Jacqueline Brown

Associate Editor

Loyola University Chicago School of Law, JD 2022

The incoming Biden administration includes Dr. Miguel Cardona as the new Secretary of Education. Advocates for students with disabilities recently met with Dr. Cardona to voice concerns about issues ranging from school discipline to the effects of the COVID-19 pandemic on special education services. In this meeting, Cardona stressed the importance of inclusivity in public schools and the need to promote the rights of people with disabilities, as well as to increase civil rights law enforcement by Office of Civil Rights (“OCR”). Providing a “free appropriate public education” or FAPE during this time came with tremendous costs to budgets and other burdens for school administrators who, in “good faith” tried to meet these standards. However, after the DOE initiated four investigations in the past month over concerns districts nationwide have failed to provide appropriate services to students with disabilities during the coronavirus pandemic. These investigations will be one of the first tasks Dr. Cardona will take on as Secretary of Education.

The alleged violations of FAPE

In the final weeks of the Trump administration, the OCR launched four investigations in the past month looking at the Indiana Department of Education, the Seattle Public Schools, the Los Angeles Unified School District and the Fairfax County Public Schools in Virginia. DOE officials announced they initiated these investigations to examine “possible discrimination against students with disabilities by failing to provide them with a FAPE during the COVID-19 pandemic.” The Individuals with Disabilities Education Act (“IDEA”) guarantees eligible students with disabilities FAPE. The Act also provides the right for parents to file a complaint through a due process hearing for when they believe their child is not being provided with a FAPE.

Typically, the Department of Education’s OCR conducts investigations that are initiated by complaints. Although here, the OCR has initiated its own “directed investigation” to address possible discrimination that is not currently being addressed through an OCR’s complaint. It is believed that the investigations in Seattle were triggered by the OCR after there were on “disturbing reports” about how the district handled special education during the pandemic in local news media. In a letter written by the DOE’s acting Assistant Secretary for Civil Rights Kimberly M. Richey explained the “district told its special education teachers ‘not to deliver specially designed instruction,’ and disallowed them from ‘adapt(ing) lessons to each child’s needs.’” This is clearly a violation of the IDEA which provides for students to receive an Individualized Education Plan or IEP that, under case law, must be “specifically designed to meet the child’s unique needs.”

Similar to Seattle, in Indiana, the OCR was notified of these violations from reports that parents of students with disabilities had brought multiple complaints to the state about schools forcing kids into “one size fits all” remote learning rather than programs tailored to their individual needs. The investigation in Virginia stemmed from a parent of a second-grade student who has a rare developmental disability, after she filed a special education complaint under the IDEA Act with the Virginia Department of Education claiming that her daughter did not have access to a FAPE during remote learning.

Will the OCR initiate more investigations?

At the start of the pandemic, the U.S. Department of Education under Betsy DeVos and the Trump Administration directed that school districts “must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services in the student’s IEP [or 504 plan].” This means there were no general exceptions or waivers to the IDEA and FAPE requirements during physical school closures caused by the pandemic. However, many teachers and school administrators addressed concern amid the pandemic that many of the IDEA mandates were no longer tenable in remote learning. Many districts continue to be faced with finding creative ways to ensure students with disabilities are being provided a FAPE as they transition into hybrid or full remote models during the 2020-21 school year.

It is a mystery to see how the Biden administration will handle these investigations going forward. Special Education Attorney, Tom Blessing, said the federal investigations should send a message to other school districts as well. Considering the challenges the pandemic caused for school districts nationwide, its likely there were more violations of the IDEA that have been overlooked so far. It is still up in the air whether the Biden Administration intends to initiate more proactive investigations related to special education during the pandemic on top of all the individual complaints with the OCR that were already filed.