June 23, 2017 – In our June 16, 2017, Legal Update, we mentioned President Trump’s recent Executive Order on Enforcing the Regulatory Reform Agenda. The Executive Order directs Education Secretary Betsy DeVos to conduct a review of the Department of Education’s regulations and guidance documents and determine whether the Department of Education has overreached its authority on education issues in K-12 schools. The Executive Order authorizes Secretary DeVos to rescind or revise any regulations or guidance documents that are inconsistent with federal statutes.

In accordance with the Executive Order, the Department of Education began soliciting input from stakeholders yesterday regarding regulations or guidance documents that may be appropriate for repeal, replacement, or modification. The Department is “particularly interested in receiving feedback on regulatory provisions that you find unduly costly or unnecessarily burdensome.”

For example, given the recent U.S. Supreme Court decision in Fry v. Napoleon, many feel that the regulations implementing Section 504 of the Rehabilitation Act, including the FAPE requirement, should be reviewed and reconsidered. As we have seen in Fry and subsequent court decisions interpreting Fry, the overlap and potentially conflicting requirements of Section 504 and the IDEA may lead to increased liability for school districts.

School districts should consider whether they would like to provide the Department of Education with input regarding regulations or guidance documents that should be repealed, replaced, or modified. Comments must be submitted to the Department within 60 days. If you would like assistance in preparing comments and suggestions to submit to the Department of Education, please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, Gary Ruesch at gruesch@buelowvetter.com or 262-364-0263, or your Buelow Vetter Attorney.