Photo Credit: Matthew Cipican

 

I'm pained to open with the platitude that these are unprecedented times. We all already know that and belaboring it for the purpose of a proper opening paragraph seems to belittle the magnitude of the moment.

 

The truth is that I've been having a hard time coming up with the right place to start the next conversation on this blog. I had developed a publishing schedule for Making Special Education Actually Work just before the pandemic hit and the schools in California, where we are headquartered, shut down.

 

All of that went out the window the moment the shutdown started and I've since published some bits about how to respond to the situation based on what was known at the time of each publication, but how things have continued to play out, or not, from one school district to the next has been nothing short of pandemonium. Some of my kids have done so much better with distance learning that they never want to leave their houses again. Others have regressed so greatly since the shutdown started that it's going to take years to undo the damage that has been done and catch them up to the degree its possible to do so.

 

Each kid, as a unique individual learner, has experienced the shutdown differently, but all of them are experiencing the same procedural violation at the hands of their Local Education Agencies (LEAs): Failure to implement the Individualized Education Program (IEP) as written. Or, framed in the language of the regulations, failure of the education rendered to conform with each student's respective IEP.

 

In California, the State has already assumed that compensatory remedy will be due to most, if not all, of its special education students because of the shutdown. None of the laws changed. There are permissible, though narrow caveats, in the law that provide for extenuating circumstances.

 

While the implementing regulations of the Individuals with Disabilities Education Act (IDEA) mandate the application of evidence-based science to the design and delivery of special education on a child-by-child basis, it is only to the degree that the application of the science is practicable. LEAs bear the burden of proving that the delivery of a special education service is not practicable before denying it and giving notice of such via a Prior Written Notice (PWN).

 

The real dispute, it seems, is over what is realistically practicable given the circumstances, but that first requires us to operationally define what we mean by practicable, and that's a problem. There is no legal authority or professional standard for what defines "practicable" within the context of 34 CFR Sec. 300.320(a)(4).

 

I know this because the operational definition of "practicable" was one of the burning questions I had when I went back to graduate school in 2011 and had answered by the time I graduated in 2013. The truth is that there is no operational definition in the scientific literature or the case law as to what is meant by the term, "practicable."

 

Even Perry Zirkel was stymied by this question and ultimately concluded that most courts interpreted the definition of "practicability" as something to be left to the discretion of local education agencies - meaning, really, top administrators and board members, who are all politicians - get to decide what is and is not practicable as a matter of local governance. In those LEAs, "practicable" just means "if the LEA wants to."

 

This, of course, neglects the fact that 34 CFR Secs. 300.320-300.324 vests the authority in IEP teams, which include the parents, to make determinations as to what is educationally necessary and, therefore, the obligation of the LEA to provide to each given special education student. If that authority is vested in the IEP team, then no one from the LEA on the IEP team should have to go get the approval or permission of a superior outside of the IEP meeting, particularly when that superior has no direct knowledge of the student's