Kids In Special Ed Were Shifted Back Online. Is It A Move To The Virtual Basement?
Days before its summer programs were scheduled to start, Minneapolis Public Schools sent a letter to the parents of hundreds of children with disabilities saying the in-person services the families had been promised had been moved online. For many, it was a one-two punch: Students needed the summer support to recover ground lost during distance learning, which didn’t work for many of them.
But there they were, being shifted back to a digital setting.
The district said it could not staff in-person programs, but parents and advocates from local nonprofits clapped back angrily, noting that other Minnesota districts — and a dozen other Minneapolis summer programs — were fully staffed. Federal and state laws prohibit both making unilateral changes to special education services and relying on parents to supervise instruction, they noted in a letter to district leaders.
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The letter also charged that the decision discriminated against a category of students who require the most support — overwhelmingly children of color — and blasted school leaders for rejecting options suggested by the families.
“In the few hours since we received this letter, we have already been able to brainstorm better alternatives to what was proposed,” wrote a number of parents and advocates, including two groups representing the autism community. “Letters like the one families received from the district are indicative of the reason trust between students, families and the district is at an all-time low and the reason many families are choosing to leave the district.”
“The Individuals with Disabilities in Education Act entitles our children to a Free and Appropriate Public Education,” they added. “We believe there is nothing appropriate about using a mechanism to deliver services that already failed our children once before, and there is nothing free about delivery models that require parents and caregivers to provide the services that are supposed to be provided by paid professionals.”
Disability advocates say the parents are right — but are also likely stuck. Lodging complaints, particularly grievances alleging systemic violations, requires resources most don’t have. Even if they could afford a lawyer, there is just one with the requisite expertise taking cases in Minnesota. And as families scrambled to find care on a few days’ notice for children they thought would be in school, most were overwhelmed.
The 74 asked to interview Minneapolis district leaders about the parents’ and advocates’ concerns — including their belief that the shift was illegal. A spokesperson responded with a written statement similar to the one sent to families, saying the district could not hire enough licensed special education teachers and had moved approximately 450 students to online learning.
The district “is proactively addressing this issue through a residency program with the University of St. Thomas and developing an internal paid teacher preparation program,” the statement says. “The fruits of those labors, however, are in the future.”
Advocates for the families also point out that at the same time school leaders were planning the summer’s programs, district officials — including the administrator overseeing special education — were bargaining new union contracts with the teachers and aides needed to staff in-person classes. Just as they agreed to provisions making up the weeks schools were closed by a strike, negotiators could have included extended special education services in their talks, the advocates say.
State officials and disability attorneys say a lack of staff or facilities is not an excuse for failing to provide special education services. And neighboring school districts of comparable size, including St. Paul Public Schools and the Rosemount-Apple Valley-Eagan Independent School District, told The 74 their in-person summer programs for children with disabilities were fully staffed. St. Paul was able to hire some 50 extra special educators through an agency that provides substitute teachers. Rosemount dramatically increased pay.
Hundreds of individual plans, one blanket shift
Anticipating increased demand for services as schools reopened after pandemic closures, Minnesota enacted a law requiring schools to meet last fall with the families of every student in special education to create a “recovery” plan ensuring that, going forward, they’d get the therapies and tailored instruction they missed.
The plans were supposed to take as their starting point each child’s individual needs, with districts — which have federal funds earmarked for special education recovery services — paying for private therapists, camps and tutors if schools couldn’t provide each service. The parents and advocates who signed the letter to the district say Minneapolis families were repeatedly denied the option of finding their own services and were told their children would get summer classes instead.
But instead of determining which students could learn in a remote setting and which needed in-person services, the families say, the district discriminated against a group of children who already spend the majority of their time in segregated classrooms by moving them online en masse.
Referred to not by their disability but by the classification they are given on the spreadsheets states and districts use to track special education, Federal Setting III students spend 60% or more of their day away from their peers without disabilities. Almost 1,000 of Minneapolis’ nearly 4,600 special education students fall into this category — a rate that disability advocates have long criticized. Only 16% are white, compared with 38% of the student body as a whole. On state assessments administered in spring 2021, 19% of the district’s students in special education could read at grade level, while just 16% were on track in math.
Minnesota families have several alternatives when their children’s special education or disability rights have been violated. They can complain to the state Department of Education if a student has been wrongly denied services or to the Department of Human Rights if they have experienced discrimination. The federal Justice and Education departments can also intervene, and the nonprofit PACER Center can help parents advocate for their children.
Yet, to date, Twin Cities disability advocates say no family has been willing to take on the task of filing a formal complaint. Minnesota’s Multicultural Autism Action Network, which was founded by Somali parents of children with autism, started getting anguished calls from families immediately after the district’s letter went out. Many have been overwhelmed trying to figure out child care, but they are also confused and scared, says Executive Director Maren Christenson.
“If you are a family for whom English is not your first language, if you’re a family that’s not terribly comfortable confronting authority figures, if your preferred method of communication is oral, rather than written, then none of these (complaint) processes are very accessible to you,” she says. “We’ve also heard from a lot of families that are upset about this decision and angry, but are very fearful of retaliation.”
‘The virtual basement’
Since the early months of the pandemic, civil rights activists nationwide have been watching and worrying, anticipating the advent of what the staff of the nonprofit Center for Learner Equity calls “the virtual basement” — the distance-learning analogue to the windowless, subterranean classrooms where children with disabilities often are segregated.
