New Jersey Public Schools Must Provide Special Education Instruction During the COVID-19 Pandemic

Across New Jersey, there are numerous reports of schools failing to provide disabled children with special education instruction and related services in accordance with their Individualized Education Programs (IEP). Parents report receiving no related services for their children and inadequate remote instruction. Many justifiably feel abandoned by their local schools.

Indeed, it is reported that over 90,000 students in NJ, both disabled and non-disabled, have received no instruction since the beginning of COVID-19 because they have no laptops or internet connection for remote instruction.

Worse yet, some educators are advising parents that the schools are excused from providing instruction and services consistent with a child's IEP due to the Pandemic. However, nothing could be further from the truth. To be clear, students have the same rights to legally mandated special education programming as they did before the Pandemic. Any advice parents receive to the contrary is patently wrong.

In her report to Congress on April 27, 2020, Betsy DeVos, US Department of Education Secretary, confirmed that there is no waiver of the obligations of public schools to provide students with special needs with a free appropriate public education during the Pandemic. Specifically, Secretary DeVos stated that learning for all students must continue and that decision-making must be based on what is best for the students, not the school district.

Furthermore, the New Jersey Department of Education (NJ DOE) clarified that there are no “waivers” of rights to special education instruction and related services during the Pandemic. Students with disabilities must continue to receive the instruction and related services set forth in their IEPs. Indeed, the NJ DOE memorandum bolstered parental and student rights by stating that an individual determination must be made of whether a child needs compensatory education due to a regression of skills and learning during the Pandemic.

Therefore, the delivery of special education and related services must continue to be consistent with the mandates of the Individuals With Disabilities Education Act (IDEA). This includes the delivery of special education and related services, remotely if necessary, in compliance with a child’s IEP. This also includes extended school year services. If not, it is clear that the entitlements and provisions of the IDEA remain intact. This includes the right to file for due process.

The IEP team, of which parents are members, must continue to work together to ensure that there is no break in special education instruction and related services for students with special needs during these challenging times. Difficulties will undoubtedly arise, but educators, being the experts in education, should be able to develop with parents and guardians creative ways to implement home programming for students. There are extra hurdles for all of us now, but few will face greater challenges than students with special needs. The Pandemic must no be allowed to be used as an excuse by educators to deprive one of the most vulnerable populations in our country of their rights.

Parents should be reassured that they and their children maintain their rights under the IDEA. Parents still have the right to seek mediation or file for due process to resolve disputes with their school district. Mediation and due process hearings are being held remotely to limit potential exposure to COVID-19.

If your local school district is not properly implementing your child’s IEP, the Law Office of Joseph D. Castellucci, Jr. can help you.

Contact Us Today To Schedule a Consultation: (973) 285-3253.