Katy Neas, deputy assistant secretary for the Office of Special Education and Rehabilitative Services, noted that over the past year of and holding listening sessions with educators and parents that staff turnover was resulting in an increase in discipline that removed students from school.

“There are so many new people in new roles that didn’t have a full understanding of what the law required,” she said, adding that the guidance should help families and schools work toward appropriate services. “Behavior is often a sign of communication when something’s not right.”

The guidance, for the first time, addresses what are known as “,” such as shortening a student’s school day, even when parents haven’t agreed to a change in the student’s special education services. A normal school day for a student with disabilities shouldn’t be any longer or shorter than it is for those without disabilities, the guidance said.

“Informal removals have been lurking in the shadows for quite some time,” Stewart said, adding that the department’s attention to the issue is a monumental step forward” and “puts districts on notice that the department is going to take these things more seriously.”

The guidance also notes that students who have been removed from school while awaiting a threat or risk assessment — a practice that schools are increasingly using to prevent violence — are still protected under IDEA. 

“Sometimes districts say, ‘You can’t come back until you get a letter from a doctor or a psychologist that says you’re OK to return,’ ” Stewart said. “That places the burden on the parent. That’s a removal. That’s an expulsion.”

Advocates also praised the guidance for making a strong statement against restraint and seclusion of students, saying that the department is “not aware of any evidence-based support for the view that the use of restraint or seclusion is an effective strategy in modifying a child’s behaviors that are related to their disability.”

And while the controversy surrounding the issue hasn’t changed, the pandemic offers up a troubling new context: Districts are reporting spikes in , violent attacks on school employees and blatant disregard for school rules.

“There is certainly a much higher level of dysregulation in our kids,” said Rico Munn, superintendent of the Aurora Public Schools in Colorado. He added that educators usually expect students to fall into a routine and follow rules by September. “We weren’t hitting that until spring break.”

The education department is expected to update its policy in two parts. One will focus on students with disabilities, who are significantly to be suspended and expelled than non-disabled students. The other will address racial gaps in discipline — a reality that persists in many districts despite over the past decade to keep students from being removed from school and often referred to police.

Advocates for students’ educational rights are eager for the department to make a strong statement against discipline that keeps students out of the classroom.

“Discipline is inherently an authoritative tool used to punish students for being what an adult has decided is disobedient,” said Denise Stile Marshall, president of the Council of Parent Attorneys and Advocates, which focuses on the rights of students with disabilities. “There is a lot of research on this, but simply put, punitive school discipline does not improve student behavior or academic achievement.”

If that sounds familiar, it’s not accidental. The person leading the department’s effort is Catherine Lhamon, assistant secretary at the Office for Civil Rights, the same position she held under President Barack Obama. Seth Galanter, who worked with Lhamon during the Obama years, has also returned to the civil rights office after four years at the National Center for Youth Law.

In 2014, the Obama administration issued a saying that schools where Black and Hispanic students were disproportionately removed for disciplinary reasons could be in violation of federal civil rights laws — even if those students misbehaved at higher rates. 

Former Education Secretary Betsy DeVos rescinded that guidance in 2018, siding with those who called the move and said it misinterpreted meant to prevent discrimination.

The Biden administration comes to the issue not only more sympathetic to the idea of restorative justice, but in the midst of a pandemic that has seen an increase in student misbehavior. One said student behavior was so “abysmal” that educators were afraid for their safety.

‘A year of disrupted schooling’ 

That’s one reason why Michael Petrilli, president of the conservative Thomas B. Fordham Institute, that the department should hold off on new guidance, arguing that districts shouldn’t have to fear a federal investigation for removing disruptive students from the classroom. 

The pandemic, he noted, was worse for low-income Black and Hispanic students, who were more likely to attend schools that had been closed longer. 

“The very same students that have more catching up to do after a year of disrupted schooling are also facing the prospect of a more challenging learning environment if schools are hesitant to remove problem students,” he wrote. 

Others say the pandemic shouldn’t interrupt the administration’s efforts to revisit the issue of bias in school discipline.

“It is always a good time to say that racial discrimination is wrong [and] that children with disabilities have the right to be alongside their non-disabled peers,” said Liz King, the senior program director for education at the Leadership Conference on Civil and Human Rights. 

She thinks the guidance should reflect showing police in schools don’t reduce gun violence but do increase suspensions, expulsion and arrests of students — especially for Black students. She wants the department to take a stand against seclusion and restraint of students and “lean in” to the rights of Black and Hispanic girls and LGBTQ students.

Black girls are five times more likely than white girls to be suspended from school at least once and four times more likely to be arrested at school. A 2016 from advocacy group GLSEN found that LGBTQ students are suspended at higher rates than non-LGBTQ students. 

‘Absolutely a dance’

The Obama-era guidance embraced so-called restorative justice practices that aim to give students a chance to build stronger relationships, work out their grievances and make amends for their actions in lieu of suspension. Twenty-one states and the District of Columbia have passed laws supporting the model, according to the at Georgetown Law School. 

on such programs was mixed, but a more from California showed restorative practices can shrink Black-white discipline disparities and are associated with higher grade point averages in high school.

