Education Secretary Miguel Cardona reminded states and local school districts that they must ensure students with disabilities who are at higher risk of severe COVID-19 infections can continue to safely attend school in person – even as schools drop masking and testing mandates in the wake of the Centers for Disease Control and Prevention’s updated guidance for K-12 schools.
“The Department recognizes the difficulties many families have experienced as they strived to
balance the need to ensure their child’s physical safety and their child’s need for in-person learning,” Cardona wrote in a letter Thursday to school leaders and parents. “As we enter this next phase of pandemic response, we urge schools to lead with equity and inclusion to ensure all students have access to in-person learning alongside their peers.”
The eight-page letter comes as schools across the country are relaxing, and in many instances dismantling entirely, the layered risk mitigation strategies they had in place to prevent coronavirus transmission, including more than 90% of the largest 500 school districts in the country that are now mask-optional.
But parents and caregivers of students with disabilities are crying foul alongside advocacy and civil rights groups who argue that rolling back safety measures threatens the ability of some children to continue learning in-person – setting back even further a group of students who incurred some of the most acute academic, social and emotional losses.
Editorial Cartoons on Education
Under federal law, states and local school districts must ensure that students with disabilities maintain equal access to in-person instruction and receive what’s known as a “free appropriate public education” in the least restrictive environment possible. And under federal civil rights laws, this must be done so that students with disabilities do not face risk to their school-related health needs.
In the letter, Cardona underscored that “school districts must make reasonable modifications when necessary to ensure equal access for their students with disabilities.” Furthermore, the secretary wrote, if a parent or member of the student’s education planning team believes that particular COVID-19 prevention strategies are necessary to meet the federal standard of providing a free appropriate public education, then they must be outlined in the child’s individual education plan and acted on.
State or local laws, rules, regulations or policies that have the effect of “improperly limiting” the ability of a student’s educational planning team to address school-related health needs, he warned, is in violation of the Individuals with Disabilities Education Act – the federal law that requires schools to address the health needs of eligible students with disabilities who are at increased risk of severe illness from COVID-19.
“Schools must continue to take action to preserve safe in-person learning opportunities for
students with disabilities, including those at high risk of severe outcomes from COVID-19,” Cardona wrote.
The secretary also cautioned schools against placing all students with disabilities in a segregated setting away from students without disabilities since federal law presumes that all students with disabilities should be educated alongside their peers.
“School districts, schools, early childhood centers and homes, and classrooms may still choose to implement masking requirements at any COVID-19 Community Level depending on their
community’s needs – and especially keeping in mind those for whom these prevention strategies provide critical protection for in-person learning,” Cardona wrote. “Implementing layered prevention strategies (using multiple prevention strategies together) in schools can protect the rights of students with disabilities by ensuring their continued access to safe in-person learning.”
The CDC has long recognized that COVID-19 poses a heightened risk of severe complications
to children with disabilities – including those who are immunocompromised or with complex medical conditions, and have consistently underscored that they may need additional protections to ensure they can remain safe in the classroom.
Some of the ways the CDC has suggested schools continue protecting students with disabilities, which Cardona echoed in his letter, includes ensuring all eligible adults and students in school are vaccinated, maintaining masking and testing requirements, updating ventilation systems, establishing hand-washing protocols and creating smaller class sizes.
Yet those recommendations are running up against its more prominent message that more than 99% of Americans live in counties with “low” or “medium” coronavirus community levels and can stop wearing masks indoors, including teachers and students in schools.
Roughly 7 million children in the U.S. receive special education services – about 15% of all K-12 students. Many of those services came to a screeching halt when schools shuttered at the outset of the pandemic.
A survey taken in 2020 of parents with children enrolled in special education services showed that just 20% reported that their child received all the support the school was legally required to provide. Another 39% reported that their child received no services at all. As recently as June 2021, a federal report documented schools continued difficulty serving students with disabilities.
For some families, the services they counted on only returned at the beginning of the current school year, resulting in what many say have devastated their development.
A November 2021 survey from the Council of Parent Attorneys and Advocates found that 86% of parents reported that their child experienced learning loss, skill regression or slower-than-expected progress in school. And while the survey was taken when virtually all schools were offering in-person instruction, it showed that just 18% of parents said their child received additional support to recover ground lost during the pandemic and 14% believed that school districts’ decisions about who got that additional help were unfair.
Many are now seeking what’s known as “compensatory services” to force schools to make up for failing to meet their obligations to students with disabilities over the last two years, with a growing number of families lawyering up to argue that schools are legally obligated to close the academic, social and emotional gaps incurred by remote learning and lost access to special classes, like speech, occupational and physical therapy.
While the letter from Cardona to school leaders and parents doesn’t change the status quo, it’s a not-so-subtle reminder to states and school districts of their federal obligations to students with disabilities.
“Students learn best in person and all children with disabilities must continue to receive [free and appropriate education] and must have the chance to meet challenging objectives,” he wrote. “As we learn to safely engage with our communities and navigate the current state of the pandemic, the Department will continue to provide guidance and resources to school communities to ensure we support the ability of students with disabilities to learn in person.”