For more information on this letter and this effort, visit Education Law Center-PA, which led the drafting process.
March 23, 2020
Dear Governor Wolf and Secretary Rivera:
We write on behalf of community organizations, parents, advocates, and attorneys across Pennsylvania who work to advance the educational rights of children and their families. Signatories include disability rights, child welfare, immigrant, and educational advocacy organizations. We are gravely concerned that children, particularly children with disabilities, English Learners, and children living in poverty, will be irrevocably harmed if they do not receive services that address their educational needs while schools are physically closed due to COVID-19 for an extended period of time. We are writing to request your leadership and assistance to ensure that these fears do not become our reality and that Pennsylvania revises its current guidance in response to new supplemental guidance issued by the U.S. Department of Education on March 21st.
The COVID-19 crisis has underscored the deep disparities in educational resources between well-funded and underfunded school districts and the inequities in educational access available to the students within these districts. While many students in Upper Darby and the School District of Philadelphia are currently receiving no educational services at all, students in Lower Merion have full access to an online curriculum developed and supplemented by trained faculty. Teachers in Lower Merion are also modifying instruction and providing accommodations for students with disabilities based on individual student plans while special education case managers interact directly with these students.
In sharp contrast, Upper Darby, Philadelphia, Pittsburgh, Erie, and many other districts are providing no remote instruction during school closures, sometime citing their inability to provide equitable access.1 These districts include large numbers of Pennsylvania schoolchildren who are most underserved by our education system: students living in poverty, students with disabilities, students of color, students in foster care, the juvenile justice system, the mental health system, as well as students experiencing homelessness, and English Learners. These stark disparities will further widen achievement gaps, undermine educational equity, and deprive hundreds of thousands of students of their right to an education.
We recognize that this is an unprecedented situation and we applaud the Pennsylvania Department of Education for promptly responding to the COVID-19 crisis by issuing guidance to local educational agencies (“LEAs”), most recently on March 23rd and facilitating technical assistance through Intermediate Units to support the development of continuity plans. We also understand that the Department’s guidance comports with prior guidelines endorsed by the U.S. Department of Education on this emerging topic. However, we assert that this guidance is legally incorrect. And we are concerned that in response to the guidance, many school districts across the state—even those which began to provide online resources and study guides to students—have now rescinded earlier notices and stated that no students will receive any educational services while schools are closed due to COVID-19. Clearly, this is not in the best interest of Pennsylvania students.
Recently, the Office for Civil Rights and Office for Special Education and Rehabilitative Services expressly rejected this approach, cautioning that schools must not opt to decline to provide distance learning “at the expense of children” due to perceived barriers in educating students with disabilities. It is critical that the Department and the Governor’s office make this point to school districts. And additionally, schools must provide a free, appropriate, public education to students with disabilities consistent with broader health and safety considerations.
The Department’s current guidance recognizes a right to equal access for students with disabilities; however, its directive disregards students’ fundamental legal entitlement to a free appropriate public education (“FAPE”) as guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., Chapter 14 of the Pennsylvania School Code, 22 Pa. Code § 14.101 et seq., and Chapter 711 of the Pennsylvania School Code, 22 Pa Code § 711.1 et seq. This contravenes the Department’s clear obligation as state educational agency (“SEA”) to ensure that every child with a disability within the state receives this entitlement. 20 U.S.C. § 1412(a)(1). During any period when schools are not operating, children with disabilities may require necessary educational services. 71 Fed. Reg. 46582 (Aug. 14, 2006). There is nothing in federal and state law that allows the SEA to unilaterally deny educational services for an extended period of time (longer than 10 days) for students with disabilities. Rather, legal precedent clearly instructs that local educational agencies have a continuing duty to provide a FAPE even during school closures. Furthermore, denying all students educational services because an LEA is unwilling to provide equal access to educational opportunities for students with disabilities constitutes discrimination under Section 504 of the Rehabilitation Act of 1973.
In addition, the guidance fails to fully address the obligations of LEAs to English Learners (“ELs”). Schools are required to ensure equal access to education for ELs and ensure the participation of limited English proficient parents in compliance with federal law. At present, many school districts and charter schools are offering educational resources in English only and providing no language instruction resources.
Denying a student access to participate in educational opportunities – including those offered as “optional” – such as access to online learning guides and other resources constitutes a form of discrimination by depriving a student of an “education
benefit” and “equal educational opportunities” under the EEOA. Schools must provide access to translated materials and English language instruction programming to ensure ELs receive equal access to the instructional content and opportunities available to all students.
Finally, the Department’s guidance is shortsighted. We should be providing educational services during this period to prevent regression and other loss of critical skills to mitigate the need for compensatory education services and remedial instruction and support students in making academic progress. We should avoid replicating the mistakes of Puerto Rico where students with disabilities in particular as well as others suffered significant long-term consequences due to extended educational disruptions triggered by Hurricane Maria and the subsequent closing of 250 schools.
