Excerpted From: Jordan Rosen, (Least) Restrictive Environment: Covid-19, Students with Disabilities, and the Need for Compensatory Education, 53 Seton Hall Law Review 319 (2022) (220 Footnotes) (Full Document)


JordanRosenWhen the COVID-19 pandemic began in March 2020, K-12 students and teachers across the United States left school with no idea when they would return to the classroom. By May of the 2019-2020 school year, any remaining hopes of returning to in-person learning during that academic term were lost, as nearly all states announced that their schools would be closed for the remainder of the academic year. In this environment, schools transitioned to distance learning, an arrangement that quickly proved to be wholly inadequate for many students. By May 2020, the majority of school districts were providing students with less instructional time per day than prior to the pandemic, and most of the instruction provided in the spring of 2020 was merely review, rather than teaching new skills. The pandemic led to increases in the achievement gap, worsening mental health conditions, and absenteeism for all students--especially students of color and those from low-income families.

Arguably, these drastic shifts in the delivery of education most impacted students with disabilities. Consider a student with an intellectual disability who cannot engage in virtual learning and who desperately needs hands-on life-skills training; a student with limited mobility who needs hand-over-hand support with writing or typing and who cannot benefit from virtual occupational therapy; or a student who is deaf without a sign language interpreter at home. Parents of students with disabilities quickly became their children's teachers, speech therapists, occupational therapists, one-to-one aides, and translators with no formal training for these roles imposed upon them. Virtual special education and related services became inconsistent or nonexistent and proved entirely inadequate compared to hands-on, in-person instruction. The result was that the quality of education that students with disabilities received diminished significantly, and the effects of this inferior education impacted these students behaviorally as well. For example, many students with disabilities are at high-risk for depression and began lashing out at their families as a result of remote learning.

In a survey conducted by the advocacy group ParentsTogether in May 2020, only 20 percent of the respondents reported that schools were implementing their children's individual education plans (IEPs), and 39 percent of the respondents reported that their children were not receiving any of their special education services. According to the U.S. Department of Education's Office for Civil Rights, the pandemic likely increased the academic achievement gap for students with disabilities due to the disruption in their special education and related services. The pandemic increased the achievement gap for students in general, but it is difficult to determine the increase for students with disabilities specifically. Yet any disruption in access to education increases the achievement gap between students with disabilities and their general education peers.

The pandemic has been a major interference for many students with disabilities. Although COVID-19 transmission mitigation policies in schools were necessary due to public health concerns, these policies should have been constructed with due attention to the effects on students with disabilities, as some mitigation strategies were in violation of federal guarantees under the Individuals with Disabilities Education Act (IDEA). The IDEA requires that students receiving special education services be educated in the least restrictive environment (LRE). This means that students with disabilities should be educated with their general education peers to the maximum extent appropriate. But the pandemic prevented schools from educating students with disabilities in their LREs. Because of this shortcoming, schools should be required to provide compensatory education to redress this issue.

This Comment proceeds in four additional parts. Part II provides a background on the IDEA and its key mandates and outlines what IEPs entail for educators and students. IEPs set forth the services schools must provide to individual students with disabilities as the IDEA requires. Part II then defines the LRE requirement. Part III assesses the interaction of LRE principles with COVID-19 policies to demonstrate that schools were not educating students with disabilities in their LREs, were violating federal law, and were preventing these students from making meaningful educational progress. This Part also includes discussions of LRE principles in relation to distance learning, lack of mask mandates, and the implementation of mask mandates. While issues with the lack of mask mandates and the implementation of mask mandates may seem contradictory, this Part explains how these mask policies impact different groups of students based on their disabilities. Finally, Part IV explains compensatory education and proposes that schools should provide compensatory education to students with disabilities to remedy the harms caused by the failure to educate them in their LREs during the pandemic. These compensatory education proposals could also be implemented if any future event causes the majority of students with disabilities to be removed from their LREs again. Part V briefly concludes.

This Comment should not be construed to argue against COVID-19 mitigation policies in schools, as these policies were necessary given the public health crisis. Rather, the intended contribution of the Comment is to shed light on the previously underexplored fact that these policies prevent schools from meeting the statutory requirement to educate students in their LREs. These pandemic policies negatively impacted students with disabilities, so schools must provide compensatory education.

[. . .]

While the COVID-19 pandemic impacted virtually everyone across the globe, students with disabilities have endured a tremendous burden. Under the IDEA, students with disabilities are entitled to an education in the LRE appropriate for their disability-specific needs. Although COVID-19 mitigation protocols were necessary, the pandemic prevented schools from providing students with disabilities an education in their LREs.

Students with disabilities are entitled to compensatory education whenever they are removed from their LREs. The U.S. Department of Education should require compulsory compensatory education determinations by IEP teams at annual review meetings due to LRE removals during the COVID-19 pandemic. Compensatory education may be provided beyond the IDEA's statutory age limit or anticipated graduation year, as ESY services, or another way the Department, states, districts, and IEP teams see fit. The Department must provide further guidance on the compensatory education required due to the pandemic to ensure all students with disabilities receive the equitable relief they are entitled to, reaffirming that these students are not invisible. The Department should also do so in the future if students with disabilities are ever systematically removed from their LREs again.

J.D. Candidate, 2023, Seton Hall University School of Law; B.S., Special Education, University of South Florida.