No Waivers to IDEA or Section 504
Learning Rights is working hard to continue our work and respond to the COVID 19 crisis and the feared loss of civil rights that is possible without action. This is not the first time districts have described how "difficult" or "costly" providing services for students with disabilities would be to them. In 1975, the same argument was made. Do not be persuaded that this is any different. We submitted the below letter to Education Secretary Betsy DeVos today, as well as Congressional leaders in the House and Senate. We hope they agree that waivers under IDEA or Section 504 will significantly roll back civil rights protections for students with disabilities.
Dear Secretary DeVos:
On behalf of the students, parents, and family members represented by Learning Rights Law Center (“Learning Rights”), I urge the U.S. Department of Education not to offer recommendations to Congress for additional waivers under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973 (Rehab Act). Any additional waivers would significantly roll back civil rights protections for students with disabilities.
Learning Rights is a Los Angeles-based nonprofit legal services organization whose vision is for all children to receive a meaningful and equitable public education which empowers them to grow into happy, productive, and independent adults. Learning Rights fights to achieve education equity for underserved families in Los Angeles and surrounding counties by providing free and low-cost legal representation, advice, advocacy and training to children, their families and communities who, as a consequence of disability or discrimination, have been denied equal access to a public education.
The COVID-19 outbreak has placed an unprecedented strain on states, schools, and districts. While I appreciate the new challenges we now face, it is imperative that we find solutions that do not put our children’s education at risk by undoing many of their civil and educational rights. Over 7 million children with disabilities rely upon the provisions of IDEA and Section 504 to receive necessary special education supports, services, instruction, and protections. The recommendation of waivers under IDEA or Section 504 would likely lead to the unraveling of civil rights and educational protections for children with disabilities. We must protect our most vulnerable children, especially now.
As you know, Congress passed the CARES Act in part to provide extraordinary relief to individuals, schools, businesses and others. It includes a little-noted provision that addresses the ability of states to apply for waivers under the Individuals with Disabilities in Education Act (“IDEA”). By late April, the U.S. Department of Education is required to provide Congress with recommendations for waivers needed under the IDEA for states so that they have the flexibility to meet the needs of students with disabilities during coronavirus-related closures. Congress must approve any waivers. However, this provision threatens to overturn decades of legal precedent which prohibits states from using “cost” as an excuse to deprive people with disabilities from having equal access to public programs and services, including a public education.
As our nation struggles to address the COVID-19 crisis, we must not forget our civil rights history and the importance of continuing to provide equal access to education to all students, including those with disabilities. Although school buildings may be closed, school districts have a continuing obligation to provide a free public education to all students, including those with special needs. Although school districts may argue that the cost of special education during the COVID-19 crisis is prohibitive, the economic burden of providing equal access to public services and programs, including education, has historically been used as an insidious reason not to provide society’s most vulnerable with the same rights and benefits as others. Time after time the courts have rejected the argument that increased costs are an excuse to deprive some citizens of their guaranteed rights.
Most famously, in 1972 the District Court for the District of Columbia held in Mills that a school district’s interest in educating “exceptional” children is clearly outweighed by its interest in preserving its financial resources:
The defendants are required by the Constitution of the United States, the District of Columbia Code, and their own regulations to provide a publicly-supported education for these “exceptional” children. Their failure to fulfill this clear duty to include and retain these children in the public school system, or otherwise provide them with publicly-supported education, and their failure to afford them due process hearing and periodical review, cannot be excused by the claim that there are insufficient funds. In Goldberg v. Kelly, 397 U.S. 254 (1969) the Supreme Court in a case that involved the right of a welfare recipient to a hearing before termination of his benefits, held that Constitutional rights must be afforded citizens despite the greater expense involved. The Court stated at page 266, 90 S. Ct. at 1019.that “the State’s interest that his [welfare recipient] payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any increase to its fiscal and administrative burdens. Similarly, the District of Columbia’s interest in educating the excluded children must outweigh its interest in preserving its financial resources. (emphasis added.)
The Mills court went further, holding that if funds are not sufficient to fund all programs, then the funds must be distributed equitably to all students; a district cannot exclude students with disabilities entirely:
If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit from the program. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the “exceptional” or handicapped child than the normal child.
Mills recognizes that since Brown v. Board of Education the equal protection clause and due process mandate that states make compulsory public education available to all students on equal terms. There is nothing about the present circumstances which now supports denying an equal access to education to students with disabilities. Despite the unprecedented challenges presented by COVID-19, we must not forget our past, but rather honor it, by continuing to enforce the IDEA. If there are sacrifices to be made, including cuts to educational funding, then those sacrifices must be made by all students and their families on an equal basis rather than being borne “more heavily” by those with a need for special education.
With this in mind, as the COVID-19 crisis continues, we urge you not to disregard the Department’s recent clarification that “provision should be made to maintain education services” for students eligible under the IDEA or Section 504 and its emphasis that “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities.” The IDEA offers flexibility by design so that states, districts, communities, and families may work together to find solutions to the problems they face in the next several months.
