COVID-19

Can the Magic Word “Optional” Relieve Schools of Their Duties to Students with Disabilities In Providing Out-of-school Materials and Activities?

Legal Requirements of Schools With Regard to Students with Disabilities

IDEA (Individuals with Disabilities in Education Act—the law that provides for IEPs—Individualized Education Plans)

          The IDEA sets forth requirements relating to developing and implementing IEPs. As a preliminary matter, schools are responsible for following the student’s IEP. The student’s IEP should have been developed with the purpose of providing the student FAPE (free appropriate public education).

          When unforeseen circumstances occur (such as the current COVID-19 pandemic), the school might not be able to follow the IEP as it is written. For example, suppose the IEP requires the school to provide a student a quiet place to relieve anxiety from being in a classroom of peers. If the school is closed, this provision will not be relevant if the student is not in a classroom of peers. In contrast, suppose an IEP requires the school to provide materials in Braille. Even if the school is closed, this provision is not necessarily irrelevant. If the school provides materials to non-disabled children, the Braille reading student would require all materials provided in Braille in order to receive FAPE.

Section 504 of the Rehabilitation Act

          A school’s duty to students with disabilities is not limited to the IDEA. Section 504 of the Rehabilitation Act also provides protections for students with disabilities. In fact, Section 504 protections are available to, “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment” 34 C.F.R. section 104.3(j). Most, if not all, students with IEPs will also be eligible for Section 504 protections.

          Section 504 prohibits any eligible individual from being “excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance” 34 C.F.R. section 104.4(a). Note that this does not require the “program or activity” to be educational in nature. Discrimination against disabled individuals is the key question—not whether the discrimination involves educational or non-educational activities.

FAPE—Free Appropriate Public Education

          Section 504 explicitly requires every “public elementary or secondary education program (that receives any Federal financial assistance) or activity shall provide a free appropriate public education to each qualified [disabled] person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s [disabled]” 34 C.F.R. section 104.33(a). Moreover, the law explicitly directs that, “the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of [disabled] persons as adequately as the needs of non [disabled] persons are met” 34 C.F.R. section 104.33(b)(1)(i). In other words, the materials must be accessible and appropriate for the student with a disability.

Nonacademic and extracurricular services and activities

          As noted above, students are protected from discrimination in academic and non-academic activities and services. Section 504 provides that programs receiving federal financial assistance (like public schools) “ shall ensure that [disabled] persons participate with non[disabled] persons in such activities and services to the maximum extent appropriate to the needs of the [disabled] person in question” 34 C.F.R. section 104.34(b). Thus, it is irrelevant if the activity or service is educational or not.

Americans with Disabilities Act

          Title II of the Americans with Disabilities Act (ADA) also provides individuals with disabilities protection from discrimination by state and local governments (including public schools). The definition of disability under the ADA is substantially the same as under Section 504. However, the ADA has no provision for FAPE (free appropriate public education). While this may seem to limit the ADA rights of students with disabilities, it actually does not. In some instances, the ADA rights of a student with a disability actually exceed the student’s rights under IDEA and Section 504. In this document, those additional rights are explored in the next section.

Legal Requirements of Schools With Regard to Blind/Low Vision, Deaf/Hard of Hearing, Deaf-blind, and Non-verbal Students as well as to Students with Speech-related Disabilities Pursuant to Section 504 and the ADA

          In a joint letter on November 12, 2014, with accompanying frequently asked questions and a short fact sheet, the U.S. Department of Justice and the U.S. Department of Education addressed the effective communication needs of students for whom typical oral and/or written language is not as effective as they are for non-disabled students. This letter sets forth the legal analysis needed for schools to determine whether their actions comply with federal law.

          In the area of effective communication, federal regulations (both Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, ADA) require schools to provide auxiliary aids and services to ensure that all communication for students with the above-referenced disabilities students are as effective as for non-disabled students. While both the agencies and federal courts acknowledge that IDEA compliance might satisfy effective communication needs, they also recognize that compliance with an IEP does not necessarily mean that a student’s ADA right to effective communication has been met.

