Special Education During Remote Learning: What Are My Child’s Rights?, by Kate Cronk

Posted on December 18, 2020 by Jennifer Babisak

It is a story I hear from parents again and again. In the spring I was understanding and flexible when my child’s school did not provide the services promised in their IEP. There is a global pandemic going on and schools are doing their best under extraordinary circumstances. I can be patient while they figure things out. But now that the new school year is almost halfway over, and my child’s school district had plenty of time to plan for remote learning, I want their IEP implemented.

As coronavirus cases surge across the country, some schools are re-opening and then closing on a continuous loop. Many places across the country are closing schools while keeping restaurants and gyms open, and parents may fear their child’s education is suffering.

The same problems are so common that top experts in the field of education law anticipate a flood of litigation as the pandemic resolves and classes start up in-person learning permanently again. What can parents do?

USDOE Update

In late September, the USDOE Office of Civil Rights put out an updated Question and Answer document as a follow-up to the March fact sheet detailed in Carrie Park’s July blog.

One takeaway from the Q & A was that school districts may permissibly prioritize providing students with disabilities with in-person instruction. This was recommended due to the legal requirements under Section 504 and the IDEA. But the Q and A further clarified that districts would need to make this decision on a case-by-case basis.

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The Q & A also addressed face masks, stating that face masks may not be required if a student cannot tolerate one due to their disability and that denying instruction because of this would likely amount to discrimination.

Potential Solutions: What Can FAPE During Remote Learning Look Like?

Providing a free and appropriate public education (FAPE) as required by federal law through remote learning is not an easy task. School districts do have discretion in how exactly to provide those services. However, public schools are still legally obligated to provide FAPE, and if you feel your child’s school district is not providing a free and appropriate public education for your child during remote learning, you do have some options. What follows is a list of potential solutions for parents to explore with their child’s special education providers:

  • The USDOE fact sheet released in the spring of 2020 offers ideas for modifications and services that could be offered remotely, which includes assignment extensions and speech services through video conferencing.
  • An article by Jennifer Gavin for the American Bar Association offers several suggestions of solutions for attorneys working with parents of children with IEPs including requesting a team meeting, keeping a record of missed services, and requesting home-based services, among other suggestions.
  • Another option for parents is to request a Functional Behavior Assessment and Behavior Intervention Plan to address any new behaviors their child might have developed in response to the change in learning environment. Parents can also ask for their child’s case manager to gather any information from the team and send an update weekly in one email, so you as the parent are not overwhelmed by a constant stream of emails from each and every service provider.
  • The Illinois State Board of Education tweeted on August 28 that a potential accommodation for students with disabilities may be for a paraprofessional to work with a child in a classroom while the teacher delivers instruction remotely.
  • Also, each state has their own Protection and Advocacy (P&A) System which provides free legal assistance to people with disabilities in the area of education as well as other issues. A tool to look-up the P&A that provides free legal resources for your state can be found here.

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Another complication to keep in mind during remote learning is that some schools have asked parents to consent to the suspension of their child’s IEP. It is up to parents to make sure they do no sign anything they are not completely comfortable with during remote learning.

Covid-Related Education Cases Are Making Their Way into Court

The COVID-19 pandemic and remote learning pose new challenges. Because of this, it is difficult to know how courts and state dispute processes will be utilized to resolve disputes between parents and school districts over remote learning plans.

On November 14, 2020, Hernandez v. Grisham, was dismissed in part and granted in part. The plaintiff who sued for an injunction under the IDEA because their child was a student with an IEP was more successful than their general education co-plaintiff. This case may show that suits alleging a violation under the IDEA have a better chance of success than constitutional claims regarding remote learning. As recently as November 13, 2020, J.T. v. de Blasio, a class action suit with over 500 plaintiffs, was dismissed. Notably, this decision was dismissed for jurisdictional reasons and a failure to exhaust administrative remedies rather than on the issue of a denial of FAPE required by the IDEA.

Colorado reached a few decisions in September, which may provide some insight into how state agencies will rule. The first example from Colorado is where a family filed a complaint with the Colorado Department of Education regarding several issues. Included in the family’s complaint was the concern the local district failed to implement their child’s IEP after the district suspended in-person learning due to the COVID-19 pandemic. The decisions officer found that the IEP had not been implemented and that while a failure to implement the IEP can result in the denial of FAPE, this was not the case for this child because the child in the case made significant progress in both fluency and vocabulary. For these reasons, the decisions officer declined to order compensatory services for the student.

In the second case out of Colorado, the issues in the complaint were both directly related to school closures due to the pandemic. The Colorado Department of Education ordered the district to provide compensatory services for services missed in the spring at the start of the pandemic. Notably, there was no data to suggest this child did or did not regress, but the hearing officer found waiting until in-person learning commenced to assess whether the student lost any progress previously made would be too great a risk.

Even within the same state, different results came about due to the amount of data surrounding the child’s progress. Surprisingly, the lack of education data worked in the second child’s favor. However, it is difficult to forecast any patterns based on two cases from one state. What is clear is that showing the lack of remote services caused harm and violated FAPE may prove to be a tricky prospect for parents. So parents should keep a log of any information available to them and respond to district staff as promptly as possible. 