The U.S. Department of Education must enforce and Congress must uphold the following principles:
1. LEAs must continue to provide Free Appropriate Public Education (FAPE) to students with disabilities.
The obligation to provide a free, appropriate, public education to students with disabilities remains, even in the face of a public health emergency. This means that special education and related services must continue. It also means that schools must consider how the needs of students with disabilities -- including the accommodations, specialized instruction, and related services they need -- will change as they learn from a distance, in their home, and in an online setting.
This is particularly important for the low-income students we serve. Prior to the Covid-19 crisis, these were already at a tremendous disadvantage due to language barriers, dire financial circumstances, involvement in the foster care system, and many other reasons. If provisions related to the IDEA are waived, this will further exacerbate the numberous problems faced by many of our families in accessing special education services. Additional roadblocks in accessing quality special education services will put our students even further behind their peers. It is thus absolutely crucial that FAPE be provided to all students with disabilities at this time.
2. Federal Special Education Law currently allows school districts flexibility in addressing student needs, without the need for any type of waiver.
Through the Individual Education Program (IEP) process, existing federal disability laws allows for flexibility in determining how to meet the individual needs of students with disabilities. Most people understand that the determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency, and schools may not be able to provide the same services in the same manner they did in the past. These discussions can easily occur through the IEP process, with parental participation.
Through the IEP, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. In some cases, this may mean that schools provide 1:1 instruction and services virtually or telephonically. In others it may mean that schools send materials and activities home for students. In all cases, schools must be evaluating which compensatory services may be needed and plan to provide those services as soon as possible.
3.Teams responsible for student Individualized Education Programs (IEPs) must involve parents in all decisions.
IDEA includes robust provisions calling for parent participation in special education, including within the IEP process. Specifically, IDEA calls for public agencies to “take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.” IDEA anticipates that parent participation may not always be possible in-person and allows for parents and public agencies to “agree to use alternative means of meeting participation, such as video conferences and conference calls.”
There may be a situation where a school team feels the need to make amendments to a student’s IEP given the emergency situation they are in and because students are learning from a distance. In such a situation, IEP provisions within IDEA already allow for amendments to an IEP without an IEP meeting as long as the parent and district agree to those amendments and a written document is created and attached to the IEP.
It is clear that IDEA has numerous provisions that provide the needed flexibility for parents and schools to work together -- even remotely -- during this time. No additional waivers or flexibility are needed. IDEA’s key tenet of parent participation must remain and no changes may be made to an IEP without parent notice and consent. As time has passed, more teacher-parent communications are occurring via email and other remote means. Now, more than ever, parents must be a part of any decisions regarding their child.
4.Parents’ due process rights must remain intact.
Given the inherent flexibility within IDEA and the focus on parent-school partnerships, there is no reason to weaken or revoke parents’ due process protections. Instead, schools and IEP teams should spend time planning for and engaging in meaningful communication with parents and proactively addressing issues related to service provision and accessibility. Frequent and clear communication, collaboration, and partnership between schools and families will be necessary during this time.
Where due process complaints proceed, much can be done in preparing for a due process hearing or investigating a state complaint without an in-person meeting. We also are aware of hearings that are occurring virtually.
5.Use of Federal education funds must adhere to the IDEA, the Rehabilitation Act, the Americans with Disabilities Act and other civil rights laws.
Federal dollars should not be used for any voucher, voucher-like, or scholarship programs unless participating schools are required to adhere to all federal education and civil rights laws. All students should be able to attend a high-quality public school that meets their needs while maintaining all of their rights under the IDEA and other civil rights statutes.
Finally, there is no doubt that some districts and states are better equipped to pivot quickly and support students virtually and in order to achieve this in more communities, schools must be better supported to build the capacity to serve students with disabilities and their families under these new circumstances. Therefore, instead of waivers, we will urge Congress to protect the civil rights of students and provide robust funding to states and school districts so they can make every reasonable effort to educate students with disabilities during this national emergency.
The undersigned firmly believes that students with disabilities are always best served when school leaders, teachers, specialized instructional support personnel, parents, students and advocates work as a team to address complex issues. As Executive Director and Founder of Learning Rights, I urge you to support this request to keep the laws intact and protect the civil rights of students with disabilities. We must work together to ensure schools and families collaborate in support of every student with a disability.
Janeen Steel Esq.
Executive Director and Founder
Learning Rights Law Center
 Coronavirus Aid, Relief and Economic Security Act--CARES Act, S. 3548 116th Cong. (2020) https//:www.govtrack.us/congress/bills/116/s3548.  20 U.S.C. §1400 et seq. On average, approximately 13% of students ages 5-22 nationwide qualify for special education supports and services under the IDEA.  Mills v. Board of Education, 348 F. Supp. 866, 876 (D.D.C. 1972).  348 F. Supp. at 876.  347 U.S. 483 (1954).  348 F. Supp. at 874-875, quoting Brown at 493.  Mills, at 876.  With permission, these principles are based on recommendations and guidance from the Task Force of the Consortium for Citizens with Disabilities.