OCR: Michigan Section 504 Violations During Pandemic Found

The U.S. Department of Education's Office for Civil Rights (OCR) recently determined that the Michigan Department of Education (MDE) provided guidance to school districts during the pandemic that was inconsistent with Section 504 of the Rehabilitation Act and "exacerbated and contributed to harm to students with disabilities."

In a 25-page "opportunity for a hearing" notice sent to Michigan's Assistant Attorney General on May 23, OCR stated the state violated Section 504 of the Rehabilitation Act of 1973 — a federal civil rights law that protects individuals from discrimination based on disability. OCR alleged Michigan improperly limited compensatory services for students statewide to make up for lost instructional time during the pandemic, including students attending the Michigan School for the Deaf.

Compensatory services are a non-legal remedy used to make up for delays or absences in evaluations or services caused by events such as hurricanes, student illness, or district errors. Pandemic-related school closures created conditions for some students that required compensatory services.

According to OCR's notice, information MDE provided to school districts about compensatory services for students with disabilities who have individualized education programs "was inconsistent with the requirements of Section 504 and its implementing regulations."

OCR began investigating MDE in June 2022. The investigation found that the Michigan School for the Deaf experienced a 43% reduction in instructional time during the 2019-20 and 2020-21 school years. The school is operated by MDE.

Additionally, the Michigan School for the Deaf failed to provide speech and language services to at least 29 students whose IEPs promised such services, from at least January 2021 through May 2, 2022. OCR attributed the lack of services to the school no longer having a speech and language pathologist.

OCR said the school still has not corrected its failure to provide compensatory services to students during pandemic-related school closures. MDE also has not corrected or clarified its statewide pandemic-related guidance that is inconsistent with Section 504. OCR first notified the state of its noncompliance findings in June 2023.

"We will respond to OCR's allegations. We disagree with them."

— Michael Rice, Michigan State Superintendent of Public Instruction

Typically, states and school districts enter into agreements with OCR to remedy violations found during investigations. However, OCR said Michigan "has declined to enter into a resolution agreement and has failed to achieve compliance through voluntary means."

OCR initially gave MDE 20 days from the date of the notice — until Wednesday, June 12 — to request a hearing to defend its practices. But according to the Michigan Department of Education, that deadline has been extended to July 2.

A U.S. Department of Education spokesperson said OCR does not discuss the details of current cases.

If MDE does not respond to the notice, OCR could suspend or terminate federal financial assistance to the state until it corrects the alleged noncompliance. OCR could also refer the case to the U.S. Department of Justice.

In a statement emailed to K-12 Dive on June 5, MDE wrote: "The Michigan Department of Education is steadfastly committed to providing equal educational opportunities to all students in Michigan — including students with disabilities. The department has received the notice, is reviewing it, and will respond accordingly."

At a June 11 Michigan State Board of Education meeting, State Superintendent Michael Rice told members the notice is a "pending legal matter" and said, "We will respond to OCR's allegations. We disagree with them."

Missing compensatory services

Marcie Lipsitt, a Michigan and national advocate for students with disabilities who calls herself a "non-attorney lay advocate," filed the complaint at the center of this investigation. Lipsitt frequently files OCR complaints, and she estimates she has filed about 130 complaints to school systems nationwide regarding disability rights violations during the pandemic.

"When I filed (the complaint against MDE), I didn't know that the information about the Michigan School for the Deaf would be this severe," Lipsitt said. "It makes me angry." She added: "Anyone who reads this notice and cares about children should be angry."

OCR's notice states that the Michigan School for the Deaf provided live virtual instruction for the full 2020-21 school year but shortened the instructional day to three hours. The typical instructional day for students at the school is 7.5 hours. The school calculated that, as of May 2, 2022, it owed more than 520 hours of compensatory services for missed speech and language services, with the number of students not specified.

Marcie Lipsitt calls herself a "non-attorney lay advocate."

The school provided compensatory services to 27 of the 29 students in summer 2022. But the decisions were not made by IEP teams convening to determine each student's learning and therapeutic needs; rather, they were made by two school administrators. OCR said this violated Section 504, which requires that such decisions be made on an individualized basis by people who know the student — including parents, the student when appropriate, and their teachers. A February 2022 U.S. Department of Education guidance reiterated that compensatory services decisions must be made by those most familiar with the student.

OCR also noted that the Michigan School for the Deaf lacked a social worker and a teacher of the visually impaired for several periods. The civil rights office said in the notice that it was unclear during the investigation whether the state had a Section 504 coordinator, which is required by federal law.