Moving Forward

Remember that you, as the parent, are a member of the IEP team and have a say in what your child’s IEP and services look like. If you feel your child’s needs are not being met, speak up and let the IEP team know. You can request an IEP meeting, re-evaluation, new assessments (such as a new functional behavior assessment to address at-home behaviors or an assistive technology assessment), or even a change in placement (such as a therapeutic day school that is still providing in-person learning). Since you are a member of the IEP team, your input is valuable and should be considered in decision-making. 

Kate Cronk is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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COVID Privacy Concerns: What Happens When Someone Tests Positive?, by Katharine Eastvold

Posted on December 16, 2020 by Jennifer Babisak

When the Board of Education of District 186 met in mid-July in Springfield, Illinois, they weren’t yet debating remote-only versus hybrid instruction, or whether the administration had ordered enough wireless hot spots. Still, Springfield Education Association leaders and members who spoke at the meeting were already convinced that the district’s leadership was mishandling its preparations to return to school in the midst of a pandemic. The controversy that night was over how the district had handled the news that an adult present in a school building had tested positive for the novel coronavirus. Although the start of classes was more than a month away, school buildings were open for limited purposes. The SEA was unhappy that the district relied on contact tracing instead of disclosing the name of the infected individual to those who may have been in the same building. The district’s response was that revealing the name would violate FERPA, HIPAA, and other privacy laws. Who was right?

What is contact tracing?

Contact tracing is a process fueled by information an infected individual provides. A contract tracer interviews the person as soon as possible after a positive test result and asks them to mentally retrace their steps, thinking about the people they came into contact with during the period when they likely were contagious, usually starting two days before symptom onset or a positive test. In particular, the contact tracer is interested in identifying “close contacts”—those individuals who were within six feet of the infected person for more than 15 minutes. The contract tracer then notifies the close contacts that they were potentially exposed and advises them of next steps, but without disclosing the identity of the person who may have exposed them.

This approach, of course, has limitations. When using the interview method described above, it relies entirely on the memory and cooperation of the COVID-

positive individual. (Tech companies have been developing apps to try to get around the memory problem by logging location information and cross-referencing it with self-reported health status, but this in turn has raised serious privacy and data storage concerns.)  Even when interviewees remember where they went during the relevant time period, they may not know the names of those with whom they came into close contact—for example, who did they sit next to at a bar or stand in line behind at the grocery store?

Even in a school context, the infected person might not remember and be able to identify everyone they had close contact with over the course of several days. Why not give the name and job title of the positive case to anyone who was in the building during that time period, allowing possible contacts to identify themselves?

One rule for students, another for teachers and staff

In March, the U.S. Department of Education released a question-and-answer document on privacy concerns during COVID-19. It answered the question of whether a district can disclose the name of a student who has contracted COVID-19 with a resounding no. That’s because FERPA—the Family Educational Rights and Privacy Act—applies to students. It allows identifying information on individual students to be disclosed in the event of an emergency but only to “appropriate parties.” These parties may include public health authorities. They definitely do not include other students and their families, the media, or the general public.

Adults who work in or visit school buildings, however, are not protected by FERPA. While the federal FAQ document urges caution, reminds school leaders that states may have stricter laws, and recommends traditional contact tracing as a best practice, it acknowledges that there is no federal law preventing a school from disclosing some non-students’ names to the wider community.

What about HIPAA?

When people talk about the confidentiality of personal health information, they often mention the acronym HIPAA, short for the Health Insurance Portability and Accountability Act of 1996. However, only health care providers and health insurance plans have obligations under HIPAA to keep health information secure and obtain informed consent for any data sharing. HIPAA actually doesn’t apply to schools or school districts (unless they manage their own employee health plans, and then only with respect to information collected while administering those plans).

Confidentiality under the ADA and related guidance

What does apply to schools, as employers, is the Americans with Disabilities Act (ADA) and the rules implementing it. The ADA states that when an employer collects health information about an employee, it must keep that information confidential. This could include records of a staff member’s temperature upon reporting to work, symptoms while at work, disclosures regarding recent travel or exposure, or employees’ test results. As with FERPA, though, the ADA allows for identifying information to be shared with public health authorities in times of emergency.

According to guidance the Equal Employment Opportunity Commission (EEOC) developed, the identity of an employee who has tested positive may be disclosed to certain “officials” of the employer, not including rank and file coworkers. (The EEOC leaves it up to each workplace to designate such officials, but employers “should make every effort to limit the number of people who are informed regarding the employee’s identity.”) CDC guidelines also emphasize that disclosing the name of a COVID-positive employee to the workforce at large is not permitted. The EEOC recommends traditional contact tracing and allows that it is not a violation to share information such as the area of the building the COVID-positive person frequented and on which dates—even if that disclosure tends to identify the specific employee affected.

However, many individuals may be present in a school who are neither students nor school employees. The ADA, in this context, may not apply where the positive case is a parent, outside vendor, volunteer, or visiting community member.

Just because you can, doesn’t mean you should

School districts may disclose the names of teachers (and others not covered by FERPA) to those designated as employer officials. They may give coworkers information about a COVID-positive colleague that essentially identifies the person, as long as they do not refer to them by name. And schools may be able to legally give employees, families, and even the general public the names of non-employees and non-students who have spent time in a school building and subsequently test positive.

But should they?

Doing so may help catch more close contacts. But there are disadvantages. It may induce panic, driving people who weren’t anywhere near the infected person to stay home and/or overwhelm testing capacity unnecessarily. Most crucially, the COVID-positive individual and their family may endure bullying, social avoidance, and even threats. Although COVID is now widespread in the United States, stigma around the disease persists. Combined with the high expectations placed on teachers and the alarming incidence of teacher stress and burnout, the additional worry of public shaming if a teacher tests positive could take a heavy toll on mental health in this critical profession. And it may discourage others from coming forward about their symptoms and cooperating with contact tracers.

