Late this morning the U.S. Congress passed the Coronavirus Aid, Relief and Economic Security Act, or the CARES Act. The total tab is $2 trillion and includes direct payments to Americans, an expansion of unemployment insurance and billions in aid to large and small businesses. It also includes $13.5 billion for schools and lots of waiver power for Education Secretary Betsy DeVos.
According to Education Week, “the $13.5 billion earmarked for K-12 schools is included in the bill's Education Stabilization Fund, which also contains $14.25 billion for higher education and $3 billion for governors to use at their discretion to assist K-12 and higher education as they deal with the fallout from the virus.”
Here’s what you need to know about how CARES affects K-12 education.
Q: Is there any other money allocated for children?
A: Yes. The bill also includes:
Q: What can the $13.5 billion—the money earmarked for K-12 education—be used for?
A: States can choose to use the money to provide students with one-on-one devices and internet connectivity, although the bill doesn’t include what advocates had urged, a $2 billion expansion of a funding stream called “E-Rate” to ensure all students have access to online instruction.
Q: What’s up with the new waiver power bestowed on Betsy DeVos, which she has to respond to within 30 days?
A: The waivers already exercised by Secretary Devos have caused consternation from some, applause from others. For example, all states can apply to skip this year’s round of standardized testing, mandated by the federal Every Student Succeeds Act (ESSA), and indeed they have.
Q: What other potential waivers are up for grabs?
A: There are three main categories: Accountability requirements outlined in ESSA, funding requirements, and special education waivers embedded in IDEA, the Individuals with Disabilities Education Act.
Regarding accountability, states (as well as the District of Columbia and Native American tribes) can ask for waivers for publicly reporting progress towards achievement goals, including high school graduation rates and academic growth for traditionally-marginalized students: Students with disabilities, low-income students, Black and Hispanic students, English Language Learners. As part of ESSA, schools are identified as “in need of improvement” if they don’t reach certain benchmarks. Now states can request waivers to freeze the status of individual schools for school year 2020-2021. If they do get the waivers, schools currently on the list would stay there and no new ones would be added.
Regarding mandated funding, states can get waivers to loosen restrictions on how they spend federal money streams, including tapping into federal funds that would normally be covered by state revenues. In addition, oversight of Title 1 schools (those with high concentrations of low-income students) would be loosened. States can ask for a waiver from the way they use Title IV funds, which prohibits spending more than 15% of this funding stream on technology and for adhering to ESSA’s mandates on teachers’ professional development.
Q: What’s going to be different with special education?
DeVos has far less leeway in providing waivers for the Individuals with Disabilities Education Act (IDEA). The first guidance issued on dealing with students with disabilities was confusing and contradictory. For example:
If an LEA [Local Education Agency, i.e., school district] closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.
Some schools, fearful of litigation from parents charging non-compliance with IEP’s, decided to halt all instruction, including online learning, in order to avoid liability. But Devos then clarified the guidance with a do-over:
[The Office for Civil Rights] and [the Office for Special Education and Rehabilitative Services] must address a serious misunderstanding that has recently circulated within the educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities. Rather, school systems must make local decisions that take into consideration the health, safety and well-being of all their students and staff.
What does all this verbiage mean? In short, districts have to do the best they can given circumstances that preclude physical, speech and occupational therapists providing in-person therapies or one-on-one aides sitting by a student’s side. Yet districts have to try their hardest to comply with IEP’s (Individualized Education Plans) while having the latitude to make changes in student programming, and they have to ensure that online learning tools are compatible with, say, augmented communication devices. (For more detail, see this excellent summary from jdsupra. Also, see this free webinar from the National Association of School Psychologists called “Wading through a Sea of Ambiguity: Charting a Course for Special Education Services During a Pandemic.”)
In addition, districts may have to provide compensatory services once schools reopen, although whether they will do so remains unclear (and, like much in special education, will depend on parent advocacy.
Parents and advocates of children with special needs have expressed concerns about these looser rules. The National Center for Youth Law just issued this statement
NCYL remains concerned about the provision tucked into the bill that grants US Education Secretary DeVos the power to recommend which civil rights for children with disabilities should be undermined, and for how long. We fear for the harm to children with disabilities that would result from waivers of their legal right to a free appropriate public education based on their individual needs. No waivers were needed when schools were closed due to natural disasters like Hurricane Katrina and Hurricane Sandy. The reality is: states and districts around the country are finding innovative ways to make education happen for all their students, including children with disabilities as best as possible under the circumstances. DeVos should not recommend, and Congress should not adopt, any waivers that would disincentivize this innovation by lessening schools’ obligations to serve all students, including students with disabilities.
Lindsay Jones, executive director of the National Center for Learning Disabilities, expressed concern about DeVos’ ability to waive portions of IDEA: “We're talking about waiving people's rights. These are rights that are in place because of the history of discrimination."
Yet, I suppose it could have been worse:
Be grateful for small favors and stay healthy!
Laura Waters is the founder and managing editor of New Jersey Education Report, formerly a senior writer/editor with brightbeam. Laura writes about New Jersey and New York education policy and politics. As the daughter of New York City educators and parent of a son with special needs, she writes frequently about the need to listen to families and ensure access to good public school options for all. She is based in New Jersey, where she and her husband have raised four children. She recently finished serving 12 years on her local school board in Lawrence, New Jersey, where she was president for nine of those years. Early in her career, she taught writing to low-income students of color at SUNY Binghamton through an Educational Opportunity Program.
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