USDOE Causes Confusion as It Seeks to Spur Into Action “Frightened” School District Officials

Guidance Issued to Encourage Schools to Provide Educational Opportunities to Students

On March 21, 2020, the United States Department of Education (USDOE) issued guidance directly addressing concerns schools have put forth regarding special education services. At the time, some schools were claiming that they could not provide ANY educational services to any students because they were unable to meet all the needs of all students with disabilities.

This attempt to scapegoat students with disabilities is as meritless as it is morally reprehensible. For more than three decades, school districts have known of their responsibilities to provide free appropriate public education (FAPE) to students with disabilities. Many school districts have stepped up and met their legal responsibilities to all of their students, and our society has benefited from having young people enter adulthood prepared for post-secondary education, post-secondary employment, and independent living. Some school districts, however, have not met their legal responsibilities for years, and many of these attempt to focus on minimal legal compliance rather than on their stated mission: education.

Earlier Guidance Makes Schools’ Obligations Clear

In guidance published in September 2017, September 2018, and March 12, 2020, the USDOE noted: “If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).” Yes, this same guidance has been available to school administrators for more than two and one-half years.

The USDOE’s March 16, 2020, encourages school districts to utilize accessible technology to serve students with disabilities, “Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during an extended school closure, especially when continuing education must be provided through distance learning.” The USDOE guidance is clear: Educators are expected to provide education and educational opportunities to all students.

With the USDOE’s March 17, 2020 press release and webinar, USDOE Assistant Secretary for Civil Rights Kenneth L. Marcus gets straight to the point. “’OCR’s accessibility webinar is intended to remind school leaders at the elementary, secondary, and postsecondary levels of their legal obligations to ensure that all students, including students with disabilities, can access online and virtual learning programs,’ said Assistant Secretary for Civil Rights Kenneth L. Marcus. ‘Students with disabilities must have access to educational technology utilized by schools, and OCR will continue to work to ensure that no student is excluded from utilizing these important tools.’”

USDOE Tries to Coax School Officials Into Doing Their Jobs

Despite the crystal-clear guidance USDOE had provided to school district officials for thirty months, some school officials still claimed they could not provide any education to any students because, despite two and one-half years of guidance, they were not prepared to provide FAPE or IEP services during a school closure and do not believe that they can do so in the coming weeks and months. The USDOE then issued even more guidance on March 21, 2020. The tone of this new guidance is concerning—it tends to focus on methods school officials may use to avoid their legal responsibilities.

While this guidance reminds school officials that many special education services CAN be offered via distance education, it also states that some services, including “hands-on physical therapy, occupational therapy, or tactile sign language educational services” cannot be provide via distance education. This is troublesome “guidance,” because many physical and occupational therapists have used distance technology to provides services for years—especially to adults in remote locations. Certainly, many PT and OT services for children can be delivered this way.

One example in the new USDOE guidance is troubling. The USDOE sets forth an example wherein it would be permissible for a teacher to provide educational materials to sighted students and offer only audio access to a blind student. However, a closer look at the language used in the guidance makes it clear that this is a narrow example that cannot be applied to all blind/low vision students.

Application of USDOE Blind Student Example Will be Extremely Limited

The “blind student” example in the new USDOE guidance reads as follows: “For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud.”

Please note important conditions contained in this example.

1. The teacher would need to be unable to “distribute a document accessible to” the blind student. This is actually a high barrier. Why is the teacher unable to do so?
   • In order to prove that the teacher is unable to provide accessible material, the school must answer several important questions:
     • What was the school doing before the emergency that allowed the student access to the material?
     • What about the emergency situation precludes the school from doing what worked before?
   • The school must prove that it is not creating the problem:
     • Is the teacher unable to provide the accessible material because the school is not permitting the teacher to access the specialist who can provide the material in accessible form?
     • If so, what is the reason for the school’s refusal?
     • Money? Bad reason, and it won’t pass the smell test—even in an emergency situation.
   • The school must also show why preventative measures had not already been in place:
     • Is it because the school refuses to allow the student to use school-owned equipment that would make the material accessible?
     • If yes, why?
     • Will the school authorize the purchase of such equipment to be shipped directly to the student’s home?
     • If no, why not?
   • Bottom line: The refusal of school officials to make basic attempts to provide accessible content is not excusable.
2. The teacher may read the materials aloud or provide the student an audio recording ONLY “if appropriate for the student.”
   • If the student needs to interact with the text (like all the non-disabled students get to do), audio would likely NOT be appropriate for the student.
   • Come to think of it, if audio recordings are so fabulous, why not ditch the text completely and provide ONLY an audio recording for all students?
   • Bottom line: If non-disabled students need text to access the assignment, schools need to prove that blind students do not.
3. This portion of USDOE guidance evidences a lack of understanding about accessible education options for blind students, especially with regard to distance learning.
   • The example of read-alouds is really quite behind the times given present technology.
   • Refreshable Braille displays can provide blind students the same access to text (in Braille) that non-disabled students receive (in print).
   • Accessible text-to-speech and screen reader programs provide blind students using audio far more control of the content by allowing them to vary speed and volume and by allowing them to move about the document independently and at any time they choose—just as non-disabled students can do with print.
   • Bottom line: It is unfortunate that the USDOE chose the example they did, but it certainly does not mean that schools can shrug off their responsibilities under federal law to every blind student by simply providing an audio version of materials provided to non-disabled students in text.

The USDOE has NOT Changed Requirements of Federal Law

Federal law (statutory, regulatory, and judicial case law) provides the best guidance in this and any other situation. FAPE must be provided. For students with IEPs, the school must follow the requirements of the IEP, including special education services, accommodations, modifications, and any assistive technology needed to access FAPE. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act require schools to provide deaf/hard of hearing students, blind/low vision students, and students with disabilities in the area of speech communication methods that are as effective as those used by non-disabled students.

These are no suggestions; they are laws. These laws set forth federally-protected educational and civil rights for students with disabilities. Schools have no right to strip students with disabilities of these rights and neither does the U.S. Department of Education.