March 17, 2020 OCR Press Release
On March 17, 2020, the Office of Civil Rights of the U.S. Department of Education issued a press release regarding online learning in the COVID-19 environment. OCR is the agency that enforces Civil Rights laws, including Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).
In this March 17, 2020 press release, OCR, “reminds decisionmakers of their responsibility in making distance learning accessible to students with disabilities, unless equally effective alternate access is provided. Online learning tools must be accessible to students with disabilities, and they must be compatible with the various forms of assistive technology that students might use to help them learn.” Assistant Secretary of Education for Civil Rights Kenneth L. Marcus also advised, “Students with disabilities must have access to educational technology utilized by schools, and OCR will continue to work to ensure that no student is excluded from utilizing these important tools.”
March 16, 2020 OCR Fact Sheet
The press release references a Fact Sheet (issued on March 16, 2020). In this fact sheet, the Office of Civil Rights recognizes that discrimination on the basis of disability (or race, color, or national origin) remains illegal discrimination—even in times of emergency. OCR further notes “Compliance with CDC’s recommendations should not create civil rights concerns.” The fact sheet also repeats the guidance issued on March 12, 2020 regarding school’s obligations to students with disabilities during this time which is outlined in this BEAR document (https://www.dropbox.com/s/t0kh9ema97xyqrh/Information%20about%20COVID-19–Letter%20from%20DOE%20of%2003-12-2020.docx?dl=0).
March 17, 2020 OCR Webinar
The press release also contains a link to a short webinar available on YouTube. In this webinar, OCR outlines the information set forth above and notes, “Anyone who believes that a recipient or educational institution has violated a federal civil rights law enforced by OCR can file a complaint at firstname.lastname@example.org.” OCR has made it patently clear that there are no excuses—none—for public schools that choose to provide educational opportunities for non-disabled students.
What Does This Mean?
The Office of Civil Rights, the agency that enforces civil rights laws, including Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), has unequivocally dismissed the idea that schools are exempt from these laws during the COVID-19 Pandemic. There are no excuses.
It is telling that OCR reiterated the March 12, 2020 guidance issued by the U.S. Department of Education, “If a school district closes its schools and does not provide any educational services to the general student population, then a school would not be required to provide services to students with disabilities during that same period of time.” OCR has given an “out” to schools that do not choose to make online learning accessible; that “out” is not providing distance education for any student. At the same time, OCR is forcefully reminding schools that, if they choose to provide online education to non-disabled students, they must ensure that students with disabilities have accessible means to effectively perform the same tasks.
Timelines for IEPs and Evaluations
Additionally, in its Fact Sheet, OCR references timelines for IEP meetings and evaluations.
OCR recognizes that IEP meetings need not be held in person, and it says nothing about schools getting timeline extensions due to school closures. These matters will likely be very case-specific, but schools that fail to hold timely IEP meetings during the COVID-19 Pandemic may find themselves out of compliance when schools, enforcement agencies, and courts reopen.
OCR recognizes that some evaluations must involve “face-to-face assessment or observation” and that delaying these evaluations until schools reopen is valid. However, OCR explicitly directs schools, “Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents.” This guidance is crystal clear.
When is Face-to-face required?
In order to assert that face-to-face assessment or observation is required for an evaluation, the school should NOT rely solely on past practices. After all, in most cases, all past instruction has taken place in a face-to-face environment. Assessments do not necessarily have to occur face-to-face now just because have been performed face-to-face in the past. Again, this will be a fact-intensive inquiry. However, schools using online learning platforms would need to describe why those would not work for the assessments needed. Parents and educators can help schools by recommending accessible online platforms like Zoom (https://zoom.us/) and learning which assessments truly require face-to-face meetings and which may be performed via distance.
Many parents and educators face school officials who are either uninformed about the law’s requirements or unconcerned about the law. Parents and educators may:
- Share these legal updates with schools (educators, administrators, etc.). If they don’t have the information, it is hard for them to act upon it. Help provide them the information they need.
- Be open and willing to negotiate. Yes, the law is clear. Unfortunately, laws take time (and, often, money) to enforce. Working together toward a common goal (like education), we can accomplish great things.
- Consider filing an OCR complaint. As noted above, OCR has explicitly welcomed complaints regarding these matters. Relevant links are found below.
- Consider completing the NFB’s Education Technology Survey: “The National Federation of the Blind is gathering information regarding the accessibility of educational technology used in our nation’s schools (kindergarten through graduate level). If you are a student, parent, teacher, or administrator who uses screen access software or other accommodations to participate nonvisually in educational programs or services, or if you are the parent, teacher, or administrator of someone who does, please complete this survey once a semester and contribute to this important research.” at https://www.nfb.org/programs-services/legal-program/education-technology-survey.
- Link to March 17, 2020 OCR Press Release: https://sites.ed.gov/idea/education-department-releases-webinar-fact-sheet-for-protecting-students-civil-rights-during-covid-19-response/
- Link to March 16, 2020 OCR Fact Sheet: https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf
- Link to March 17, 2020 OCR Webinar: https://www.youtube.com/watch?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=&v=DCMLk4cES6A
- Link to BEAR document “Information about COVID-19–Letter from DOE of 03-12-2020”: https://www.dropbox.com/s/t0kh9ema97xyqrh/Information%20about%20COVID-19–Letter%20from%20DOE%20of%2003-12-2020.docx?dl=0
- OCR Complaint links:
- Link to OCR complaint process web page: https://www2.ed.gov/about/offices/list/ocr/complaintprocess.html
- Link to OCR electronic complaint form: https://ocrcas.ed.gov/welcome-to-the-ocr-complaint-assessment-system
- Link to OCR fillable PDF complaint form: http://www2.ed.gov/about/offices/list/ocr/complaintform.pdf
- Email for OCR complaints provided in OCR webinar: email@example.com
- Link to the National Federation of the Blind’s Education Technology Survey: https://www.nfb.org/programs-services/legal-program/education-technology-survey