Ultimately, cooler heads prevailed in Springfield. District 186 opted for an all-remote fall semester, and the teacher’s union and administration worked together on e-learning strategies and health protocols. Positive cases among individuals in school buildings occasionally led to brief shut-downs of school feeding sites for cleaning purposes; as community spread worsened, few questioned or objected to these measures or the district’s commitment to confidentiality. Early demands for public identification of positive cases proved to have been a knee-jerk response to a frightening scenario, as all parties eventually settled into following the law and common sense.

Katharine Eastvold is a law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

 

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Student Discipline in the Wake of Online Learning: Who Is Left in the Crossfire?, by Mikaila John

Posted on December 15, 2020 by Jennifer Babisak

Earlier this year, a 15-year-old girl in Michigan was sent to a juvenile detention center for violating her probation. How did she violate it? By not completing her online coursework when her school switched to remote learning. The girl, identified as Grace, is a Black student with a learning disability–specifically, ADHD coupled with a mood disorder which caused her to get distracted easily and abandon her work. The school knew this, as her Individualized Education Plan (IEP) listed the school supports she needed to receive, none of which was being provided after the school switched to remote learning. Yet, Grace was the one being punished.

Here is another example: in August, a Colorado school called the police on a 12-year-old Black student with ADHD for playing with a Nerf gun during his virtual art class. At the time of the “incident,” the art teacher notified the vice principal and then emailed the student’s mother, explaining that her son, Isaiah, was distracted during class and playing with a gun that she believed to be fake. Before the mother could respond, the vice principal had already sent officers to Isaiah’s home. What was the result? Isaiah was suspended for five days, resulting in a record with the county sheriff’s office and a mark on his school disciplinary paperwork saying he brought a “facsimile of a firearm to school.” The school’s reasoning for their actions was safety, but since Isaiah was at home and not in a physical school building, if his safety was a concern, his parents should have been notified first before the police were called.

Unfortunately, there have been many other incidences similar to Grace and Isaiah. Exclusionary discipline policies have become the fallback mechanism for enforcement in the wake of online learning, and students of color with disabilities, particularly Black

Photo by Wadi Lissa on Unsplash

students, have come to bear the burden. It is still unclear what virtual suspensions look like, but districts are coming up with their own interpretations. For example, Georgia Clayton County Public School District, has decided to discipline students via in-school and out-of-school virtual suspensions. In the former, students work in a virtual classroom with other students who have also been “suspended” and in the latter, students have to do assignments alone. Many other districts have followed similar protocol.

But the question is not how to implement student discipline policies effectively through online learning, it is why are we implementing them in the first place? In the midst of a global pandemic, where students and families are just trying to get by, the last thing schools should be doing is using exclusionary discipline practices to address “behavioral issues” that can and should be addressed in a different manner.

A Crisis Even Before COVID-19

The National Center on Safe Supportive Learning Environments defines school safety as promoting the protection of students from violence, bullying, harassment, and substance use. However, despite the emphasis on safety, districts’ implementation of exclusionary discipline policies as a means to “protect students” negatively affects students’ behavioral health and academic success as well as increases their involvement with the criminal justice system.

The Civil Rights Data Collection compiled data on the school climate and safety in United States public schools from 2015-2016, which showed that students with disabilities and Black students represented a disproportionately large number of students subjected to disciplinary action. Black students made up 15% of the population but represented 31% of students who were referred to law enforcement, 39% of students with an out-of-school suspension, and 33% of expelled students. Further, students with disabilities made up 12% of the overall population but represented 28% of students who were referred to law enforcement, 72% of students who were restrained, 26% of students who received an out-of-school suspension, and 24% of expelled students.

In the cases of Grace and Isaiah, it was the intersection of their identities that made them the most vulnerable – both were Black students with learning disabilities. This data shows that the concept of school safety and student discipline is bound to systemic racial bias and its effects have been further exacerbated during remote learning.

What’s Next? Shifting Our View of School Safety

Rather than prioritizing discipline as a means to curb behavioral problems, school safety should be reframed to prioritize students’ well-being. Not only does this ensure a climate that is conducive to learning, it also promotes a student-centered environment. Research shows that restorative practices such as community building in the classroom to improve relationships between students and staff are a much more effective way to address “school safety.”

What would a focus on students look like in a pandemic? First, start by identifying the needs of your students. For example, ensure that students, parents, and guardians have access to the technology and services they need, which we’ve seen most districts start to do. However, that alone is not enough. As we saw with Grace’s scenario earlier, a lot of IEP plans are not being adequately carried out with the transition to remote learning, and as a result, “behavioral changes” are being unnecessarily punished by way of disciplinary policies. So, it is also important to develop effective alternatives to services that were provided and currently cannot be provided in the short-term.

In a recent paper, Wendy Tucker, from the National Center for Special Education and Meghan Whittaker, from the National Center for Learning Disabilities, suggested that schools employ three proactive strategies to ensure that students with disabilities are able to thrive in a remote learning environment: robust communication, collaborative planning, and a commitment to a holistic approach to behavior.

