Special Education

A Few Parents Have Sued Over Special Education During COVID-19. Will More Follow?

By Corey Mitchell — July 13, 2020 6 min read
  • Save to favorites
  • Print

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.

A version of this news article first appeared in the On Special Education blog.


Commenting has been disabled on edweek.org effective Sept. 8. Please visit our FAQ section for more details. To get in touch with us visit our contact page, follow us on social media, or submit a Letter to the Editor.


Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
6 Key Trends in Teaching and Learning
As we enter the third school year affected by the pandemic—and a return to the classroom for many—we come better prepared, but questions remain. How will the last year impact teaching and learning this school
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Evaluating Equity to Drive District-Wide Action this School Year
Educational leaders are charged with ensuring all students receive equitable access to a high-quality education. Yet equity is more than an action. It is a lens through which we continuously review instructional practices and student
Content provided by BetterLesson
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Attendance Awareness Month: The Research Behind Effective Interventions
More than a year has passed since American schools were abruptly closed to halt the spread of COVID-19. Many children have been out of regular school for most, or even all, of that time. Some
Content provided by AllHere

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Special Education Opinion Inclusive Teachers Must Be 'Asset-Based Believers'
Four veteran educators share tips on supporting students with learning differences as they return to classrooms during this pandemic year.
16 min read
Images shows colorful speech bubbles that say "Q," "&," and "A."
iStock/Getty
Special Education Opinion 20 Ways to Support Students With Learning Differences This Year
Embed student voices and perspectives into the classroom is one piece of advice educators offer in this third pandemic-affected school year.
16 min read
Images shows colorful speech bubbles that say "Q," "&," and "A."
iStock/Getty
Special Education Schools Must Identify Students With Disabilities Despite Pandemic Hurdles, Ed. Dept. Says
Guidance stresses schools' responsibilities to those with disabilities, while noting that federal COVID aid can be used to address backlogs.
2 min read
School children in classroom with teacher, wearing face masks and raised hands
DigitalVision/Vectors/Getty
Special Education Attention Deficit Rates Skyrocket in High School. Mentoring Could Prevent an Academic Freefall
Twice as many students are diagnosed with ADHD in high school as in elementary school, yet their supports are fewer, a study says.
4 min read
Image of a child writing the letters "ADHD" on a chalkboard.
Getty