It’s a grim quip — but one rooted in the decades advocates have spent pushing back against school systems’ resistance to educating children with disabilities alongside their peers without disabilities. Indeed, virtual learning’s potential to segregate is so strong that both pandemic-era U.S. education secretaries specifically warned schools about excluding students in special education from in-person classrooms.
The Minneapolis situation “is exactly the sort of thing that many of us in the disability community are concerned about,” says Wendy Tucker, an attorney and the center’s senior director of policy. “Basically, what you’re doing is handing off the responsibility to a family member on the other side of the computer. I have real concerns about the legality of that.”
Tucker also says it should alarm state and federal civil rights officials that more than 80% of the students affected are nonwhite.
When Congress drafted the Individuals with Disabilities Education Act in 1973, it took pains to stop the practice of warehousing children with disabilities in the cheapest possible manner. To that end, the law’s twin cornerstones are clauses that require schools to provide students with a “free and appropriate public education” in the “least restrictive setting.”
The goal is to ensure that to the greatest extent possible, students receive special education services alongside their peers without disabilities. To protect that right, schools can’t change any student’s placement without first holding what’s known as an IEP meeting, at which teachers and parents hopefully come to agreement on any substantive change to the child’s individualized education program — the document that lays out how those needs will be met.
The plans define the placement not necessarily as a physical space, but as the number of minutes each day the child spends segregated from their classmates without disabilities. Pre-pandemic, civil rights officials considered virtual learning one of the most restrictive settings.
Within days of the nation’s first COVID school shutdowns, district administrators, U.S. Education Secretary Betsy DeVos and congressional leaders from both parties began a contentious debate over how much flexibility educators should have in complying with federal special education law. DeVos ultimately sided with disability rights leaders.
In Minneapolis, all elementary pupils were in remote schooling until February 2021, with older students returning later. Schools were closed for five weeks during the 2021-22 academic year by a surge of COVID’s Omicron variant and a three-week teacher strike. At the end of the walkout, district officials released a statement saying families with concerns about interruptions to special education should ask their child’s teacher about summer programs.
The different processes for addressing a child’s lack of progress or a school’s failure to provide a required service are cumbersome, expensive and frequently antagonistic. Anticipating the bureaucratic nightmare teachers and parents would face trying to use the typical procedures to address months of missed services, Minnesota passed a law in June 2021 creating a less cumbersome process for providing what are now called recovery services.
The law required schools to hold an extra IEP meeting at the start of the 2021-22 school year specifically to evaluate each student’s needs. Whether delivered by school staff or outside providers, services were to continue until parents and teachers agreed the child has made sufficient progress not to need them.
Christenson is one of the advocates who helped craft the new law. The parents in her network don’t agree that the district had no choice but to move their children to online learning.
“I personally sat in on a number of IEP meetings where families specifically asked the district to allow them to use third parties as part of their recovery education package … a private occupational therapist or private speech pathologist in order to make up what they lost during the pandemic,” she says. “The district, in every meeting I was part of, said, ‘No, we’re not going to do that.’
“If they knew they weren’t going to be able to provide this, then why didn’t they at least say yes to the families who said, ‘Hey, I’ve got somebody over here who can do this service’?”
‘The notice … does not meet the obligations of the law’
The law may be on the students’ side, but enforcing it isn’t easy, in part because attorneys have a hard time getting paid. Unless a family has possibly hundreds of thousands of dollars to spend on a lawsuit, they must persuade an attorney to take their case for free in hopes of first winning and later persuading a judge to order the losing school district to pay the plaintiff’s legal fees.
One of Minnesota’s two lawyers with expertise in special education charges $400 an hour. The other, Andrea Jepson, practiced for several years but, unable to earn enough to pay her student debt, began teaching at a law school in the hope of encouraging more attorneys to learn about students’ rights.
After Minneapolis officials canceled in-person services for Level III students, Jepson participated in an online meeting to talk the affected parents through their options. “The notice that you received does not meet the obligations of the law,” she said. “It does not explain what your rights are or how you might appeal.” Jepson described eight ways families could push back against the decision, but each one was greeted with silence.
Finally, she pointed out that the district failed to take the need to provide recovery services into account during its March contract talks with striking teachers and classroom aides: “The strike — that would have been a very appropriate time to negotiate what needed to happen for summer staffing.”
Rachel Pearson is a senior parent advocate at the PACER Center, an organization that provides a wide range of services for people with disabilities, including education about enforcing their rights. While declining to discuss Minneapolis Public School specifically, she says her colleagues are able to help families file complaints.
But parents shouldn’t overlook one of the simplest tools at their disposal, she says. If a family disagrees with a school’s proposal to change a student’s placement — or, for that matter, a district’s decision to deny a request — federal law says they can ask for something called a Prior Written Notice. In this notice, the school must justify its stance and inform parents they have 14 days to object. Sending an email asking for a Prior Written Notice should force the school back into the conversation, Pearson says.
Tucker agrees, but says a broader solution is also needed. The absence of a vigorous response to the pandemic’s continued fallout, she says, is the first step down into the virtual basement.
“Is this the way you put kids with disabilities out of the general education environment?” she asks. “Legally, the answer is no. But unless somebody pushes back, districts are going to be able to do it, and that’s concerning.”
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