On March 12, the Department of Education (ED) released three guidance documents regarding responses to COVID-19: one relating to flexibility in accountability standards under the Elementary and Secondary Education Act, another relating to student privacy protection under the Family Educational Rights and Privacy Act (FERPA), and a third relating to services for students with disabilities. The Department of Education announced in its guidance that it will consider targeted waivers of the assessment requirements, the 95% assessment participation rate requirement, and chronic absenteeism benchmarks. The FERPA guidance details how schools and colleges should handle disclosure of COVID-19 infections under the “health and safety emergency” exception. The final document details the responsibilities of school districts, state early intervention lead agencies, and early intervention providers during a COVID-19 outbreak. The Arc is pleased that the Department of Education has provided much-needed guidance to stakeholders. However, The Arc believes the guidance leaves many questions unanswered. Specifically, it does not address whether school districts must provide free and appropriate public education for students with significant disabilities when operating through online/distance learning, how students will receive support typically provided by special education teachers or paraprofessionals, or under what conditions compensatory education must be provided.
New data from the Department of Education indicate that the percentage of students with disabilities identified with autism has increased from 4.97% in 2008 to 10.51% in 2018. Students with autism were less likely to drop out than students with disabilities overall, but more likely to receive a certificate of completion. Students with autism were also less likely than students with disabilities overall to be included in the regular class 80% or more of the day and more likely to be included in the regular class less than 40% of the day. Girls, black or African American students, and Hispanic/Latino students were less likely to be identified with autism when compared to all students with disabilities.
The Individuals with Disabilities Education Act (IDEA) requires that the Department of Education report annually on the progress made toward the provision of a free appropriate public education to all children with disabilities and the provision of early intervention services to infants and toddlers with disabilities. The report focuses on the children and students with disabilities being served under IDEA, Parts C or B, nationally and at the state level. Notable findings in the 41st annual report, which covers the 2016-2017 school year, include:
- Almost one-half of students reported under the category of intellectual disability (49.2 percent) and students reported under the category of multiple disabilities (46.1 percent) were educated inside the regular class less than 40 percent of the day.
- From 2007-08 through 2016-17, the high school graduation percentage increased by at least 5 percentage points for each disability category except intellectual disability (4.7 percentage points), multiple disabilities (0.1 percentage points), orthopedic impairment (1.6 percentage points), and visual impairment (3.4 percentage points).
- The percentage of students with intellectual disability who graduated with a regular high school diploma decreased slightly from the previous year from 42.4 percent 42.2 percent.
On January 24, The Arc of West Virginia joined the parents of G.T., a child with autism, in filing a class action complaint against Kanawha County Schools for systemic disability discrimination. The complaint alleges that the school district has failed to provide positive behavioral supports resulting in excessive punishment, segregation, and loss of instruction time. To more learn, see The Arc’s statement.
On January 22, the Supreme Court will hear oral arguments in Espinoza v. Montana Department of Revenue. Montana’s tax credit scholarship program allows a dollar-for-dollar tax credit for donations to an organization that provides private school scholarships. The state’s supreme court ruled that the state constitution prohibited the use of these funds for religious schools. The petitioners assert that limiting the availability of scholarships to secular schools violates the First Amendment to the United States Constitution. The Arc and other disability advocates filed an amicus brief asking the Court to uphold the decision made by the Montana Supreme Court invalidating Montana’s private school tax-credit scholarship program as it is harmful to students with disabilities. See The Arc’s position statement on education, including school choice. For more information, see The Arc’s press release regarding the case.
On January 15, twelve members of Congress sent a letter to Education Secretary Betsy Devos urging the Department of Education to update its 2016 guidance document on restraint and seclusion. Currently, the federal guidance discourages the use of restraint or seclusion except where a child’s behavior poses imminent danger of serious physical harm to self or others. The lawmakers urge the Department of Education to update the document to prohibit seclusion and restraints that restrict breathing and are life-threatening. Additionally, they ask that the guidance promote the use of evidence-based alternatives that reduce use of physical restraint.
Earlier this month, the Department of Education presented a technical assistance (TA) webinar on the use of restraint and seclusion in schools. This webinar is part of the department’s initiative, announced last year, to address inappropriate use of restraint and seclusion. The webinar covers state obligations under Section 504, civil rights data collection, and strategies for reducing the use of restraint and seclusion.
On January 21, Education Secretary Betsy DeVos announced the creation of a new Outreach, Prevention, Education, and Non-discrimination (OPEN) Center within the Office of Civil Rights. This center is devoted to proactive compliance efforts, including through technical assistance. Read the Department’s press release here.
Public Schools Week will take place February 24-28, 2020. In preparation for this week, advocates are encouraged to take the Pledge for Public Schools. Public schools educate 9 in 10 students across the country, including millions of students with disabilities. Public schools are required to provide for evaluation, free appropriate public education in the least restrictive environment, individualized education plans, parent participation, and procedural safeguards to challenge school decisions and ensure student rights (known as “due process”) for all eligible students with disabilities.
On December 3, the Government Accountability Office (GAO) released a report on the use of mediation, due process complaints, and state complaints in Massachusetts, Michigan, New Jersey, Ohio, and Pennsylvania. Within those states, very high-income school districts were more likely than very low-income school districts to have dispute resolution activity. Additionally, districts that had very low black and Hispanic student populations (less than 10%) were more likely to have dispute resolution activity than districts that had very high black and Hispanic student populations (greater than 90%). However, districts with very high black and Hispanic populations had higher rates of dispute resolution. Stakeholders interviewed for the report cited high cost for attorneys and expert witnesses, among other challenges, as barriers to access to dispute resolution.