This deprivation of services disproportionately impacts our most at-risk students, particularly students with disabilities and English Learners.
In many towns and cities across our state, children are in their homes all day, receiving no educational services at all. At present, there is no plan for this to change even if school closures are extended. This deprivation of services disproportionately impacts our most at-risk students, particularly students with disabilities and English Learners. For this reason, we are asking for your help. Similar to initiatives across the country, we are asking Governor Wolf to issue an Executive Order that: ensures that the COVID-19 crisis will not deprive all students of educational services; renews the Governor’s strong commitment to educational equity; upholds the right of students with disabilities to a free, appropriate, public education; and upholds the right of English Learners to equal access. We recognize that this is an unprecedented and challenging situation; however, we believe that the goal of educating our students and ensuring their progress is critical to our state, our children, and the future of our Commonwealth.
To this end, we propose that the Governor issue an Executive Order that requires all LEAs which have physically closed schools for over ten days in response to COVID-19 to do the following:
- Continue to deliver educational opportunities to all students through distance learning, independent study, or other options utilizing local or state funding, including granting districts the ability to use their category-restricted funding such as transportation funds as needed for this purpose;
- Undertake best efforts to minimize inequities in access to technology and internet connectivity in implementing distance learning, following models from other large urban school districts such as in Miami-Dade County and New York City and jurisdictions within Pennsylvania;
- Ensure students with disabilities receive a free, appropriate, public education consistent with their disability-related needs based on individualized decisions responsive to changes in the mode of delivery of educational services and in accordance with federal and state laws.
- Ensure equal access to the curriculum and all educational opportunities provided during COVID-19 school closures for English Learners in accordance with federal and state laws;
- Continue to compensate school employees;
- Safely provide school meals to eligible students, consistent with the requirements of the U.S. Department of Agriculture.
We further urge the Pennsylvania Department of Education to issue corresponding guidance providing resources to support schools and directing local educational agencies to:
- Develop general education “distance learning plans” to ensure continuity of educational services for all students. Such plans shall provide access to the curriculum required under Chapter 4 of the PA Code for each grade and be subject aligned with the PA Common Core Standards, 22 Pa. Code 4.1 et seq., and procedures to ensure both a FAPE for students with disabilities and equal access to educational opportunities for English Learners.
- Minimize inequities in access to educational services. Many students do not have access to technology necessary to participate in e-learning educational service delivery. In developing distance learning strategies to continue delivering educational services during a school closure, LEAs should assess how all students will be able to access e-learning, including access to technology, internet connectivity, and familiarity with navigating a device.
- Develop an individualized distance learning plan that ensures provision of a free, appropriate, public education for students with disabilities. In order to address the educational needs of students with disabilities, LEAs shall convene virtual IEP meetings to develop an individualized distance learning plan, ensure equal access to education, and a FAPE for students with disabilities. The IEP team shall consider the following factors:
- Individualized Instruction in Distance Learning Settings
An LEA shall consider how its distance learning placement or other options can be adapted for a student with a disability. Students with disabilities shall be provided with supplementary aids and services to access the distance learning options if needed. Depending on a student’s particular needs and the distance learning options available, LEAs may also need to develop plans to provide compensatory education services to students with disabilities when regular school operations resume.
- Related Services
To the greatest extent possible, LEAs should continue providing related services consistent with the student’s IEP. This may involve providing services, consistent with social distancing guidelines and accounting for the health needs of students and staff.
- Assistive Technology
LEAs should also be flexible in providing access to school-purchased assistive technology devices when necessary, consistent with law, to ensure children have access to devices they typically use at school.
- Individualized Instruction in Distance Learning Settings
- Designate a liaison to facilitate agency coordination and engagement. Many medical, behavioral health, and other health-related agencies provide critical programs and related services to students with disabilities. The Department should encourage LEAs to work with these agencies to take advantage of services that can be offered for those that elect to continue to provide services during school closures.
- Ensure equal educational access for English Learners. In developing its distance learning plan, an LEA should also have a plan for providing language development instruction and services for English Learners, aligned to the LEA’s language acquisition program.
We understand this is a time of uncertainty and crisis. And, given the likely reality that schools are physically closed for an extended period of time, we are urging you to advise districts to provide educational services to all of our Commonwealth’s students in accordance with newly released federal guidance. We also welcome the opportunity to work with the Department to address how schools can meet the needs of all students, including providing a FAPE to students with disabilities during this challenging time.
Maura McInerney, Esq.
Legal Director, Education Law Center-PA
Margie Wakelin, Esq.
Staff Attorney, Education Law Center-PA
On behalf of more than 70 education and child welfare organizations in Pennsylvania.