School districts across the country are debating whether, and to what extent, to return to classrooms this fall. Many have pushed back their start date. Others have opted for a hybrid model of both in-person and virtual instruction. Still others have decided to start with solely virtual instruction.[i] The uncertainty is unnerving for students, their families, and school staff alike. Some well-off families have opted to homeschool their children or hire private tutors. Families who are low-income may not necessarily have the means to do the same, and therefore are at the whim of school districts’ decisions. Students with special learning needs will be particularly affected by changes to instructional models. Hence, school districts must consider how they will provide instruction to these students in a way that complies with the inclusivity mandates under the Individuals with Disabilities in Education Act (IDEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).[ii]

School reopenings and virtual learning create new challenges that may prevent students who need accommodations from accessing their education, but it also creates an opportunity to revamp how schools approach accessible learning environments. This post begins by discussing how school reopenings may separate students with medical needs from their peers and violate the IDEA. Second, I argue that if schools rush the reopening, and do not thoroughly consider what new accommodations each unique student will need, courts may face a rise in cases under the IDEA, the Rehabilitation Act of 1973, and Title II of the ADA. Importantly, these cases may raise novel arguments arising from website accessibility and the timely implementation of accessible features. However, I conclude with discussing how, now that COVID-19 has highlighted the education system’s preexisting vulnerabilities, we have the opportunity to revamp the education system from the ground up, to ensure that all students, including those with special needs in lower income school districts, are better able to access the academic content.

School reopenings during the pandemic will face challenges accommodating students with special medical needs. If school districts decide to return to in-person classroom instruction, with its traditionally overcrowded classrooms,[iii] students with medical needs who receive accommodations under the IDEA may be increasingly separated from their peers because of their heightened risk of infection. It’s uncertain when we will be able to congregate in large groups again, as social distancing may be necessary for the long-haul. Students who otherwise would be in a general education classroom learning the same content and socializing with their same-aged peers may be segregated for an alarmingly extended period. Districts may sequester these students into a separate in-person classroom or limit their interactions with peers to only virtual media. Theoretically, when a vaccine becomes available, districts may reintegrate these students into the general education classroom. However, by that time, they could lag behind their peers academically and socially, which may consequently damage their self-esteem, sense of identity, future prospects, and relationships with others.

A period of segregation could also lead to a surge in cases for alleged violations of the IDEA inclusivity mandate. The IDEA requires that students spend the maximum amount of time possible with their same-aged peers in the general education classroom and receive the individualized accommodations that would enable them to do so.[iv] School personnel and Individualized Education Plan (IEP) administrators[v] may argue that it’s not possible to integrate students with medical needs into the crowded general education classroom unless their families  consent to the increased risk of infection. In their defense, they will cite their minimal funding, lack of teachers and paraprofessionals, overcrowded classrooms, and the health emergency.

School districts that reopen with virtual instruction may also be subject to scrutiny under the ADA and the Rehabilitation Act of 1973 if they do not properly accommodate students for the new learning environment. Title II of the ADA, which covers public schools, prohibits discrimination in the provision of state and local government programs to qualified individuals with disabilities.[vi] The inquiry on whether a public school has complied with this mandate is centered on program access.[vii] Public schools must operate their programs to ensure they are readily accessible and usable by individuals with disabilities. The Department of Education has confirmed that if a school district opens instruction during COVID-19, either in-person or virtually, it must continue to provide services to students with disabilities.[viii] While the text of the ADA does not explicitly mention the internet, the regulations state that Title II “applies to all services, programs, and activities provided or made available by public entities” (emphasis added).[ix] It was also the intent of the House Committee on Education and Labor when deliberating the ADA in 1990 that “the types of accommodation and services provided to individuals with disabilities … should keep pace with the rapidly changing technology of the times.”[x] While the Department of Justice (DOJ) has not promulgated regulations specifying the technical standards required for websites to assist public entities with ADA compliance,[xi] the DOJ has taken the position that the ADA covers access to websites for entities that are subject to the ADA.[xii] There has already been litigation against public entities covered under Title II of the ADA regarding the inaccessibility of their websites.[xiii]

