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Kennedy School Review

Topic / Education, Training and Labor

We Must Protect Students with Disabilities during COVID-19

Students with disabilities were already on unequal footing before COVID-19. Now, the pandemic is putting their civil rights at risk.

The $2 trillion coronavirus stimulus bill grants Education Secretary Betsy DeVos the authority to ask Congress to waive key protections for special education students afforded by the Individuals with Disabilities Act (IDEA), the federal education law. At a time when vulnerable populations–including students with disabilities, low-income, and rural students–are disproportionately feeling the fall-out from remote learning, we should be doing all we can to stymie learning loss and prepare schools and teachers for when kids come back. Congress shouldn’t be asking the Department of Education for guidance on waiving student rights; instead, legislators should be asking what they can do to ensure schools equitably serve marginalized students during and after the pandemic.

These are unprecedented times that require bold and empathetic leadership. Shunting special education rights is not the answer. The federal government can provide better education for all students by protecting children most at-risk of falling behind. However, we have work to do. Currently, as few as 37 percent of districts are providing instruction, which means less than half of school districts are currently teaching students, period. Even for districts that are operating virtually, school closures are devastating for students with severe learning or physical challenges, as they depend on regular in-person interventions. Experts estimate COVID-19’s interruption could result in a year or more of catch-up for students requiring individualized services. Stated plainly, students, families, and schools will end up shouldering the burden when the dust settles unless we act now.

To help families weather the disparate impacts of COVID-19, the federal government should do two things immediately: continue encouraging schools to operate in good faith and aggressively fund state education budgets so districts can bolster special education when students come back.

The Department of Education should continue stressing “good faith efforts” and flexibility instead of requesting special education law waivers. There is no question that social distancing mandates have flipped education on its head for millions of students and teachers across the country. In absence of a roadmap for how schools should handle virtual learning, administrators and superintendents are left improvising ways to deliver education equitably. IDEA stipulates that if a school is operating, it must provide a fair and appropriate education to all students. In the case of special education students, this means meeting their Individual Education Plans, or IEPs. If a school fails to meet IEP provisions, the district could get sued.

Though the Department of Education issued guidance on March 24 reiterating that IDEA allows for flexibility, Secretary DeVos should provide examples of what acting in “good faith” looks like. Disability advocates define “good faith” to mean, among other things, actively and regularly communicating with families to determine how and when services are provided. Superintendents have pushed back, arguing that waivers provide districts liability insurance. For example, IDEA requires districts to hold in-person IEP evaluations within a certain timeframe, and these timelines are impossible to meet while schools are closed. This, on top of other IEP requirements, superintendents argue, gives parents the right to sue the district. However, applying for blanket waivers on special education protections sets a dangerous precedent and is unnecessary. IDEA allows for flexibility in meeting IEP requirements, specifically so that educators can continue to work with families through extenuating circumstances like the pandemic. Potential financial risk should not outweigh 7 million students’ civil rights.

Districts are already responding positively to the Department of Education’s guidance: In a study by the Center for Reinventing Public Education, there was a 270 percent rise in the number of represented districts providing curriculum and instruction since the announcement (a jump from 10 percent to 37 percent). Though these numbers are low, the positive trend suggests that federal guidance is not only helpful, but a sufficient alternative to encouraging schools to serve students without waiving special education protections. Continued guidance and encouragement from the Department of Education is crucial for the millions of students unserved right now. Though guidance is not legally binding, direction from the federal government can mitigate legal fears.

Congress should fund states and invest in strengthening public education in the next COVID-19 stabilization bill. While the CARES Act earmarks $13.5 billion for K-12 education, a group of school administrators and teachers unions are seeking over $200 billion, with $13 billion dedicated to IDEA alone, in the next round. Approving additional public education spending will provide students with the support they need now in the form of teachers and technology, as well as after the crisis in the form of compensatory education services.

Funding our public schools through the pandemic is not just a safeguard for students with IEPs–it is an investment in our country’s labor force and economy. COVID-19 exposes and exacerbates existing systemic inequities. Students who already face learning barriers are now at risk of falling furthest behind. Special education students, along with low-income and rural students, disproportionately feel the burden of school closures. Even in the best case scenario, where districts are providing online instruction, curriculum, and progress-monitoring, students will still have learning gaps. The ripple effects have long-term impacts beyond next year, potentially affecting graduation and college matriculation rates, as well as future job security.

The pandemic has decimated state budgets, but we should remember that special education is already severely underfunded by the federal government. When IDEA passed, Congress promised to cover 40 percent of the incremental cost of educating students with exceptional needs. Right now, Congress only finances 14.6 percent of the extra cost, leaving states to make up the nearly two-thirds shortfall. This is an opportunity for legislators to step up and deliver on its promise. Protect historically marginalized students. Falling short on supporting public schools now will exacerbate current inequities and have adverse consequences for students and communities down the road.

Several local education agencies are working hard to help students, but they cannot combat the coronavirus crisis alone. Georgia’s Henry County Schools moved swiftly to develop remote learning plans that provide specific guidance for educators supporting students with disabilities. A growing group of charter school networks, including KIPP Schools and Democracy Prep Public Schools, have also implemented creative remote learning plans. KIPP is using its buses to deliver food and drop off homework packets. Democracy Prep’s services include tele-therapy for speech and counseling needs for students with IEPs. While these solutions do not address every distance learning challenge, they do ensure special education students are not neglected while schools are closed. Still, districts will need cash–fast–to provide students with remedial services. This is especially relevant for students with disabilities, for their learning gaps will be the greatest when schools reopen.

The federal government has an opportunity to improve the way our public schools serve all students. The first step is protecting civil rights for the most vulnerable.

Edited by: Anders Corey

Photo by: NeonBrand