Congress should not grant flexibility from the federal special education law’s key components in response to the coronavirus pandemic, U.S. Secretary of Education Betsy DeVos has told federal lawmakers, but should consider granting some waivers on a few narrow administrative issues.

In a report to Congress released by the U.S. Department of Education, DeVos said that in spite of the challenge presented to schools by the novel coronavirus, there should be no waivers provided from the part of the Individuals With Disabilities Education Act that guarantees a “free, appropriate public education,” or FAPE, for students with disabilities, or the section that says students with special needs should be taught in the “least restrictive environment” in schools.

DeVos said in a statement announcing her recommendations, which she was required to submit to Congress under a recently adopted law focused on the coronavirus, that “there is no reason that a student’s access to FAPE cannot continue online, through distance education or other alternative strategies.”

“While the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning,” DeVos said. “With ingenuity, innovation, and grit, I know this nation’s educators and schools can continue to faithfully educate every one of its students.”

DeVos did recommend a relatively narrow waiver that she said would extend the evaluation timeline for children making the transition from federal special education services for infants and toddlers (under Part C of IDEA) to those for school-age children (Part B). “Without this flexibility, a toddler with a disability will lose access to services once he or she turns 3 years old,” the report states.

She also suggested another waiver to grant new financial flexibility for those training to work in special education.

By declining to recommend waivers from core tenets of the special education law, DeVos put weight behind her rhetorical stance throughout the coronavirus pandemic that schools should not abandon or minimize their obligations to educate all students, including those with disabilities.

You can read DeVos’ recommendations on waivers here. The report from DeVos also covers her recommendations regarding flexibility for the Carl D. Perkins Career and Technical Education Act and the Rehabilitation Act of 1973.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law by President Donald Trump in late March, gave DeVos 30 days to recommend whether she should be able to grant new waivers for schools under the Individuals With Disabilities Education Act. The pandemic has upended traditional instruction and put new pressures on educating students with disabilities, many of whom rely on in-person attention and services.

Highly Anticipated Decision

DeVos’ call on whether to recommend special education waivers became one of the most-anticipated decisions of her time as education secretary. Part of the tension around her decision stems from the controversy she caused during her 2017 confirmation hearing, when DeVos appeared not to know about IDEA in her response to a question from Sen. Maggie Hassan, D-N.H. That exchange touched off a whirlwind of criticism and created deep concern among disability advocates about DeVos that has never fully dissipated.

During her public statements to educators during the pandemic, DeVos has rebuked some schools for—in her view—failing to provide services to all students during the pandemic over fears about providing equitable services to students in special education. She said that while distance learning must be made available to students with disabilities, there’s a lot of freedom for school districts with respect to how they provide those services.

Ultimately, Congress—and not DeVos—has the power to decide whether to create new flexibility for schools under special education law. After the CARES Act became law, Sen. Patty Murray, D-Wash., the top Democrat on the Senate education committee, made a point of publicizing how she had successfully pushed to remove language from an earlier draft of the bill that would have given DeVos a “blank check” to waive IDEA.

Any attempt to include new waivers from special education law into a new round of federal coronavirus emergency aid, for example, would likely be met with stiff, vocal resistance in Congress and elsewhere.

Right now, the secretary of education has almost no power to waive IDEA. One notable exception is that she can grant waivers from a part of the law that requires states to maintain special education spending at certain levels in order to tap federal IDEA funds. DeVos can grant waivers if there is “a natural disaster or a precipitous and unforeseen decline in the financial resources of the State.”

So it’s possible that states will seek waivers from special education law through that avenue. If that happens, DeVos’ decisions on these waivers would be closely scrutinized.

‘History of Discrimination’

A fair amount of lobbying took place during the 30-day window DeVos had to create a recommendation on IDEA waivers under the CARES Act.

Earlier this month, two groups representing special education administrators pressed House and Senate education committee leaders to give schools some relief from certain IDEA requirements, such as how often Individualized Education Plans must be reviewed and when students are evaluated for special education services. The groups told lawmakers in a letter that, “In some situations, despite our best efforts, meeting these requirements in the middle of a pandemic is not possible.”

And districts have worried that they’ll get into legal trouble over how they handle special education during the pandemic. On April 25, the Huffington Post reported that some New Jersey schools were forcing parents to sign waivers, in which they pledged not to sue districts, before providing their children access to special education services, due to what a law firm that drew up the waivers called an “unprecedented time” for schools.

Yet representatives of special education students and parents say these children are already marginalized in many instances by school systems and must constantly fight to obtain what’s rightfully theirs under the law; the pandemic, they say, should not exacerbate their struggles. They also stress that federal special education law already gives schools some leeway, and that schools can be and have been creative in helping students with disabilities during the pandemic.

“We’re talking about waiving people’s rights. These are rights that are in place because of the history of discrimination,” Lindsey Jones, the executive director of the National Center for Learning Disabilities, told us in March, referring to the possibility of districts getting pandemic-related flexibility from IDEA.

Photo: U.S. Secretary of Education Betsy DeVos, left, visits a school in Ohio with American Federation of Teachers President Randi Weingarten, center, in 2017. (Cathie Rowand/The Journal Gazette)