Additionally, the Rehabilitation Act of 1973 requires that individuals with disabilities be given the “aids, benefits, and services” needed in order to afford them “equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.”[xiv] Section 508 of the Rehabilitation Act of 1973, in particular, requires that entities receiving federal funds maintain accessible websites.[xv] The DOJ has already intervened in actions where individuals with disabilities have commenced litigation against colleges and universities for failure to make their websites accessible.[xvi]

Families of students with disabilities could therefore launch novel challenges to the accessibility of the virtual instruction provided by their public elementary or high school. It’s unclear, with the rush to virtual instruction, whether public schools have meaningfully and thoroughly assessed whether their virtual instruction is designed with accessible features. Many virtual learning platforms may impose barriers impeding or preventing individuals with disabilities from accessing the curriculum. For example, schools may not have considered which auxiliary aids and services may be necessary to provide effective communication to students with hearing, vision, or speech disabilities.[xvii] Such failures to accommodate students could be viewed under greater scrutiny by the courts, particularly if the school district knew of a particular student’s needs before implementing the virtual instruction, or could reasonably foresee how a student’s needs might change in the new environment of virtual instruction. For example, under Title II of the ADA, if a school district has knowledge of a student’s needs, it has an affirmative obligation to provide auxiliary aids or services, even if a parent doesn’t request it.[xviii]

Further, if virtual learning environments are not more accessible to students with special needs than the traditional classrooms, families might argue that a school district has failed to create an accessible program that allows these students to be educated in the least restrictive environment possible. Such an argument is analogous to one made under the ADA for a public entity’s failure to create accessible structural features, like an elevator or ramp. For example, a building without accessible structural features that was built before the time the ADA Standards for Accessible Design was enacted after 1991 may be exempt from some current structural design requirements.[xix] However, once this building undergoes renovations, it becomes vulnerable to the scrutiny of the ADA, and it must alter existing facilities in accordance with the current standards.[xx] Similarly, when schools are revamping the education system, in favor of this new virtual instruction, families could argue for greater scrutiny of the school district’s redesign.

Families could argue that if a redesign does not make virtual instruction more readily accessible, according to research guidelines and documented best practices that predate the redesign, then the school districts have failed to comply with the ADA. For example, it is widely recognized that students learn best in small group environments, with more consistent feedback and less distractions. However, this is unfortunately not the reality in our nation’s public schools, which are plagued by overcrowded classrooms. As a result, many students with special learning needs have small group instruction specified as an accommodation in their IEPs, as necessary to ensure they are able to access the general education curriculum. This is often done in a separate classroom, as the least restrictive environment necessary for them to access the curriculum. This traditional accommodation of pull-out instruction is feasible in a virtual learning environment (e.g. break-out rooms on Zoom), but it would not be necessary as a special accommodation if small group instruction was the norm for all students from the onset. Families might argue that since educators have greater capabilities to make virtual learning environment more accessible than the traditional classroom, they must do so rather than simply transferring the problems from the old environment into the new.

The deficiencies within our education system are so deeply rooted, and any meaningful change to remedy them has been systematically stagnant in the face of unfortunate budget realities and blatant political partisanship. However, COVID-19 has highlighted our preexisting vulnerabilities, and is forcing us to change out of necessity — nearly every other professional and personal sector has adjusted their operations in an attempt to ensure access to services. We have the opportunity now to do the exact same for the education system. We can revamp it to ensure that all students, including students with special needs in lower income school districts are getting equal access to the academic content as their peers. School districts are already making adjustments. Those school districts who are returning to an in-person model, in whole or in part, and following public health mandates that dictate the size of group gatherings, are in effect implementing small group instruction for all students. This will certainly benefit those students with disabilities who are medically able to attend in-person. Other school districts are demonstrating their dedication to their students, and enthusiasm to begin instruction on time, by preparing remote classrooms. Their efforts are surely applaudable. But are they accommodating for students with special learning needs? For students in low-income communities who have limited or no access to the internet? For students whose parents must work and cannot be at home to ensure their students log onto, and are attentive in, a Zoom session? How will students’ IEP accommodations be implemented over Zoom? What new accommodations will be provided in order for them to access the learning environment? Will these accommodations be identified, and their IEPs adjusted accordingly, before the school year begins? While I want an expeditious return to school for all students, I think the likelihood of accommodation issues require that we (1) think critically about how IEPs should be adjusted and implemented for virtual instruction, and (2) take this opportunity to improve the education system from the ground up to accommodate students with special learning needs, particularly for those  in low-income school districts.