          Examples of “effective communication” include, but are not limited to the following: Braille, Nemeth Code (Braille math), Music Braille, screen reader-accessible electronic documents, enlarged print, sign language interpretation, computer-aided transcription services (CART), assistive listening systems, captioning, audio description, tactile graphics, screen reader software, computers, magnification devices, etc. Please note that the ADA directs public entities (including schools) that they must “give primary consideration to the requests of individuals with disabilities” when determining “what types of auxiliary aids and services are necessary” and highlights that, “In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability” 28 C.F.R. § 35.160(b)(2). Thus, schools must take the effective communication accessibility preferences of a disabled student into account and cannot simply force its own preference upon any student with a disability.

Some Schools are Attempting to By-pass the Clear Language of the March 12, 2020 Letter from the U.S. Department of Education

“Optional” activities provided by the school

          Some schools are distributing (via electronic or hard copy print) worksheets, reading comprehension activities, other lessons to their students. Many of these schools take the position that the distribution of “optional” activities to their students does not trigger any duty to make these activities accessible to students with disabilities. Given the laws governing public schools (IDEA, Section 504, and ADA) and many private schools as well, are the schools correct in this claim?

          So long as the school receives federal financial aid, the answer seems to be a clear, “No.” Schools receiving federal financial aid may not “[d]eny a qualified [disabled] person the opportunity to participate in or benefit from the aid, benefit, or service,” and they may not “[p]rovide a qualified [disabled] person with an aid, benefit, or service that is not as effective as that provided to others” 34 C.F.R. section 104.4(b)(i) and (iii). Section 504 does not allow schools to avoid their legal obligations by labeling an activity or service “optional.”

Given that it is almost certain that the programs compiling and distributing these “optional activities” receive federal financial aid, it is equally clear that they may not discriminate against disabled students by refusing to provide them accessible versions of the worksheets, websites, etc. being provided to non-disabled students.

Schools sending families lists of outside providers for education/learning enrichment activities

Some schools are sending families lists of free online educational activities they might choose to use. Are these lists acceptable under federal law?

This question is not as clear. It can certainly be argued that the school is just providing information to families. However, if the outside resources the school is providing are inaccessible to individuals with disabilities, these lists still may violate Section 504. Section 504 clearly prohibits schools from “directly or through contractual, licensing, or other arrangements” engaging in discrimination, including providing “a qualified [disabled] person with an aid, benefit, or service that is not as effective as that provided to others” 34 C.F.R. section 104.4(b) and (b)(iii). If the outside resources the school list references are not as effective for students with disabilities as they are for others, it could be argued that the school is violating Section 504 by providing these inaccessible/ineffective resource lists to any students.

We Should Focus On Education—Not On Trying to Find Legal Loopholes

As a parent (of a blind 18-year-old), I am grateful that my child graduated from high school last June. I am also grateful that my child took a gap year. This winter, my child faced several medical issues and has been home with my husband and me through most of the COVID-19 crisis in this country.

As an attorney (licensed in Pennsylvania), I do not mind these legal gymnastics. I love advocating for students with disabilities, and I enjoy delving into the law as part of my advocacy.

As a professional educator (teacher of blind students), I shudder each time I hear of one of these issues. Educators are supposed to educate. We are NOT supposed to figure out how we might “get away” with purposefully refusing to educate some or all of our students.

To all professional educators (teachers, administrators, etc.): I encourage you to re-examine your actions in the past few weeks. Are you focused on the education of all students? Is it permissible to shove some students to the side for the sake of expediency?

I also encourage all educational administrators to review your institution’s legal obligations. It seems that many public schools are focusing on their IDEA responsibilities. The IDEA is certainly important, but so are Section 504 and the ADA. Unless schools make certain to adhere to their legal obligations relating to all three of these federal laws, schools may find themselves in violation of civil rights laws. Not only will these violations rob students with disabilities of necessary accessible educational opportunities, schools may find their budgets depleted by legal fees and, possibly, monetary damages. In education, we need to use our scarce resources to educate students—not to pay attorney’s fees. Let us work together to ensure that ALL students have access to ALL aids, benefits, and services of our federally-funded public schools. It’s not only the right thing to do; it focuses our scarce resources on providing education instead of trying to avoid doing so.