Is Distance Learning a Denial of FAPE? (7/31/20)

As we head into our second semester of distance learning, many parents of children with disabilities are very concerned because their students will not receive the services that were agreed to in their IEP. This lack of services will lead to regression for many of these students. Is this refusal of services due to distance learning a denial of a free appropriate public education (FAPE) and what are the remedies for it?

There are two things that are equally true.

The first is that there is no doubt that there are thousands of students with disabilities who are not receiving the services that they were supposed to receive. At the same time, most school districts have been forced to suspend many services. I think, ordinarily, the suspension of these services is depriving these students of FAPE. However, if a school is not at fault, because it is impossible for the district to offer these services, can a school be said to depriving a student of FAPE?
Why is the question of fault important? Because Compensatory Education (Comp Ed) is often suggested as a remedy to possible regression by students that occurs because of distance learning. And COMP ED, at least until the pandemic, has always been predicated on the school district being at fault. Some background on Comp Ed would be helpful.

Comp Ed is an equitable remedy created by case law, not the IDEA. The Supreme Court first stated in 1985 that “equitable considerations are relevant in fashioning relief” in regard to the IDEA Act (Burlington School Committee v. Department of Education 471 U.S. 359 (1985)). A year later, the 8th circuit took SCOTUS up on that offer and issued a ruling that “the plaintiff is entitled to recover compensatory educational services if she prevails on her claim that the defendants denied her a free appropriate education.” (Miener v. State of Missouri 800 F.2nd 749 (8th Cir. 1986)). The Miener ruling continues to be cited today as the legal authority for the award of compensatory education.
Later circuit courts provided further explanation on the use of COMP ED stating that it was a “a deterrent against states unnecessarily prolonging litigation to decrease their potential liability” (Jefferson County v. Breen 853 F. 2nd 853 (11th Cir. 1988)) and a student who prevails should be able to obtain what they were entitled to the proceedings began.
Circuit Courts have also consistently ruled that if a school district knew or should have known that it is depriving a student of FAPE, it must correct the situation, or the student is entitled to COMP ED.

So we come back to our original question. If your student is being provided distance learning by the school district and it does not cover the services in the IEP, is this a denial of FAPE? Many school districts would argue that it is not a denial of FAPE because a distance learning during a pandemic is an “appropriate” form of education. And, based on existing case law, they would have a good case as it is impossible for a school district to offer in person services during the pandemic. So it’s hard to make the case that the school is at fault.

Please keep in mind that the law may be evolving as we speak. I certainly hope that it is. Distance learning and the pandemic will result in many due process hearings, compliance complaints and lawsuits as parents litigate for the special education services that their children did not receive during distance learning. And the law may change as cases filter up to district courts, circuit courts and even the Supreme Court. But it has not yet. So COMP ED, as of right now, may not be an appropriate remedy as it is predicated on the school district being at fault.

Here is the good news! COMP ED is not the only possible remedy. You can ask for RECOVERY SERVICES instead. The term RECOVERY SERVICES generally refers to the need of all students to recover from educational gaps in learning or loss of skills caused by distance learning. These educational gaps are often most profound in students with disabilities. So rather put the school district on the defensive by asking for COMP ED services which carries with it the implication that the school district is at fault, it may be safer to ask for RECOVERY SERVICES, which could amount the same exact services simply delivered under a different title.

And, if you do need to litigate, requesting RECOVERY SERVICES, which simply indicates that your student has an educational gap because of distance learning, you will probably be on firmer legal footing than to ask for COMP ED, which, based on precedent, takes the position that the school district is at fault. However, as I indicated above, the law is evolving as we speak, so check back here soon as we promise to cover all of the changes in the law!

About the author: Chris Eisenberg is a Special Education and Advocate Attorney in the Los Angeles area. He is a proud member of COPAA.