Nationwide School Closures
With the exponential rise of COVID-19 positive cases throughout the United States, schools have found themselves in unmarked, formidable territory. One-by-one, states implemented preventative measures via temporary school closures in efforts to “flatten the curve.” As of mid-May, 48 states, four United States territories, and the District of Columbia closed schools for the remainder of the academic year.
Remote Learning: Beneficial for All?
In response to states’ actions, school districts provided remote learning for students. While e-learning platforms prove useful for a majority of students, remote learning remains a challenge for students with special needs, and potentially runs contrary to federal disability laws, like the Individuals with Disabilities Education Act (IDEA).
The IDEA is a federal law that affords eligible children with disabilities access to free appropriate public education (FAPE). In efforts to ensure the IDEA is enforced during shelter-in-place orders, U.S. Secretary of Education Betsy DeVos published a supplemental fact sheet on accessibility and distance learning options for children with disabilities. The U.S. Department of Education emphasized that ensuring compliance with the IDEA “should not prevent any school from offering education programs through distance instruction.”
The Department further stated that Individualized Education Program (IEP) teams–who design a student’s unique special education program–“must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”
‘Limited Flexibility’
Educational compensatory services are given to students with disabilities when an educational agency fails to provide FAPE and IEP goals are missed. Examples of compensatory services include academic tutoring and occupational therapy. Once re-open, schools will be responsible for providing such services to eligible students. Uncertainty clouding both when and how schools will “resume normal operations” may complicate administering compensatory services.
On March 27, President Trump signed the federal coronavirus stimulus relief package into law to alleviate public health and economic impacts from COVID-19. Among other relief, the package gave Secretary DeVos waiver authority from federal mandates to grant schools with “limited flexibility.”
Such “flexibility” could lead to lax state and district measures for ensuring proper accommodations are made for students with disabilities. These measures could leave students with disabilities little opportunity to advocate for their education and ultimately, themselves.
Are IDEA Waivers Necessary?
“NO ADDITIONAL waivers are necessary under either the IDEA or the Rehabilitation Act.”
In an April 3 letter submitted to Secretary DeVos, over 70 members of the Consortium for Citizens with Disabilities (CCD) Education Taskforce and allies affirmed their conviction against implementing IDEA waivers. The advocates believed because the IDEA already offers flexibility for solutions to remote learning, civil rights protections for students with disabilities should not be sacrificed.
The disability advocates pushed for the Department of Education to enforce four principles that Congress must uphold:
(1) Local educational agencies must continue providing FAPE
(2) Parents must be involved in IEP decisions
(3) Parents retain due process rights
(4) Federal education fund use must adhere to the IDEA and other civil rights laws
Practical Applications in Lieu of IDEA Waivers
How then can the Department of Education practically enforce these principles? The letter suggested that FAPE under current circumstances may indicate virtual one-on-one instruction. It may also mean providing students with materials containing language-specific instructions for families.
Shelter-in-place orders should also not hinder parent participation. CCD stated that remote communication between parents and teachers had already been occurring prior to shelter-in-place orders. Therefore, virtual communication is practical and should be even more encouraged today. CCD further emphasized parents’ vital role in the decision-making process of their child’s education.
Parents’ due process rights can remain intact through frequent collaboration and communication between parents and schools. CCD emphasized the importance of such joint efforts to proactively address service provision and accessibility issues.
In place of issuing waivers, CCD recommended Congress provide sufficient funding to school districts in order to support special education during the global pandemic.
‘No Reason’ to Waive Core Tenets of the IDEA
In the April 27 report to Congress, Secretary DeVos stated the Department of Education was “not requesting waiver authority for any of the core tenets of the IDEA.” The Secretary found “no reason that a student’s access to FAPE cannot continue online, through distance education or other alternative strategies.” Some limited waivers to sections of the IDEA were recommended, including deadline extension for assessing children transitioning from early intervention to preschool programs.
While many disability advocates and civil rights groups were pleased by Secretary DeVos’ recommendations, others were not.
Chicago Teachers Union Sharply Responds
On May 19, the Chicago Teachers Union (CTU) filed a complaint for injunctive relief against Secretary DeVos, the Department of Education, and the Chicago Board of Education. CTU contended the defendants’ handling of special education during the pandemic was inadequate. In response to Secretary DeVos’ recommendations, the Chicago Board of Education issued a directive that would require a “whole scale redrafting” of roughly 60,000 IEP and Section 504 plans. CTU asserted the directive would place “an impossible burden to carry out in the roughly six weeks left in the school year.”
On June 19, a federal judge denied CTU’s request for a preliminary injunction. While denying injunctive relief, the court commended teachers for their work in trying circumstances: “Along with the parents and guardians of their young charges, these public servants are the boots on the ground, so to speak, in the effort to ensure that our more vulnerable students continue to receive the education to which they are entitled. They too deserve the recognition—and gratitude—of society.”
The Question Remains
As plans for returning to in-person schooling or continuing remote instruction for the fall semester are being made across the country, the question remains: what decision will be in the best interests of children with disabilities and their education amidst a global pandemic?
Carrie Park is a law student at Loyola University Chicago and wrote this blog post as part of the Education Law Practicum.