This article is not meant to suggest that we should halt all learning until an ideal system is created, for fear of a surge in lawsuits. No-one is sure when this pandemic will end, and educators have to operate from a place of ensuring that all students continue to learn in the meantime. They are receiving immense pressure from parents, the media, and the government to re-open classrooms. They have had little time to prepare for how to implement virtual instruction, and their efforts in beginning to do so are admirable. However, as school districts continue to develop these new instructional models, it would behoove them to strategize on how they can draw from research studies about how students can more readily access the curriculum, and apply it to their new instructional models so they can make learning, whether remote or in person, more accessible for students with special needs. If they do so, we could come out of this pandemic with new, revived learning environments that more effectively challenge students academically and set them up for success.

 

 

 

[i] See Scottie Andrew & Alicia Lee, Where some of the country’s biggest school districts stand on reopening schools, CNN (July 20, 2020, 10:05 AM),  https://www.cnn.com/2020/07/20/us/schools-reopening-at-home-parents-choice-wellness-trnd/index.html.

[ii] See U.S. Dep’t of Educ., Off. for C.R., Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (2020) (recognizing the broad latitude given to school district personnel to make decisions about how to proceed to alleviate the risk of COVID-19, but also emphasizing that any decision must comply with the ADA and Section 504 of the Rehabilitation Act of 1973), https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf, U.S. Dep’t of Educ., Off. for C.R., Overview of Title II, Section 504, and the IDEA (2019) (stating public schools must comply with the IDEA, Section 504, and the ADA), https://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.htm,Press Release, U.S. Dep’t of Educ., Secretary DeVos Releases New Resources for Educators, Local Leaders on K-12 Flexibilities, Student Privacy, and Educating Students with Disabilities During Coronavirus Outbreak (March 12, 2020), https://www.ed.gov/news/press-releases/secretary-devos-releases-new-resources-educators-local-leaders-k-12-flexibilities-student-privacy-and-educating-students-disabilities-during-coronavirus-outbreak (emphasizing that students with disabilities must continue to receive the services guaranteed by IDEA and Section 504 during the COVID-19 outbreak); see generally A Comparison of ADA, IDEA, and Section 504, Disability Rights Educ. & Def. Fund, https://dredf.org/legal-advocacy/laws/a-comparison-of-ada-idea-and-section-504 (last visited Aug. 9, 2020) (describing the differences and overlaps between the ADA, IDEA, and Section 504); see generally Section 504 and ADA Obligations of Public Schools, Nat’l Ass’n. of the Deaf, https://www.nad.org/resources/education/k-12-education/section-504-and-ada-obligations-of-public-schools (last visited Aug. 9, 2020).

[iii] Nat’l Ctr. for Educ. Statistics, Quality of Elementary and Secondary School Environments, The Condition of Education § 4 at 72 (“Overcrowded schools are a challenge to education because enrollments have increased to record levels and are not expected to decrease significantly in the future. Overcrowding is a cause for concern because research suggests that gains in student achievement (especially for disadvantaged students) are greater in classes with 13-20 students than in larger classes.”) (parentheticals omitted), https://nces.ed.gov/pubs2001/2001072_4.pdf; see also Nat’l Ctr. for Educ. Statistics, Public School Enrollment, The Condition of Education (May 2020), https://nces.ed.gov/programs/coe/indicator_cga.asp (stating total public school enrollment is expected to increase between fall 2017 and fall 2029).

[iv] 20 U.S.C. § 1412(4)(a)(5)(A) (“To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”).

[v] 20 U.S.C. § 1412(1)(A) (“An individualized education program … is developed, reviewed, and revised for each child with a disability …”).

[vi] 42 U.S.C. § 12131(1)(B) (defining public entity as “any department, agency, special purpose district, or other instrumentality of a State or States or local government); 42 U.S.C.. § 12131(2) (defining qualified individual with a disability as an individual … who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”).

[vii] 28 C.F.R. § 35.149 (“Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”).

[viii] U.S. Dep’t of Educ., Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak 2 (March 2020), https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf.

[ix] 28 CFR 35.102 (describing the ADA’s scope in application).

[x] H.R. Rep. 101-485(II), at 108, 1990 U.S.C.A.N. 303, 391 (1990).