Moreover, schools should abstain from relying on virtual suspensions as they just exacerbate the intense trauma families have been subjected to during this unprecedented time. Schooling has changed tremendously, and students are returning to the online classroom with even more stressors pertaining to illness, food and housing insecurity, and overall home-life instability. Educators, now more than ever, should be approaching student learning in a trauma-informed manner, connecting with students and their experiences in order to identify what support they need from schools. Our vulnerable students are continuing to fall through the cracks because districts are failing to facilitate an environment that best serves their needs.

Mikaila John is a law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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With the Uptick of Students Facing Homelessness, It’s Time to Revisit the Importance of the McKinney-Vento Act, by Hannah Cholewinski

Posted on December 15, 2020 by Jennifer Babisak

With the uptick of furloughs and layoffs over the last six months of the COVID-19 pandemic, more and more students face the possibility of insatiable housing situations and possible homelessness.  Even prior to the pandemic, Chicago Public Schools (CPS) reported serving a total of 16,451 homeless students during the 2018-2019 school year.  Although CPS has not released data for the COVID-era, many national organizations expect homelessness to spike through the pandemic, leaving children in fluctuating circumstances, wrought with stress and housing instability.

Because of these changes, a question many are asking is how to appropriately serve children who are experiencing homelessness; in a wider sense the question is: what, exactly, constitutes homelessness?  The answer lies in the McKinney-Vento Act.  The McKinney-Vento Act (“MVA”) was most recently reauthorized in December of 2015 under Title IX, Part A of the Every Student Succeeds Act (ESSA) as a means of addressing child and youth homelessness in schools.  MVA requires that schools identify, reach out, and support students experiencing homelessness.  However, there may be more children experiencing homelessness that are covered by this act than one may think, including students displaced due to domestic violence, substandard living conditions, and students with hospitalized parents.  (A full list of situations which constitute homelessness under MVA can be found here.)

Photo by Ev on Unsplash

Data from CPS indicates that 88.5% of its homeless students live in “doubled-up” environments with other families, which usually results in over-crowded and/or dangerous living conditions.  Around 11% of these families live in shelters, 1% lived in motels, and the remaining 0.3% reported living in a car or other public space.

What Benefits are Provided Under MVA?

Should a child you work with qualify for MVA supports under one of the above categories, they are entitled to immediate assistance from their school of origin.  The school of origin is the school where the child started the school year. In the COVID-era, this includes distance learning programs, meaning that the school of origin for children experiencing homelessness during COVID-19 will be the distance learning program the child was enrolled in at the start of the year.  Under MVA, schools must continue enrollment for a child protected by the Act even if the child moves out of the district due to housing instability.  The MVA also requires that students be enrolled immediately, regardless of whether they have all the required verification documentation.  This is important as it keeps children in a stable school environment and allows for continuous education in spite of outside stressors.

MVA qualified students also have unique protections relevant to the troubles faced by many students in the current COVID-19 crisis.  Students who qualify are ensured assistance with WiFi access for educational purposes, delivery of educational materials resources such as pens, paper, pencils, etc., access to nutritional services, access to the school district’s homeless education liaison for continued assistance and support, and equitable access to a free and appropriate public education (FAPE) at their school of origin until the end of the year.  The access to a free and appropriate public education is of particular importance, as this is a protected right generally only reserved for students receiving special education services. FAPE guarantees the child a measure of appropriate education, with legal resources available in situations where an appropriate public education is not delivered.

Does MVA Provide Funding Assistance for Schools?

In addition to the protections listed above, MVA-qualified students receive entitlements under Title I funding, granting financial assistance for the following: student fees, extended learning time for children in non-traditional housing situations such as shelters and over-crowded living quarters, tutoring services, and access to adequate technology for distance learning purposes.  This is especially important for children experiencing homelessness as a result of COVID-19 because it ensures equitable access to learning supports, including the possibility of obtaining additional tutoring hours, specific instruction to overcome the difficulties of living in a shelter or overcrowded housing, and access to appropriate technology for remote classes.

The great question in all of this is how schools already struggling with funding from thinly stretched budgets can provide even more assistance to children.  On April 6, 2020, the US Department of Education announced a number of funding initiatives and relief plans for schools.  Two of these waivers are of particular importance for children covered under MVA:

  • First, states may now request to carry over funding from their 2019 Title I, Part A funds into 2020, which can be used after September 30, 2020 for additional supports.
  • Additionally, the Department of Education allowed an extension of 2018 Title I, Part A and MVA funds until September 30, 2021.

These waiver requests promise an answer within one business day, allowing for quick access to extremely necessary funds.  Further, the CARES Act distributed $13 billion to schools via the Elementary and Secondary School Emergency Relief Fund, which provides flexibility for funding all students, including those covered by the MVA.  Finally, it is important to remember that MVA funding is meant for supplementing Title I and additional federal funding.  Schools can dip into the MVA funding, but should look to federal waivers, Title I, and CARES Act funding to provide equitable opportunities to homeless students first.

How Can Schools Help MVA-Qualified Students?

Finally, the question comes: “but what more can we do?”  Schools need to work even more closely with their community homeless liaisons to be aware of and up to date on the changing situations of their students.  School administrators should be more fully aware of MVA funding and implementation methods and be willing to disseminate extremely important changes, updates, and training on MVA to their teachers and staff.  In COVID, administrators should also be looking towards how to cover students with changing housing situations under MVA as quickly as possible and working with community and legislative resources to provide a safe space daily to students in difficult homing situations.  Raising awareness of and training on MVA are key components of ensuring that the students in the direst of housing situations are allowed back into the safety and stability of a school building as quickly as possible.

