NJ To Schools: You Can’t Make Parents Promise Not To Sue Before Offering Special Education

After HuffPost reported that some school districts in New Jersey had been forcing students with disabilities to sign waivers promising not to sue before providing them with services, the state has issued a memo saying such practices are illegal, violating the Individuals with Disabilities Education Act and state Department of Education regulations.

“A key right guaranteed by both the IDEA and the state’s regulations is the right to disagree with a school district’s determination or action concerning the educational program of a student with a disability,” notes the memo, issued Thursday.

HuffPost previously reported that some schools were making families sign forms relinquishing their ability to hold schools legally accountable in order to receive counseling and speech services for their child. The form said that parents were not allowed to be present for, listen to or record virtual counseling or speech sessions, and that such recordings could violate state wiretapping law. It provided the district with indemnity even if its services resulted in property damage, injury or death.

Special education advocates immediately took issue with the form and made their displeasure known to the state, writing a letter taking umbrage with the legal premise. After HuffPost’s initial report, the pushback ballooned. An op-ed in NJ Advance Media called the forms “outrageous and at odds with the law.”

The form was devised by a firm called Machado Law, which reports to represent around 30 school districts in the state. Advocates said they had not heard of any students without disabilities being made to sign such a waiver.

“No parents should be asked to give up any rights or claims they may have in exchange for receiving constitutionally required educational services,” Elizabeth Athos, senior attorney with the Education Law Center, previously told HuffPost.

Advocates also raised concerns with how signing such a waiver might relate to a student’s ability to obtain compensatory services when school resumes. Under IDEA, students should be offered make-up supports, or compensatory services, in circumstances where their individualized education program (IEP) has not been fulfilled. An IEP is a legal document that details the education services with which a disabled student should be afforded.

Attorneys feared that if students signed away their rights now, when schools are closed, they may also not have recourse to obtain more compensatory services when school resumes.

However, the state guidance clarifies that “Neither the IDEA nor the state’s special education regulations require or allow for the waiver of present or future claims, including claims to compensatory services.”

Renay Zamloot, a professional education advocate for students with disabilities in New Jersey, said she started hearing about these forms from families about three weeks ago. Some families, she said, refused to sign the document, and in turn, stopped receiving special education services for their children.

Zamloot advised families to revise the forms using a Sharpie marker, signing the document only once they felt comfortable with the changes. In her experiences so far, districts have been accepting the revised versions.

“This is completely unacceptable. Districts are required to provide services listed in an IEP,” said Zamloot.

Shea Murray, who has a son with multiple disabilities in high school at Matawan-Aberdeen Regional School District, received the form several weeks ago.

“We weren’t even told it was coming,” she said.

Per Zamloot’s advice, Murray wrote back saying she did not consent to the form’s contents. She was relieved when the district continued providing her son with services anyway.

The forms, to some extent, exemplify the immense challenges school districts are currently facing amid widespread school closures during the coronavirus pandemic. Educating children under distance learning presents hefty obstacles, especially when a child’s schooling is guided by meticulous and legally binding IEPs. Some students with disabilities use a one-on-one aid in the classroom, or receive hands-on services like physical or occupational therapy. Not providing these services could represent a violation of a child’s IEP, though it is notably difficult to do so remotely.

As noted by the law firm that composed these forms in a letter previously sent to the state, “this is an unprecedented time,” which involves never before raised questions of privacy and liability.

However, at the federal level, the U.S. Department of Education has emphasized that despite these issues, IDEA should be fully applied. Some education groups like the School Superintendents Association have been pushing for the department to issue waivers relieving districts of some of the law’s most stringent aspects. But earlier this week, Secretary of Education Betsy DeVos disappointed such groups when she declined to seek such flexibilities.

“While the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning,” DeVos said in a statement. “With ingenuity, innovation, and grit, I know this nation’s educators and schools can continue to faithfully educate every one of its students.”

Zamloot has observed some districts dealing with these obstacles better than others. Some students are merely being emailed packets to complete and send back. Others are participating in online consultations and teletherapy sessions. Some students are even attending online class, with their one-on-one aid virtually present.

“We see a lot of variation within the same district. There are different schools doing different things. Within the same schools even different teachers are doing different things,” said Zamloot. “Some districts are doing a better job. Many are not.”