Waive Away—But Tackle the Big Longstanding Issues, Not Just the Immediate Technical Ones
Forum: Should DeVos Ask Congress To Waive Parts of the Special Education Law amid the Coronavirus Pandemic?
When I started a high school for students with special needs, I was 24. I borrowed $2,000 from Nashville’s Commerce Union Bank, put my energy — and naivety — to work, and created Benton Hall. The school opened in 1977, three months before Federal Law 94-142, the Education of All Handicapped Children Act, the precursor of the Individuals with Disabilities Education Act (IDEA), went into effect.
Sadly, when President Ford signed the bill in late-November 1975 he already knew that the “bill promises more than the Federal Government can deliver….” Ford’s prophetic statement foreshadowed the battles over the shape, intent, and application of the law that continue today.
Before the federal law was enacted, more than one million children with disabilities were not allowed to attend public school. Those who did got little help to lift their trajectory. The law, elegant in its simplicity, was based on the concept of access and drew its legal underpinnings from the Supreme Court’s racial desegregation opinion in Brown v. Board of Education. Decades later, as evidenced by the 2017 U.S. Supreme Court ruling in Endrew F. v. Douglas County School District, access isn’t enough; real progress in keeping with each student’s needs is the new standard. Yet, since the law’s passage, Congress been unwilling to appropriate the funds needed to achieve its goals. The federal lawmakers have proven Gerald Ford right: our hearts are, perhaps, bigger than our pocketbooks.
The Covid-19 pandemic has laid bare fault lines created by years of unfunded mandates. Parents grapple with the disconnect between neuro-biological research and therapies and what public schools can deliver. To be sure, reality in schools doesn’t mirror the law’s vision or reflect its promise. Now some are suggesting that, in response to the novel coronavirus, Secretary DeVos ask Congress to waive some of the provisions of the law for school districts incapable of adhering to them with school buildings closed and children at home.
Should Secretary DeVos request that Congress allow such waivers? She should, but she shouldn’t stop there. The current crisis presents an opportunity to revitalize the law and reshape IDEA’s promise—and mandates—in ways better attuned to the times. DeVos can start by immediately addressing the technical issues that have schools out of compliance with the law. Here are four of the bigger compliance concerns for districts:
Least restrictive environment—Federal law requires that each child with a disability be educated in the least restrictive environment possible. With every child home for the good of the nation’s health, the least restrictive environment, for the time being, is the child’s home. It may be surprising that this is even an issue, but it is, especially where officials had previously declared a specific program or special school was the least restrictive environment for a child. As soon as possible, children with the most severe challenges, those who will regress most while away from school and those with aggressive tendencies, should be the first students back to school.
Maintenance of effort—Schools must maintain funding levels for special education from one year to the next to keep federal support money. If less money is spent on special education as a result of school closures, will schools fail the maintenance-of-effort test? The CARES Act is trying to encourage flexibility and speed in getting relief to small businesses, giant corporations, and individuals. In that spirit, Congress should grant schools a waiver of maintenance-of-effort requirements, and Secretary DeVos should make clear that schools will not be penalized on these grounds.
Compensatory services—Social distance is the order of the day. Some families don’t want others such as therapists or paraprofessionals in their homes, and school districts cannot require teachers and aides to put their health at risk to serve students. Secretary DeVos should allow school districts to determine if and how they can make up for individualized-education-program-required services not delivered, but the Secretary should not request blanket relief for districts regarding services missed during this time period. After 43 years of federal law in special education, schools will do what they can for their students that will be reasonable, prudent, safe, and timely. Where such services can be delivered, they should be delivered. When services cannot be delivered under those principles, the district should not be penalized.
Time-sensitive processes—The clock should be turned off on time-sensitive processes related to such matters as individualized education plans and parent-requested evaluations. Secretary DeVos should request this waiver with the stipulation that she will return to Congress as soon as possible when the all clear is sounded and the game clock can begin once again. Once the clock is reset, the Secretary should ask Congress to extend benefits for children for an additional year, which would do the greatest good for those with the most challenging needs and make up in part for services not adequately delivered during school closures.
Beyond addressing the operational issues of IDEA, Secretary DeVos has an opportunity to make bold moves to improve a law that has become fossilized in regulation. One approach would be to recommend that disabilities be categorized as either mild, moderate, or severe and that guidelines and protections be shaped accordingly. Another focus could be streamlining the special education dispute resolution process, which now often involves litigation. The Family Educational Rights and Privacy Act and the Health Insurance Portability and Accountability Act might be modified for severely handicapped children so that teachers and medical personnel can work more closely for the benefit of the child. For these children with severe disabilities, special education can be extended to age 25 with upgraded transition services and job training. An additional $30 billion would fulfill the 43-year-old federal pledge of 40% funding for special education and can be part of an additional Covid-19 assistance package wending its way through Congress.
Finally, if Covid-19 conditions allow, Secretary DeVos should recommend federal financing for six weeks of universal summer school in 2020 for all students, with additional funding separate from special education’s $30 billion.
On July 17, 2017, almost six months after her Senate confirmation, Secretary DeVos delivered her first special-education-focused speech. She said, “Republican and Democrat administrations alike haven’t done enough to fulfill our promise to students under the Individuals with Disabilities Education Act.” The CARES Act now gives Secretary DeVos the opportunity to right that wrong and revitalize special education.
John M. McLaughlin, Ph.D. is managing partner of McLaughlin Advisors which focuses on special education and autism businesses. He is a Director of ChanceLight Education and co-author of How Autism is Reshaping Special Education: The Unbundling of IDEA (2017) and We’re In This Together: Public- Private Partnerships in Special and At-Risk Education (2015).
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 “Don’t Waive Rights, Require Districts To Make a Good Faith Effort,” by Robin J. Lake.
Read more from Education Next on coronavirus and Covid-19.