Hannah Cholewinski is a law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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Pods and Privilege: How COVID-19 is Changing the Traditional American Education System, by Haley Burridge

Posted on December 11, 2020 by Jennifer Babisak

Due to the unprecedented COVID-19 pandemic, most schools in the United States made the difficult decision to conduct the school year remotely by utilizing video platforms such as Zoom and Google Classroom. Change is hard for most people. Parents with children at home are finding the adjustment particularly difficult. Working parents are forced to manage their own work schedules in addition to managing their children’s daily virtual classroom schedules, which is not an easy task. To make matters more complicated, teachers with children at home must manage their own classrooms in addition to helping their children with virtual classrooms and homework.

So, what do American families do when faced with this unfortunate reality? Some parents have made the decision to stop working full-time to help manage virtual learning. For heterosexual parents, this additional burden usually falls on the mother, regardless if the mother also works full-time. For example, a new Center for American Progress analysis of the Household Pulse Survey found that during the COVID-19 pandemic, Millennial mothers are nearly three times more likely than Millennial fathers to report being unable to work due to a school or child care closure. Most families have no choice but to continue working full-time and forge ahead.

However, some American families with financial flexibility have left the traditional education system entirely by pulling their children out of school and creating their own learning pods with other families in their community.

What Are Learning Pods?

Learning pods, also known as pandemic pods or pods, are small, in-person groups of students learning together with the help of an in-person tutor or teacher. This concept developed as a collaboration between K-12 private schools in the New York and San Francisco areas but has spread as a concept throughout the United States. The teachers who instruct the  private learning pods either work with the curriculum of the students’ current school or provide a private education entirely. If families do not wish to create a pod on their own, they can turn to organizations that provide a service that match families with teachers and organize pods on behalf of families. These organizations facilitate home-based learning pods by hiring and managing teachers and helping families negotiate pod agreements.

Are Pods an Option for Everyone?

Learning pods are not an option for most families because of the high price tag associated with them. Depending on the region and the experience level of the teacher, this approach can range from hundreds to thousands of dollars a month per family. For example, according to Learning-Pods.com (a curriculum started by the Portfolio School, Hudson Lab School, and Red Bridge School), elementary pods (grades K through 5) cost about $68,750 for a five-month semester. The full academic year costs $125,000 per pod, or almost $42,000 per pupil in a group of three. However, the cost goes down the more children there are in the pod. For example, it could be as little as $15 an hour per student in a pod of nine. The instruction runs for five hours a day and an average of 18 school days a month, costing the student in the nine-person pod $1,389 a month.

The Growing Education Gap

While independently run pods may seem like a short-term solution for some, it comes at the expense of others. If schools remain closed, then well-off families will continue to lean on non-traditional education solutions for their children. This will continue to affect the growing education gap.

Some parents who have the option of enrolling their children into pods argue that by pulling their children out of school, they are allowing more resources for the kids who stay in school, but according to L’Heureux Lewis-McCoy, Ph.D., an educational sociologist who studies educational inequality at New York University’s Steinhardt School of Culture, Education and Human Development, that’s “not how education finance works.” Rather, the use of learning pods could diminish school funding further, leaving families already struggling to survive and meet their child’s education needs to have even less access to resources and opportunities compared to their child’s privileged peers. Furthermore, teachers quitting school districts to teach learning pods have contributed to a widespread loss in experienced public educators throughout the United States.

Remote Learning: Is It A Solution?

Remote learning, while seemingly the only viable option for most public schools, has proved an unacceptable solution. Schools across the country are dealing with system outages, cyberattacks, and other technical issues related to the remote format. Additionally, remote learning has presented significant challenges to students with disabilities and students who are learning English as a second or third language.

An estimated 14% of public school students receive special education services in the United States. The federal Individuals With Disabilities Education Act ensures that those children have a right to a free, appropriate public education whenever and wherever schools are operating. However, the sudden switch to a remote learning environment has left students with IEPs, also known as Individualized Education Programs, without the assistance they need as many students struggle with writing, typing, and cannot use technology independently.

Liberty and Pods for All

The creation and widespread popularity of learning pods has caused a lot of outrage. However, some school districts have decided to lean into the idea of learning pods instead of trying to stop them. As the saying goes, “If you can’t beat them, join them.” A school district in Denver, Colorado, decided to pursue the novel idea of school-run learning pods. That district decided to create two to three pods per grade level at all 41 elementary, middle, and K-8 schools. The school-run learning pods include up to ten students at the elementary level and fifteen students at the middle school level. The learning pods are taught by teacher aides, substitutes, and other individuals paid by the district.

Around forty percent of the district’s children are eligible for subsidized meals, so this strategy ensures that all students have access to learning pods regardless of their financial circumstances. It is important that other districts follow suit and commit to finding solutions to this seemingly impossible puzzle, so that American children of all ages are not deprived of their education and, arguably, their future.

Haley Burridge is a third-year law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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Loyola Chicago Top in the Country for Education Law Offerings

Posted on November 23, 2020 by Miranda Johnson

Based on a national survey of law schools, prominent educational researcher Dr. Perry Zirkel recently found that Loyola University Chicago School of Law appeared to offer the highest number of education law courses.  Loyola Chicago was rated ahead of Harvard Law School, NYU School of Law, Stanford Law School, and Boston College Law School for number of course offerings.