But “good discipline is very expensive” and hard to implement with the “regular teacher allocation in the school,” said Elliott Duchon, former superintendent of the Jurupa Unified School District, near Los Angeles. 

His district launched a multi-year effort to reduce suspensions and expulsions after federal officials found that Hispanic students were more likely to be suspended than white students.

Los Angeles Unified’s restorative justice program costs $13 million a year, according to the district, and funding for the Oakland district’s program — considered — was almost cut until the city and private funders stepped in to pick up the cost. 

Critics of alternative discipline practices argue the Obama-era guidance created tension between teachers who make discipline referrals and administrators who send students back to class without any consequences.

“It’s absolutely a dance,” said Jacqueline Shirey, at-risk coordinator for the Beaumont Independent School District in Texas. “If we are going to say that students can’t leave, what are we doing to help the teachers?”

With that in mind, Shirey began training teachers last fall to set up “de-escalation” spaces in their classrooms — a desk with a box that includes stress balls, 500-piece puzzles and writing materials. 

“I saw a way for students to learn how to manage their own emotions before it became disruptive, and I didn’t want students to leave my classroom to do that,” she said, but added that ground rules are necessary. “If you don’t implement it with a purpose, then it really does become supplies in a corner that students can play with.”

When students returned last fall, some administrators decided it was important to take a business-as-usual approach to discipline. 

In Nashville, Hunters Lane High School Principal Susan Kessler said her teachers “enforce dress code this year and every year” and that it helps in “maintaining school culture, enforcing building security and reducing distractions in the classroom.”

Other school leaders factored in the impact of school closures on students’ behavior.

Aaron Eyler, principal at Matawan Regional High School in Aberdeen, New Jersey, brought his staff together in September for a frank conversation about what to expect when students returned. 

He told them not to worry about trying to “win the battle” against students wearing hoodies and hats. And he wasn’t surprised to see more of what he referred to as insubordination, like students wearing Airpods and being late to class. The point, he said, was to keep students from missing even more instruction.

“With … what happened last year and the lack of consistent structure,” he said, “there was no way we weren’t going to have greater instances of discipline than what we’re accustomed to in school.”

Ronn Nozoe, executive director of the National Association of Secondary School Principals, said any guidance from the department is likely to “ruffle feathers,” but he added, “You never want to tie the hands of folks who are actually doing the work.”

Special education experts say there’s wide variation in how school districts accommodate students’ needs in the classroom and that parents are often in the dark about their children’s rights under 504.

“It’s time to … make the regulations current and responsive to the experiences of students and families in schools,” Assistant Secretary for Civil Rights Catherine Lhamon said Friday, after the update was announced. “We have, over these 45 years of experience, seen ways that sometimes schools don’t understand or don’t follow the law.”

The announcement follows the department’s with the Los Angeles Unified School District to make up for services that roughly 66,000 students with disabilities missed during remote learning. The district has to determine which students were denied services and make sure parents know their children are eligible for additional support. The update, according to the department, is also part of the Biden administration’s strategy to address among young people. 

Experts in the special education field said updating the law is long overdue.

“It’s about darned time,” said Julie Weatherly, a special education attorney in Alabama who advises districts and works to resolve disputes with families over special education services. At a minimum, she said, she hopes some language in the regulation will be updated.

“The best thing that could happen would be that the word ‘handicapped’ would be removed,” she said. 

It wasn’t until 2010, when President Barack Obama signed “,” that the terms “mental retardation” and “mentally retarded individual” were replaced with “intellectual disability” and “individual with an intellectual disability” in federal law. 

Typical accommodations under 504 include letting students sit in the front of the classroom, break up assignments into shorter sections and gain exemption from physical activities. The department, Weatherly said, could update the regulations to provide more specific examples of how a disability interferes with learning or “major life activities,” as the law states.

But she said she doesn’t want to see the department add extensive documentation requirements. For students who require an individualized education program under IDEA, she said, the process is already “parent unfriendly.”

But families and advocates want to see a more standardized process for ensuring that students receive services. 

Denise Stile Marshall, CEO of the Council of Parent Attorneys and Advocates, said Section 504 is “incredibly important in terms of protecting equity and student access,” but districts sometimes “treat it like a consolation prize” if a student doesn’t qualify for special education — and might not even let the parent know accommodations are available. 

Lisa Mosko Barros, a Los Angeles parent and advocate, added that currently, districts aren’t required to involve parents in designing accommodations and that schools don’t receive additional funding for a child served under the program, as they do for special education. 

“There does not seem to be as robust a framework for accountability” as with special ed, she said, “nor does there seem to be adequate mandates around family partnership in the process.”

Advocates for students with dyslexia said they welcome the opportunity to provide comments. 

“Far too often, individuals with dyslexia are denied access to the accommodations and educational services they are entitled to,” said Megan Potente, co-state director of Decoding Dyslexia California. “Strengthening rights is absolutely critical to addressing barriers and accessing opportunities for those with dyslexia.”

Lhamon said the length of the comment period has not yet been determined, but it could be 2023 before new regulations are released.