By Paul O’Neill
The Huffington Postrecently reportedthat some parents of students with disabilities in New Jersey are being required to sign waivers before their children with disabilities can access services and supports remotely during COVID-19 closures. These forms apparently require parents to give up their right to press charges for negligence and injuries of various sorts in connection with providing remote services and forbid parents from being present for, listening in on, or recording virtual educational sessions.
That is outrageous and at odds with the law. Students with disabilities are protected by a range of federal and state laws collectively ensuring that they can readily access the services and supports they need — this is called the right to a “free, appropriate public education.”
Our special education laws empower parents to play an active role in decision-making and assessing the success and sufficiency of services. Forcing parents to sign a mandatory contract requiring them to give up the right to be involved in their child’s education, remote or otherwise, undermines those rights. Insisting that they give up the right to hold the school or district accountable for doing a decent job is also unacceptable. On what viable grounds could public school authorities demand such concessions? What authority permits them to withhold special education services unless parents give up their rights? I have been an education lawyer for more than 20 years and I am unfamiliar with any such authority.
According to the Huffington Post, the law firm that drafted the contract used by some New Jersey districts defended this approach by citing the unprecedented times we are living through and the novel issues of privacy and service delivery that have been prompted by statewide school closures. Fair enough — having to suddenly shut down normal operations and shift from in-person instruction to largely online learning in the space of a few weeks was unprecedented and extraordinarily challenging. There remains a great deal of confusion about what to do and how to do it. However,the several rounds of guidance issued from the U.S.Department of Education since schools began shutting down in March have made it clear that districts and schools should do their best to meet the needs of students despite the chaos and confusion, and that the rights and needs of students with disabilities cannot be set aside or marginalized.
My organization, the National Center for Special Education in Charter Schools, recently helped found the Educating All Learners Alliance, an uncommon alliance of organizations committed to resource sharing and community building that supports the efforts of the education community to meet the needs of students with disabilities during the COVID-19 pandemic. Over the last six weeks, we have seen that schools around the country are tackling these challenges with grace and creativity, even in under-resourced districts. The school leaders we’ve spoken to are proactively reaching out to families daily to ensure that students have the resources and support they need and are not shying away from their duties.
Most New Jersey districts and schools (both traditional and charter) are likewise doing their best to meet student needs and respond to them, without holding special education services hostage. No one has a road map guiding them through how these closures will play out or warning them of what challenges will appear. Even so, no one is entitled to a guarantee that they won’t be questioned or scrutinized and held accountable if they appear to be negligent, apathetic, or worse when it comes to meeting the needs of children with disabilities during the COVID-19 crisis.
This appears to be a toxic situation caused by overzealous lawyers determined to limit the liability of their school district clients. In the process of attempting to limit liability, they are trampling on the rights of vulnerable students and their families. The New Jersey Department of Education, along with the U.S. Department of Education, should promptly look into the matter, confirm the facts that have been reported, and take appropriate action. Permitting public schools to force parents to trade rights for services is an extremely dangerous precedent to allow.
Paul O’Neill is theco-founderandsenior fellow at the National Center for Special Education in Charter Schools.
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