These findings were based on an article that was co-authored by Dr. Zirkel and Lauryn P. Ragone and published this summer in the Journal of Law and Education.  The article looked at whether law schools offered courses in general education law, special education law, and higher education law; whether law schools offered dual degree programs; whether law schools offered clinical opportunities to work on education law cases; and whether law schools offer Continuing Legal Education  (CLE) opportunities for attorneys in education law.

Loyola University Chicago School of Law offers courses in each of the topic areas identified:  general education law, special education law, and higher education law. Courses include Education Law and Policy, Special Education Law and Advocacy, Fundamentals of School Law, Labor and Employment in the Education Workplace, Higher Education Law, Title IX Compliance in Higher Education, Special Education Dispute Resolution, and the Educational Advocacy Lab. Students can work on education law cases as part of Loyola’s Stand Up for Each Other (Chicago) educational advocacy program and its Civitas ChildLaw Clinic.

Loyola also offers an annual “Education Law: A Year in Review” program in June, which offers CLE credits to attorneys, and brings together students, faculty, attorneys, educators, and policymakers for a review of key developments in education law and policy over the preceding school year.

Zirkel Law School Article Introduction

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Education Law Year in Review

Posted on November 23, 2020 by Jennifer Babisak

Each year, the Education Law and Policy Institute hosts an Education Law Year in Review to highlight the year’s most important developments in the area of education law and policy in K-12 schools. This year brought a new virtual format, which allowed participation from practitioners and students across the country.

Held in June, the discussion anticipated how COVID-19 might impact the upcoming school year. Panelists focused on a spectrum of pandemic effects, including scheduling  instructional time, addressing the mental health and social-emotional needs of students and educators, and how to make up for instruction and services disruptions.

The Review also summarized major legislative developments and agency guidance related to education over the past year. Along with an overview of the 2020 state legislative session and a discussion of seclusion and restraint, COVID-related topics included remote learning, transition, and special education. This session featured ISBE’s General Counsel and Executive Director of Legislative Affairs.

Michael Kaufman, Dean of Loyola University Chicago School of Law; Malik Henfield, Dean of Loyola University Chicago School of Education; and Harold Jordan, Senior Policy Advocate at the ACLU of Pennsylvania speak on the need for educational equity.

The afternoon concluded with a call to the urgency of educational equity. Featured speakers included Malik Henfield, Dean of Loyola’s School of Education, and Harold Jordan, of the American Civil Liberties Union of Pennsylvania. The speakers encouraged the development of anti-racist schools and communities. Attendees learned practical steps toward implementing anti-racist school climates, such as reforming school discipline practices and adding mental health supports.

Recordings of these sessions are available here.

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SUFEO Furthers Reach to Help Students During COVID-19

Posted on November 10, 2020 by Jennifer Babisak

Since 2014, Loyola University Chicago School of Law’s student volunteer organization, SUFEO (Stand Up for Each Other!), has helped K-12 students facing suspension, bullying, or exclusion from school. However, as schools went virtual during the COVID-19 pandemic, SUFEO’s focus expanded to help students experiencing remote learning difficulties.

SUFEO’s mission appeals to law students interested in a variety of practice areas. This year, the organization recruited 40 new 1L and 2L members, a significant portion of Loyola’s law school population. These law students volunteer to help K-12 students and parents through a hotline and virtual meetings.

Due to COVID instructional adaptation, the organization is receiving an increasing number of calls requesting help for students with disabilities and students facing discipline. Teachers, students, and parents are stressed, and SUFEO works to understand these stressors and help all parties involved reach an outcome in the student’s best interest.

“From a management standpoint, it has been really difficult,” says Civitas ChildLaw Clinic staff attorney and SUFEO adviser Jackie Ross, on the challenges of providing support to virtual learners.  

Despite the challenges, their hard work has impacted lives, shown by these 2019-2020 SUFEO statistics:

  • 6 students were found eligible for special education for the first time
  • 4 students’ expulsion proceedings were dismissed, allowing them to remain in school
  • 4 students were placed in new schools that better meet their needs
  • 4 students returned to school who had been improperly kept out for weeks
  • 3 out of 4 students won their suspension appeals
  • 1 student’s disorderly conduct citation was dismissed

Already this school year, SUFEO is making a difference. Five new clients have started in new, more appropriate schools. Four new clients have started in an effective research-based literacy program for children with dyslexia. Five new clients’ remote learning plans were revised to better meet their needs. Three complaints have been filed alleging race-based or disability-based discrimination, and one of these cases is in mediation to help the student feel safe and able to learn in school. This summer, a SUFEO student successfully negotiated a compensatory education award of thousands of dollars to help a high school student get caught up in math.

While the increased demand for SUFEO’s services indicates significant inequity in the school system, the volunteers are glad to positively impact students’ lives.

“It’s unfortunate that it takes having an advocate to achieve creative problem solving,” Ross says, “If I didn’t have a team of 15 students who are already directly representing students, we couldn’t get this done. The beauty of SUFEO and these students is that through their involvement, everyone comes to table and can discuss these things.”

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Launching an Anti-Bullying Program During a Pandemic

Posted on November 10, 2020 by Jennifer Babisak

As beacons of advocacy for underrepresented children, Loyola University Chicago School of Law’s Civitas ChildLaw Clinic and Education Law and Policy Institute have provided legal services for cases ranging from child welfare to special education. However, faculty and staff realized that there was a frequently overlooked student experience in need of increased legal assistance: bullying.

