Dear Colleagues:

While Congress is on an extended recess leading in to the mid-term elections, work behind the scenes continues. Washington Update typically breaks with Congress, but you can expect to see updates coming to your inbox leading up to the mid-terms.

1. Democratic Senators Urge Department of Education to Prohibit “Informal Removal” as a Form of Discipline in Section 504 Updates

This week Democratic Senators Dick Durbin (D-IL) and Tammy Duckworth (D-IL) sent a letter  to the Office for Civil Rights Secretary Catherine Lhamon, urging the Department of Education to prohibit “informal removal” as a form of discipline in its rulemaking to update Section 504 of the Rehabilitation Act of 1973.

“Informal removals not only restrict children’s personal growth and decrease their likelihood of graduating, but they also are discriminatory.4 Federal and state laws and regulations, including Section 504, were intended to eliminate the segregation of students with disabilities. A student with a disability has a right to FAPE under Section 504, which requires that a student with a disability receive education and related services and supports that are designed to meet the student’s needs as adequately as the needs of nondisabled students.5 Section 504 also requires due process protections, inclusive learning environments, and nondiscrimination in programs and activities that receive federal funding, including schools.6 The denial of such protections through the practice of informal removals is concerning to us and must be addressed by the Department. “

The Senators want the Department to do two things in the regulation: Define informal removal and list it as a form of prohibited discriminatory action. The slated updates to the regulations of Section 504 will be the first update in 45 years.

2. Office of Special Education Programs (OSEP) sends memo to State Directors of Special Education focused on the personnel qualifications under Part B IDEA

Last week, the U.S. Department of Education’s (Department) Office of Special Education Programs (OSEP) sent a memo to State Directors of Special Education focused on the personnel qualifications under Part B of the Individuals with Disabilities Education Act (IDEA).

In the memo, OSEP Director, Valerie Williams writes:

“The U.S. Department of Education’s (Department) Office of Special Education Programs (OSEP) is committed to supporting States in the provision of a free appropriate public education (FAPE) to all children with disabilities. FAPE includes the provision of special education and related services that meet the requirements of IDEA Part B, which includes ensuring that special education teachers and related services providers are appropriately and adequately prepared and trained. This memo is intended to clarify States’ obligations regarding the IDEA Part B requirements related to personnel qualifications and alternate certifications. Based on media reports and discussions with States and advocates, OSEP is aware that some States currently have policies and procedures in place that may not be consistent with IDEA requirements. OSEP also recognizes that States are facing many challenges caused by the COVID-19 pandemic, including the impact it has had on exacerbating the shortage of special education teachers and related services providers across the country. Thus, OSEP believes it is critical to ensure that State educational agencies (SEAs) fully understand the IDEA requirements related to personnel qualifications and alternate certifications and are aware of available resources to support their efforts to meet them.”

The memo comes as states are increasingly turning to long term substitutes to fill special education teacher vacancies; some with only a high school diploma and most with no teacher training at all. Even prior to the pandemic, over 25,000 special education teaching positions were filled by individuals who were not fully qualified for those positions. In the state of Nevada 20.44% of those serving as special education teachers were not fully qualified; in Louisiana 18% and in Oklahoma 15% were not fully qualified; in Texas 5800 individuals serving as special education teachers were not fully qualified to do so.

3. U.S. Supreme Court Agrees to Hear Case Surrounding Students with Disabilities

Last week, the U.S. Supreme Court agreed to hear a case  stemming from a school district’s denial of services to a deaf child that could lead to significant changes in lawsuits against school districts on behalf of children with disabilities.

The Perez family in 2017 filed a due-process complaint with the Michigan Department of Education based on the IDEA, the ADA, and other statutes. The school district offered to settle the IDEA complaint, and the family agreed. The settlement agreement included the district agreeing to place Perez in the Michigan School for the Deaf and pay for postsecondary compensatory education and sign-language services. Following the agreement, he family then sued the district in federal district court under the ADA, seeking unspecified money damages among other relief. The school district argued that the Perez family could not file the suit because they had not exhausted all administrative proceedings under IDEA- and the U.S. Court of Appeals for the 6th Circuit agreed with the district. The Perez family then appealed and the U.S. solicitor general recommended the court grant review.

The case raises two questions the first is whether the Individuals with Disabilities Education Act requires families who have settled their particular IDEA claims with a school district to “exhaust” all administrative proceedings under the that law before filing a claim under the Americans with Disabilities Act of 1990. The second is whether a family must exhaust IDEA’s own administrative proceedings when it is pursuing a non-IDEA claim for money damages under the ADA or other federal disability laws.

Arguments in the case will likely be held early in 2023, with a decision expected by next June.

4. AACTE Webinar: The State of Education Censorship in Institutions of Higher Education an Implications for the Field.

On October 25th AACTE will host a public webinar based on the findings of new report : The State of Education Censorship in Institutions of Higher Education an Implications for the Field. AACTE President and CEO Lynn M. Gangone will moderate the session as Dr. Ashley White, author of the report; and Dr. Kimber Wilkerson, associate dean for teacher education at the University of Wisconsin-Madison School of Education, will lead the audience in deep dive conversations about challenges facing faculty, educator preparation faculty specifically; as well as potential long-term effects this crisis could have on teacher shortages and diversification pipeline efforts. You can read more about the webinar and register here.

5. In the States: Shortage Showcase: North Carolina Teacher Shortage

According to data from the North Carolina School Superintendents’ Association (NCSSA), North Carolina’s public schools started the year with at least 4,469 teacher vacancies. The same NCSSA survey reports that the number of teachers on provisional emergency licenses has nearly doubled, increasing from 1,942 to 3,618. North Carolina’s Justice Center’s Education and Law Project highlighted decisions from the North Carolina state General Assembly as one of the primary causes of the shortage- specifically noting that the state’s “attack” on educators is reflected in teacher salaries across the state . As reported in NC Policy Watch, North Carolina teachers’ salaries are 19% below the national average.

6. New Resources for Educators

  • The Learning Policy Institute released a new report; Pushed Out: Trends and Disparities in Out-of-School Suspension.
  • ACT released the class of 2022’s college entrance exam data with the average composite score on the ACT coming in at 19.8, marking the lowest average score in more than three decades.

Wishing you all a fantastic, fall weekend.

Until next time, see you on Twitter!