Despite assurances of flexibility, educators fear liability in online instruction of special ed students 

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A special education class at Redwood Heights Elementary School in Oakland

Alison Lin/EdSource

A special education class at Redwood Heights Elementary School in Oakland

Carolyn Jones

March 24, 2020

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State and federal education leaders have assured school districts they would have flexibility in serving out-of-school special education students, but some districts are still afraid of lawsuits if they are unable to appropriately educate those students amid the coronavirus crisis.

U.S. Secretary of Education Betsy DeVos announced over the weekend that school districts should continue providing special education services, despite the difficulties they may face in offering online instruction during the pandemic and the threat of lawsuits if they are unable to do so.

The department also said it would grant districts and parents greater flexibility in meeting timelines spelled out in several federal laws governing special education. The California Department of Education also provided guidance, giving districts more leeway in implementing the special education laws.

The issue has direct implications for the nearly 800,000 special education students in California, who comprise 12.5 percent of the state’s public school enrollment, and who are now at home, with their often carefully constructed education programs completely upended.

DeVos’ announcement was welcomed by special education advocates, who said it provided clear guidance but enough flexibility for districts to find effective ways to meet the needs of special education students.

However, school administrators feel that the guidance they are receiving from both Washington and Sacramento is inadequate to assure school districts that they won’t face legal action if they are unable to provide all special education students with what is termed an “appropriate education” using online tools.

“(The state and federal guidance) is not nearly enough,” said Wesley Smith, executive director of the Association of California School Administrators, representing over 17,000 superintendents, principals and other administrators. “We need explicit waivers of explicit provisions. … Our districts are asking for relief so they can enact the governor’s orders to continue providing high-quality education.”

Some educators are seeking more specific waivers, which may be permitted in the education portion of the massive bailout legislation now being debated in Congress.

Last week, thousands of school districts across the country closed campuses to stem the spread of the coronavirus and began offering instruction online, or were planning to do so. That could pose a challenge for students enrolled in special education, many of whom rely on in-person assistance for speech, occupational, physical or behavioral therapy, as well as instructional aides to help in regular classrooms.

DeVos’ announcement came late last week after reports that some school districts were limiting — or not providing — online lessons for all students for fear of running afoul of federal special education laws, which guarantee students with disabilities the right to an equal education.

“Some educators have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education,” DeVos said. “This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities.”

But some districts want more assurance from the state and federal governments that they will not be subject to lawsuits from parents for deviating from a student’s special education plan, typically referred to as an Individualized Education Program, or IEP, which outlines all the services that a student is entitled to under federal and state law.

During previous crises, such as wildfires, some parents still sued districts over the fact that their children did not get the services they were entitled to, claiming that districts still needed to comply with special education laws even during emergencies.

Matt Tamel, an attorney at Dannis, Woliver & Kelley, a law firm that represents school districts in special education cases, predicted that lawsuits may not come immediately, but after the crisis ends. Some parents may feel the district didn’t do enough to serve their child, and the child regressed.

“Ninety-nine percent of parents are going to be appreciative and understand the situation,” he said. “But there may be some who feel their student is being somehow shorted, and that could pose a problem for districts.”

A particular area of concern could be compensatory education — a provision in special education law that requires districts to provide services after-the-fact if, for example, a student has regressed because he or she missed therapy spelled out in their education plan, said Jan Tomsky, an attorney at Fagen, Friedman & Fulfrost, which specializes in education law.

“It depends on so much that we don’t know, such as how long this will last,” she said. “That’s the vast unknown. Right now, school districts are working around the clock to respond to this unprecedented world we’re living in. It’s an extraordinary moment. But I think the challenge is the uncertainty about what their obligations are.”

The U.S. Department of Education did acknowledge that school districts may have difficulty providing the necessary services in the middle of a pandemic. The guidance stated that “the department recognizes that exceptional circumstances may affect how special education and related services and supports are provided to students with disabilities, and the department will offer flexibility.”

District responses have been varied. Some districts have provided little guidance for teachers, while others have encouraged teachers to contact families daily via phone or video-chat, deliver educational materials directly to students’ homes, and generally check in on students’ welfare during the closure.

DeVos’ announcement, which came a day after California’s guidelines were announced, was welcomed by special education advocates, who said it provided clear guidance but enough flexibility for districts to find protocols that work for their individual students’ needs.

“I think it’s good news. … It’s a clear statement that services need to continue,” said John Eisenberg, executive director of the National Association of State Directors of Special Education. “It says that districts need to do the best they can to provide the best possible services to students. It might not be perfect, but you need to try.”

DeVos also clarified any confusion about the U.S. Department of Education’s position on online learning.

“Nothing issued by this Department should in any way prevent any school from offering educational programs through distance instruction,” she said. “We need schools to educate all students out of principle, rather than educate no students out of fear. These are challenging times, but we expect schools to rise to the occasion, and the Department stands ready to assist you in your efforts.”

In a follow-up letter this week, Kristin Wright, California’s director of special education, acknowledged the “overwhelming challenges” students, families and schools face “in maintaining access to meaningful educational opportunities,” but reiterated the federal message that implementing special education laws shouldn’t get in the way of offering online instruction during the current crisis.

Ron Hager, managing attorney for education and employment for the National Disability Rights Network, which advocates for the federal rights of disabled people, said the announcement left him “extremely hopeful.”

“As depressed as I was last week, I’m now optimistic we’ll see a turnaround and districts will start providing services to all students,” he said. “Saying that districts should not let their policies be dictated by fear was a very powerful statement.”

But Mayra Lira, an attorney for Public Counsel, a nonprofit law firm that has represented families of special education students, said that while the announcement was positive, it might be overly lenient with districts struggling to provide services to students in special education.

Some students she represents have received no services during the closures, she said. While DeVos’ guidance might provide short-term relief for districts, it could also open the door to districts curtailing their services for disabled students over the long term because they may claim they don’t have the resources, she said.

“For now, this is good news. It means some districts can no longer do what they’ve been doing, which is nothing,” Lira said. “But I think the announcement includes enough caveats that allow schools not to make their best efforts. They’ll say, ‘Well, this is the best we can do.’ That’s a problem.”

Meanwhile, members of Congress are continuing to negotiate a coronavirus aid bill that includes a provision allowing DeVos to suggest waivers to special education laws. The Coronavirus Aid, Relief and Economic Security Act, a $2 trillion bailout package, would give DeVos 30 days to create a plan for Congress recommending changes to the Individuals with Disabilities Education Act, the 45-year-old law that guarantees students with disabilities a free public education. Advocates fear the provision could lead to permanent weakening of the law.

As of late Tuesday, that provision was still in the bill, on which the Senate is expected to vote on Wednesday.

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