When news leaked that 30 New Jersey districts were demanding that parents sign waivers before their kids could get access to special education services during pandemic school closures, the proverbial shit hit the fan.
And rightly so.
Special education parents know that certain services listed in Individualized Education Plans (IEP’s) can’t be delivered remotely and certain therapies can’t be replicated in the home environment. Here’s what we do know: IEP’s are legal contracts and, while reasonable accomodations may be necessary during COVID-19, we won’t waive our rights to due process or the rights of our children to a free and appropriate public education (FAPE). We’ll get through this and then look at compensatory services once schools re-open.
The Machado Law Group and the 30 New Jersey districts it represents must not understand that parents of students with disabilities are warriors for their children. They must not understand that we’re not going to be bullied into signing waivers.
Yet that’s what these districts are trying to do. According to Rebecca Klein, who broke the story, the firm devised a form that “asks parents to sign off on a number of issues. It asks parents to agree not to be present for, or listen in on, or record virtual educational sessions.” A recording could be a violation of the New Jersey wiretapping law, says the form (which, by the way, is not true: NJ is a “one-party consent” state). The form, says Klein, also asks parents to give up their right to press charges for “negligence or negligent acts, for injuries, damage or loss which may occur, including, but not limited to, loss or damage to property, an injury invasion of privacy, disability or death to persons, arising out of, resulting from or in connection with the Services provided above.”
Sounds a little bit like bullying to me. Here’s how Machado advertises itself:
We are specialists in school law and we pride ourselves on developing the most effective and creative solutions to complex legal challenges. You and your District’s needs always come first. Our lawyers listen to ensure your legal needs are met through a proactive approach, but we also look to prevent problems down the road and protect your time and resources. We know you expect us to keep up with the pace of business and we think there is never a legal issue too big to conquer.
Machado, meet issue too big to conquer. Meet us.
The newly-formed Educating All Learners Alliance explains,
As schools shift to online learning, the needs of students with disabilities are too often put on the back burner—instead, they must be considered from the beginning. Family communication, online instruction, teleconferencing and counseling, independent study, blended learning, needs assessment, and data tracking and analytics are each stronger and more effective when they are designed to meet the needs of all learners.
Paul O’Neill of the National Center for Special Education in Charter Schools writes,
This appears to be a toxic situation caused by overzealous lawyers determined to limit the liability of their school district clients. In the process of attempting to limit liability, they are trampling on the rights of vulnerable students and their families. The New Jersey Department of Education, along with the U.S. Department of Education, should promptly look into the matter, confirm the facts that have been reported, and take appropriate action. Permitting public schools to force parents to trade rights for services is an extremely dangerous precedent to allow.
Anyway, U.S. Education Secretary Betsy DeVos just announced that the U.S. Education Department won’t be issuing special education waivers during the pandemic. (The New Jersey Department of Education promises to deliver guidance “soon.”)
Parents of special needs students are used to reams of paperwork and used to waiting for services. But signing away our rights to due process and the rights of our children? Think again.
Note to NJ parents: If you run into problems with your school district you can call Cynthia Hoenes-Saindon, the DOE ombudsman at 609-376-9060. Her fax is 609-984-8422 and her email is firstname.lastname@example.org.
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