On Monday April 27th, U.S. Secretary of Education Betsy DeVos issued a report to Congress regarding special education laws and the COVID-19 pandemic. In sum, Secretary DeVos recommended that the core aspects of IDEA and Section 504/ADA (the two main categories of laws protecting students with disabilities) remain in place, notwithstanding widespread school closures due to the COVID-19 crisis. What does this mean for students with disabilities, their families, and the schools that support them? Let's set the scene, define the debate, and then offer some thoughts and analysis. Background: The Individuals with Disabilities Education Act (IDEA), originally enacted in 1975 and re-authorized several times, most recently in 2004, creates thirteen (13) federal categories of disability and guarantees students identified as having a disability a right to a free appropriate public education (FAPE) in the least restrictive environment (LRE). Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) also protect students with disabilities by requiring schools to make "reasonable accommodations" to afford access to school programs and activities. During the spring of 2020, we have seen extended school closures across the country resulting from the COVID-19 pandemic, with most schools transitioning to some form of distance learning. When Congress enacted IDEA, Section 504, and the ADA, it did not contemplate extended school closures and the laws do not contain provisions that address student rights and/or school responsibilities in such extraordinary circumstances. In March of 2020, the U.S. Department of Education issued a Question & Answer document, which was followed by a Supplemental Fact Sheet, both of which stated the Department's view that the protections of federal special education law still applied notwithstanding the pandemic. The Department stated that students with disabilities retained their right to a FAPE, urged schools to provide special education supports and services "to the greatest extent possible," and emphasized that schools would be given "flexibility" in terms of service delivery given the practical and safety issues presented by the pandemic. In late March, Congress passed a $2 trillion stimulus bill, known as the CARES Act. The Act included a provision directing Education Secretary DeVos to report to Congress within 30 days on whether she believed any provisions of the special education law should be temporarily waived to allow schools "limited flexibility" in responding to the pandemic. The Debate: Interest groups acting on behalf of school districts and school administrators urged Secretary Devos to recommend significant waivers, particularly with respect to deadlines for completing evaluations and reviewing individual education plans. In addition, they sought temporary restrictions on parents' ability to challenge school decisions through legal and administrative proceedings. School groups argued that technical compliance with special education law was practically impossible and that schools should be allowed to focus on the needs of students during this crisis (as opposed to worrying about a flood of potential parent litigation). School groups also noted that all students are facing challenges and are in need of the limited resources available. Interest groups supporting students with disabilities, in contrast, argued that waivers were unnecessary and harmful. They asserted that special education law already provides the flexibility schools and parents need to respond to this crisis, that students with disabilities are at greatest risk of harm through educational and social-emotional regression, and that diverting funding away from such students (and/or watering down parents' ability to challenge school decisions) will only aggravate that harm. The Outcome: On Monday April 27th , Secretary DeVos issued her report to Congress and recommended that none of the core provisions of IDEA, Section 504, or ADA be waived. The report contained five key findings related to special education law : (1) schools must continue to provide education to all students, including a FAPE to students with disabilities, (2) the health and safety of children, students, educators, and related service providers remain paramount, (3) educational decisions should center on the needs of the student, not the system, (4) parents are entitled to meaningful participation in their child's educational program, and (5) creative and innovative approaches can, and should, be employed to provide services that were traditionally provided in person. Radel's Ruminations: This is mostly good news for students with disabilities and their families. Secretary DeVos's recommendation makes it very unlikely that Congress will agree to waive any of the key tenants of special education law. In addition, her report (and the Education Department's previous statements) contain emphatic statements regarding the rights of students with disabilities and the importance of providing FAPE notwithstanding the challenging times. We should be appreciative of these statements and grateful that special education protections appear safe for the time being. However, I say this is "mostly" good news because many important questions remain unanswered. What is an "appropriate" education in the context of extended school closures? Where do we draw the line between affording schools "flexibility" and allowing schools to infringe upon important rights? What does it mean to provide special education services "to the greatest extent possible" and how do we determine accountability for missed services? In most instances, thankfully, these questions will be resolved amicably and pragmatically by schools and parents working together. In others, unfortunately, litigation will be necessary, with inconsistent outcomes based on parents' access to legal services, the quality of legal representation, and varying interpretations of vague phrases ("appropriate," "flexibility," "greatest extent possible") by hearing officers and judges. Lastly, here's something schools and families can agree upon. It's always important to have words spoken on behalf of students with disabilities and to have their rights reaffirmed. But rhetoric without resources will not do - now more than ever. Distance learning poses a challenge for all systems and students, but in particular for students who struggle with accessibility (vision, hearing, language, attention) and for families who lack the resources (technology, training, time) to support students with more intense needs. Transitioning back to school (whenever that happens) will be a significant adjustment for all students, but especially so for students who struggle with self-regulation, social-emotional understanding, and cognitive, communication and adaptive skills. We should insist that Congress and the President be mindful of the needs of students with disabilities during these challenging times and provide additional resources to schools and families. In addition, we should insist that States invest the funds already allocated in the CARES Act to ensure that COVID-19 does not claim among its victims the educational and social-emotional well-being of thousands of students with disabilities.
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