By John Worthington, Esq., Coordinator of Special Education Law
Artificial Intelligence (AI) has emerged as a powerful tool to assist with completing many tasks in the workplace and in daily life. While there is certainly potential for misuse of AI in any area where it is utilized, there are also great potential benefits. When assessing the use of AI for special education students, applicable laws essentially require that its use be considered. Both the Individuals with disabilities education act (IDEA) and New Jersey regulations implementing IDEA mandate that assistive technology be considered and utilized for students with disabilities when necessary for them to receive a free, appropriate public education, or FAPE. Not only can AI assist in providing a student with a disability a FAPE, it can also assist in meeting a student’s language and communication needs, which must be met in order to allow a student to receive a FAPE.
For example, in accordance with N.J.A.C. 6A:14-3.7(c), when developing the IEP, the IEP team shall, in the case of a student who is a multilingual learner, consider the language needs of the student as related to the IEP. For all students, the IEP team shall consider the communication needs of the student and whether the student requires assistive technology devices and services. In addition, the district board of education is required to ensure that assistive technology devices or assistive technology services, or both, as defined in the IDEA, are made available to a student with a disability if required as part of the student’s special education, related services, or supplementary aids and services. The regulations further provide that, on a case-by-case basis, the use of school-purchased assistive technology devices in a student’s home or in other settings is required if the IEP team determines that the student needs access to those devices to receive a free, appropriate public education. Taken together, these regulatory requirements not only support the use of assistive technology but mandate it. While the definitions of assistive technology devices and services in IDEA do not explicitly mention artificial intelligence, as they were written prior to AI entering the scope of services available to assist students with disabilities, they are broad enough to encompass any technology, from a basic calculator to revolutionary technology such as AI with myriad possibilities and uses that can benefit all students and teachers, including students with disabilities.
IDEA defines an assistive technology device as “any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability… The term does not include a medical device that is surgically implanted, or the replacement of such device.”
An assistive technology service is defined as “any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes— (A) the evaluation of the needs of such child, including a functional evaluation of the child in the child’s customary environment; (B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child; (C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; (D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (E) training or technical assistance for such child, or, where appropriate, the family of such child; and (F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child. See, 20 U.S.C. 1401(1) and (2).
Taken together these terms are of sufficient breadth to encompass AI. In fact, the terms were intended to be read broadly, as new technology devices and services are always being developed for use in a variety of manners, including assisting students in accessing instruction and services. The definitions were thus not intended to be limiting, but rather, they are intended to encompass developing technologies to assist in evaluating the needs of students with disabilities, and meeting those needs to allow all students with disabilities to receive the FAPE to which they are nettled. AI has the potential to provide students with disabilities access to curriculum and instruction, and IEP teams must consider it as a means to provide student with disabilities the FAPE to which they are entitled. In fact, AI has the potential to allow school districts to provide students a FAPE at a lower cost and in less restrictive environments by increasing teachers’ ability to differentiate instruction and provide access to required content without the need for the student to be placed in a separate setting. This also could assist with staffing shortages by reducing the needs to staff as many resource rooms and special class programs.
AI also has the potential to allow school districts to meet their obligation to assess and evaluate students in the appropriate language or form, and to communicate with them and parents more easily. Districts are obligated by IDEA and state regulations to assess students with disabilities in the language or form most likely to provide accurate information, whether in an initial or a reevaluation. School districts must also ensure that a student is not classified as a student with disabilities because of a language barrier, as opposed to having a disability. Essentially, a student cannot be considered disabled simply because they do not speak or communicate in English. With the nearly 200 written and spoken languages in New Jersey, AI provides the potential to assist districts in conducting assessments as part of evaluations of students that are currently difficult to obtain, and to ensure that language difficulties are not the basis for a classification of a student as a student with a disability. While such uses of AI are in their infancy, AI clearly has the potential to allow district child study teams to administer tests and assessments without the need to acquire such assessments from outside sources, and to acquire the information required to make appropriate decisions with respect to eligibility and the special education and related services in a student’s IEP.
Districts can also utilize AI assisted translation programs to meet their obligation to communicate with parents and provide written notice in their native language, as well as providing a potential means for translating meetings between district staff and parents. IDEA and state regulations mandate that IEP and other meetings be conducted with translators to afford parents appropriate access to such meetings. Written notice must also be in the native language of the parents to allow them to make informed decisions and provide consent based on all of the available information. The mandates to both provide notice and to communicate with parents in a means that allows them to fully participate in meetings and make informed, decisions based on all relevant information as required for written notice, often proves difficult for school districts, as interpreters and translators are not always readily available. The use of AI has the potential to provide accurate interpretation and translation at a low cost, benefiting districts, parents and especially students with disabilities.
One example of an AI tool that can assist teachers with in obtaining teaching and learning resources that they can customize based on their needs, which then allows them to spend more teaching and less time creating lesson plans and activities is Diffit, https://web.diffit.me/ . Sites like this allow teachers to provide information and create custom lessons and activities for use in their classroom. While there are free trials for programs such as this, districts would ultimately have to pay for subscriptions. However, the relatively low cost, and concomitant increase in productivity and teacher satisfaction, make exploring such options something all school districts should consider.
While AI is just emerging as a tool for educating all students, including students with disabilities, it is a technology that school districts can, and must, utilize to meet their obligation to assess, classify, and provide students with disabilities a FAPE in the Lease restrictive environment. AI has the potential to benefit both students with disabilities and school districts by allowing for easier and less costly communication, assessment, and provision of special education and related services to students with disabilities.
For more information on the future of AI in public education, readers are encouraged to review the report Artificial Intelligence and the Future of Teaching and Learning Insights and Recommendations May 2023. For more information on how various states are addressing AI in public education, viewers are encouraged to review the report from Digital Promise, summarizing recommendations from 7 states regarding AI and public education – Review of Guidance from Seven States on AI in Education (dspacedirect.org).