Districts Are Using Students With Disabilities as an Excuse to Do Nothing

My husband and I have four children. Our three oldest are what we in the special needs community call “neuro-typical” and our youngest has multiple disabilities. Let’s pretend that they are all school-age—our whole family thrust into COVID-19 school-closure chaos—and we are informed that because our district can’t comply fully with our disabled child’s Individualized Education Plan (IEP), our three other kids will have no support or instruction from their teachers for weeks or months.

[pullquote]This absurd scenario is real in parts of America as school systems close down indefinitely to try to flatten the curve of the coronavirus.[/pullquote] Why? I can think of three reasons:

• Unclear guidance from the U.S. Education Department.
• Fear of litigation if virtual instruction precludes the implementation of all mandated services.
• What looks to me like a major cop-out from certain school leaders.

As a mom with 75% neuro-typical children and 25% eligible for special education (not that far off from the 1 out of 6 statewide percentages in my home state of New Jersey), I think this stinks. 

Let’s start with one of my favorite targets, Secretary Betsy DeVos’s Education Department (ED). While there’s no shortage of verbiage to emerge from her office, much is opaque and contradictory. To wit: This information from a just-issued IDEA FAQ sheet says if a district elects to move to online learning during school closures,

The school must ensure that students with disabilities also have equal access to the same opportunities… [and] each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504.

But there’s also this new guidance from the Office of Civil Rights (part of the Education Department):

The Department understands that there may be exceptional circumstances that could affect how a particular service is provided. If a student does not receive services after an extended period of time, the student’s IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost.

Hmm. According to ED, schools must provide all the services listed on a special education student’s IEP during COVID-19 closures. Unless there are “exceptional circumstances,” which may or may not include a pandemic. 

Let’s say my son is still very young and his IEP includes, as it once did, specific goals and objectives for toilet training. Following the rules, then, an aide or teacher with training in Sensory Integration Disorder must follow a specific protocol throughout the day that can’t be done remotely. 

Toilet-training is hands-on, people! Therefore the district is denying my son’s IEP services and opening itself up to potentially expensive liability and litigation.

Or not.

“We are working closely with our interagency partners to provide state and local leaders the information they need to ensure the health and safety of their students and educators,” said Secretary of Education Betsy DeVos. “We will continue to work alongside them and provide them the flexibilities they need in order to best support their communities.”

Oh, that’s helpful.

Now, here’s where it gets more complicated. The U.S. Department of Education says, in a separate FAQ nine-pager,

If an LEA [Local Education Agency, i.e., school district] closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.

Aha! [pullquote]The district is off the hook for liability incurred through its inability to meet IDEA if it just shuts down school for everyone! And, indeed, that’s what some districts are doing.[/pullquote] In Washington State, for example, many districts have simply shuttered their doors to all students out of a concern that, according to one superintendent, “while we have been able to mitigate several of these challenges, we have not yet been able to mitigate all of them and meet the strict guidelines outlined in federal and state regulations.” Philadelphia Public Schools just sent out a memo to all principals:

To ensure equity, remote instruction should not be provided to students, including through the internet, technology at home, by phone or otherwise. Students should not be required to complete new assignments or homework activities. Schools may not make independent decisions to provide remote instruction at this time. As guidance and circumstances continue to unfold, we will provide updates as necessary.

A mother of a child with significant special needs in a suburb of Seattle says that “parents have been largely left on their own as school leaders are shying away from online learning due to equity concerns and logistical hurdles” related to providing mandated services for students with moderate to severe disabilities.

I am a fierce advocate for educational equity. Yet during this bizarre and scary period, [pullquote position="right"]we can’t be cowed by unclear federal guidance or fear of lawsuits from litigious parents.[/pullquote] While schools must do their very best to provide support and instruction for America’s 7 million children eligible for special education—some of whom, like my son, will regress without the maintenance of daily routines—they mustn’t let perfect be the enemy of good. As a Pennsylvania educator told a colleague of mine, "special education is my passion but even I see the irony in that the laws enacted to allow an education for all students are now prohibiting an education for any student.”

Children with disabilities aren’t an excuse to throw up your hands and wait out a pandemic while children without disabilities (or, like the majority of the special education population, those with relatively minor challenges) lose valuable learning time. Instead, it’s an opportunity to assess how we can more successfully meet the mission of IDEA: Providing special needs children with “equality of [educational] opportunity, full participation, independent living and economic self-sufficiency.”

Meanwhile, would I deprive my three older children of online coursework because one son can’t benefit? Of course not. 

So sue me.