Coronavirus and Schools: Alternative Strategies for Reopening
As we are planning various scenarios for the start of school next year, one of them is virtual for everyone except where students cannot be instructed virtually and we would bring in students for both regular ed and special ed classes. The examples would be Project Lead the Way, Career and Technical Education, MDS classrooms, and AS classrooms. My concern is would we then be open to litigation as we are discriminating against students who aren't considered to be “disabled enough” to attend in-school instruction. What are your thoughts on this?
We have to assume, in answering your question, that when the governor or the Pennsylvania General Assembly reopens schools, we will have legislation in place that will allow for any of the density-lowering solutions many schools are now contemplating: alternative day schedules, selective opening for certain grade levels or program types, dividing the day between morning and afternoon sessions, and others. None of these solutions is possible under the Pennsylvania School Code as currently written. So let’s assume that some yet-to-be-enacted school code revision grants to LEAs the discretion to use one or more of these ideas to open schools safely. Let’s assume further that you proceed as planned with a program-specific opening limited to just those programs that cannot be delivered effectively in a virtual format, such as the hands-on, experiential learning of a Project Lead the Way classroom or most CTE programming, or the hand-over-hand prompting and one-on-one physical proximity of an AS or MDS environment.
Doing so would not be discriminatory. As long as in-person features inherent in the particular program distinguish it from other programs, you have every right to rely on those features to support a selective opening.
This advice, however, comes with an important caveat (isn’t it always so?): once the governor or general assembly authorizes schools to re-open—even if schools have the discretion to reopen selectively—the door will be open (literally) to parents of students with disabilities arguing that the unique features of their children’s disabilities require in-person, in-school services. The problem is not unique to your proposed “selective program” reopening model. For an LEA contemplating an alternating day schedule, parents will be able to argue that their child will not benefit from the inconsistency of day-on-day-off program delivery and that he or she therefore needs every-day programming in school. For the LEA contemplating a half-day schedule, parents will similarly be able to argue that their child needs the intensity and consistency of full-day in-school attendance.
Thus, while the idea you are contemplating is not discriminatory or otherwise illegal, be ready. Once in-school instruction becomes possible, some parents can be expected to argue that, given their child’s disability, the possible is a necessary for their child.