By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
Addressing the needs of students with disabilities comes with significant complexities and has a major impact on a school district’s budget and personnel. With the rapidly changing federal landscape, it is imperative that school superintendents, business administrators and directors of special services work together and understand evolving legal obligations. In this article, we highlight requirements with respect to child find and the impact of recent federal directives that will impact these obligations; specifically, directives with respect to immigration and closing the US Department of Education.
Shifting Federal Priorities Causing Confusion, Fear and Family Disengagement
Federal immigration initiatives are causing and will likely continue to incite families to stop seeking educational services, including critical services for students with disabilities, because of a fear of adverse immigration actions being taken against them. This is despite the clear holding of the United States Supreme Court in Plyler v. Doe that all children residing in the country are entitled to a public education, regardless of the immigration status of them and their families. However, regardless of the clear legal entitlement to attend school and receive special education and related services when appropriate, families are understandably cautious about availing their children of the services to which they are entitled because of the exuberant, and often legally questionable immigration enforcement actions of the federal government under the new administration. To address this directive, the New Jersey Department of Education recently issued guidance setting forth the protections afforded families, regardless of immigration status, and how New Jersey will address federal efforts to enter schools while performing immigration enforcement work. See NJDOE Guidance on School-Related State and Federal Requirements Pertaining to Immigrant Students and Families.
While New Jersey’s efforts may provide some comfort to families, the impact of immigration enforcement efforts will likely serve as an ongoing impediment to school districts locating, identifying, evaluating and serving students with disabilities whose families are under the threat of these immigration enforcement efforts. The chilling effect of these efforts on students attending schools and seeking special education services directly conflicts with the legal obligation under federal and state law for school districts to locate, identify, evaluate and serve students with disabilities. Thus, while school districts are required to locate and serve all eligible students, some parents will likely forego such services (in addition to all other educational services) going forward. Districts will have to work to negate the impacts of these immigration enforcement efforts on the willingness of families to seek services to which their children are entitled by law. Efforts to contact families and obtain consent to evaluate and provide services will be more difficult and necessitate rethinking how outreach and communication occur with these families.
Rethinking How to Comply with Child Find Obligations
While the impacts of immigration enforcement actions on school grounds do not appear to be significant in New Jersey to date, as there are no reports of enforcements efforts occurring in school buildings during the school day, the fear of attending school and school sponsored functions will likely remain high, and justifiably so based on the nonstop federal actions and news reports of immigration enforcement efforts. This reality necessitates a rethinking of how to meet the obligation to identify, evaluate and serve students with disabilities from families impacted by immigration enforcement initiatives of the federal government.
Traditional means of reaching families may not now be as effective for some families. Instead, efforts should be made to communicate directly with families to explain both the special education process and their entitlement under federal law to receive a public education and special education and related services for their children. Assurances that the school is a safe place and that the State has made it clear that it will not cooperate in enforcement efforts in school buildings can assist in creating the level of trust and comfort necessary for families to be willing to seek services to which their children are entitled by law. While there is no set method established for accomplishing this goal, districts should, in light of the current climate with respect to immigration, strive to meet their obligation to these children and families to the maximum extent possible through all necessary means.
Ongoing Obligations and the Role of the NJDOE
While meeting these obligations is becoming more difficult based on actions of the federal government, enforcement and oversight through monitoring, complaint investigations and mediation/due process hearings administered by the New Jersey Department of Education remain in place. Therefore, school districts still must meet their obligation to locate and, as appropriate, serve all eligible students with disabilities or face potential adverse actions for failing to do so. Because of the unique nature of the current situation, it is difficult to know how an inability to locate, evaluate, and serve students with disabilities because of the reluctance of families to cooperate in the process and make the student available will be addressed through monitoring or complaint investigations by the NJDOE, or in due process or other judicial proceedings by the judges presiding over them. Regardless, districts should make their best efforts to locate, evaluate and serve these students with disabilities, and thoroughly document all such efforts in the event the district’s efforts become subject to review by the NJDOE or courts in order to avoid costly litigation and legal liability.
Impact of Potential Elimination of U.S. Department of Education
Likewise, the planned elimination of the United States Education Department, and distribution of its work and functions among other federal agencies, places in question the force and effect of legal obligations and protections under federal laws, including Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. While it is unclear how the dissolution of the U.S. Department of Education will be effectuated, it does appear likely that there will be significant impacts on the department’s operations. Already, significant staff cuts have been announced, including elimination of several Office for Civil Rights’ regional offices, including Region 2 in New York, which encompasses New Jersey. These changes will likely eliminate or significantly reduce oversight and technical assistance for school districts and will create confusion as to school district obligations under Section 504, and to a lesser extent, the IDEA.
The U.S. Department of Education oversees implementation of both the IDEA and Section 504, among many other functions. Part of this work includes operating or funding many technical assistance centers designed to assist states and school districts in performing required tasks and educating students with disabilities. The proposed elimination of the department portends the elimination of funding for these technical assistance centers and the critical guidance and assistance they provide to states in delivering students with disabilities the free, appropriate public education to which they are entitled by federal law. Eliminating or severely reducing the oversight arm of the department, in addition to cutting or restricting technical assistance to enhance state and school districts’ ability to comply with applicable laws and properly serve students with disabilities, will place the provision of a FAPE for student at risk.
Absent this oversight and technical assistance, states may have more flexibility in spending federal grant dollars, but such funding could also be in jeopardy of reduction or elimination, and the allowable uses of such grant funds could change. All these possibilities create uncertainty for states and school districts with respect to meeting their obligations under federal law, as such obligations will likely not change. Rather, the funding and resources needed to comply with the laws could be reduced or diverted, thus leaving a funding gap to be filled by states and school districts. While there is no certainty as to impacts of federal changes with respect to eliminating the department of education and changes to funding, enforcement and oversight at the federal level, school districts need to monitor these changes and, to the extent possible, prepare for impacts from these changes.
Moving Forward
In this article, we highlighted requirements with respect to child find and the impact of recent federal directives that will impact these obligations. While issues remain open regarding the future of immigration policy and the U.S. Department of Education, it is important to be aware of ongoing school district obligations and the need to consider creative new options for meeting child find obligations and keeping students and families engaged while navigating a rapidly changing federal educational landscape.