Washington Lawyer - September/October 2020 - 24

FEATURE
Enacted as the Education for All Handicapped
Children Act nearly 50 years ago, the Individuals
With Disabilities Education Act (IDEA) sets
the baseline for students' educational rights.
The law guarantees students with disabilities
the right to placement in the least restrictive
educational environment possible - one
that maximizes opportunities to interact
with non-disabled students. Before the law's
implementation, children with disabilities were
frequently denied an education and institutionalized. At times, school districts have sought
to eliminate the added expense and administration involved in educating students with
disabilities by forcing them into separate
programs and facilities, but the IDEA's protec-
tions have been largely effective in preventing
them from doing so. Also, the law's guarantee
of a "free appropriate public education,"
commonly referred to by the acronym FAPE,
has controlled determinations of the adequacy
of the education provided.
The FAPE requirement was first interpreted in
the 1982 U.S. Supreme Court case Board of
Education v. Rowley, holding that the IDEA
guaranteed a "substantively adequate program
of education to all eligible children," and that
the requirement was satisfied if an IEP was
reasonably calculated to enable the child to
receive educational benefits. The Supreme
Court examined the FAPE requirement again in
the 2017 case Endrew F. v. Douglas County School
District, holding that in order to meet its

obligation, the school must offer an IEP that
is "reasonably calculated to enable a child to
make progress appropriate in light of the child's
circumstances."
Rollin says that some schools are pushing for
a novel approach to interpreting the law.
"There are schools saying that the Endrew F.
Supreme Court standard of 'child's circumstances' means 'in light of the circumstances.'
They're effectively taking the child out of the
equation."

CHALLENGES TO IDEA
D. Scott Barash, general counsel for District of
Columbia Public Schools (DCPS), acknowledges
the challenges the pandemic has presented.
"The shift from in-person learning to distance
learning has been incredibly dramatic for everybody, and it's been a real challenge for school
districts across the country. It's certainly been
a challenge for our district," he says. "We're
working with our schools and parents to ensure
the best educational opportunities possible."
Barash says D.C. public schools aren't seeking
novel interpretations of the require-ments.
"We're very sensitive to our students with disabilities," he says. "We've been working very
hard to stay within IEPs." He adds that providing
services to students with disabilities is always a
circumstance-sensitive, case-by-case determination. "IEPs are by their nature individualized,
and approaches need to be individualized.

We've been holding meetings regarding the
impact of COVID-19 on IEPs over the past
several months."
Similar inquiries have taken place on a national
level. As part of the CARES Act stimulus bill
passed in late March, U.S. Secretary of
Education Betsy DeVos was given 30 days to
issue a report to Congress with recommendations for any waivers she believed would be
necessary under the IDEA to provide "limited
flexibility" to states and school districts during
the emergency.
Advocates for the rights of children with disabilities were highly concerned. During her
confirmation hearings, DeVos had said that she
felt compliance with the IDEA was "best left to
the states." When reminded that the federal
rights provided by the law could not be
avoided by states, she retracted the opinion
but was nonetheless perceived to be hostile,
or at least ambivalent, to the law's protections.
Rollin is concerned about the willingness of
schools to take action without enforceable
rights in play. "The reality is that schools never
liked these obligations to begin with. The obligations are prescriptive. They were put there in
the first place because schools weren't giving
these services," she says. "Now schools are
saying, 'trust us, we'll do the right thing,' but
they didn't before, so why should we trust
them now?"

LITIGATION LANDSCAPE
The Chicago Teachers Union filed a lawsuit in May against
federal and local education officials seeking a temporary
injunction to prevent the enforcement of federal special
education laws requiring revision and review of approximately 56,000 individual education plans for children in the
city's public schools. The union said that a lack of guidance
and resources, and the failure to provide for a waiver of IDEA
requirements, placed them at risk of violation. U.S. District
Court Judge John Kness denied the request for a preliminary injunction, though the case will proceed to argument.

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SEPTEMBER/OCTOBER 2020

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Meanwhile, class action lawsuits have been filed by parents
of children with disabilities in New York, Pennsylvania, and
Hawaii. The lawsuits variously allege that school districts
have violated their federal obligations to students by failing
to deliver educational services, or for altering students'
educational programs during the crisis.

Washington Lawyer - September/October 2020

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