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Safeguarding Civil Rights of Students During The Pandemic

By Amy Halpert, Esq., and Marion Walsh, Esq., Littman Krooks LLP

In our new reality where school doors are physically closed, we are embarking on distance learning for ourselves, and for our children, from home. These are indeed unprecedented times.  School officials and educators must tackle a slew of new challenges and considerations in the shadow of the Coronavirus (COVID-19). How schools approach and tackle these new issues is critical to continuing the guiding principles of equity, inclusion and accessibility that underscore our educational laws. Our offices at Littman Krooks are open remotely, and our special education team is available to answer your questions during this uncertain time.

On March 16, 2019, the United States Department of Education, Office of Civil Rights (OCR) issued guidelines with regard to addressing the risk of COVID-19 in schools, while protecting the civil rights of students. While schools have since then been declared physically closed, distance learning ensues. School educators, providers and administrators must continue to safeguard civil liberties of all students.  Accordingly, schools must continue to be mindful of civil rights legislation when taking action:

  • Section 504 of the Rehabilitation Act of 1972 (Section 504) prohibits disability discrimination by schools receiving federal financial assistance.
  • Title II of the American with Disabilities Act of 1990 (Title II) prohibits disability discrimination by public entities, including schools.
  • Title VI of the Civil Rights Act of 1964 (Title VI) prohibits race, color and national origin discrimination by schools receiving federal funds.

Bullying or Harassment:  Even in a remote environment, bullying or harassment in light of the Coronavirus is happening with an increasing number of troubling news reports as of late. Similar to the steps taken after the September 11, 2001 terrorist attacks, the Education Department sent guidance to schools condemning bullying and other harassment of Muslin students.  In a March 4, 2019 letter to educators, Assistant Secretary of Education for Civil Rights Kenneth L. Marcus wrote that schools should be paying “careful attention” to bullying and other unfair treatment of students who are perceived to be Chinese-American or otherwise of Asian descent. He stated, “Some individuals may regrettably turn toward racial or ethnic stereotypes. Worse, ethnic harassment or bullying exacerbates hatred, harms students, and is never justified. These incidents can create a climate of misunderstanding and fear. This hurts all of us.” Indeed, it distances us even further from one another. While students are not physically present in schools, online bullying and harassment is real and occurring.

Section 504 and Title IV require that every post-secondary or elementary school that receives financial funds take appropriate action to investigate or otherwise determine what occurred when responding to reports of bullying and harassment of students based on action or perceived disability, race, color or national origin. If upon an investigation, such bullying or harassment is determined to be the case, the school is required to take prompt and effective steps reasonably calculated to end the bullying or harassment—this protocol to be upheld given COVID-19.

Discrimination based on Race, Color or National Origin: While keeping students and schools safe and secure is of paramount importance, schools must be cognizant of avoiding discrimination based on race, color or national origin to ensure that individuals are evaluated and treated appropriately based on their actual risk status. With the elevated levels of stress and anxiety in our communities, there is an increasing number of distressing incidents regarding discrimination in connection with the pandemic.  Our schools can allow no room for reliance on assumptions related to race, color, or national origin when identifying students who may have traveled to a country with widespread transmission of Coronavirus, or who may otherwise be at risk of infection. We are experiencing a disconnectedness of society due to this crisis; reliance on stereotypes only hampers our sense of society and collaboration, which we desperately need in order to navigate this challenge together.

Students with Disabilities at Elementary and Secondary Schools: Schools are obligated to avoid disability discrimination, at all times, while navigating distance learning to ensure that students with disabilities continue to have access to a free appropriate public education via their individualized education program (IEP), or their services under Section 504, when not physically present at school.

  • School Closure for Extended Period of Time due to COVID-19: With schools closed for an extended period, school officials and the Committee on Special Education (CSE) must determine whether the child is available for instruction and could benefit from distance instruction. School districts must provide a FAPE consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to those students. Although we confront unusual, unique times, schools must nevertheless remember that the provision of FAPE must include, as appropriate, special education and related services rendered through distance instruction provided virtually, online or telephonically. The provision of home-bound services can include instructional telephone calls, homework packets, Internet-based lessons and other distance-based learning approaches. Accessible technology should also considered.
  • Developing Online Learning for ALL Students: As schools are designing plans for online learning for students, they also must plan for students with disabilities equally.
  • Equal Opportunity to Access Online Learning Tools: Services, programs and activities online must be accessible to all persons, including individuals with disabilities, unless provision for equally effective alternative access in another manner occurs. Accessibility to online resources means that individuals with disabilities must have equal opportunity to obtain the same information, and engage in the same interactions and enjoy the same programs, services and activities as non-disabled peers, with effective alternative use.
  • CSE Meetings during School Closure due to COVID-19: OCR has indicated that the CSE is not required to meet in person while schools are closed. If an evaluation of a student with a disability requires a person-to-person assessment or observation, school officials must delay the evaluation until school reopens. Evaluations and re-evaluations that do not require person-to-person assessments or observations may take place while schools are closed provided parent or legal guardian consents.

Students with Disabilities at Post-secondary Schools:  For students with disabilities at post-secondary schools, decisions made by the school (e.g., suspension of classes) must continue to comply with non-discriminatory obligations under federal civil rights laws, including Section 504 and Title II.

The prospect of distancing ourselves from the many different communities that we belong to, and from one another during this most unusual time is disheartening and anxiety provoking. It will matter enormously that we make efforts to stay connected with one another in spirit and actions, both when we are together and when we are physically apart.  As we navigate distance learning during the pandemic, we must embrace the continuity of providing a free, appropriate education to each student, and making sure that we render general education, special education and related services with consistency, tenacity, fairness and human decency.

We at Littman Krooks understand that the Coronavirus crisis raises questions for individuals with disabilities and their families. We are here to answer any questions. Our office will be functioning remotely through the outbreak. Please reach out to any of us if we may be of assistance.