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In the States: A Look at FAPE and Faith-based Schools

The new “In the States” feature by Kaitlyn Brennan is a weekly update to keep members informed on state-level activities impacting the education and educator preparation community.

OCR Enters Resolution Agreement with Virginia’s Southeastern Cooperative Educational Programs (SECEP) Regarding the use of Restraint and Seclusion

On Friday, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that the Southeastern Cooperative Educational Programs (SECEP) in Virginia entered into a resolution agreement regarding the use of restraint and seclusion and the provision of a free appropriate public education (FAPE) to students with disabilities. OCR identified concerns that SECEP may have denied FAPE to students with disabilities when it did not reevaluate students after multiple incidents of restraint and seclusion and when students missed significant instructional time.

SECEP’s commitments to resolve the compliance review include the following: 

  • Formalizing its policy and procedures on the use of restraint and
  • Modifying its recordkeeping system.
  • Training staff on SECEP’s revised policy and procedures and new recordkeeping system.
  • Reviewing files of currently enrolled students who were restrained and secluded since the start of the 2016-2017 school year to determine, in part, whether any student requires compensatory education for educational services missed due to incidents of restraint and  
  • Developing and implementing an internal assessment tool to monitor and oversee SECEP’s use of restraint

In a statement Assistant Secretary for Civil Rights Catherine E. Lhamon said:  “I thank SECEP for its commitment to reviewing the use of restraint and seclusion in its program, including reviewing the educational needs of students with disabilities, to ensure that SECEP is providing services that address those needs.”

Read the letter to SECEP and the resolution agreement.

Oklahoma Takes Significant Step Towards Allowing Taxpayer Funded Religious Schools

This month, Oklahoma’s departing Attorney General John O’Connor and Solicitor General Zach West, presented a non-binding legal opinion that suggests a state law which prevents religious institutions and private sectarian schools from public charter school programs is likely unconstitutional and thus should not be enforced. Oklahoma Republican Gov. Kevin Stitt said the advisory opinion “rightfully defends parents, education freedom, and religious liberty in Oklahoma.” Newly-elected state Superintendent Ryan Walters called it “the right decision for Oklahomans.”

The looming decisions and subsequent court battles will likely set the stage for constitutional debates surrounding the line between church and state. Derek Black, education and civil rights professor at the University of South Carolina School of Law, said in a recent interview:

It is a whole other ballgame for the state to instruct children on religious doctrine and teach it as truth…That’s what we’re talking about here: State dollars in public schools, delivering instruction to children preaching religion as a way of life that must be adhered to. That’s staggering.”

 The opinion relied on three U.S. Supreme Court cases involving religious institutions: Carson v. Makin in 2022, Espinoza v. Montana Department of Revenue in 2020, and Trinity Lutheran Church of Columbia v. Comer in 2017. The opinion references the high court stating:

“We do not believe the U.S. Supreme Court would accept the argument that, because charter schools are considered public for various purposes, that a state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools in accordance with their faith alongside other private participants.”

 The next step will be to see if faith-based Oklahoma institutions successfully apply for taxpayer funded support to create charter schools that teach religion and if the state legislature will pass this in law. Early analysis suggest that other Republican-led states could present similar opinions.

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