With new guidance, the U.S. Department of Education is putting schools on notice that they need to rethink the way they are disciplining students with disabilities.

Too often, children with disabilities are facing discipline because they do not have the support, services and modifications they need to manage their behavior and they are frequently disciplined in a discriminatory way, with consequences that are more severe than for others exhibiting similar behaviors, the Education Department said.

The wide-ranging guidance issued by the federal agency this week seeks to address these disparities by detailing schools’ responsibilities in doling out discipline for students covered by Section 504 of the Rehabilitation Act as well as the Individuals with Disabilities Education Act.

“All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline,” said Secretary of Education Miguel Cardona. “The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs — including their disability-based behavior.”

The Education Department described the package of resources — which includes guidance specific to Section 504 and IDEA, a fact sheet, a Q&A document, a guide for stakeholders and a letter from Cardona — as the “most comprehensive” it has ever released on discipline for students with disabilities. It makes clear, the agency said, that schools do not need to choose between adhering to IDEA and Section 504 and keeping both staff and students safe.

By following the procedures laid out in Section 504 to meet each student’s behavioral, social, emotional and academic needs and provide FAPE, federal officials say that many disciplinary situations can be avoided. But in cases where discipline is necessary, it must be administered in a nondiscriminatory fashion, they indicated.

Schools cannot discipline students for behaviors that are due to their disabilities in a way that would exclude the student, the guidance states, but in cases where such behavior impacts the education or safety of others, a change in placement, services or supports could be warranted. If, however, there is an immediate safety threat, schools can address the situation, including by contacting crisis intervention specialists or law enforcement, the Education Department says.

The legal requirements for schools barring discrimination against students with disabilities also apply to school contractors including police and school resource officers, according to the guidance.

Notably, the Education Department used the resources to point out that it “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.” The agency’s position is that “restraint or seclusion should not be used except in situations where a child’s behavior poses imminent danger of serious physical harm to themselves or others.”

In addition, the guidance cautions that informal removals — or situations where schools require parents to pick up their child early and other measures that limit participation without invoking formal disciplinary procedures — may violate the rights of students with disabilities.

Selene Almazan, legal director at the Council of Parent Attorneys and Advocates, or COPAA, which advocates for the rights of students with disabilities and their families, said the guidance is significant.

“There is a pressing need to protect our children at school from discrimination, including through the use of exclusionary discipline practices” like informal removals, suspensions, expulsions, seclusion and restraints, she said. “The guidance comes at an important time — where the abuse directed toward Black and brown and children with disabilities continues to rise.”

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