News and Knowledge

In May, the Department of Education released a “question-and-answer” document providing guidance to help students, families, schools, and the public understand the rights students have that ensure their access to education as schools reopen this fall. As noted on JD Supra, a website for lawyers, the information, while not “groundbreaking,” does clearly explain what schools are required to provide.

Highlights of the Guidance for Elementary and Secondary Schools

During all stages of reopening, schools must ensure that students with disabilities are receiving a “free appropriate public education” (FAPE) as described under Section 504 and IDEA. When determining which students will return for in-person instruction first, school districts and schools can prioritize students with disabilities.

School districts must make individualized decisions to ensure students receive services spelled out under their Section 504 plan or individualized education program (IEP). The districts are also required to ensure that students with disabilities can participate in extracurricular activities.

The Department of Education guidance suggested using positive behavioral interventions and supports to explain and highlight the importance of safety procedures. While the CDC is recommending that masks be worn at all times in school facilities, those students with disabilities who cannot wear a mask are not required to and should not be disciplined for not wearing a mask. In those cases, the school must determine if the student can safely attend school with other prevention strategies in place, such as having those in close proximity to the student wear masks and personal protective equipment (PPE), for example. If the student is unable to adhere to alternative prevention strategies, then the school may need to provide education remotely.

If schools and school districts opt to use cohorts or pods, smaller student groups that stay together throughout the school day, to support physical distancing and small groups, then they must allow students with disabilities to participate to the degree possible in those cohorts or pods.

Postsecondary Education

As with elementary and secondary school, postsecondary institutions must also accommodate students with disabilities as appropriate to ensure they have equal access to educational programs within the safety and health requirements necessitated by the pandemic. Exceptions are that the institution is not required to modify requirements that are essential to the program of instruction or related to licensing requirements. In addition, if providing those adjustments would cause an undue burden or fundamental alteration, the institution is not required to comply.

The document does not address compensatory services for students with disabilities, though it noted that it will do so in a future document. When asked about compensatory services by NPR, an Education Department spokesperson said the department stands behind its March 2020 guidance.

Sherri Alms is the freelance editor of The OARacle, a role she took on in 2007. She has been a freelance writer and editor for more than 20 years.