https://www.washingtonpost.com/education/2020/04/28/betsy-devos-gets-mixed-reaction-decision-leave-intact-law-educating-students-with-disabilities-during-pandemic/

 

It’s now official: There will be no waivers of the Individuals with Disabilities Education Act (IDEA) during any time of sheltering-in-place and resultant school closures. Thanks to the efforts of many people, most notably the Council of Parent Advocates and Attorneys (COPAA), a national non-profit professional and volunteer organization of advocates and attorneys, working with the United States Department of Education, (USDOE), Secretary Betsy De Vos determined that no part of the IDEA should be waived at this time.

 

This is important because it’s no secret that most students, just in general, are going to regress in their learning because of the sudden school closures, putting them behind relative to the grade-level standards. Special education students are even more vulnerable to regression, but only special education students have a legal right to assert demands for compensatory education to make up for regression.

 

This suddenly creates inequity in favor of the special education students with respect to compensatory education, when is an unexpected turnabout. It's usually the other way around that the general education students have advantages over the special education students. What was originally meant to level the playing field for kids with special needs has now become an unfair advantage over the general education students with no enforceable right to compensatory education. That's something that needs to be addressed and rectified.

 

The degree to which a court may reduce the amount of compensatory education due to a special education student in light of the need for sheltering in place remains to be seen. In my lay opinion, there is an obvious need for some leniency. None of this was within any public education agency’s control and its commendable how so many educators stepped up their game during this crisis and continue to give us their best.

 

There is no way I could possibly diminish from that. It moves me in my heart and gives me faith that we can all somehow pull it together for all of our students, regardless of how each of them learns, if we all just collectively put forth the effort.

 

There is also the matter of the “snapshot rule.” In special education litigation, it is commonly known among attorneys and paralegals that an IEP cannot be judged with the benefit of hindsight. It has to be judged according to what was known or should have been known during the time at issue. This requires the trier of fact to look at the period at issue as a “snapshot” of what was known or should have been known during that time.

 

Given the unprecedented unique nature of the sudden school closures, and the pre-existing lack of a contingency plan in the event of something like it, what was known or should have been known by public school officials will require an unprecedented degree of scrutiny. This is because unforgivable errors are being, and will continue to be, hidden among the forgivable ones, and a few bad apples are already seeking to exploit the situation to get away with things for which they would otherwise normally be more likely to get caught.

 

So, how the law will be applied to the facts in the months and years to come ahead is something only time will tell. Given how conservative our Supreme Court has become, there is still cause for concern as to how the law will be enforced. The innovations that are happening around the country in response to campus closures are inspiring and shaping our understanding of what is realistically practicable.

 

This is important because the federal regulations require the public schools to deliver special education according to the peer-reviewed science to the degree that it is practicable to do so. Those who are innovating in public education, right now, are establishing the e