Education Equity During COVID-19: Analyzing In-Person Priority Policies for Students with Disabilities.

• Author: Easop, Bruce A.

Table of Contents Introduction I. COVID-19 and Structural Barriers for Students with Disabilities A. Disparities in Internet Access and Accessibility B. Removal or Reduction of Related Services C. Absence of Social Interaction and Structure D. Heightened Trauma and Mental Health Concerns II. Implications of School Closures: Widespread Denial of FAPE A. The FAPE Requirement Under the IDEA B. Application to CO VID-19 School Closures III. Response to Learning Loss: In-Person Priority A. In-Person Priority Models in School Reopening Plans B. Potential Benefits of In-Person Priority C. Potential Problems with In-Person Priority 1. Violations of the least restrictive environment standard 2. Harms of segregating students with disabilities 3. Likelihood of exacerbating discipline disparities IV. Recommendations A. Build Accessible Virtual Learning Programs B. Adopt Trauma-Informed and Nonexclusionary Disciplinary Policies C. Develop an Individualized Approach to In-Person Priority D. Expand Compensatory Education and Extended School Year Services Conclusion Introduction

In 1982, the Supreme Court affirmed that "education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." (1) The COVID-19 pandemic that has ravaged the United States since March 2020 has brought these words into stark relief once again. During the 2019-2020 school year, forty-eight states invoked mandatory or recommended school closures for the remainder of the year. (2) All told, over 50 million students were left without the support and resources of their school communities. (3) In its report on school reopening, the National Academies of Sciences, Engineering, and Medicine emphasized that without support from schools, many families lost a source of childcare, nutrition, medical care, therapy, and social services. (4) The far-reaching effects of this loss of services have reverberated through communities across the country, but they have not impacted all students equally.

The seven million students with disabilities in the U.S. public education system have been among the hardest hit by school closures. (5) The situation has been particularly tenuous for this population because the Individuals with Disabilities Education Act (IDEA) does not explicitly contemplate extended school closures. (6) The U.S. Department of Education sought to fill this gap through multiple fact sheets and other forms of guidance. In the early days of the pandemic, however, these efforts lacked clarity at best and encouraged the withholding of educational services at worst. For example, in its initial March 16, 2020 fact sheet, the Department of Education stated that "[i]f a school district closes its schools and does not provide any educational services to the general student population, then a school would not be required to provide services to students with disabilities during that same period of time." (7) School districts saw this as a loophole: They needed to provide students with disabilities a free and appropriate public education (FAPE)--which includes the special education and related services needed to enable students with disabilities to benefit from their education (8)--only if schools remained open and provided services to all general-education students.

In response, some school districts began eliminating all services for students without disabilities. Some districts in Massachusetts told parents that "remote learning will not serve as a substitute for school or replicate classroom instruction," suggesting that any virtual support was enrichment, not education. (9) Another district in Seattle distributed thousands of tablets and Wi-Fi hotspots, only to halt all learning to avoid being out of compliance with the IDEA. (10) Other districts in New Jersey and Illinois took the extraordinary step of asking families to expressly waive their right to FAPE during the pandemic. (11) Under the Department of Education's original guidance, these strategies appeared to absolve districts of obligations to students with disabilities. The school districts' actions forced the Department to release further guidance on March 21, 2020, declaring that schools could not suspend all educational services to avoid providing services to students with disabilities. (12) The FAPE requirement was upheld for the time.

But the damage had already been done. School districts were left scrambling to transition to online learning for all students while attempting to provide FAPE for students with disabilities. (13) Parents of students with disabilities worried about the security of their children's education as they watched years of academic and behavioral progress slip through their fingers. (14) And students with disabilities were often left in the lurch, finding their educational services reduced or eliminated through distance learning. The cumulative effect has been enormous learning loss for students with disabilities. (15)

Throughout the 2020-2021 school year, the landscape of learning changed significantly as the remaining statewide, mandatory school closures were lifted in September 2020. (16) In light of these changing conditions, President Biden announced a crucial goal for his first 100 days in office: reopening more than 50% of elementary and middle schools. (17) The Biden administration took a number of key steps to make this goal a reality. On February 12, 2021, the Centers for Disease Control and Prevention (CDC) released new and more detailed guidelines for reopening schools. (18) By March 19, 2021, these guidelines were updated to recommend universal masking and a reduced, three-foot social-distancing policy, making it more feasible to reopen schools. (19) President Biden also directed all states to prioritize teachers to receive the COVID-19 vaccine, (20) enabling over 80% of all teachers to receive their first vaccination by the end of March 2021. (21) In addition, the passage of the American Rescue Plan Act of 2021 earmarked over $170 billion for education, including over $122 billion to allow K-12 school districts to improve facilities, staffing, and social and emotional learning and $3 billion to support the implementation of the IDEA. (22)

It is difficult to make a direct connection between President Biden's policies and school reopening numbers due to changing global conditions and state and local policies, some of which preceded those of the federal government. (23) Nonetheless, the United States did experience a significant shift toward in-person learning throughout the 2020-2021 school year. By April 2021, "96 percent of K-8 schools were offering in-person learning options and 59 percent of these schools were offering full-time in-person instruction." (24) This progress toward in-person learning was by no means uniform. Instead, it was largely the product of district-level decisions. As of June 2021, only thirteen states required in-person instructional options for all grades and one state required in-person options for only some grades during the following school year. (25) As a result, two-thirds of K-12 students' school-reopening policies were determined at the school or district level. (26) Such decentralized decisionmaking has resulted in both regional differences (27) and racial disparities in access to in-person learning. (28)

As schools resume in-person learning across the country, policymakers must better understand the implications of extended school closures and evaluate how to respond to them most equitably. To support this goal, this Note applies the conceptual frameworks of critical race theory (29) and dis/ability critical race studies (DisCrit) (30) to evaluate in-person priority policies that invited only students with disabilities and English language learners (ELLs) to return to in-person classrooms before their peers. Through the work of contemporary critical legal scholars such as Derrick Bell and Kimberle Crenshaw, critical race theory builds on the intellectual legacy of individuals including Frederick Douglass, Sojourner Truth, Bayard Rustin, and W.E.B. Du Bois. (31) Drawing on the rich history of abolitionist advocacy and thought, critical race theory "centerjs] race within interlocking and oppressive structures of society," thereby "providing] a means to understand how racism and White supremacy function ... while seeking to disrupt them." (32) DisCrit adds further nuance by integrating disability-studies perspectives into the critical race theory framework, thereby "confronting the mutually constitutive nature of race and ability and... exploring how unmarked norms of White and able-bodied-ness influence perceptions of both." (33) This Note identifies core tenets of these frameworks and illuminates how in-person priority policies can perpetuate systemic inequities for students with disabilities--in particular, students of color with disabilities.

Using the above methodologies, this Note argues that district-level plans to provide in-person priority only to students with disabilities and ELLs raise significant equity concerns due to the segregated classrooms they create and the disciplinary disparities they exacerbate. Returning students of color with disabilities to in-person classrooms should remain a top priority. But there are central flaws to current district-level plans, and these plans must be modified to allow for more integrated settings. These flaws should also motivate the consideration of alternative policy solutions. Part I details four structural barriers and sources of COVID-19 learning loss for students with disabilities. Part II situates the impacts of COVID-19 school closures within the context of the IDEA and demonstrates why closures represent a material failure to provide FAPE to these students. Part III utilizes core tenets...