At this point, many of us are in our second week of social distancing due to the spread of COVID-19. Increasingly, K-12 public schools and school districts across the country have closed for a period of time to prevent students from coming to school and gathering in the sort of large groups that public health experts say will spread the virus.

Districts have had to grapple with a plethora of issues now that students are learning from home, including continuing to provide meals to students who rely on school breakfasts and lunches, meeting state and federal accountability metrics such as attendance and standardized test scores, and providing instruction to a student body for which access to the internet is not a given. As these fundamental issues are worked out, a legal question that is likely to arise is what duty schools have to provide an education to their students receiving special education services.

Legal rights to educational services for students with disabilities are primarily located in the Individuals with Disabilities Education Act (the IDEA), a federal civil rights law enacted in 1975. The IDEA contains a list of qualifying disabilities, and there is a statutory process families must go through to get their child designated. Any child with a qualifying disability must be given an individualized education plan (IEP) by their public school that will provide them with a “free and appropriate public education” (FAPE) in the “least restrictive environment” (LRE) at no cost to the child. Services can include instructing the student’s teacher to utilize particular positive reinforcements in class, providing a one-on-one aide during class time, sending a separate van to transport the child to school, and even covering the cost of private school tuition if the public school is unable to accommodate more extensive needs. 

With the entire student body now learning from home, how is one to determine what FAPE looks like?

On March 16th, the U.S. Department of Education Office for Civil Rights released a Fact Sheet explaining that a school that has sent all students home for the COVID-19 pandemic would only be responsible for providing special education services if it was providing educational services to its general student body. In other words, if a school begins to administer class online or send home learning packets to its students, for example, it will be required to ensure students with IEPs are being provided with FAPE; if the school is not providing the general student body with any educational opportunities, it does not owe a duty to special education students. The Department reaffirmed this position the following day in a video that described various assistive technologies schools should consider for ensuring equal accessibility in online learning, and again in a Questions and Answers page published this month.

Although it may, understandably, be reassuring to schools to see some federal guidance in these tumultuous times, it’s not clear the guidance is a correct interpretation of the IDEA.

The IDEA itself does not define FAPE, so it has been up to the courts to give meaning to the term. The most recent and definitive statement came in the Supreme Court’s unanimous 2017 decision in Endrew F. ex. Rel. Joseph F. v. Douglas County School Dist. RE-1. In finding that a school district had failed to fulfill its IDEA mandate by repeatedly proposing an IEP that called for only de minimis progress benchmarks for the student, the Court held that the IDEA imposes a substantive obligation on schools to provide an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” In justifying its holding, the Court emphasized the history and purpose of the legislation, which is to ensure education plans that are “specially designed” to meet the “unique needs” of the child.

This description implies that the relevant comparison is whether the student is able to make progress as related to their own starting point – not as compared to how other students are progressing. Indeed, the Endrew F. Court explicitly rejected the assertion that the IDEA requires schools to provide students with an IEP with opportunities that are substantially equal to those of their non-IEP classmates.

Given the Court’s very recent interpretation rejecting a requirement of using the general student-body to measure FAPE as a matter of parity, it’s hard to reconcile the current U.S. Department of Education’s guidance. If challenged in court, the relevant question would likely be whether total school closure is a consideration that should count under the category of “the child’s circumstances” under the Endrew F. rule. If it is, then a school may be legally clear from meeting FAPE, since the school’s closure would be a circumstance that would reasonably disrupt the child’s progress. However, the fact that the IDEA is routinely used to require public schools to reimburse private school tuition when the origin school is unable to provide suitable services implies such a holding would be counter to the spirit of the law. Even so, the unprecedented nature of the COVID-19 outbreak makes it difficult to predict how the court would come down.

Amidst the chaos of our present situation is a reminder from Wendy Tucker, Senior Director of Policy at the National Center for Special Education in Charter Schools, that the IDEA is a civil rights statute. Like any other civil rights statute, it requires state entities like school districts to go above and beyond to protect those rights, even when (or especially when) it is burdensome to do so.

If it turns out that issues of internet access, school resources, and health concerns prevent schools from delivering on the legal entitlements guaranteed by the IDEA, lawyers may need to step in when this is all over to advocate for compensatory services after the fact.