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.
