Jacqueline Brown
Associate Editor
Loyola University Chicago School of Law, JD 2022
Preparing for the 2020-21 school year has been exceptionally challenging for students, teachers, and administrators than in years past. This year, not only will schools be battling the challenges presented in the return to in-person learning, there is also a growing concern that school districts and educational service agencies will face unparalleled rates of litigation for their inability to meet requirements under the Individuals with Disabilities in Education Act (IDEA) during the months of remote learning. The IDEA guarantees eligible students with disabilities a “free appropriate public education” (FAPE). This 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.
Regardless of the instructional delivery model, school districts remain responsible for providing a FAPE to students with disabilities through the IDEA. However, during the unprecedented pandemic, providing FAPE came with tremendous costs to budgets and other burdens for school administrators who, in “good faith” tried to meet these standards. Teachers and school administrators have complained that many of the IDEA mandates are 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 models for the upcoming school year.
How will increased litigation will affect your student?
The expected litigation mainly concerns the school’s inability to provide education services required by student’s individualized education programs (IEPs) during remote learning. This includes complaints of insufficient services (an IDEA violation), and parents’ requests for compensatory education (a remedy for IDEA violations). In a survey from July, the National School Boards Association and the Association of Educational Service Agencies (AASA) said nine percent of the respondents have received due process complaints related to the pandemic. In addition, 30 % of school districts and 38 % of the regional agencies said they were expecting complaints. As of July, parents in fewer than 10 states have filed formal complaints with their state departments of education or individual school districts. Experts believe the legal landscape will spike when classes resume in the fall, especially if schools still cannot deliver compensatory services as a remedy for the services students missed for months.
School administrators are worried that the IDEA litigation may exacerbate the financial budget situation of districts. When asked in a survey how much school districts typically budget for a single special education litigation, almost one in four indicated they would budget $50,000 or more. In the case of compensatory education services, school districts assume all costs of providing this type of education. Some districts have announced that they are already being sued, and they expect litigation costs to further strain budgets when many were already facing cuts. These expenses could result in cutting general and special educational programs, reducing faculty, and the shortening of teaching time. These cases can be extremely monetarily consuming but also time-consuming. Typically, these legal proceedings require staff, administrators, and related service providers to spend more time preparing for litigation instead of actually working with the child to complete services and aiding the student with disabilities.
What do the outcomes look like?
Due to the concern regarding the surge of special education litigation, school administrators are asking federal lawmakers to grant them liability protections related to their obligations under IDEA. However, U.S. Education Secretary Betsy DeVos requested Congress not grant any “waiver authority for any of the core tenets of the IDEA.” DeVos recommended only minor administrative tweaks. She also announced that special education law (mainly the IDEA) should not stand in the way of the shift to online learning, and that students who missed out on therapies, for example, should be re-evaluated in the fall and receive “compensatory services,” if necessary. DeVos’ recommendations came as a surprise to many parents and disability advocate groups who worried she would repeal key protections for students with disabilities and give schools cover to stop providing even basic services.
If parents do decide to initiate litigation, the safeguards of the IDEA, meaning the ability to file lawsuits and have due process hearings, are still in place. But experts worry that the courts will interpret them a lot differently under these extenuating circumstances. Considering that the IDEA is a federal law, at the state-level, it is not likely we will see flexibility in the waiver of its requirements. However, for a pertaining topic like compensatory education, it is not addressed in either the United States Code (the IDEA), the Code of Federal Regulations, or state statutes and regulations. It is strictly a creation of and developed by case law. That being said, the right of compensatory education, in light of the current pandemic, could be taken away by the courts, in light of the circumstances.