In January 2017, during Betsy DeVos’s Senate confirmation hearing for her nomination by Donald Trump as U.S. Education Secretary, Senator Tim Kaine asked her a question about the rights of students with disabilities. She replied, “I think that is a matter that is best left to the states.” When Senator Maggie Hassan, who has a son with cerebral palsy, asked DeVos directly whether she understood that the Individuals with Disabilities Act (IDEA) is federal law and, by definition, cannot be delegated to the whims of individual states, DeVos confessed that “she may have confused the law with something else.”

Let’s hope that DeVos is no longer confused because right now she’s facing a big decision. Some senators, led by Lamar Alexander, are urging her to ask  Congress to approve IDEA waivers during the COVID-19 school closures, in part because the School Superintendents Association wants a “pause” to protect schools from litigation. But advocates for students with disabilities are working hard to explain to DeVos the perils of discriminating against these children and violating the central tenets of IDEA. Yes, they agree, we’re enduring a horrific crisis, but the consequences of even a temporary waiver are too severe to justify violating special needs students’ civil rights. 

Lindsay Jones, the executive director of the National Center for Learning Disabilities: “We’re talking about waiving people’s rights. These are rights that are in place because of the history of discrimination.”

Ron Hager, managing attorney for education and employment at the National Disability Rights Network in Washington, D.C. “This opens Pandora’s box. It’s not necessary, it’s deeply troubling and sets a terrible precedent.”

Miriam Rollin, director of the Education Civil Rights Alliance at the National Center for Youth Law: “We’re already seeing people blaming special education kids for schools not providing anything. This would be a moment for an administration to step up, show leadership and gather all of the examples of how things could be done.”

To get a better sense of the stakes, I spoke to Stacy Cervenka, Director of Public Policy for the American Foundation for the Blind. AFB has been deeply involved in efforts to persuade DeVos not to waive IDEA protections of students who have vision impairments.

Stacy explained that Senator Alexander, in his efforts to absolve schools from complying with IDEA, first asked the Education Department (ED) to grant waivers to states. Upon learning the ED didn’t have that authority, he asked the ED to write a report identifying which waivers should be issued and ask for Congress’s permission to do so. The deadline for the report is 30 days after the March 27th passage of the $2 trillion stimulus bill, about two weeks from now.

What, I asked Stacy, is AFB’s primary concern about the prospective waivers? “This makes IDEA compliance optional,” she explained, “and that’s the message the ED is sending to states. Who knows what they’ll include and for what duration? For the rest of the calendar year? For the length of the pandemic, however that is defined?”

Allowing states to not abide by IDEA, she told me, sends the message that special needs students are the obstacle to remote education for non-disabled students. “This positions students with disabilities as the bad guys and sets up a negative narrative. It’s a signal to the public that special education students are a burden, that they’re the barrier. But it’s the districts who are the barrier to successful remote education—they’re using inaccessible technology for these kids. Yet here we are blaming students for lack of innovation in schools.”

I asked Stacy to explain to me the educational and technological needs of students with blindness or low vision. “They need access to Braille, to online learning tool platforms that are screen-reader accessible,” she said.  Not all blind students have internet access and in that case they’ll need hardcopy Braille work. “It’s critical that our students are still building their math and reading skills so they are on par with their peers and able to move to the next grade.”

But, I said, there must be some services that don’t work remotely, like teaching blind students to use a cane. That service is provided, she explained, by Orientation and Mobility Specialists (O&M) who train students how to safely travel, cross streets, and navigate stores. Of course, these professionals typically work one-on-one with students but there are ways to provide these services virtually. For example, O&M’s can teach parents — over the phone or on a video-conferencing platform— to serve as instructors on topics such as how to angle canes, how to use GPS apps developed specifically for those with vision impairments, and how to plan a route.