Pandemic-era guidance

More broadly, OCR criticized pandemic-era guidance MDE sent to school districts statewide. For example, in a November 2020 guidance and in presentations on July 30 and August 4, 2020, MDE stated that compensatory services must be provided outside the normal school day. However, OCR said there is no legal or regulatory restriction on when compensatory services can be provided.

Multiple MDE guidance documents and presentations during 2020 indicated that compensatory services were only provided when a district made an error or was found responsible for the missing or limited services. But OCR noted this is not correct. "Compensatory services are not fault-based, and a student may be entitled to compensatory services for other non-educational deficits that result from a student with a disability not receiving an appropriate evaluation or services," the OCR notice said.

Additionally, MDE guidance issued March 22, 2020, suggested that parents of students with disabilities needed to be trained to help provide instruction and services during remote learning. However, OCR said that under Section 504, it is the school district — not the parent — that is responsible for providing a free appropriate public education, as required by federal law.

No special education pandemic waivers

Michigan is not the only state that struggled with the sudden shift from in-person, individualized special education services to virtual learning models during the pandemic. In early 2020, when signs pointed to a new pandemic that could cause widespread school closures, special education professionals at the federal, state, and local levels raced to develop guidance and supports to continue serving students with disabilities who were suddenly in virtual classrooms.

While some students with disabilities thrived in remote learning, others — especially those who relied on aides and physical support — struggled to adapt to virtual school. In many cases, teachers partnered with families to keep these students engaged and learning.

At the federal level, the U.S. Department of Education issued guidance on March 21, 2020, making clear there would be no waivers of special education rules during the pandemic. Schools were still required to provide individualized special education and Section 504 services through remote instruction. However, the department said it understood that "schools may not be able to provide all services in the same manner."

Another March 2020 guidance document from the department addressed compensatory services, stating: "If a child does not receive services after an extended period, schools must make an individualized determination of whether and to what extent compensatory services are needed."

Jose Martín, a lawyer at Richards, Lindsay & Martín in Austin, Texas, which represents school districts, said providing special education services during remote learning was challenging for educators. "It was a significant burden, but under the department's compensatory guidance, districts had to bear that burden," Martín said.

There is currently no national database tracking compensatory services. A parent survey conducted in fall 2021 by the disability rights organization Council of Parent Attorneys and Advocates (COPAA) found that nationwide, fewer than one in five students with disabilities received an offer of compensatory services from their schools. The survey also found that only 23% of compensatory services decisions involved parent participation. COPAA said at the time that the survey results indicated "school districts appear to be ignoring or misinterpreting state and federal guidance on pandemic-related compensatory services."

'A major failure'

In Michigan, state Board of Education conservative member Nikki Snyder blamed Section 504 violations on decisions at the local and state levels to keep some districts in virtual learning models intermittently during the 2020-21 school year. Snyder also pointed to a lack of evaluations during pandemic school closures. She said if more students had been found eligible for special education services through evaluations, funding could have been used to support those students.

"This is a major failure," Snyder said. "I would call it the 'lost decade' of education, frankly." Going forward, she said she hopes the state reviews its federal funding and earmarks money specifically for student evaluations. Snyder also said she is concerned about how a 2023 state initiative called the Michigan Lifelong Education, Advancement, and Potential Department (MiLeap) will affect education funding. The state has said MiLeap will ensure state resources, data, and funding are focused on critical work from preschool through postsecondary education.

Others pointed to different factors — including a lack of professional development, severe staffing shortages, and the immense need to help all students catch up after virtual learning — that hindered some school districts nationwide from providing additional special education services.

Stephanie Zendler was an elementary school principal in Troy, Michigan, when the pandemic disrupted school routines in spring 2020. She is also the parent of a child with a disability. At the time, she had been a principal for about 12 years and was the school's Section 504 coordinator.

Stephanie Zendler was an elementary school principal in Troy, Michigan, when the pandemic abruptly closed schools for in-person learning.

Zendler said the biggest challenges included "child find" — the obligation of schools to identify students who may be eligible for special education or Section 504 services — and conducting initial evaluations to help determine whether a student has a disability and what their educational needs are. Although Zendler and other educators conducted home visits during virtual learning, educators were conflicted about whether evaluating students during remote learning could produce the valid data needed to determine their needs.

Zendler said state training for Section 504 coordinators was very limited. In the early days of the pandemic, she and administrators focused more on local health department guidance than on guidance from the state education agency. Zendler has since left education to care for her family and started a coaching and advocacy consulting business. But she still thinks about how "child find" could have been improved early in the pandemic. She said state, local school district, and school leadership all bear responsibility. "I still struggle with this," Zendler said. "I think part of it is that we didn't do our jobs during that time. We did other jobs, but we didn't do that part."