Special Education and the Covid-19 Pandemic

I’ve been practicing education law, on behalf of school districts and on behalf of parents throughout the great State of New Jersey, since I was admitted to practice law back in December of 1986 – over 33 years ago!  The public’s knowledge of and utilization of education lawyers, including special education lawyers, has grown exponentially over the past 33 years. Parents, students, administrators, and teachers have come to recognize the need for attorneys when addressing issues of and concerning education and, particularly, special education. Those entrusted with educating our youngsters have become increasingly reliant upon lawyers to help them reach consensus and, when necessary, litigate issues of and concerning their children. The good education lawyer is, however, always cognizant of the goal of any education law matter; whatever the respective positions might be, the good education lawyer remains “child-centered” when addressing an education law matter. The good education lawyer seeks to resolve issues and solve problems in a cost-effective “child-centered” manner.  As one of the best-ever now retired school superintendents used to say, no matter what side you may be on, it should “always be about the youngsters!”

Everything Has Changed

With that in mind, I must here again proclaim what I taught to those lawyers, judges, teachers, administrators and/or parents “virtually” attending the first-ever presentation by the newly-formed Education Rights Section of the New Jersey Association of Justice at this year’s Boardwalk Seminar from August 5 to August 7, regarding the undeniable realities of special education and the pandemic of 2020. Education and, especially special education, will never be the same! The post-virus world that we now live in has impacted not only general education, but has even more severely impacted special education. Physical presence, touch, redirection, physical therapy, behavioral skills, speech therapy, and parent-teacher interaction are even more vital in the context of special education. While the pandemic of 2020 has literally impacted everything; each one of us individually, each of our families, our communities, and perhaps, most importantly, our children and local school districts, perhaps no segment of our society has been more impacted than our children with special needs.

Every student with special needs is supposed to have an Individualized Education Program (hereinafter “IEP”) developed by their local school district during the Spring of each school year and implemented by the local school district during the Summer and/or by the start of the next school year. Each students IEP is supposed to be completed by June 30 of each calendar year! Accordingly, from March to May, is generally “IEP season”; the time of year that administrators, teachers, parents, lawyers and advocates hopefully come together to develop IEP’s for the upcoming school year; IEP’s that the Individuals with Disabilities Education Act (IDEA) require provide each classified student with a “meaningful educational benefit” based upon goals and objectives developed by the Child Study Team and hopefully implemented during the prior school year. Needless to say, and while the Department of Education and each New Jersey school district have done their best to keep all concerned moving forward and revising/relaxing requirements in these strangest of times, many IEP’s for next year have not in fact been addressed, modified and/or revisited as they would have been in a more typical school year; let alone implemented as and when contemplated when the parents met with their school districts and develop IEP’s back in the Spring of 2019. As good as we education lawyers are, I have yet to see any provisions in any IEP addressing pandemics, school closures, virtual instruction, physical therapy during a lockdown, etc.

Special education concepts of “compensatory education”, “extended school year” and “stay-put” protections (requiring that an existing IEP remain in place pending a dispute between a school district and parents) will accordingly become increasingly important as we move forward.

Special education concepts of “compensatory education”, “extended school year” and “stay-put” protections (requiring that an existing IEP remain in place pending a dispute between a school district and parents) will accordingly become increasingly important as we move forward. Compensatory education; education designed to address any deficiencies in the program and placement previously provided to the concerned youngster, will perhaps become more of the norm, rather than the exception.

In the words of Aladdin and Jasmine, it truly is “a whole new world.” While the Department of Education and local school districts have been issuing and modifying checklists and requirements for reopening of schools for the upcoming school year, the uncertainty and evolving nature of same will require kindness, wisdom and cooperation as we move forward to safely educating our children now that “everything has changed.” Now, more than ever, school districts, teachers and parents, should review these checklists and requirements with their legal counsel and, hopefully, try to reach consensus rather than litigate issues of and concerning their children; as the IDEA requires, all concerned should be creative, flexible, and kind in trying to reach consensus toward a “child-centered” cost-effective recognition of the very unique circumstances we now find ourselves. We are way better together than we are a part and, in the context of special education matters, these very emotional matters are much easier to resolve when all concerned remember that it’s “always about the youngsters.”

Meanwhile, in both my professional and personal life, I shall do as the old Buddhist teaching suggests: I shall “remain opened to everything and attached to nothing.” Indeed, from an education lawyer’s perspective, true “wisdom” in these days may very well mean telling your client; parent and/or district, that you really do not know what will happen if and when schools open up this coming September. We will, however, within the confines of our existing law, do everything we possibly can to provide our children with the health, education and welfare they dearly deserve, we all wish to provide for them, and which our laws clearly require.