Following the shift of K-12 and postsecondary schools to online learning in light of the COVID-19 outbreak, the US Department of Education’s Office for Civil Rights (OCR) released high-level guidance reminding schools of their anti-discrimination obligations and, in particular, their obligation to ensure online education is accessible to individuals with disabilities. The guidance also includes a short webinar on ensuring accessible online content.

OCR, together with the US Department of Justice (DOJ) in certain circumstances, has enforcement authority over most civil rights laws that apply to public and private schools, both at the K-12 and postsecondary levels, including the Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act, the Americans with Disabilities Act and Title IX. With respect to disability discrimination and accessibility, OCR and DOJ have been clear that those requirements extend to school websites and online content.

Students with disabilities

Schools must ensure equal access to educational programs for students with disabilities. That basic requirement will not be relaxed in light of the COVID-19 outbreak and indeed may become even more critical as schools move online.

Thus, in wake of school responses to COVID-19 to date, the guidance is focused on two key circumstances for schools to consider:

  1. Online delivery: Schools that move their programs and services online in response to COVID-19 need to ensure that students with disabilities can participate in programs, activities and services in the same manner as other students. Individuals with disabilities must be able to acquire the same information, engage in the same interactions and enjoy the same programs and activities as their nondisabled peers with substantially equivalent ease of use. As examples, these requirements apply to programs and services such as remote coursework or any app services, technology or other software used to provide programs and services.

While programs and services must be accessible to individuals with all types of disabilities, at a minimum, schools likely need to confirm the availability of the most common accessibility features, such as captioning video content and coursework, and confirm that screen-reader technology can be used on the school’s web content. OCR’s webinar outlines OCR’s expectations and resources with respect to online accessibility.

  1. IEP and special education services: Students who receive an individualized education program (IEP) or a Section 504 plan must continue to receive services as long as the school is open and serving other students, consistent with protecting the health and safety of the student and those providing education to the student. If feasible, responsible school personnel can determine whether alternative or additional methods, including accessible technology and distance learning, can be used to provide services. If a school district closes and does not provide any educational services to the general student population, then a school is not required to provide services to students with disabilities during the same period of time.

Denial of access on the basis of race, color or national origin

While school officials have broad authority to ensure student safety, school officials must rely on actual risk status in making such assessments. School officials cannot rely on assumptions or stereotypes related to race, color or national origin in identifying students who may be at risk for COVID-19 infection. By way of example, OCR notes that a practice of only inquiring about the recent travel of students or family members of a particular race or national origin, rather than screening students based on travel, may raise civil rights concerns.

Bullying, harassment and sexual or gender-based harassment

Any entity receiving federal funds must take appropriate and prompt action to investigate and respond to reports of bullying and harassment based on race, color, national origin or perceived disability. And as a related reminder, sexual harassment and gender-based harassment, prohibited by Title IX, can and frequently does occur in online environments. Schools should inform students moved to distance learning how to report such harassment, and schools should promptly conduct investigations in a manner as consistent with their established procedures as possible.

Nancy Anderson focuses on regulatory issues affecting higher education institutions, including compliance with federal, state and accrediting agency requirements.

Paul Thompson counsels schools and technology companies that provide services to schools on regulatory challenges in the education sector.

Posted by Cooley