[xi] The DOJ has issued advance notices of proposed rulings on website accessibility. See, e.g., Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460 (proposed July 26, 2010) (“When the Americans with Disabilities Act (ADA) was enacted in 1990, the Internet as we know it today did not exist. Today, the Internet, most notably the sites of the World Wide Web (Web), plays a critical role in the daily personal, professional, civic, and business life of Americans.”), https://www.govinfo.gov/content/pkg/FR-2010-07-26/pdf/FR-2010-07-26.pdf; Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 81 Fed. Reg. 28657 (proposed May 9, 2016), https://www.govinfo.gov/content/pkg/FR-2016-05-09/pdf/2016-10464.pdf. However, the DOJ has not issued a final rule. See Nondiscrimination on the Basis of Disability; Notice off Withdrawal of Four Previously Announced Rulemaking Actions, 82 Fed. Reg. 60932 (proposed Dec. 26, 2017), (“announcing the withdrawal of four previously announced Advance Notices of Proposed Rulemaking”), https://www.govinfo.gov/content/pkg/FR-2017-12-26/pdf/2017-27510.pdf.

[xii] The DOJ has affirmed the application of the ADA and Section 504 to websites in a technical assistance publication. See U.S. Dep’t of Justice, C.R. Div., Disability Rights Section, Accessibility of State and Local Government Websites to People with Disabilities (2003), https://www.ada.gov/websites2_scrn.pdf; see also  Dep’t of Justice, Civil Rights Division, Chapter 5: Website Accessibility Under Title II of the ADA (May 7, 2007), https://www.ada.gov/pcatoolkit/ch5_toolkit.pdf. 

[xiii] See e.g., Hindel v. Husted, No. 2:15-CV-3061, 2017 WL 432839, at *5 (S.D. Ohio Feb. 1, 2017) (granting Plaintiff’s injunction in part, stating that they sufficiently established that the state government website was “not formatted in a way that is accessible to all individuals” in violation of Title II of the ADA), Gil v. Broward Cty., Fla., No. 18-60282-CIV, 2018 WL 4941108, at *2 (S.D. Fla. May 7, 2018)  (stating “the ADA does not require places of public accommodations to create full-service websites for disabled persons. In fact, the ADA does not require a place of public accommodation to have a website at all. All the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar [sic] store.” (internal citations omitted)).

[xiv] 34 C.F.R. § 104.4(b)(2).

[xv] 29 U.S.C. § 794(d); see IT Accessibility Laws and Policies: Section 508 of the Rehabilitation Act of 1973, Section 508, https://www.section508.gov/blog/do-section-508-accessibility-standards-apply-to-mywebsite (last accessed Aug. 9, 2020).

[xvi] See e.g., Consent Decree, Dudley v. Miami University, No. 1:14-cv-38) (S.D. Ohio, W. Div., Cincinnati May 12, 2015), https://www.ada.gov/miami_university_cd.html;

Letter from Rebecca B. Bond, Chief, Disability Rights Div. of U.S. Dep’t of Justice, to Nicholas B. Dirks, Chancellor, U.C. Berkeley (Aug. 30, 2016), https://www.ada.gov/briefs/uc_berkley_lof.docx,Settlement Agreement Between the United States of America, Louisiana Tech University, and the Board of Supervisors for the University of Louisiana System Under the Americans with Disabilities Act (2013), https://www.ada.gov/louisiana-tech.htm.

See also,  Project Civic Access Agreements, U.S. Dep’t of Justice C.R. Div.,  https://www.ada.gov/access-technology/pcas.html (last accessed Aug. 9, 2020) ., (listing cities in which the DOJ has helped to facilitate agreements with public entities to make their websites more accessible from 2004-present as part of Project Civic Access).

[xvii] See Section 504 and ADA Obligations of Public Schools, Nat’l Ass’n of the Deaf,  https://www.nad.org/resources/education/k-12-education/section-504-and-ada-obligations-of-public-schools/ (citing 29 USC § 794, 34 C.F.R. §§ 104.4, 104.21).

[xviii] See U.S. Dep’t of Educ., Off. for C.R., Questions and Answers: Title II of the Americans with Disabilities Act (2019), https://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.htm.

[xix] 28 C.F.R. § 35.151(c).

[xx] See id.