Fears Rising of Massive Special Education Litigation
As the coronavirus pandemic continues, students with disabilities and their families are facing the rapidly approaching fall semester with reservations, as many of these families suffered through enormous difficulties last spring while trying to implement special education programs remotely. These families are now left to wonder if the fall semester will be any better for their students.
Concerned about the current state of special education programs, SafeMinds spoke to Tim Adams, a California special education attorney earlier this summer about special education advocacy during the pandemic. Sadly, in our article, Adams reported numerous instances where students eligible to receive special education were unable to receive any services since the COVID school closures. He also reported many other instances where students with disabilities received only a fraction of their educational services during the same time period.
Adams explained that early in the COVID shutdown, school districts from across the nation had erroneously interpreted a provision in last March’s Coronavirus Aid, Relief, and Economic Securities (CARES) Act as providing schools a free pass from following the requirements of the Individuals with Disabilities Education Act (IDEA). IDEA was passed in 1975 and guarantees a “Free and Appropriate Education” (FAPE) for all students with disabilities. A few weeks later, clarification from the Department of Education would prove these districts’ assumptions to be wrong.
Providing further clarification of obligations under IDEA, Adams explained, “… on April 27, 2020, Secretary DeVos issued her Report, making it clear that school districts are required to continue providing students FAPE in the least restrictive environment. The report did not request waiver authority for any of the core tenets of the IDEA. In other words, a special education student’s rights under federal law have not changed despite the COVID-19 school closures.”
However late last month, with the fall semester quickly approaching, three national school leader organizations asked Congress for a temporary reprieve from IDEA obligations. The School Superintendents Association (AASA), the National School Boards Association (NSBA), along with the Association of Educational Services Agencies (AESA) issued a 21-page report requesting liability protection out of concerns that meeting IDEA obligations will be excessively challenging during the ongoing coronavirus pandemic. Due to potentially not meeting IDEA standards, the school leaders are concerned about the possibility of special education lawsuits. To head off litigation, these groups suggested attaching an IDEA liability protection provision in the next COVID-19 relief legislation, which is currently being developed by congress.
Joan Wade, AESA Executive Director, expressed her concerns about meeting IDEA requirements in the report by stating, “We all agree that FAPE is important, but the legal understanding of FAPE during a pandemic cannot be the same thing as FAPE under normal educational circumstances. School districts are doing the best they can to ensure all students are appropriately served when schools are closed due to a pandemic. Flexibility at the federal government to shield districts from frivolous lawsuits is essential to putting districts on a path towards a successful next school year.”
The report by AASA, NSBA, and AESA to Congress also included a survey that identified the most common IDEA-related complaints received since schools closed last spring. The top complaints included:
- The inability of schools to provide the education services required in the student’s IEP during COVID-19, including insufficient services (30%) and parents’ requests for compensatory education (22%).
- Lack of technology access or broadband connectivity commonly called the “homework gap.”
- Failure in arranging an IEP meeting or reaching agreement on service changes in IEPs between parents and schools.
However, other special education advocates feel differently. According to a Disability Scoop report, disability advocacy groups are insisting that waivers of IDEA are not needed at this time despite the pandemic. Denise Stile Marshall heads one of those groups and believes that fears of increased litigation are unfounded since a very low percentage of families file for due process.
Amy Langerman, a practicing special education attorney in Arizona, feels similarly. She states, “Instead of speculating about a flood of litigation that has not occurred, school administrators and the lobbyists who speak for them should focus on how to provide necessary services to the most vulnerable in educational settings – students with disabilities – who have been disparately impacted by the pandemic’s school closure mandates as many students with Autism, Down Syndrome, intellectual disabilities and other learning differences cannot access virtual instruction. Secretary Devos and State Departments of Education proposed a model that attorneys and advocates who support students with disabilities are currently following; we seek to work collaboratively with school districts and parents to find creative and meaningful solutions to the inability to physically attend school. When courts struck down sovereign immunity decades ago, those cases recognized that immunity breeds irresponsibility; if Districts are granted an immunity for their failure to provide what the law mandates for children with disabilities, they could intentionally refuse to even try, with impunity. While school administrators might suggest such actions would be ridiculous and “of course we won’t do that”, the same could be said about their unfounded, henny – penny cries that “the lawyers are coming”. We are not, provided they make good faith efforts to provide educational opportunity to all students including for those students with disabilities who need special education services in order to receive educational benefit.”
As Langerman points out, the immunity that the School Administrator’s association seeks is not just for “frivolous lawsuits” but for any lawsuit relating to implementation of the IDEA during the remainder of the pandemic. While school closures limited instruction to distance learning, many schools this past Spring did not deliver any special education services to eligible students.
