Fearful of a potential blitz of special education lawsuits this fall, the nation’s superintendents and school boards want Congress to grant them cover from some provisions in the Individuals with Disabilities Education Act.
Special education advocates argue the push is a veiled attempt to seek waivers from the nation’s primary special education law, which is designed to ensure that students with disabilities are provided appropriate educational supports.
In a joint report issued this month by AASA, the School Superintendents Association; the National School Boards Association, and the Association of Educational Service Agencies, the groups document growing concern among school leaders about IDEA-related litigation as schools struggle to fulfill students’ individualized education programs during the pandemic.
While remote learning has disrupted education for all students, it has proved especially troublesome for students who receive special education services, such as speech, occupational, and physical therapy, that require close contact with teachers or therapists.
Some districts made the transition to online therapy during the nationwide school closures. But many have not.
“It’s a really tough spot to be in,” said Sasha Pudelski, advocacy director for AASA. "[Schools] want to be providing these services, but there are physical and logistical challenges to meeting students’ needs right now.”
Having liability protections would ensure that school districts that are doing everything possible to address learning loss and to serve students with disabilities appropriately “are not facing frivolous lawsuits or lawsuits of any kind that they will have to individually fight in court because of what’s going on now with the pandemic,” Pudelski said.
Litigation on the Way?
More than four months have passed since schools began to shut down to curb the spread of coronavirus. Thus far, just a handful of federal lawsuits have been filed on behalf of students who receive special education services.
Anticipating the numbers will soon rise, the organizations behind the report wanted Congress to include the liability protections in the latest round of COVID-19 response legislation, but their request did not make the cut.
Lindsay Jones, the executive director of the National Center for Learning Disabilities, said the report and the related push for legislation was just another attempt to push for waivers that would let schools off the hook for their responsibility to educate all students.
“That report is a wolf in sheep’s clothing,” Jones said during the Education Writers Association’s National Seminar earlier this month. “There’s not much evidence that these types of lawsuits are coming forward.”
AASA pressed Congress and the U.S. Department of Education to approve waivers in the spring. The first coronavirus bill signed into law in late March allowed Secretary of Education Betsy DeVos to recommend waivers, if she thought they were necessary. In the end, DeVos recommended only minor adjustments, stopping far short of approving sweeping reprieves from the law.
Meeting timelines for evaluating student needs, hosting IEP meetings with families who do not have reliable Internet access or providing one-on-one aides for students who need extra assistance can be tough to do during distance learning, Pudelski said.
“We’re not discriminating intentionally against children,” Pudelski said of the AASA push for waivers. “We’re putting forth a documented good-faith effort to comply with IDEA. But we just can’t, for example, provide a one-on-one aide for a student with autism during a pandemic, because we just can’t do that in someone’s home. It’s not safe for our school personnel.”
Some districts have taken extreme measures to avoid liability for special education services during the pandemic. In Massachusetts, at least 11 districts violated state and federal law by asking parents to sign forms that shield schools from lawsuits in order to receive special education services, the Boston Globe reports.
Disability advocacy groups insist that waivers from the special education law are unnecessary even during the pandemic, and that allowing for exceptions would put students with disabilities at further risk of falling behind their educational goals.
“There isn’t a cascade of lawsuits,” said Jones of the National Center for Learning Disabilities. “We need a little bit of grace here. Families and districts need to work together.”
Some school reopening plans are prioritizing the return of students with special education needs, including students with disabilities, to attempt to make up ground on learning loss for children who may have suffered most with distance learning brought on by COVID-19.
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