The COVID-19 pandemic and its disruption of education has had schools, parents, and advocates wondering about accountability for services for students with disabilities that were lost under school closures, and due to remote and virtual instruction.
Dr. Perry Zirkel, Esq., University Professor Emeritus of Education and Law at Lehigh University, has been tracking and documenting state complaints, due process hearings, and court decisions nationwide since the beginning of the pandemic response in schools.
Zirkel sees two primary questions:
- Has the district denied FAPE to the eligible students and, if so,
- What is the resulting relief, typically but not exclusively in the form of compensatory education?
In a survey of IDEA state complaints, hearings and court rulings between March and August 2020, Zirkel found that the number of filings had dropped significantly from previous levels. That’s not surprising, given that the disruption in schools was unprecedented, forcing school administrators and parents to scramble to adapt simultaneously. These initial months showed 207 state complaint decisions, but only 11 due process hearings.
Trends show several issues: procedural issues (failure to evaluate, failure to meet, etc.), failure to ensure the IEP reasonably enabled a child to make progress according to circumstances (per Endrew F.), and most commonly, failure to implement the IEP.
State complaint filings in the 2020-21 school year have followed a similar trajectory.
Due process decisions are far fewer and longer in coming. Most due process hearings have also focused on failure to implement the IEP, and because hearing officers apply the standard of whether there has been a “material gap” between what the student received and what’s specified in the IEP. Not surprisingly, most decisions currently favor parents, with compensatory education awards tailored to the student’s particular circumstances.
Court cases tend to take even longer, and dockets nationwide are backed up owing to COVID restrictions, and clogged with COVID-related lawsuits. Interim motion rulings are typically restraining orders and temporary injunctions: these are rarely final and provide few clues to the eventual decisions. These cases often need to overcome the hurdles of plaintiff’s standing and other complex legal issues.
For the big questions, advocates will have to wait for more final decisions from the courts. But the writing on the wall is beginning to show. Districts should be prepared to discuss compensatory services for students with IEPs, and provide additional services for students who are graduating or aging out.
Blog: Perry A. Zirkel, University Professor Emeritus of Education and Law at Lehigh University. https://perryzirkel.com/
CASE, Council of Administrators of Special Education (CASE); Volume 62, Number 4 Special Edition, March 2021; Legal Decision for Special Education COVID_19 Issues: Emerging Answers, Perry A. Zirkel.
