In the final weeks of the Trump administration, the Department of Education’s Office for Civil Rights (OCR) initiated “proactive investigations” against Seattle Public Schools and the Indiana Department of Education related to special education services during the pandemic. You’ll recall that since the early days of COVID-19 and the first school shut-downs, the Department of Education has maintained that, while the methodology may change, the obligation to provide a free and appropriate public education to students with IEPs and 504 plans remains intact. In October, OCR and the Office of Special Education Programs (OSEP) reiterated that position in two FAQ documents. These new investigations, opened as the Trump administration was headed out the door, were based on “disturbing reports” in local news media. The investigations aim to determine if Seattle Public Schools and the Indiana Department of Education have met federal requirements to provide appropriate and individualized instruction to students with disabilities during the pandemic.

While the majority of investigations OCR conducts are initiated by complaints, OCR can also initiate “compliance reviews” and “directed investigations.” These “proactive investigations” assess the practices of recipients under civil rights laws. Proactive investigations often are based on review of publicly available information, such as news reports, or complaints to other organizations. OCR recently reported that during 2017-2020, it launched 748 such proactive investigations. In 2020, OCR initiated 19 directed investigations based on possible disability discrimination.

In Seattle, the letter of notification initiating the review cited concerns that some students went without specialized instruction and that some teachers were directed not to provide specially designed instruction or adapt lessons to meet individual student needs. A news report also cited parent frustration over the lack of in-person instruction and delays in evaluations. In Indiana, the notification letter pointed to multiple state complaints from parents alleging students are forced into one-size-fits-all remote learning programs that are not individualized to meet their unique needs as specified in their IEPs and 504 plans.

How the Biden administration will handle these matters, whether they intend to initiate more proactive investigations related to the provision of special education during the pandemic, and how they will address the likely numerous individual complaints filed all remain to be seen. The new administration has stated its plan to be inclusive and promote the rights of people with disabilities, as well as to increase civil rights law enforcement by OCR. But, given the enormity of the overarching goal of getting all students safely back to school and other OCR priorities (like reworking the Title IX regulations), we have yet to hear details on any plan related to IDEA and Section 504 enforcement or flexibility.

Biden’s recent executive order directing federal agencies to create school reopening guidelines also calls for data collection, which must be disaggregated based on race, ethnicity, disability, English-language learner status, and free- or reduced-price lunch status. Additional data may shed some light on how districts across the country are working to provide services to students with disabilities. And new guidance may provide direction on looming issues like recovery services and increased demand for initial evaluations and mental health support (funding from Congress for these needs would also be welcomed).

In the meantime, prior federal guidance (as well as ISBE guidance) related to providing FAPE through remote and hybrid instruction remains in place. Districts should continue work with their families of students with IEPs and 504 plans to provide individualized instruction and related services in these difficult conditions. And continue to document your efforts. Please reach out to our special education team for support with any questions.