Scholars reflect on regulatory gaps in special education for students with disabilities during the pandemic.
Faced with the suspension of in-person behavioral and cognitive therapies, the inaccessibility of virtual learning platforms such as Zoom, and parent burnout, schoolchildren with disabilities and their families have dealt with many challenges during the COVID-19 pandemic. As public schools nationwide transitioned to remote learning at the start of the pandemic, less than half of all states published remote learning plans with information about the remote provision of services to students with disabilities. As a result, many states looked to federal special education law for answers.
Under the Individuals with Disabilities Education Act (IDEA), students with disabilities must receive a free and appropriate public education. In addition, all public-school students receiving special education services under the IDEA must have an Individualized Education Plan (IEP). In a previous Saturday Seminar, The Regulatory Review highlighted the successes and shortcomings of the IDEA. This week’s Seminar explores COVID-19’s impact on students affected by the IDEA.
All students have struggled to adjust to online and hybrid learning during the pandemic. Students with disabilities, however, face unique barriers not felt by other student populations. These barriers make the IDEA’s shortcomings especially prevalent in light of the pandemic.
The Coronavirus Aid, Relief, and Security (CARES) Act, signed into law in March 2020, gave the U.S. Secretary of Education the right to appeal Congress for waivers that would relax some of the IDEA’s core requirements as schools transitioned to remote learning. In April, however, former Secretary Betsey DeVos issued recommendations declining to seek such flexibility for certain IDEA provisions.
Although DeVos’s choice not to waive certain IDEA mandates encouraged parents and advocates of students with disabilities, local education agencies worried about the legal challenges they would face without any leniency to deliver remote special education services as best they could. By the end of the 2019-2020 school year, parents of students with disabilities brought several lawsuits against school districts and state education agencies. The parents argued that their children’s IEPs had been breached by schools not providing adequate accommodations.
Prior to the lawsuits, the Education Department issued nonbinding guidance implying that if a school did not provide education to its general student population due to COVID-19, it could avoid providing services to students with disabilities. According to the guidance, “the IDEA … does not specifically address a situation in which elementary and secondary schools are closed for an extended period of time.” The guidance seemed to promote the idea that all students are served equally if no students are served at all. Educators responded that such directives contradicted the IDEA’s promise that all students with disabilities should have access to an adequate education. The Education Department later clarified that schools should not avoid offering virtual education altogether to evade the legal consequences of failing to serve adequately students with disabilities.
Amid the Education Department’s contradictory advice and its refusal to grant the IDEA waivers, some disability rights advocates felt that translating IEP supports and other accommodations to an online learning environment would be impossible. Nonetheless, states adopted various measures for educating children with disabilities in remote and hybrid settings.
This week’s Saturday Seminar highlights how COVID-19’s effects on in-person classroom instruction have disproportionately impacted students with disabilities.
- Legal accountability for special education is even more important during times of emergency, Jasmine Harris of the University of Pennsylvania Law School argues. In an essay for the University of Pennsylvania Law Review Online, Harris describes the rollbacks of disability rights in the classroom as school districts have enacted virtual learning during the pandemic. She explains that numerous school districts have requested statutory immunity from disability discrimination lawsuits, contending that it is impossible to comply with the requirements of the IDEA during a pandemic. Harris disagrees. She argues that previous national emergencies have prepared school districts to serve students with disabilities during a crisis and that the unique challenges experienced by these students necessitate legal oversight.
- In a paper for the San Diego Law Review, Margaret A. Dalton of the University of San Diego School of Law and Jessica K. Heldman and Robert C. Fellmeth of the University of San Diego School of Law and UCSD’s Children’s Advocacy Institute discuss how the procedural safeguards of the IDEA can be adapted to fit remote learning. The authors highlight a Council of Parent Attorneys and Advocates statement that aims to ensure that the rights of students with disabilities under the IDEA are included in plans to reopen schools. The statement includes three main principles: “(1) plan with equity and individualization in mind, (2) collaborate and communicate with families, and (3) review and, if necessary, revise IEPs and 504 plans to be responsive to the child’s needs.”
- Crystal Grant of the Duke Children’s Law Clinic explores the impact of COVID-19 on students with disabilities in low-income school districts and communities of color in an essay for Fordham Urban Law Journal. She explains that students in schools that lacked the technology and resources to transition smoothly to remote learning experienced educational loss that disproportionately affected students with disabilities and Black and Latinx students. Grant ties this educational loss to inequitable funding of under-resourced schools. She urges the Education Department to set aside funds and guidance, or “recovery services,” to account for the educational loss and additional mental-health needs as schools return to in-person learning.
- During the pandemic, special education in rural settings was especially challenging, J. Matt Jameson of the University of Utah and his coauthors argue. In a paper for the Rural Special Education Quarterly, Jameson and his coauthors explore how the “digital divide” between rural and nonrural communities made it difficult to provide remote educational experiences for rural students with disabilities. Due to low internet access, some rural educators provided lessons over telephone or distributed hardcopy packets. Jameson and his coauthors argue that these technological failures placed an increased strain on parents of students with disabilities, as they became responsible for finding ways to present instructional materials effectively for their children.
- In a paper for the Southern California Review of Law and Justice, Thomas Mayes of the Iowa Department of Education writes that the Education Department’s nonbinding guidance about the education of students with disabilities led to confusion about how schools should educate such children during the COVID-19 pandemic. Mayes urges against forcing school districts to conduct mass IEP revisions during the pandemic as a means of mere compliance with pre-existing regulatory and statutory requirements. He does suggest, however, that districts begin preparing now to go beyond the inputs-focused mandates of the IDEA, focusing instead on how best to measure progress and remediate learning loss post-COVID-19.
- New York City was not only the COVID-19 epicenter in the United States; it has also been a hub for several budding lawsuits challenging the inadequacy of remote special education provisions, Natalie Gomez-Velez of CUNY School of Law argues. In a paper for the Fordham Urban Law Journal, she explains that two hundred families across several states have signed onto a class action complaint, J.T. v. De Blasio, alleging that school districts violated students’ IDEA rights. The litigation, Gomez-Velez argues, highlights the challenges school leaders confront in attempting to comply simultaneously with special education regulations and public health mandates.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.