Parents Worry New School Waivers Could Unravel Special Ed Protections. Districts Say They're Necessary.

The leaders of Jurupa Unified School District in Southern California are terrified of getting sued for running afoul of the Individuals with Disabilities Education Act (IDEA), the sprawling federal law that requires schools to provide disabled students with an equal education. They are already anticipating deep budget shortfalls, after a state revenue nosedive. Potential lawsuits could deplete the district’s strapped coffers.

That’s why superintendent Elliott Duchon is hoping that Congress grants schools temporary waivers under the law. The March coronavirus relief legislation granted Secretary of Education Betsy DeVos 30 days to make a recommendation to Congress regarding potential temporary IDEA waivers for states and school districts amid the nation’s widespread school closures.

But even as school administrators and school leadership groups are advocating for enhanced flexibility, parents and civil rights groups worry that DeVos’ recommendations, set to be released soon, could unravel key protections for students with disabilities and give schools cover to stop providing even basic services.

“What do you think schools are going to do? They’re not going to meet [the law’s requirements]. Some are not going to even try,” said Miriam Rollin, director of the Education Civil Rights Alliance at the National Center for Youth Law. “That’s potentially creating irreparable harm for kids with disabilities and it’s not fair. It’s not right.”

About 7 million children, 14% of all public school students, received special education services under IDEA in the 2017-18 school year. The provisions made for these students are laid out in precise legal documents, called individualized education programs. Written in collaboration between districts and parents, the IEPs detail the modifications necessary to meet each student’s needs. IDEA includes dozens of mandates around how these documents should be devised.

Jurupa Unified School District serves about 19,000 students, 11% of whom have IEPs. During California’s coronavirus lockdown, the district is aiming to provide its students with disabilities with about one-third of the services they would normally receive. Under laws like IDEA and Section 504 of the Rehabilitation Act of 1973 ― the federal law forbidding discrimination based on disability, which is also up for waivers ― school districts are required to provide kids with disabilities with an education analogous to that of their peers.

But current circumstances, where most families are conducting school via remote learning, mean that districts will inevitably run afoul of some students’ legally binding IEPs. Students with disabilities may normally receive a range of supports, from minor add-ons like modified instruction to more substantial services like occupational therapy or a full-time one-on-one aide. Some of these services are naturally getting watered down, if they’re still being offered at all.

“We certainly care about our special education kids but right now everybody is behind,” said Duchon. “We’re doing really as much as we can remotely and hoping really there’s a waiver and some coverage, so we don’t get sued. ... California is a very litigious state.”

Civil rights groups and parents of these students say that fear is misguided. They understand the predicament schools are in ― they’re not looking to sue over a service that it would be impossible to offer virtually and understand that it would be irresponsible to send out one-on-one aides during social distancing. But they say that doesn’t mean districts can’t do their best to serve a student’s needs, without the intervention of waivers.

A range of civil rights groups ― from the NAACP to the Muslim Caucus Education Collective ― sent a letter to DeVos in early April warning against potential flexibilities. For the most vulnerable students, like those with disabilities, the letter said learning loss in these next few months could be irreparable. Absolving school districts of their responsibilities, particularly for children whose educational progress is especially tenuous, is not the solution, the groups argued.

“There’s a reason why we have all of these provisions in IDEA. They’re pretty specific, and the reason for that specificity is the schools weren’t doing that on their own,” said Rollin. “If you take away those requirements, with a promise of ‘Hey, we’ll really do what’s right for kids with disabilities,’ I’m sorry, but I don’t believe that promise.”

Groups like the National Association of State Directors of Special Education and the Council of Administrators of Special Education see it differently.

A letter they sent to the Education Department in late March asks for waivers that last until 45 days after in-person instruction resumes. It urges the department to take action specifically in the areas of timelines (as the law has a multitude of timeliness requirements for evaluations and testing), procedures (like data collection) and fiscal management.

“Federal laws were not written anticipating a global pandemic that has closed a large majority of schools across the country,” says the letter.

Off the top of her head, Karina Becerra-Murillo, who runs special education services at Jurupa Unified School District, can tick off a list of situations in which the district could be held legally liable for its distance learning efforts. If a physical or occupational therapist provides instructions on at-home activities to a parent, for example, and then the parent accidentally hurts the student.

“There are a lot of groups out there, a lot of parent groups, stirring the pot on this, for lack of a better word,” Becerra-Murillo said. “We have always done the best we can to support our students, regardless of whether or not we have a waiver.”

Vicki Farnsworth, an Oregon parent of a 12-year-old child with autism, is sympathetic to the schools’ arguments. “Obviously, a lot of our children’s IEPs, especially the support services, aren’t going to be able to be given during this time,” she said.

But in some cases, without the fear of consequences, “there will be schools that don’t even try,” she said.

Farnsworth, a member of a military family who has moved around the country, has seen both conscientious districts and lazy ones. There are some districts that would always go above and beyond, she said. It’s the rest of the schools that worry her.

“Waivers are there to protect the system, not the people,” she said, noting that dealing with her son’s instruction via distance learning has only illuminated for her how few supports he was receiving in the first place.

DeVos is expected to make her recommendations to Congress in a matter of days.

The public education community is typically distrustful of the secretary, particularly when it comes to special education. During her confirmation hearing, she famously suggested that enforcing IDEA, a federal law, might be best left to the states. On this issue now, Sasha Pudelski, advocacy director of the School Superintendents Association, is optimistic that DeVos may hand over the reins to seasoned career staff at the department’s Office of Special Education and Rehabilitative Services. Concerns have circulated that DeVos might try to include support for voucher programs in her report, which opponents say could reduce funding for public schools.

“I don’t see Secretary DeVos, given her assumed lack of knowledge of IDEA, having too much input on this report, frankly,” said Pudelski, whose organization is pushing for the waivers. “I think this is going to be a very reasonable report, and I’m very worried about how, because her name is associated with it, it will be perceived politically.”

In an earlier statement on the waivers issue, a spokesperson for DeVos said, “The Department takes seriously its responsibility to protect the rights of all students. We are working to provide schools with the flexibilities they will need to serve students throughout this national emergency.”

Statements like that are not enough to assuage Rollin’s worries. She fears that opening the door to these waivers could lead to a slow whittling down of the law’s protections. Over the past few weeks, she said, she’s heard enough stories about districts doing right by students with disabilities to know it’s possible to educate these kids fairly and appropriately even under the most difficult of circumstances.

“It’s all scary and possible,” said Rollin, of a potential chipping away at the disability rights law. “The secretary of education is now going to be responsible for sending to Congress potential waivers for IDEA, for a law she apparently didn’t even know existed.”