On November 15, 2018, when the OCR released new proposed Title IX regulations, we were pleased to see that many of our opinions influenced Question 5, which deals with the proposed section on Emergency Removal. This section provides guidance for how educational institutions should handle emergency removals of students in Title IX sexual misconduct cases. While the proposed regulation states that it is not intended to conflict with the Individuals with Disabilities Act (IDEA), we saw potential conflicts and submitted comments to OCR during the formal public comment period.
In a Title IX claim, there are host of complex challenges when it comes to emergency removals of students with disabilities. Complainants may lobby to have a respondent removed from the educational environment, but depending upon the age and disabilities of the accused students, the school cannot do so without running afoul of IDEA, Section 504 and the ADA.
Why Emergency Removals Can Conflict with IDEA
Emergency removal of students in grade school who are receiving special education and related services are governed by IDEA. Under federal law, students with disabilities cannot be removed on an emergency basis for more than 10 consecutive school days without the removal being considered a change of placement for the student. This means that a school administrator cannot take it upon themselves to make a unilateral risk assessment and remove students for as long as the administrator wishes.
In fact, placement decisions cannot be made by an administrator alone. These decisions must be made by a child study team that includes the parent and relevant members of the Individualized Education Program (IEP) Team. For removals that last 10 days or more, the IEP Team must conduct a manifestation determination. If a targeted behavior was a manifestation of a disability, a functional behavioral assessment must be conducted to create a behavioral intervention plan. More specifically, if the conduct in question was a manifestation of a disability, the recipient cannot just make a unilateral threat assessment and remove children from school. The only exceptions to this general rule are when drugs, weapons or serious bodily injury occurs. Absent those extreme circumstances, if a manifestation determination is made, children have a right to remain in the general education setting and to receive the services set out in the IEP.
Why Emergency Removals Can Conflict with Section 504 and the ADA
Section 504 and the ADA require that students with disabilities receive accommodations in school and prohibit discrimination. Sometimes certain behaviors are the result of a disability, despite being sexually offensive. Examples can include the following scenarios: a student with Tourette’s syndrome blurting out sexually offensive language; a student with an emotional disorder losing his or her temper in class and striking another student; or a student with autism soliciting sexual contact with another student, regardless of the student’s age. Schools cannot just remove those students from school. Children with Tourette’s needs accommodating as they cannot control neurological outbursts. Emotionally disturbed students might need a safe space to regain composure. Students with autism might require one-on-one aides.
Accommodations must be tailored to students and their corresponding disabilities. Proposed Section 106.44(C) oversimplifies how schools respond to and manage the misconduct of students with disabilities. Removals are not as simple as making a snap judgment that accused students should be removed from school.
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