In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.
As schools prepare to reopen in the fall, there is a growing concern that school districts and educational service agencies will face unparalleled rates of litigation for their inability to meet requirements under the Individuals with Disabilities in Education Act (IDEA) during the COVID-19 pandemic. This concern is well-founded. IDEA guarantees eligible students with disabilities a “free appropriate public education”
(FAPE) and a right to pursue a complaint through a due process hearing and federal court. Similarly, Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) require equal access to educational opportunities for students with disabilities. Also, the regulations implementing Section 504 require FAPE. However, during this unprecedented pandemic, FAPE comes with tremendous
costs to budgets and additional burdens on personnel that challenge school districts trying their best under the circumstances to meet the requirements.
To gauge the degree of concern, the Association of Educational Service Agencies (AESA) surveyed a subset of its members in 28 states between May 20 and June 16, 2020. AASA, the School Superintendents Association, also surveyed school leaders nationwide on the school response to the coronavirus pandemic in May of 2020. The National School Boards Association (NSBA) has been collecting examples of IDEA-related concerns across the country since the beginning of COVID-19. The data gathered by these organizations informs our understanding of how potential and actual special
education litigations related to meeting the IDEA requirements during the pandemic may impact the budgets and operations of schools.
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“School board members and other public school leaders have managed a herculean task to serve students during the pandemic,” said Anna Maria Chávez, the NSBA Executive Director & Chief Executive Officer, in a recent national reopening collaboration document11 released by the National Labor Management Partnership (NLMP).
“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. ESAs and 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 ESAs and districts on a path towards a successful next school year,” according to Joan Wade, AESA Executive Director.
AASA Executive Director Daniel Domenech stated that “Congress must act swiftly to provide liability protection to districts around IDEA. District leaders need to be focused on addressing learning loss, not preventing litigation. This is not a free pass for districts to stop serving students with disabilities appropriately. Instead, this is an opportunity to provide reasonable, temporary, litigation protection for the vast majority of districts that are doing everything feasible to meet IDEA during the pandemic, but simply cannot meet every requirement exactly as intended for every single child.”
Although the U.S. Department of Education recognized that exceptional circumstances may affect how special education and related services/supports are provided to students with disabilities and would offer flexibility12, the policy support has been inadequate. The data from AESA, AASA, and NSBA suggest the flip side of flexibility, that is, the ambiguity of federal or state policies could lead to legal challenges for school practitioners.
