Tucked inside the U.S. Senate’s coronavirus aid package is a provision that advocates say could upend special education for millions of students with disabilities.
The Coronavirus Aid, Relief and Economic Security Act, introduced Thursday by Senate Majority Leader Mitch McConnell, gives U.S. Secretary of Education Betsy DeVos 30 days to suggest a plan to Congress for waiving portions of the Individuals with Disabilities Education Act, the 45-year-old federal law that guarantees students with disabilities a free public education.
Disabilities rights advocates called the proposal an attempt to permanently weaken — or eliminate — protections for students with autism, cerebral palsy, learning disorders and other special needs.
“This opens Pandora’s box,” said Ron Hager, managing attorney for education and employment at the National Disability Rights Network in Washington, D.C. “It’s not necessary, it’s deeply troubling and sets a terrible precedent.”
The proposal stems from the challenge faced by school districts nationwide as they close due to the coronavirus. To comply with the Individuals with Disabilities Education Act, districts need to provide an equal, high-quality education to their students enrolled in special education. But by shifting classes online, many students with disabilities are losing access to services that can only be provided in person, such as occupational and physical therapy.
Fearing lawsuits from parents, some districts, including the School District of Philadelphia, are curtailing online instruction for all students because they can’t guarantee equal access for everyone. It’s unknown whether any districts in California are limiting online education for that reason.
But the threat of lawsuits should not stop a school district from providing at least some services for disabled students, advocates said.
“This idea of not doing anything is just not good for kids, any kids,” said Selene Almazan, legal director of the Council of Parent Attorneys and Advocates, which advocates for the legal rights of students with disabilities. Schools should be creative in trying to teach special education students while they’re at home, she said. Teachers can video-chat with parents, provide daily work packets, talk on the phone or via Zoom with students, if only for a few minutes a day, and take other steps to connect with students during the closure. Districts can also provide tablets or other technology to help students keep up with classwork and connect with teachers.
“Obviously, it’s not going to provide everything you get in a 7-hour school day, but it’s something,” she said. “We do not agree with the premise that no education is OK.”
The Individuals with Disabilities in Education Act, passed in 1975, is the legal mandate for special education in the U.S. Before it passed, some districts offered no special classes or other options for students with disabilities, especially those with severe disabilities, Hager said.
In California, more than 800,000 students in California receive speech, occupational, behavior or physical therapy at school, along with assistance in the classroom and specialized instruction. Most students with disabilities spend at least 80 percent of their day in a regular classroom, but rely on special services to help them learn, Hager said.
Miriam Rollin, director of the Education Civil Rights Alliance at the National Center for Youth Law, a nonprofit law firm, said that she fears some members of Congress will use the current crisis as an excuse to scrap the law entirely, claiming that it puts undue hardship on school districts.
“It scapegoats kids with disabilities,” she said. “We should be pulling together and being creative, not looking for ways to eliminate educational opportunities for kids with special needs.”
Special education is often one of districts’ most expensive programs, especially as the number of students with disabilities increases. Twenty years ago, students in special education made up 10 percent of California’s overall K-12 enrollment. In 2018-19, the figure was 13 percent, largely due to an increase in students with autism.
Rollin does not think parents of disabled students are preparing to sue districts en masse over school closures.
“Does anyone expect special education, in the time of coronavirus, to look like it did before? No,” she said. “But it doesn’t mean you stop offering services to children with disabilities. You don’t say, ‘Oh well, it’s too tough, we can’t do that.’ It means you get creative and look for ways to make it work. There’s a whole lot of tools in the toolbox.”
The Coronavirus Aid, Relief and Economic Security Act needs to pass the Senate and House before it becomes law. Hager noted that the 30-day period for DeVos to recommend a plan to Congress might make the proposal irrelevant, since the coronavirus might be dying down by then.
“This is an excuse for them to waive the IDEA for next year, when the pandemic has passed,” he said. “Although we’re extremely hopeful that this proposal won’t go anywhere in the (Democratic-controlled) House and will be kept out of the final bill.”