While most schools in California remain closed for in-person classes, some districts are welcoming students with special needs back to campus — even as debate swirls about safety and districts’ obligation to uphold special education laws.
According to guidance issued by the California Department of Public Health on Sept. 4, classes for high-needs students may begin meeting in person, as long as students and teachers meet strict safety protocols. High-needs students can include students with disabilities, foster youth, homeless students, English learners and other students who receive extra services at school.
Classes are limited to 14 students and two adults, and are reserved for those who need occupational or speech therapy or other services that are not delivered well online.
While many districts are exploring the idea, some have encountered resistance from their teachers unions. The California Teachers Association has been outspoken in its demands for safe classroom conditions before teachers return to campus.
“Unfortunately, schools are opening without the basic safety protections and testing required to prevent the further spread of COVID-19,” CTA officials wrote in a Sept. 16 letter to Gov. Gavin Newsom, Superintendent of Public Instruction Tony Thurmond and state legislators. “We hear reports every day from educators throughout the state — in rural, urban and suburban districts — of students crowded into classrooms, districts without funds to immediately improve HVAC ventilation systems, mask wearing not embraced, too few school nurses, and testing and tracing glaringly absent.”
In Los Angeles Unified, the largest district in the state, teachers union President Cecily Myart-Cruz said earlier this month that the union was open to small in-person classes for special education, but the district lacks the resources to guarantee safe conditions.
Several districts in Marin County started offering in-person special education classes last spring, even before the state issued its guidelines. So far, the classes are working out well, said Mary Jane Burke, superintendent of the Marin County Office of Education.
‘It hasn’t been easy’
“For us, the path was crystal clear,” Burke said. “We have a responsibility to provide in-person learning to our most vulnerable students. … It hasn’t been easy, but we’ve been clear about how important this is.”
So far, 80% of the county’s special education students are now attending class on campus. The other 20% chose to continue with distance learning for health and safety reasons.
The safety protocols align with the state recommendations: Students and teachers must wear masks, wash their hands, stay 6 feet apart and stay home if they’re sick. Students who can’t wear masks can wear plastic face shields instead. Staff are advised to get tested every few weeks.
Parents and teachers have mixed reactions to returning to campus. Some say they’re worried about getting infected with the coronavirus. Others say they’re willing to take the risk because distance learning has been burdensome — and largely unsuccessful.
Parents must weigh health risks
Kristen Brown, whose two high school-age sons receive behavioral counseling services through the special education program in San Jose Unified, said distance learning has been difficult, but even if the district offered in-person classes her sons would be reluctant to attend because the health risks are too high.
Her sons, both of whom have mild autism, have trouble focusing on their virtual classes and have regressed without their regular in-person counseling sessions. Both boys have suffered from insomnia and tantrums since campuses closed in March, she said.
“It seems like there’s no good answers right now,” she said. “It’s very frustrating. Every day, it’s like ‘Here we go again.’”
In Los Angeles, special education teacher Marion Siwek said she was willing to return to the classroom, even if it means an increased risk of contracting the coronavirus.
Her students at Alliance Tennenbaum Family Technology High School, a charter school in the Glassell Park neighborhood of northeast Los Angeles, have struggled on several levels since campuses closed, she said. Many students’ parents are working and can’t help with class assignments or technical issues their children might encounter at home, leaving students to navigate distance learning on their own. That’s in addition to the challenges faced by many students in special education: difficulty paying attention, following lessons and connecting with classmates and teachers through a computer screen.
“I just think it would be better for them if they could come to school,” Siwek said. “If I told my friends I want to go back, they’d be shocked. But honestly, I think it would be OK. Maybe I’m being naive.”
Meanwhile, some districts are navigating special education challenges with extra caution, weighing the safety of students and staff against the educational benefits of in-person instruction.
State, federal law
Under state and federal law, children are entitled receive services that have been agreed to in a child’s Individualized Education Program. If they don’t receive them, families could sue school districts if they believed their child is not receiving a “free and appropriate education” as guaranteed by the federal Individuals with Disabilities Education Act.
Those lawsuits can strain a district’s finances, as a judge may hold them responsible for paying the family’s attorney fees as well as providing any services a student may need, such as private one-on-one therapy.
Because so many students in special education are struggling with online learning, districts fear a surge in lawsuits from families. The state Legislature, Congress and U.S. Secretary of Education Betsy DeVos have so far declined to grant liability waivers to districts, or waive special education laws.
“Superintendents are very worried right now,” said Laura Preston, legislative advocate for the Association of California School Administrators. “In many ways the future of public education is at stake. If we can’t reopen schools and at the same time schools are faced with trillions of dollars in lawsuits … these things do not add up.”
Timothy Adams, an attorney in Orange County who represents families in special education lawsuits, called the superintendents’ fears of a tidal wave of lawsuits is “overblown.” He expects an uptick at some point, but generally, most families and districts resolve disputes before litigation escalates, or without hiring attorneys at all.
Although most districts in California are providing some services, few districts have provided little, if any, special education since March and those students are entitled to services to help them catch up academically, Adams said.
While he hasn’t seen an increase in lawsuits yet, he expects that to change when campuses reopen and families get an idea how far behind their children have fallen. Families have two years to file suit after their children’s services were interrupted.
“Some districts still have no programs in place, and a lot of damage has been done,” he said. “So far we haven’t seen an uptick in lawsuits, but I will tell you, it’s coming.”