In other words, just like with other students with disabilities there are ways to incorporate mandated services into remote instruction. This isn’t ideal; it’s a temporary work-around, just like remote instruction for non-disabled students is its own sort of work-around. But IDEA waivers? That’s a slippery slope that imperils the civil rights enshrined in federal law for 14% of all public school students. “Does anyone expect special education, in the time of coronavirus, to look like it did before? No,” said said Rollin of the Education Civil Rights Alliance. “But it doesn’t mean you stop offering services to children with disabilities. You don’t say, ‘Oh well, it’s too tough, we can’t do that.’ It means you get creative and look for ways to make it work. There’s a whole lot of tools in the toolbox.”

(Full disclosure: I have a son with multiple disabilities and I have low vision.)

Here is the full press release from AFB:

WASHINGTON, D.C. (April 9, 2020)—The American Foundation for the Blind (AFB) steadfastly believes that students who are blind or have low vision should have the same educational opportunities and programs as their peers without disabilities. With the passage of the $2.2 trillion relief package on March 27, the U.S. Department of Education now has the ability to either support that opportunity, or undermine it by recommending waivers of the two laws that protect students’ civil rights. AFB urges Congress and the Department of Education to focus on providing states, school districts, and schools with the full capacity they need to serve children with disabilities during the COVID-19 pandemic, not on waiving educational rights.

Along with the Rehabilitation Act of 1973, the Individuals with Disabilities Education Act (IDEA) is a federal law that makes available a free appropriate public education to children with disabilities and ensures special education and related services. In the law, Congress states: Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

“Blind and low vision students need access to education as much as any other student,” said Stacy Cervenka, AFB Director of Public Policy. “These students need to keep up with their reading and math skills, so they are prepared when school begins again. They also need to maintain their skills in orientation and mobility (O&M), braille, adaptive technology, and daily living skills. Many of these students already face barriers related to low expectations and inaccessibility of classroom materials. Allowing them to fall behind their classmates will only create one more needless barrier.”

Because of the COVID-19 pandemic, schools across the country have been closing their doors, and most are working to transition to online or distance learning programs. However, some school districts nationwide have delayed or foregone such alternative educational programming, citing concerns about federal law as it relates to providing equitable educational opportunities for students with disabilities as laid out in IDEA and the Rehabilitation Act of 1973. While the Department of Education has sought to dispel this concern, as part of the relief package legislation, the Department has 30 days from the bill becoming law on March 27 to alert Congress if any waivers of these laws are considered necessary as they relate to providing special education services to students with an Individualized Education Program (IEP) or 504 Plan.

On Friday, March 20, AFB submitted a letter to the Office of Special Education and Rehabilitative Services (OSERS) asserting that students with disabilities must have access to the same opportunities as other students during this crisis. The letter was co-signed by the American Council of the Blind, American Printing House for the Blind, Association for Education and Rehabilitation of the Blind and Visually Impaired, Council for Exceptional Children Division of Visual Impairments and Deafblindness, National Organization for Albinism for Hypopigmentation, and the Perkins School for the Blind. AFB also signed onto a letter with the American Council of the Blind to key leaders in the Senate and the House of Representatives, expressing concern about the (then) forthcoming legislation that would allow the Department of Education to waive the civil rights protections of students with disabilities. That letter called on Congress to fully fund the IDEA and thereby provide teachers with significantly more resources with which to educate students with disabilities.

There are numerous positive examples of states, school districts, schools, or individual teachers doing excellent work providing remote services despite the dearth of resources and funding. Yet these educators acknowledge that more must be done. AFB has gathered testimonials from teachers of students with visual impairments (TVIs) and other professionals in the education field and published them in a set of blog posts:

How TVIs and O&M Instructors are Handling the Challenges of Distance Learning, Part 1

How TVIs and O&M Instructors are Handling the Challenges of Distance Learning, Part 2

“AFB remains committed to protecting the educational rights of blind and low vision students in K-12 education throughout this pandemic,” Cervenka said.

Along with several other organizations in the blindness field invested in the education of students with visual impairments, AFB is working on a survey Increasing Accessibility to Education for Students with Visual Impairments, that will gather information from family members, TVIs, and O&M instructors so that we can better understand the direct impact COVID-19 is having on the education of children from infancy through age 21 who receive special education services.