United States Secretary of Education Betsy DeVos is weighing whether to recommend that Congress provide waivers to schools and states on some requirements of the Individuals with Disabilities Education Act.
I urge her to recommend necessary and temporary flexibility during this unprecedented public health crisis.
At issue is whether targeted and specific requirements and procedures should be relaxed. They should be. Specific and temporary flexibility should last until schools reopen for all students. Examples of such flexibility may include easing timelines for meetings, services, etc; easing meeting attendance and other meeting requirements; allowing different service delivery approaches and halting due process claims, including those that arise during the current crisis.
In normal times, many regulations are burdensome to schools, with compliance issues often leading to litigation and the fear of litigation.
Now is not normal. Schools are struggling to provide even minimal education for all students. They need freedom to function as best they can. As long as general education students receive no instruction, or a stripped-down version of what was, students with disabilities should as well.
Without flexibility, schools are placed in an impossible situation that hampers their ability to manage and educate all students — including students with disabilities — during this crisis.
The IDEA Act — now 45 years old — provides students with disabilities (14 percent of our nation’s students) with an individual entitlement to a free appropriate public education to access and learn what the law calls “the general curriculum.” They are entitled to specialized instruction and individualized services, among other rights that their parents can enforce through the law. The general curriculum is supposed to help all students gain academic, social, behavioral and emotional knowledge and skills. Most (80 to 90 percent) students with disabilities have mild or moderate needs and are mostly educated in general education classrooms.
Special education is the only entitlement in our public schools. It’s a government program that provides eligible students with disabilities and their parents with rights and other benefits — no matter the circumstances. It’s a big deal.
Today, we are in a national crisis because of the coronavirus pandemic. The educational circumstances for more than 50 million public school students nationwide are upside down. Many schools are closed with no learning or far less learning going on, approaches that themselves raise equity challenges. During this crisis, we know that many students will lose skills, regress academically and may develop other challenges, as well. Schools are in a most complicated and challenging legal situation.
So, what about the claim that students with disabilities are entitled to a free and appropriate public education — even amid a pandemic? While the Department of Education has urged “flexibility,” it has no power to enforce that. Congress does.
With congressional “flexibility,” schools will be able to work without rigid rules, deadlines, meetings, assessments and other requirements and, hopefully, without the ever-present fear of litigation. Also necessary is the need to halt claims that schools are not implementing the legal rights of students with disabilities during school closures.
What about the most vulnerable students with disabilities, students who are among the 10 to 20 percent who have severe or profound needs? Professionals close to the scene will need to respond: If students are in danger or in unhealthy settings, it’s time to mandate that other government agencies step up. This crisis calls for creativity and solutions to meet on-the-ground needs — not enforce rights written in another era.
We already hear claims that special education students should receive timely meetings, procedures, etc. and, when the crisis ends, compensatory services to counter their expected regression — ignoring the fact that all students will, undoubtedly, regress. Remember, because of the entitlement, special education students have the right to expect that their access to a full range of public educational services will continue; others don’t.
Such claims highlight the need for congressionally mandated flexibility as an appropriate response for as long as the general curriculum remains upended. The argument that legally required services are to be provided no matter what other students get goes far beyond what the IDEA Act envisioned. The law was built on fairness and equity for all — not their absence. Consider how trying to proceed with mostly business as usual for students with disabilities will go over with general education parents whose kids are sitting at home.
Congressionally authorized flexibility is necessary to bridge this difficult time. When schools reopen, we’ll have plenty of time to rethink next steps. Extreme circumstances require an extreme response. Such flexibility is a good first step.
Miriam Kurtzig Freedman, a former teacher, is a lawyer and author of “Special Education 2.0 — Breaking Taboos to Build a NEW Education Law,” (School Law Pro, 2017).
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