An anonymous donor with a passion for bullying prevention and intervention made sure that Loyola could do more. The donor funded a fellowship that allowed the launch of an Anti-Bullying Program. In July 2020, Loyola welcomed attorney Julie Pautsch as the program’s first director.

To learn more about the Anti-Bullying Program, we interviewed Julie about the inspiration behind and goals of the program.

Q: Why is Loyola working on issues of bullying?

JP: This is an area that was unaddressed and sometimes this is a central issue why the child is not going to school or being disciplined for defending themselves.

Q: What drew you to this work?

JP: I have a degree in secondary education, but I felt helpless to impact change in the classroom. So, I went to law school to help change outcomes for children. I had worked with bullying cases before and remembered how difficult it was. The victim gets blamed a lot. Even an imperfect victim still deserves a safe school. I was interested in the challenge of helping victims.

Q: What is your background? 

JP: I worked in landlord-tenant and housing law and before that–education law. I worked for a couple different legal aids, where I gained a lot of litigation experience. I’ve always felt there was something important about advocating for children.

Q: What kinds of cases do you handle?

JP: Right now, a lot of cases involve righting past wrongs, incidents that happened before COVID. But the online bullying cases might be coming in the spring. Virtual learning has been a pretty big learning curve for schools. 

Q: What struggles are you seeing in schools?

JP: It’s disheartening to see some of the same things that I’ve seen for years. Blaming victims. I’m surprised–maybe I forgot the lengths people will go to cover up past deeds. In this new environment, kids may get lost. There are a lot of things happening that parents and teachers don’t know about.

Q: What schools are you working with?

JP: We’re interested in Chicago Public Schools, of course, and we are also looking at non-public schools. Those are more challenging. If a private school child is  being bullied, they may be pressured to leave. Work on school closings shows that switching schools is damaging in itself. So this is a harmful situation, with fewer remedies available.

Q: What are your goals for the Anti-Bullying Program?

JP: We’re hoping to get to students earlier, to create intake processes where people can contact us sooner. We want cases before they reach a point of crisis. It can get really contentious at that point. If we can prevent things from escalating, assist parents to quickly put schools on notice, that’s a better situation.

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Balance in Providing Care and Protection: Seclusion and Restraint in Schools, by Jennifer Sabourin

Posted on November 5, 2020 by Jennifer Babisak

Safety and child welfare are of the utmost priority in any school district. While all students deserve a learning environment free from abuse, students with disabilities are particularly vulnerable to behavior management methods, such as seclusion and restraint, that have the potential for misuse.

In November 2019, ProPublica Illinois in collaboration with the Chicago Tribune published an emotional report about the use of seclusion in Illinois schools. Through FOIA requests for incident reports and interviews with families, ProPublica put together a damning story of students locked in spartan rooms for hours at a time, ignored, abused. Public response to the report called for reforms, and school administrators scrambled to put together rules that fit in with the very complicated puzzle of behavior management.

Photo by Noah Silliman on Unsplash

The use of these management methods may have their place, especially to mitigate physical harm. However, school personnel need appropriate training, guidance, and oversight supported by effective policy to eliminate the potential for overuse and abuse of physical restraint and isolated time out. School leadership must develop district policies that comply with the law, heed advice of experts in the field, and consider stakeholder input, while ensuring student and staff safety, given legitimate concerns of countering aggressive behavior. At stake is the student’s physical well-being, emotional health, and access to a federally-mandated free appropriate public education.

Restraint and Seclusion Defined

In order to understand both the concern and rationale for restraint and seclusion, it is important to define both terms. Seclusion, as per the U.S Department of Education, Office for Civil Rights, is defined as “[t]he involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving” while restraint is “a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely” (U.S. Department of Education, 2010).

Following the ProPublica report, the Illinois State Board of Education (ISBE) created emergency rules for time out and physical restraint. These were replaced throughout the winter and spring when ISBE adopted proposed rules that became Administrative Code in April 2020. In place of ‘seclusion,’ ISBE uses the terms ‘time out’ and ‘isolated time out,’ both to be used when the student is, “exhibiting behavior that poses an imminent danger of serious physical harm to self or others.” The difference between these two words is that isolated time out is when a student is without a monitoring adult, and should be used under very limited circumstances, such as the behavior of the student posing an immediate danger to an adult who would typically be supervising. A physical restraint is “holding a student or otherwise restricting the student’s movements” and must be a planned technique or hold that does not impair the student’s ability to breathe, communicate, and speak, and otherwise does not block the student’s airway.

Photo by Austin Mabe on Unsplash

Other distinctions ISBE makes is that time out (isolated or otherwise) is not a break included within a student’s Individualized Education Plan (IEP), a brief removal of the student to the hallway, a disciplinary measure such as an in-school suspension or detention, or a sensory break that either the student or the teacher initiates/requests. Physical restraints are not mechanical restraints used to position a student with physical needs (such as a student who is physically unable to keep themselves upright in a wheelchair) or something such as a blocking pad used to safeguard a student. Physical restraint also does not include momentary physical escorting, such as to hold a student’s arm or shoulder to guide the student to a location, or to prevent a student from completing an action that would bring harm to the student or to others.

