In this immediate post-COVID-19 education landscape in which schools are contemplating a full return to in-person instruction, schools are also grappling with the stark realities of achievement gaps and the disproportionate impacts that the pandemic and remote learning had on various student populations. In response to President Biden’s Executive Order calling for the Assistant Secretary for Civil Rights in the Department of Education to deliver a report on the disparate impacts of COVID-19 on students in elementary, secondary, and higher education, the Department’s Office for Civil Rights (OCR) published this Report. The introduction to the Report states that “Although this Report provides a data-driven account of COVID-19’s disparate impacts on students, rather than a legal analysis, it is important to recognize that disparities can sometimes be evidence of legal injuries under Federal civil rights laws, even when policies and practices do not directly single out a group of people for harm.” Accordingly, while the purpose of the Report is to take stock of the impact of the pandemic on students, including the particular challenges encountered by students of color, students learning English, students with disabilities, and students who identify as LGBTQ+, and to set the stage for anticipated future guidance and resources to address these disparities, schools should take note of the potential legal implications as well.

The section on K12 students with disabilities begins with the foundation that federal laws require equal access to educational opportunities and a free and appropriate public education for every student with a disability. However, citing the numerous disability-related complaints received by OCR, the Report identifies a pre-pandemic gap between the legal requirements and implementation.

The most common claims received by OCR related to disability are worth noting: failure to implement IEPs and 504 plans, least restrictive environment (LRE) violations, and inappropriate use of restraint, seclusion, and discipline.

Schools should keep these key issues of potential liability in mind when planning programming for students and professional development for staff as well as when problem-solving conflicts.

The Report cites data that students with disabilities are four times more likely to be physically restrained and secluded than non-disabled peers and twice as likely to be subjected to out-of-school suspensions. On these points, (1) recall that the Illinois legislature recently passed HB219, which, if signed by the Governor, will restrict the use of time out and physical restraint for all students (more details here); and (2) please join us for our July Educational Equity Webinar, which will focus on student discipline. The Report also notes pre-pandemic disparities for students with disabilities related to bullying, academic achievement, and graduation rates.

The pandemic created new challenges for educating students with disabilities, including practical limitations to providing the hands-on and face-to-face experiences many students need. As the prior administration was not collecting data on the instruction schools provided following the March 2020 closures, clear data on the special education services students received is limited. Instead, the Report cites online surveys finding that many students with disabilities were not receiving their IEP services and that they were significantly less likely than non-disabled peers to be engaged in remote learning and to have positive experiences with it. The Report also points to several districts that reported significant increases on the number of students with disabilities failing classes. These surveys and examples do not, however, provide a random or representative sample; we will have to wait for additional studies and investigations to provide a more complete and accurate picture of the special education services schools provided.

The Report concludes that identifying these disparities is an essential part of planning to ensure equal opportunities post-pandemic and references the resources available through the American Rescue Plan for that purpose as well as the Department’s policy guidance and Q&A on Civil Rights and School Reopening (highlighted here). We will keep you apprised of future guidance, enforcement actions, and resources that are likely to be forthcoming. Please reach out to our Special Education Team with questions and for more information.