In a joint Dear Colleague Letter the Office for Civil Rights (OCR) and the Department of Justice (DOJ) have advised residential juvenile justice facilities receiving federal finds that they must comply with the discipline procedures that apply to students with disabilities under Section 504 ( Dear Colleague Letter, 114 LRP 51901 (OCR/DOJ 12/08/14).
The letter reminds these facilities that they must comply with federal anti-discrimination laws, including Section 504 and Title II of the ADA, when disciplining , evaluating, placing, and responding to harassment claims of students with disabilities:
” All public schools, including schools serving students in juvenile justice facilities, are obligated to avoid and redress discrimination in the administration of school discipline,” …To that end, they must ensure that they comply with provisions governing the disciplinary removal of students for misconduct caused by, or related to, a student’s disability.” Additionally, “…under Title II, State and local juvenile justice residential facilities must implement reasonable modifications to their policies, practices, or procedures to ensure that youth with disabilities are not placed in solitary confinement or other restrictive security programs because of their disability-related behaviors.”
Specifically, this means that residential juvenile justice facilities may not subject students with disabilities to disciplinary changes of placement for disability-related conduct. This is true regardless of the severity of the conduct and perceived safety concerns. Unless the student possessed a weapon or drugs or inflicted serious bodily injury, the facility must conduct a manifestation review (MDR) if the facility intends to remove the student to solitary confinement or another more restrictive setting for more than 10 school days. If the student’s conduct is determined to be a manifestation of his disability, the facility in most cases must return hime to his previous setting.
Moreover, the letter advises these facilities that they have an obligation to investigate disability-based claims for harassment.
“When a responsible employee of a recipient knows or reasonably should know of possible harassment on the basis of race, color, national origin, sex, or disability, the recipient must take immediate and appropriate steps to investigate or otherwise determine what occurred,” and ” …where the employee knows or has reason to know that a hostile environment has been created, the facility must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”
Finally, OCR and DOJ advised juvenile justice residential facilities that residents with disabilities with disabilities must be educated with students without disabilities to the maximum extent appropriate and they must comply with Title II’s “effective communication” requirements for students
with hearing, vision, and speech impairments.