by Marion M. Walsh, Esq.

The Office for Civil Rights of the U.S. Department of Education (“OCR”) has delivered a Report on the disparate impacts of COVID-19 on students in K-12 and in higher education, Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students (“Report”). Not surprisingly the Report concludes that the impact of COVID-19 has deepened disparities in educational opportunity and achievement for students of color, students with disabilities, LGBTQ+ students and students in other protected categories. Many of these inequalities are longstanding. While every parent of a struggling student knows the impact of the pandemic on learning, the Report validates these struggles and reminds school districts and colleges of the importance of taking steps to protect vulnerable students. As OCR notes of vulnerable students, “[t]hose who went into the pandemic with the fewest opportunities are at risk of leaving with even less.” The Report particularly notes concern on increasing suicidal ideation among students, particularly among vulnerable groups.

Parents and students should review the Report and bring it to the attention of their school district or college. Even though more students are struggling and schools are overwhelmed, this does not excuse school districts and colleges from meeting student needs. The Report highlights some of areas in which school districts and other educational institutions need to improve:

➢ Resource comparability. School districts must ensure resource comparability across schools in the same district, consistent with Federal civil rights laws.

➢ School discipline. Many schools are disproportionately likely to impose harsher discipline on students of color and students with disabilities. For all students, school districts must recognize that pandemic-related challenges to students’ mental health and wellbeing may have long-term effects on behavior in school. OCR reminds school districts that federal civil rights law prohibits discriminatory administration of school discipline, including the discriminatory impact based on race, color, national origin and disability of school practices that exclude students from classroom instruction, such as suspension and referrals to law enforcement.

OCR specifically suggests that the use of trauma-informed practices, including positive behavioral interventions and supports (PBIS), may be particularly helpful for students who have experienced significant hardship, grief, and loss during the pandemic. The interventions will also help those struggling to adjust to the new realities of learning at a social distance. School psychologists, counselors, and behavioral specialists may be able to provide consultation for specific concerns and help avoid unnecessary use of exclusionary discipline.

➢ Displaced and relocated students. School districts must ensure that students do not face discrimination when seeking to enroll in a new school after their previous housing situation changed because of the pandemic. States and school districts may require proof of residency for students to enroll in school, but these kinds of proof-of-residency requirements do not apply to children and youth who are homeless. Also, school districts must not discriminate against students based on immigration status. For more information, refer to the May 2014 Dear Colleague Letter on School Enrollment Procedures.

➢ Language barriers. School districts must continue to provide appropriate language supports and services to students who are learning English. They must also ensure that parents and caregivers have meaningful access to information about school programs and services.

➢Addressing harassment. Schools must protect students who are at heightened risks of identity-based harassment, abuse, and violence during the pandemic. All schools that receive Federal funding must respond appropriately to reports of harassment regardless of whether students are receiving instruction remotely or in-person. This must include providing appropriate supports to students who have experienced harassment and taking steps needed to stop the harassing behavior. See Fact Sheet on Preventing and Addressing COVID harassment in schools.

➢ Ensuring inclusion. Whether offering instruction online or in person, school districts must continue to provide special education and related services to eligible students with disabilities in accordance with the requirements of Section 504, which may include implementing an appropriately developed IEP and ensuring inclusion with typical peers.

➢ Academic adjustments and modifications. OCR reminds postsecondary institutions of the obligation to ensure students with disabilities receive needed academic adjustments and auxiliary aids and services, as appropriate. They must make reasonable modifications to any policies, practices, and procedures to avoid discrimination based on disability.

If you believe that your school district has discriminated against your child based on the protected categories of race, color, national origin, disability, or sex, you may consider filing a complaint with OCR. For more information, you can review information on OCR. It is always a good idea to contact an experienced attorney.