Don’t Waive Rights, Require Districts To Make a Good Faith Effort

Forum: Should DeVos Ask Congress To Waive Parts of the Special Education Law amid the Coronavirus Pandemic?
U.S. Secretary of Education Betsy DeVos.
U.S. Secretary of Education Betsy DeVos.

The first Covid-19-related deaths rocked my state, Washington, in early March. More than a month later, Washington’s largest school districts have closed their school buildings and are not providing meaningful online instruction. Ongoing analysis by the Center on Reinventing Public Education shows the same is true for all but 10% of the biggest districts in the country.

Lack of universal broadband access, mass confusion over the best approach to online learning, and other issues no doubt contribute to this delay. But privately, many superintendents acknowledge that the risk of special education lawsuits is one of the biggest reasons for their paralysis.

Vague guidance from state school chiefs and from the U.S. Department of Education contributed to initial concerns that remote learning could leave districts out of compliance with special education laws. But such guidance has since been clarified. In particular, March 24 federal guidance made it clear that special education should not prevent districts from offering online instruction. And yet districts, for good reason, still fear lawsuits. One superintendent told me: “I can’t responsibly put my district in that kind of financial risk.”

Waiving the Individuals with Disabilities Education Act, however, is no solution. Under current protocols, it’s not permitted. Even in the event of a national emergency, the Secretary of Education cannot waive the right to free appropriate education. If a school district is open for business, it must serve students with disabilities as outlined in their individualized education plans, or IEPs. This requirement exists for a reason. We cannot set a precedent that schools can simply jettison the rights of their most vulnerable students in an emergency situation.

Though Education Secretary Betsy DeVos has should ask the opportunity to ask Congress to give districts more flexibility about how to meet special education requirements in loosen existing laws in response to this emergency, taking them off the hook for whether to meet the requirements that would be the wrong thing to do. Efforts already underway in public schools across the country show it isn’t necessary. Federal help on the special education front in response to the novel coronavirus is needed—but in the form of funding and information, not repeal of longstanding rights.

A growing number of schools across the country are building remote special education programs that protect students’ rights. These efforts depend on innovation and collaboration.

The first step is effective communication with parents. As Lauren Morando Rhim has noted, charter schools like Paramount School of Excellence in Indianapolis, Friendship Public Charter School in Washington, D.C., and Strive Prep in Colorado, are contacting every parent of a student with an IEP to establish a line of communication and to understand what they need.

Some school districts are moving quickly, too. Henry County Schools in Georgia quickly developed a remote learning plan that spells out clear roles for special educators and classroom teachers supporting students with disabilities. The district will have virtual IEP meetings.

Each community’s solution might look different, but these efforts show it is possible for schools to make the shift to remote learning and still deliver the support that students with disabilities deserve.

Students with disabilities may suffer disproportionately if districts do nothing. Without the structure, routines, and support they receive during normal school days, they can suffer anxiety or lose academic focus.

Indeed, students with disabilities stand to benefit the most if school districts overcome their paralysis. States and the federal government could take steps to allay districts’ fears of lawsuits by offering to pay districts for any compensatory services they’re required to provide families. The goal should be to preserve parent and student rights, while protecting public schools that try their best to serve all students in difficult circumstances.

The Education Department can also help by issuing guidance that clarifies what good-faith efforts to deliver special education remotely should look like. This guidance should provide schools with examples of effective special education practice. This would not have a binding legal effect, but it could help guide any court decisions. Congress should also allocate funding to pay for districts to provide compensatory education, to ensure students who are the most challenging to serve virtually get the services they missed when school reconvenes.

Ultimately, this is a question of leadership. New York Governor Andrew Cuomo was recently asked if he was worried about being sued by the Nation Rifle Association for failing to exclude gun shops from non-essential business closures. He shrugged off the concern: “I wish you could become immune to this virus the way I’ve become immune to NRA lawsuits.” State and district leaders should be a lot less worried about being sued for trying to serve kids in a national emergency than being sued for providing subpar services in normal times, which happens all the time.

In the end, school districts can’t escape their legal and moral obligation. There are many people who’d like to help—and a federal government that could help more than it currently is. Let’s go.

Robin Lake is director of the Center on Reinventing Public Education at University of Washington Bothell.

This is one half of a forum, “Should DeVos Ask Congress To Waive Parts of the Special Education Law amid the Coronavirus Pandemic?” For an alternate take, see “Waive Away—But Tackle the Big Longstanding Issues, not just the Immediate Technical Ones,” by John M. McLaughlin.

Read more from Education Next on coronavirus and Covid-19.

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