In September of 2024, 17 states filed a lawsuit challenging gender dysphoria as a protected disability under Section 504 of the Rehabilitation Act. 29 U.S.C. § 794. However, the lawsuit challenged Section 504 broadly as unconstitutional and, at least initially, sought for the court to block enforcement of the law as a requested relief. The argument of the States in this lawsuit was that Section 504 does not come with its own funding for compliance; rather, the law places restrictions on states that they must adhere to in order to continue receiving any federal funding under any statute. The States further argued that this amounts to an unconstitutionally coercive condition on Federal spending. This type of law is unconstitutional because it gives the Federal government too much power over State actions and is contrary to federalism.

On February 20, 2025, the States walked back the argument on the constitutionality of Section 504 to the extent that it applies to the entirety of the law. The States clarified that they are not requesting the Court find Section 504 to be unconstitutional on its face, and the actual focus of the lawsuit was the addition of gender dysphoria as a recognized disability covered under the law.

Section 504 has broad-reaching effects for schools. Section 504 is a fundamental law that requires that schools do not discriminate against students with disabilities via accommodation in order to receive a Free and Appropriate Public Education (FAPE). Currently, Section 504 could provide protections for students with gender dysphoria as students with disabilities that might require accommodations (i.e., allowing a student to use a private restroom). Of course, recent changes in Ohio laws that limit the use of multi-person restrooms and other facilities might limit the accommodations that are provided. These should still be taken into consideration for eligible students.

With the recent closure of seven U.S. Department of Education Office for Civil Rights offices, including the Cleveland office, it is less clear whether and when any claims of discrimination under Section 504 might be investigated.

What does this mean for your District?

Currently, there is no telling how this will play out in the courts. Section 504 is still in effect, and nothing has changed in that regard. However, this is something to watch because while the states are no longer seeking to have Section 504 deemed unconstitutional, the argument to do so is spelled out for any future challenges.

On April 4, 2025, ODEW re-released its Special Education Model Policies with changes that were adopted with input from school board attorneys such as your team at Ennis Britton and the Ohio Council of School Board Attorneys (“OCSBA”). These changes follow the decision by ODEW to push back the deadline to adopt new policies and procedures to May 30, 2025. We appreciate the seriousness with which ODEW has sought and acted on feedback from stakeholders in refining the Model Policy.

The changes that were made to the Model Policy include removing a sentence that would have added “emerging skills” as a consideration for determining whether a student qualifies for Extended School Year (ESY) services and removing a sentence that said that would have had the effect of prohibiting reasonable cost criteria for Independent Educational Evaluations (IEEs). The latest revisions to the Model Policy bring it into alignment with the applicable law and cases governing Ohio schools.

In addition to revising the Model Policy, ODEW has also drafted revisions to the required and optional special education forms (e.g., IEP, ETR, prior written notice, etc.). The proposed revisions have been posted on the Office for Exceptional Children website, and ODEW is soliciting comments through May 23 using an online survey and through virtual sessions scheduled for April 24, May 6, May 8, and May 13 (registration required). Find the proposed forms, the survey, and virtual session registration here:

Ohio Required and Optional Forms | Ohio Department of Education and Workforce

What Does This Mean for Your District?

 ODEW was responsive to concerns raised by education stakeholders regarding the initial version of the Model Policy. This cooperation between ODEW and public education agencies is commendable and is key to insuring Ohio’s schools appropriately serve their communities and students. As ODEW solicits input on revisions to special education forms it is important for educators to advocate for appropriate revisions that ensure the forms are aligned with the law and support not just compliance, but also the effective operation of school districts.

Educational agencies are still required to adopt the model policies and procedures, or obtain approval from ODEW for alternate policies and procedures, by May 30, 2025. Especially for ESCs and CTCs, the adoption of the new policies and procedures could be interpreted as an expansion of your duties which were outlined in the changes to OAC 3301-51-05 in January.[1]

Some educational agencies may have already adopted and approved the prior version of the model policies and procedures. ODEW has stated that the adoption of the model policies and procedures prior to the update is still sufficient for their requirements. However, the meaningful changes in the revised Model Policy warrant consideration of additional action to adopt the latest revisions. Please contact your attorney at Ennis Britton if you have any questions or concerns regarding the adoption of the model policies and procedures.      

[1] See our article on the changes to OAC 3301-51-05 and the Model Policies and Procedures: https://ennisbritton.com/blog/2025/special-education-update-abrupt-changes-to-ohios-new-procedural-safeguards-rule-leave-educational-agencies-in-a-strange-place

With the release of the March 11, 2025 Organizational Chart, the Federal Administration announced the closing of six regional offices of the Office for Civil Rights, the agency designated to oversee and investigate allegations of discriminatory conduct in schools, including Section 504 complaints. The shuttered offices include the Boston, Dallas, New York City, Philadelphia, San Francisco, and the Chicago/Cleveland offices, which included the only regional office with a physical presence in Ohio. The five remaining locations are in Denver, Kansas City, Seattle, Atlanta, and Washington, DC.

With persistent concerns about the timeliness of responses from the agency under the best of circumstances, the closing of these offices can be expected to cause greater delays in the complaint resolution process.

A review of the new Organizational Chart shows significant cuts in the following offices:

• Institute of Education Sciences: Responsible for analysis of statistical data and evaluation, and funding of federal programs
• Office of Planning, Evaluation and Policy Development: Responsible for policy development, review, and implementation for the entire Department
• Office of Elementary and Secondary Education:  Responsible for “directing, coordinating and recommending policy for programs designed to help State and local educational agencies improve the achievement of preschool, elementary and secondary school students” and “support equal access to services to help every child achieve”
• Office of English Language Acquisition: Responsible for ensuring that English language learners and immigrant students attain English proficiency and achieve academic success (completely eliminated)

What this means for schools: It is yet to be seen how these drastic cuts in personnel and programming will ultimately impact the daily operations of local educational agencies. At the very least, schools should expect delays in processing and resolving complaints filed with OCR and possible changes in the level of express federal guidance on critical issues. The cuts at OCR are being challenged by 21 states in State of New York v. McMahon filed in the federal district court in Massachusetts.