In Defense of Restraint and Seclusion

Proponents of restraint and seclusion argue that both can play a role in behavior management, especially in instances where the student’s significant developmental and emotional disabilities may result in aggressive or violent self-harm or harm to others. Teachers and paraprofessionals simply must react when the health and safety of their students and each other are at risk.

Missing from the ProPublica report were the voices of teachers charged with this impossible task. A December 2019 NPRIllinois article describes the emotional, physical, and mental toll school employees feel when asked to perform a restraint or seclusion method on students. Staff recognize that these methods are meant to be used as a last resort and make clear that de-escalation techniques are key in reducing the potential for student and staff harm.

Indeed, the ISBE rules even recognize that such events simply have to occur, stipulating that “isolated time out, time out, and physical restraint shall be used only when the student’s behavior presents an imminent danger of serious physical harm to the student or others and other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm.” Another very crucial voice in this process are the voices of parents who may even advocate for the use of these tools, as they know their child best and what would and would not work for them.

Consequences of Restraint and Seclusion

While there are some limited circumstances in which restraints and seclusion may be used, these techniques are not without consequence. A 2009 report from the National Disability Rights Network collected the findings of governmental, non-profit, and private sector studies on the effects of restraints and seclusion on patients (as some entities were healthcare-based) and students. Common findings included physical injury which children are at a greater risk of than adults, most likely because of their size relative to their restrainer; re-traumatization in those with a history of trauma or abuse; psychological and emotional harm; a loss of dignity; and in some instances, death.

Powerfully, one study quoted adverse effects including “recurrent nightmares, intrusive thoughts, avoidance behaviors, enhanced startle response, and mistrust of mental health professionals resulting from the incidents, even years after the event. Restraint or seclusion may evoke feelings of guilt, humiliation, embarrassment, hopelessness, powerlessness, fear, and panic. Restraint or seclusion compromise an individual’s ability to trust and engage with others, and create a violent and coercive environment that undermines forming trusting relationships and, by extension to the education setting, learning.”

Uncovering the Freqency and Disparity of Restraint and Seclusion

Among other issues with restraints and seclusion in school, as ProPublica brought to light, is the sheer lack of information from schools about the frequency of and the rationale behind the utilization of such methods. In order to provide any sort of effective guidance to school districts, the Department of Education first needs an understanding of the current use of restraint and seclusion in schools, provided through accurate reporting data.

In January 2019, the U.S. Department of Education announced an initiative to investigate the potential for abuse in the use of restraint and seclusion in schools. The Office for Civil Rights and the Office of Special Education and Rehabilitation Services were tasked to oversee the initiative and to provide technical assistance and support to schools, districts, and state education agencies to shore up enforcement of federal regulations.

Data collected during the 2015-2016 school year indicated that 71% of children restrained and 66% of children secluded are students with disabilities, while students with disabilities comprise only 12% of the total student population. However, the Government Accountability Office (GAO) found that 70% of schools reported zero incidents, when there in fact had been incidents or when the districts had no data available at all.

Under-reporting concerns prompted the U.S. Department of Education’s implementation of the initiative but mid-year, data collection problems plagued the agency’s ability to develop guidelines and other tools. The GAO’s report called on the Department of Education to take immediate action to address inaccuracies in restraint and seclusion data. Problems with the current reporting system may stem from the nature of self-reporting and the lack of consequences to districts for failing to report data or reporting inaccurate data.

Fairfax County Public Schools (Virginia) with a population of 187,000 students, reported zero incidents of restraint and seclusion, but one parent alone received 437 letters over three years from the student’s school notifying her that restraint or seclusion occurred. An investigation into the school district found internal documents illustrating hundreds of cases of seclusion and restriction that had occurred, while none were reported to the Department of Education.

This begs the questions: What is being hidden? Where is it being hidden? Why is it being hidden? What are the consequences of this moving forward?

As the GAO reports, “A fundamental first step toward improving the quality of the restraint and seclusion data is to assure that when school districts report zero incidents it truly means there were no incidents, and to accurately distinguish districts with no incidents from districts that do not track or collect the data” (Nowicki, 2019). While that acknowledges the issue, the GAO report may have attempted to pass the buck on actual enforcement of mandatory reporting, keeping consequences in limbo.

Moving Forward with New Tools

The question then remains, what can be done next? The new ISBE mandates require staff to undergo training each year for a minimum of eight hours in the following areas:

A) crisis de-escalation; B) restorative practices; C) identifying signs of distress during physical restraint and time out; D) trauma-informed practices; and E) behavior management practices.

Photo by Nathan Anderson on Unsplash

This helps provide the tools for educators to determine the function of a student’s behavior- why a student is demonstrating the behavior. Knowing the function of the behavior allows staff to address the causes or triggers of that behavior in order to prevent the dysfunction, which is especially important when the student may not be able to express what is causing the behavior. With that in mind, the issue turns to triggers, instead of the student. Teachers and staff become proactive, instead of reactive. Instead of use as punishments, restraints and seclusion can be used if and only if it is a last resort.

School districts undoubtedly strive to avoid situations that require the use of restraint and seclusion techniques. It is crucial that staff are prepared to respond in the rare circumstances that may require this level of intervention. Preparation includes comprehensive training of positive behavior intervention strategies, training of crisis de-escalation techniques, understanding the function of behavior, and ensuring staff knowledge of student behavior intervention plans. Schools must be safe learning environments where students and staff are free from harm, and schools must be proactive to ensure procedures are in place to maintain safety.

Jennifer Sabourin is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

 

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