ONAfter more than a year of extensive distance learning, many schools are returning to predominantly face-to-face teaching despite some remaining virtual offerings for almost all students. This raises very serious questions that we have never asked ourselves before: Do students with disabilities have a guaranteed right to a joint education with other children? Or can schools stipulate that some pupils with disabilities who they consider to be at risk or at risk are required to attend classes virtually for health and safety reasons? If we let that happen, will students with disabilities now experience a new kind of exclusion, a return to the bad old days when children receiving special education were sometimes banished out of sight and separately to the school basement? A virtual cellar?
This novel situation juxtaposes two kinds of rights – health and safety on the one hand, and special education on the other.
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In the first few weeks of COVID-19 when face-to-face learning ceased, state and state agencies determined that individualized education programs did not need to be formally changed in order for students with disabilities to switch to distance learning. Has this set a precedent that classroom and distance learning are equally good? Or is it at the school’s discretion to switch students between these options? The Federal Disabled People Act has not changed: under the Disabled People Education Act (IDEA), students continue to have the right to participate with their non-disabled peers to the greatest possible reasonable extent (i.e. in the least restrictive environment that suits their needs) to be taught. .
But what exactly does “together with” mean in the face of new remote options? Pupils with disabilities also have the right, under Section 504 of the Rehabilitation Act 1973, not to be excluded from important life activities – such as studying – because of a disability if they are otherwise entitled to participate. Is personal education an “important life activity” in its own right? Are students who are perceived as a safety risk to the school community because of their needs “otherwise qualified” to attend school in person?
The story goes on
These questions are not purely hypothetical. A New York City charter school network recently ruled that a young student with disabilities that make it difficult for them to respect social distancing and keep a mask in place should not return to face-to-face study with other children. The boy and his family felt traumatized and marginalized and filed charges of violating their IDEA rights. Conversely, there are cases where families of students with disabilities want to keep their child in distance learning even though the school prefers to bring all students back in person. In Washington, DC, three charter networks recently filed an application to continue offering a long-distance option, in part to accommodate requests from parents who do not want to return to face-to-face learning. It’s a demand that will most likely crop up across the country this fall, as states or counties require all schools to offer in-person tuition and in some cases specifically prohibit distance learning unless a school is one of the relatively few schools that is designed have been designed to be and function as a fully virtual entity.
With the virus resurgence, the Centers for Disease Control and Prevention recently revised their guidelines for schools to require everyone to wear masks when classes resume this fall. This means that children with disabilities who may have problems with safety practices remain at risk of exclusion.
In the face of these emerging tensions, leaders need to anticipate and develop better strategies to address these difficult new challenges, both to protect student rights and to respect important health and safety concerns. For example:
The U.S. Department of Education should:
Issue guidance on how, in districts that wish to continue to offer distance and face-to-face learning, schools adhere to the IDEA, ensure parents’ voices are heard, and the “least restrictive environment” requirements for students attending the Attending school, observing from a distance.
State education authorities should:
Issue guideline in light of the government’s approach to continuous distance and hybrid learning, including emphasizing the importance of parental involvement in placement decisions and encouraging districts to indicate how they plan to meaningfully involve students in distance and hybrid learning;
Ensure that districts do not inappropriately expand home teaching to keep students who may pose health problems out of classroom training in more restrictive environments than warranted; and
Track where students are receiving classes and how they’re progressing, including data broken down by disability category.
The local school districts should:
Ensure that planning and decisions related to classroom and distance learning take into account the fundamental rights of students with disabilities and reflect best classroom practices;
Training individuals attending team meetings of the individualized education program to ensure that decisions about whether students with disabilities attend school in person or remotely are focused on providing free and decent public education in a least restrictive environment;
Implement robust plans to engage families meaningfully to maximize the effectiveness of distance learning plans; and
Gather statistics on the number of distance learning students, including disaggregated data on students with disabilities, such as information on categories of disability, academic progress, or learning loss of children in distance learning.
These problems will occur in counties across the country. We urge education leaders to take these steps now to prevent the education of students with disabilities from being further marginalized while the nation is through the worst of the pandemic.
Paul O’Neill and Lauren Morando Rhim are co-founders of the Center for Learner Equity.
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