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