Whitbeck: Special Ed During a Pandemic

By John Whitbeck

While we all recognize public school districts are struggling to deliver instruction to children during the pandemic, that doesn’t change the fact that the Individuals with Disabilities Act (IDEA) mandates that school districts provide “free appropriate public education (FAPE) to children with disabilities.”  

With many schools going to 100% remote learning for the upcoming school year, parents of children with special needs are left to question whether their children will receive FAPE sitting in front of a computer or tablet all day. In short, the failure to provide in-person learning for many students with disabilities may violate federal law.

Many disability-related accommodations could conceivably work online. For example, students who are granted an extension of time for assignments, access curriculum orally, or by video or need accommodations for test-taking can undoubtedly be provided these services remotely. But what about those accommodations that are impossible to deliver without human contact?

Parents, special education advocates or attorneys could easily make the argument that if the community is actively determining ways to reopen businesses and interact safely (wearing masks/ social distancing), we should be able to creatively address providing accommodations for disabled students required by their IEP.  For example, what if your special needs child’s IEP requires occupational or physical therapy? What if he or she requires a behavior plan? It may be impossible for schools to provide those services without in-person learning, and if they refuse to do so, they may be violating the IDEA.

Everyone understands that during a national emergency, safety concerns may dictate doing things differently for a while.  Indeed, many parents fully support the notion of remote learning until the pandemic lessens. 

But for many children with disabilities, remote learning may not be an option if they are to be educated. While federal disability law allows flexibility for schools in determining how to meet the needs of students with disabilities, there will no doubt be controversy over whether the pandemic changes the rights students have to FAPE that requires in-person services.

It’s hard enough being a parent fighting for FAPE during normal times; it’s going to be even more difficult now. My advice to parents with disabled children is to remember the requirements of FAPE have not been waived just because there’s a virus. The restaurant industry is figuring out ways for people to enjoy dining, whether that is in-person with tables spread apart, or outside on the street during beautiful weather; we can figure out creative solutions to educate children with disabilities in-person. And if your child’s school won’t, the IDEA is there to protect your child, even during a pandemic.

John Whitbeck is a Leesburg attorney whose practice includes a focus on special education law. He also is a former chairman of the Republican Party of Virginia and was a candidate for the county chairmanship in 2019. 

2 thoughts on “Whitbeck: Special Ed During a Pandemic

  • 2020-09-04 at 2:52 pm

    The irrational push to go back to full in-person school despite the health risks to so many having failed, this seems to me to be an argument to justify in-person school based on any other technicality.

    Like so many arguments from Trump-inspired Republics these days, this seems designed to
    1. inspire fear and mistrust of government
    2. imply the government is actively trying to take away your rights and freedoms
    3. provide fingerholds of justification for not listening to public health officials with regard to the health risks of in person school

    We’ve been extremely lucky not to have had as many COVID cases in our county as others have, but this isn’t a reason to believe that we are magically immune from spread through in person schools.

    It’s also not as if the school system is actively working against meeting the IDEA requirements, it is the case that they are trying to balance them against the risks to the students and everyone involved in in-person learning.

    This article sidesteps any of the risk factors of COVID, all too real still despite the message of skeletons dancing in downtown Leesburg, and pushes only for in-person school. I wish it were good faith advice, but I fear that it’s just another way for this party to sow fear and anger among those who still listen to them, and I hope that those who read it understand it for what it seems to be.

  • 2020-09-05 at 7:14 am

    Mr. Whitbeck,

    Given the unique circumstances of a pandemic, how is “appropriate” defined?

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