For many parents and caregivers, seeing their child struggle through virtual learning can be both frustrating and heartbreaking. However, for those with children who have disabilities, they may also be witnessing a violation of their child’s civil and educational rights.
Federal law requires that public schools provide students with disabilities individualized services designed to meet their unique needs. Despite this requirement, many districts across the state have decided that due to the COVID-19 pandemic, all students, including students with disabilities, will be taught virtually regardless of their unique needs. For many students with disabilities who cannot access or benefit from remote learning, this is a direct violation of their rights under federal law – a violation that is likely to have lasting impacts on their future.
The federal protections for students with disabilities are intended to ensure they have equal access to education as their non-disabled classmates. Students whose disabilities negatively impact their education and require special education services qualify for an Individualized Education Program (or IEP), a written document that outlines the services the student needs to make meaningful progress at school.
In North Carolina, almost 14% of students qualify for special education services. In Wake County alone, more than 20,000 students have IEPs. Depending on the student’s needs, an IEP could include a broad array of specialized services, such as one-on-one reading instruction, occupational therapy, or placement in a special classroom for students with disabilities. The services in a child’s IEP are supposed to be determined by a team that includes school staff and the parent, as well as others who may be knowledgeable about the child’s needs. Yet across the state, families are being told that their student will receive all-virtual services regardless of what the IEP team thinks is appropriate.
Schools who have banned students with disabilities from receiving any in-person instruction cite safety concerns related to the COVID-19 pandemic. These concerns are valid and should be taken seriously. However, in many of the districts with such a ban, other groups of select students have been brought back to campus. For example, Durham Public Schools has opened on-site learning centers. Some districts are providing on-site child care for teachers. Yet no in-person accommodations have been made for student with disabilities, who are especially vulnerable to learning loss and have federally protected rights at stake.
Even where safety or logistical concerns are such that no students can be brought back to campus, schools are not absolved of their responsibilities under federal law. They should still be working to find other alternatives for students with disabilities who are not making progress remotely, such as placement in private school, reimbursement for private services, or creating a robust compensatory education plan to be implemented once in-person services can be resumed.
Further, there has been a lack of clear guidance from the Department of Public Instruction, the state agency tasked with overseeing compliance for students with disabilities, on the responsibilities that school districts have to provide in-person learning for students who need it. Without such guidance, the burden falls on individual families to document difficulties, request IEP Team meetings, and ask for in-person services – a request that will likely be declined.
Schools, families, and students are in unprecedented territory, but that is no reason to disregard the federal laws intended to protect our most vulnerable. If anything, those protections are needed now more than ever.
Peggy Nicholson is a lecturing fellow at Duke University School of Law and supervising attorney in the Duke Children’s Law Clinic.