Tardiness, absenteeism or 鈥渟ubjective鈥� 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.

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

Recent that despite the drop in suspensions during remote learning 鈥� and recent trends toward restorative practices 鈥� 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 鈥減andemic and its lingering effects鈥� 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 鈥� services that could have mitigated behavior problems, . 

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

Students with a 504 plan don鈥檛 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.

鈥淭he department is making a statement that school districts need to provide these protections even if they have not identified students with disabilities,鈥� 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鈥檚 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 鈥渋f there is question regarding whether school districts are imposing discipline in discriminatory ways.鈥�

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 鈥渆motional disturbance鈥� because of their behavior.

鈥淲e shouldn’t be surprised if they continue to misbehave, and get suspended or expelled at higher rates,鈥� he said, adding that any civil rights investigation of a district is a 鈥渇orm of punishment鈥� and that districts might 鈥渦nder-discipline their students with disabilities 鈥� especially those with emotional disturbance 鈥� in order to make their statistics look better.鈥�

But he acknowledged the new document takes a more balanced approach. 鈥淸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.鈥�

Selene Almazan, legal director for the Council of Parent Attorneys and Advocates, agreed, noting that the guidance doesn鈥檛 鈥渦ndercut鈥� schools鈥� ability to remove a student with disabilities for disciplinary reasons. 

鈥淪chools have always had at their disposal the ability to discipline students who present an immediate danger,鈥� she said. 鈥淚 don鈥檛 think this ties their hands.鈥�

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, 鈥渃omplained that any disparity would be regarded as discriminatory.鈥�

鈥楧idn鈥檛 have a full understanding鈥�

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.

鈥淭here are so many new people in new roles that didn鈥檛 have a full understanding of what the law required,鈥� she said, adding that the guidance should help families and schools work toward appropriate services. 鈥淏ehavior is often a sign of communication when something鈥檚 not right.鈥�

The guidance, for the first time, addresses what are known as 鈥�,鈥� such as shortening a student鈥檚 school day, even when parents haven鈥檛 agreed to a change in the student鈥檚 special education services. A normal school day for a student with disabilities shouldn鈥檛 be any longer or shorter than it is for those without disabilities, the guidance said.

鈥淚nformal removals have been lurking in the shadows for quite some time,鈥� Stewart said, adding that the department鈥檚 attention to the issue is a monumental step forward鈥� and 鈥減uts districts on notice that the department is going to take these things more seriously.鈥�

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

鈥淪ometimes districts say, 鈥榊ou can’t come back until you get a letter from a doctor or a psychologist that says you鈥檙e OK to return,鈥� 鈥� Stewart said. 鈥淭hat places the burden on the parent. That鈥檚 a removal. That鈥檚 an expulsion.鈥�

Advocates also praised the guidance for making a strong statement against restraint and seclusion of students, saying that the department is 鈥渘ot aware of any evidence-based support for the view that the use of restraint or seclusion is an effective strategy in modifying a child鈥檚 behaviors that are related to their disability.鈥�

And while the controversy surrounding the issue hasn鈥檛 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.

鈥淭here is certainly a much higher level of dysregulation in our kids,鈥� 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. 鈥淲e weren鈥檛 hitting that until spring break.鈥�

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

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

If that sounds familiar, it鈥檚 not accidental. The person leading the department鈥檚 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 鈥� 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 鈥渁bysmal鈥� that educators were afraid for their safety.

鈥楢 year of disrupted schooling鈥� 

That鈥檚 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鈥檛 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. 

鈥淭he 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,鈥� he wrote. 

Others say the pandemic shouldn鈥檛 interrupt the administration鈥檚 efforts to revisit the issue of bias in school discipline.

鈥淚t 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,鈥� 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鈥檛 reduce gun violence but do increase suspensions, expulsion and arrests of students 鈥� especially for Black students. She wants the department to take a stand against seclusion and restraint of students and 鈥渓ean 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. 

鈥楢bsolutely a dance鈥�

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 鈥済ood discipline is very expensive鈥� and hard to implement with the 鈥渞egular teacher allocation in the school,鈥� 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鈥檚 restorative justice program costs $13 million a year, according to the district, and funding for the Oakland district鈥檚 program 鈥� considered 鈥� 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.

鈥淚t鈥檚 absolutely a dance,鈥� said Jacqueline Shirey, at-risk coordinator for the Beaumont Independent School District in Texas. 鈥淚f we are going to say that students can鈥檛 leave, what are we doing to help the teachers?鈥�

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

鈥淚 saw a way for students to learn how to manage their own emotions before it became disruptive, and I didn鈥檛 want students to leave my classroom to do that,鈥� she said, but added that ground rules are necessary. 鈥淚f you don鈥檛 implement it with a purpose, then it really does become supplies in a corner that students can play with.鈥�

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 鈥渆nforce dress code this year and every year鈥� and that it helps in 鈥渕aintaining school culture, enforcing building security and reducing distractions in the classroom.鈥�

Other school leaders factored in the impact of school closures on students鈥� 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 鈥渨in the battle鈥� against students wearing hoodies and hats. And he wasn鈥檛 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.

鈥淲ith 鈥� what happened last year and the lack of consistent structure,鈥� he said, 鈥渢here was no way we weren鈥檛 going to have greater instances of discipline than what we鈥檙e accustomed to in school.鈥�

Ronn Nozoe, executive director of the National Association of Secondary School Principals, said any guidance from the department is likely to 鈥渞uffle feathers,鈥� but he added, 鈥淵ou never want to tie the hands of folks who are actually doing the work.鈥�

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

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

The announcement follows the department鈥檚 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鈥檚 strategy to address among young people. 

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

鈥淚t鈥檚 about darned time,鈥� 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.

鈥淭he best thing that could happen would be that the word ‘handicapped’ would be removed,鈥� she said. 

It wasn鈥檛 until 2010, when President Barack Obama signed 鈥�,鈥� 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 鈥渕ajor life activities,鈥� as the law states.

But she said she doesn鈥檛 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 鈥減arent unfriendly.鈥�

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 鈥渋ncredibly important in terms of protecting equity and student access,鈥� but districts sometimes 鈥渢reat it like a consolation prize鈥� if a student doesn鈥檛 qualify for special education 鈥� 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鈥檛 required to involve parents in designing accommodations and that schools don鈥檛 receive additional funding for a child served under the program, as they do for special education.聽

鈥淭here does not seem to be as robust a framework for accountability鈥� as with special ed, she said, 鈥渘or does there seem to be adequate mandates around family partnership in the process.鈥�

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

鈥淔ar too often, individuals with dyslexia are denied access to the accommodations and educational services they are entitled to,鈥� said Megan Potente, co-state director of Decoding Dyslexia California. 鈥淪trengthening rights is absolutely critical to addressing barriers and accessing opportunities for those with dyslexia.鈥�

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