It's no secret that remote learning was not successful for many students this past spring. Even though educators and parents often made heroic efforts, some students suffered academically, emotionally, and socially.
This was especially true for students with disabilities, who may have increased difficulty with attention, require "hands on" therapy, or be in need of in-person contact to practice social skills and/or avoid feelings of depression and anxiety.
As schools re-open, what can families and educators do to ensure we don't repeat this process? What can be done when remote learning doesn't work, but in-person schooling isn't available or isn't safe? What does the law say?
A short summary and some suggestions.
COVID Hasn't Changed the Law.
IDEA (the main federal special education law) guarantees students with disabilities a Free Appropriate Public Education ("FAPE"). IDEA requires an individualized education program ("IEP") for each student with a disability, developed by a team knowledgeable about the student's strengths and needs.
The Supreme Court has said an IEP "must aim to enable the child to make progress." This progress must be "appropriately ambitious" in light of the child's circumstances and "every child should have the chance to meet challenging objectives." (Endrew F. v. Douglas Co. Schl. Dist., 137 S. Ct. 988 (2017)).
Congress has not changed the special education law as a result of the COVID crisis (at least not yet). The U.S. Department of Education says students with disabilities haven't lost their educational rights, including their right to a program designed to provide "appropriately ambitious" educational progress.
Radel's Ruminations.
What if remote learning didn't work for your student? What does the law require if your school's in-person and remote learning options don't meet the student's needs?
1. Review the Re-Opening Plan.
Many schools are offering hybrid instruction, with students attending in smaller groups on alternating days and with health and safety protocols in place. Some schools are prioritizing students with disabilities for in-school instruction if they need in-person teaching and/or therapies. If the student needs additional support related to school attendance (for example to address anxiety or concerns about following health and safety rules - e.g., wearing a mask), the school is required to provide support and reasonable accommodations.
2. Consult health care providers.
Ask knowledgeable health care providers about the risks and benefits of in-person schooling vs. remote instruction. The CDC says that while people with disabilities are not automatically at higher risk from COVID, they may have underlying conditions that increase the likelihood of infection or severe illness. Discuss social-emotional concerns associated with isolation and remote learning. Document recommendations offered by health care professionals and other experts familiar with your student's needs. Consider your own knowledge of the student's medical, educational, and social history and your family's comfort level with the idea of in-person instruction vs. remote learning.
3. Discuss Remote Learning Concerns with the School.
If in-person instruction is not offered by the school or is not safe for the student, and remote learning was not successful in the Spring, this must be discussed with the school. Why didn't remote learning work? Was it a technology/bandwidth issue? Were there vision/accessibility barriers? Was instruction effectively designed with the individual student's needs in mind? Are there additional supports that could be provided to the student, family, educators, and/or related service providers that might help remote learning work for this student? There are many excellent resources to help support remote learning for students with disabilities, their educators, and their families.
4. Advocate for Something Different.
What if in-person schooling isn't available or isn't safe AND remote learning cannot be made to work, despite the resources discussed above? The student should receive a customized program - perhaps, in some situations, consisting of socially-distanced in-person tutoring or therapy outside of school (or at least outside of school hours). Families who believe this sort of program is necessary will likely need to advocate for it. If so, they should document (i) the student-specific medical/health concerns related to in-person school attendance and (ii) the student's lack of progress, social-emotional struggles, and/or loss of skills during remote learning.
If you are still concerned after discussing these issues with the school, you should consider consulting an attorney or advocate in your area to review the student's rights and your procedural safeguard options. (You should definitely do this before changing your student's placement or choosing alternatives like homeschooling, as these choices could impact your student's right to receive services).
5. Call Congress.
As the author of this article points out: "Education is a civil right for all students. But many kids with disabilities weren’t receiving it this spring." This will happen again in the Fall unless parents and educators continue to advocate on behalf of students with disabilities AND Congress provides schools with the resources they need to meet these unprecedented challenges. So, consider contacting your members of Congress to request that emergency special education funding be included as part of the next COVID-relief package.
For legal education only. This does not constitute legal advice or establish an attorney-client relationship.