UPDATED
When schools closed this spring to curb the spread of coronavirus, special education administrators feared the risk of complaints—and potential legal action—from parents and disability rights advocates for running afoul of federal civil rights laws.
Stressed over concerns that they’d be swamped with lawsuits if they could not offer a comparable education for all students, including those with disabilities, some districts were even initially reluctant to offer any online learning.
Thus far, those fears have not come to fruition. Families, teacher unions and special education advocates in just three states, Hawaii, Illinois, and Pennsylvania, have filed federal lawsuits on behalf of students who are allegedly being shortchanged special education services.
During the school shutdowns, a tacit understanding between educators and families likely developed, experts in special education law say: The pandemic upended many Individualized Education Programs, the legal documents that outline what services students with disabilities will receive, making them impractical. Many of the plans required therapy and other supports that simply couldn’t be rendered, at least effectively, during distance learning.
Perry Zirkel, a professor of education and law at the Lehigh University College of Education, who blogs about special education law and tracks special education disputes, has found that parents in fewer than 10 states have filed formal complaints with their state departments of education or individual school districts that would trigger investigations or due-process hearings.
But the legal landscape could shift when classes resume this summer and fall if schools still cannot deliver the services that students missed out on for months, experts in special education law told Education Week.
“I would have expected parents to be filing all kinds of complaints because there are so many obvious violations,” Zirkel said. “But once [classes resume], that’s when it’s all going to hit the fan.”
Education Week interviewed four other experts to find out what they see on the horizon for special education during the global pandemic.
During the discussions, the experts talked about the need for parents to push for quality education services, how funding—or the lack of it—could shape the legal landscape, and the uncertainty surrounding how schools and courts will determine what compensatory education—the supplementary services or programs that districts fund for students—means during a global pandemic.
Here are some excerpts from those interviews, which have been edited for length and clarity.
Kevin Brady, associate professor, University of Arkansas College of Education and Health Professionals, and director, University for Educational Administration Center for Leadership in Law and Education, said all educators should take time to better understand the legal protections entitled to students with disabilities.
“There is significant variability in what we call special education legal literacy across school systems. There’s going to be so much confusion with COVID-19 with keeping schools running that there may be less consideration of litigation because it’s timely and costly.
If principals and educators just have this understanding that the parent or legal guardian should play an integral role in the IEP process, that alone can lead to better outcomes in that it’s less adversarial. The law [Individuals with Disabilities Education Act] is not just about legal compliance. It’s about doing things in such a way as to serve the best interest of the child.
It’s not just restricted to special education teachers. Everyone in schools pretty much works closely with at least one student with a disability, and usually more, so it behooves them to really invest the time and learn more.”
David Duff, a Columbia, S.C.-based attorney in private practice who represents school districts in special education disputes, urges his clients to avoid using the phrases ‘compensatory services’ and ‘compensatory education.’
“There’s a large unknown in terms of ‘what is the learning loss?’ Then there’s the very large unanswered question about what [schools] are going to do to be able to make up for that lost time.
I recommend to my districts that when they develop plans for makeup services that they not use the term compensatory education. It clearly results from a denial of FAPE [free and appropriate public education], which I just don’t think applies here.
Districts can make a commitment to provide certain makeup services without agreeing that they are compensatory services resulting from a denial of [free and appropriate public education] that they caused.
That normally is a remedy when you know that the district has been at fault because it failed to properly implement the IEP or the IEP has been deficient. What we know is that learning loss during COVID-19 may not have resulted from anything that districts have done wrong.”
John Eisenberg, executive director, National Association of State Directors of Special Education, said that without extra funding to resume special education services, a rough return to school could further frustrate already overwhelmed parents.
“Families are just trying to figure out what comes next. I don’t think people are interested in suing each other. There’s more of a focus on making sure their kids get something. We need to work together during this crisis to resolve any disputes or any issues so that we’re not spending our time and money working on litigation.
But we’re in for a rough reopening if the funding doesn’t come through. If we don’t get money for the additional services the kids are going to need, the cleaning equipment, the special busing that’ll need to take place, I don’t see how an effective reopening can happen.
Without federal funding it could inflame the situation. It could pit the local school [districts] and state education departments against parents and advocates and that’s the last thing we need right now.”
Jessica Toste, assistant professor, department of special education, University of Texas, Austin, and chair of the board of directors for Disability Rights Texas, a legal rights and advocacy group, said parents of children with disabilities should continue to advocate for quality services—even during the pandemic.
“There were some unfortunate circumstances where students with disabilities fell through the cracks as schools were trying to figure out how to serve students. Schools should be assembling now to think about how IEPs can be adjusted. It’s very unlikely that IEP services will look exactly as they looked a year ago. Even if schools are returning in person, it’s going to be a very different setup.
The procedural safeguards of the Individuals with Disabilities Education Act, the ability to file lawsuits and have due process hearings, are still in place. But the courts could interpret them a lot differently under these extenuating circumstances.
I don’t think parents should be OK with their children receiving a lack of quality service. But there might be some services that their children were receiving in February that are going to be difficult to deliver right now.”
This post was updated to reflect that a federal lawsuit was not filed against a Virginia school district.