Coronavirus and Schools: Virtual Learning during the COVID-19 Outbreak
CORONAVIRUS UPDATE
We have received a virtual storm of inquiries related to the provision of virtual learning opportunities during the COVID-19 closures.
Last week, we shared a Q&A from the United States Department of Education (USDE) in which the feds remind us that all of the IDEA requirements governing the implementation of a “free appropriate public education” and all of the Section 504 requirements governing equal access and “comparable learning” opportunities for students with disabilities will apply to virtual learning during COVID-19 closure. Within hours of the release of the USDE Q&A, two parent law firms—one with a statewide practice in Pennsylvania and the other with a practice concentrated in the greater Southeastern portion of the commonwealth — had re-released it to “remind” parents of their rights related to such learning.
What the law will require of you will depend on the type of virtual learning, if any, you choose to offer your students during the mandated closure.
If you are offering virtual learning as a replacement for curriculum and instruction, with the expectation that it will meet day or hour requirements needed for a full school term, you are arguably acting beyond the scope of your authority. As we indicated last week, only schools who were approved to offer “flexible instructional days” (FIDs) are permitted to offer virtual instruction in place of mandated curriculum and instruction, and they are permitted to do so only for 5 days each school year for which they are approved. Nothing in the governor’s closure directive creates an exception to or a waiver of existing law on this subject. If, moreover, we are offering virtual classes as the equivalent of regular curriculum and instruction, the IDEA is clear, as USDE reinforces in its Q&A: students with disabilities will be entitled to receive a full FAPE in conjunction with the learning their peers are receiving online. That would include direct instruction, instructional adaptations, curriculum modifications, and supplementary aids and services that will be difficult, if not impossible, to implement without live personnel. For this reason, we do not recommend pursuing this option.
If, on the other hand, you are offering voluntary virtual learning activities simply to keep otherwise-idle students engaged and all-the-more ready for the return to school when the closure ends, you are arguably within the realm of extracurricular activities. The equal access and comparability requirements of both the IDEA and Section 504 will, however, apply to such activities, just as they do during the regular school term. These requirements are less exacting than are the FAPE requirements of the IDEA. We nevertheless strongly recommend that you offer adapted or modified versions of all activities. These adapted or modified activities should “essentialize” the intended outcomes of a particular virtual activity offered to non-disabled peers, so that the activity for the student with disabilities is at least related to, and not wholly different than, the activities provided to peers. Most students using AAC and similar devices to access school-based learning and extracurricular activities should have access to them at home, but if supplies, equipment, and devices that are necessary at school are not available in the home, and if they are needed to access home-based activities during the break, schools should try, at least, to offer loans of these supplies, materials, and devices. Some students might require real-time assistance with virtual activities, and having staff available by phone or online for this purpose will be helpful if not necessary in some cases. We will surely make mistakes and will surely not be able to ensure full access to comparable activities, but these failings in the context of purely extracurricular experiences will have far less punitive consequences than will a denial of FAPE.