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Parents Say Schools Must Make Up For Failing Kids With Disabilities During Pandemic

AUDIE CORNISH, HOST:

In the U.S., schoolchildren with disabilities have a legal right to special education services. But in many school districts, these vital services - including speech and occupational therapy, behavioral counseling - well, they were disrupted or stopped altogether during the pandemic. Now, 15 months later, many families say schools must make up for all their children have lost. NPR's Cory Turner is here to talk about this.

Hey there, Cory.

CORY TURNER, BYLINE: Hey, Audie.

CORNISH: And freelance reporter Rebecca Klein, welcome to you.

REBECCA KLEIN: Hi.

CORNISH: They've both been investigating this story for several months. And I want to start with you, Rebecca, and just what you heard from families. Was there any kind of, like, theme or pattern that stood out?

KLEIN: Yeah, so there was a few things. For one, remote learning didn't work for many kids with disabilities. So there was Maddie Berg, for example. She's 6 years old, and she has an intellectual disability and attention deficit disorder. And her mom, Rachael, told us that Maddie struggled to focus on the computer so much so that she really began to fight against it.

RACHAEL BERG: It was usually five to 10 minutes of the teacher and the classroom seeing Maddie crying and biting herself, me pulling her back into the camera and pulling her back. And then it usually ended with two of us crying.

KLEIN: So eventually, it became so difficult for them that they just stopped showing up. And we also heard from families of kids who need a trained aide by their side in school. And in many places, when schools closed, these aides weren't allowed to meet with children in person. So a lot of parents and caregivers told us they watched their children lose skills academically, socially and behaviorally. So one mother in Tennessee, who has a child with autism - she told us it was a really big deal when her daughter learned how to count money. But because of the pandemic, she regressed and she can't do that anymore. And her daughter had also been making progress expressing her emotions, but she lost ground there, too.

CORNISH: Cory, legally, what's required of these schools? I mean, we know they have to do the education, but what's that supposed to look like?

TURNER: Yeah, I mean, that's a fascinating question because, you know, back in the 1970s, Congress gave children with disabilities a legal federal right to a public education. And most kids in the country don't have that right, at least not the federal level. Congress specifically said that special education should be free and appropriate. So that means if a child needs a speech therapist or occupational therapy in order to learn, schools have to provide it. In the past, when these things didn't happen - you know, maybe a district special educator left and it took a few weeks to find a new one - the courts have said, schools have to make up for that. And they do it through what are called compensatory services. The goal is to help a child reach the skill level where they would have been, had there been no disruption.

And at the beginning of the pandemic - this is key, Audie - the Education Department issued guidance telling districts specifically, you need to be thinking about compensatory services. The problem, though, from school districts' point of view, is that they've never seen anything like these pandemic-level disruptions. You know, we're not talking days or even weeks. We're talking about months. And in their defense, they say providing compensatory services on this kind of scale would be incredibly complicated, not to mention expensive.

CORNISH: Rebecca, can we expand on that idea for a bit? I mean, is the problem that districts don't have the money to pay for these special services, or is there something else going on here?

KLEIN: So that's where this story gets really complicated because it's not only about money. It's also about fundamentally different readings of the law. So we spoke with several attorneys and officials who advise school districts and school boards on special education issues, and they all said, basically, that compensatory services are something that the courts have handed out when schools have failed a student and when they've messed up. Phyllis Wolfram is executive director for the Council of Administrators of Special Education, and she says the past year is no one's fault.

PHYLLIS WOLFRAM: So there is no umbrella or realm by which we should be looking at compensating for something that we didn't have control over, with regard to the pandemic.

KLEIN: So instead, many schools are asking families just to trust that they're doing their best. They're basically arguing that intent is what matters here. Did schools make a good faith effort to provide kids with services during the strain of the pandemic? And even now, schools are saying, look, we're going as fast as we can, but providing extra services requires more trained staff and more hours in the day.

So no one we spoke with is arguing that schools should do nothing, but it's kind of about, how much more do they need to provide? Wolfram, as well as several school attorneys we spoke with, all talked about getting children with disabilities back on track - basically to where they were when schools closed.

CORNISH: So that's what school attorneys say. Cory, what do the families and their attorneys say in response?

TURNER: Yeah, I mean, they simply read the law differently, you know, especially the way courts have interpreted it through the years. Blaire Malkin is a disability rights attorney with the group Mountain State Justice in West Virginia. Here's how she describes it.

BLAIRE MALKIN: Compensatory education does not require a finding of negligence or fault on the part of a school district. What it does mean is that they have a duty to that child and to put that child back in the place they would have been if school had been open.

TURNER: You know, notice she said, Audie, if schools had been open, as in if the pandemic had never happened. And I think that this difference - you know, it's a big difference in how school districts and families and advocates are reading federal law - is why some families feel really unheard right now and are starting to file legal complaints.

CORNISH: Let's talk more about the legal complaints. How expansive is this? Is this something that's spreading?

KLEIN: So we should say, first off, that families should always start by communicating with their child's special education team. But what we heard again and again is that often the school-based staff agree with families. It's the bureaucracy at the district and state level that's really become the problem for them. So families are doing a few things. Some are filing complaints with the U.S. Department of Education's Office of Civil Rights, and others are filing special education complaints at the state level. And some are filing what is known as due process complaints, which allow them to argue their case in a trial-like setting. And then in places like Maryland and New York, there are also broader class complaints with multiple plaintiffs all seeking compensatory services. So right now we're seeing more and more complaints, but it's still very early in this process.

TURNER: And, Audie, I think it's also really important to point out that all of these pathways really require parents and caregivers to navigate a pretty complex system - you know, one where poverty, language and knowledge of the system can be real barriers. You know, we spoke with a rancher in New Mexico. His name is Timothy Largo. He's a member of the Navajo Nation. He's raising his grandson. He filed a complaint with the Bureau of Indian Education when his grandson lost access to special education services during the pandemic. The BIE awarded his grandson 45 hours of compensatory services. But Mr. Largo worries - you know, he says lots of families are not going to be able to do what he and his wife did.

TIMOTHY LARGO: How many students are out there? You know, a lot of these parents or guardians - they're not literate. And the students are falling through the cracks because the parents and the guardians are not advocating for their children.

TURNER: And, you know, one more thought, Audie - we spoke with one advocate the other day who told us, where they work, the only families who are getting compensatory services right now all have one thing in common. They all hired an advocate or attorney who understands the law.

CORNISH: That's NPR's Cory Turner.

Cory, thank you so much.

TURNER: You're welcome, Audie.

CORNISH: And reporter Rebecca Klein, thank you for your reporting on this.

KLEIN: Thanks for having me.

(SOUNDBITE OF OLAFUR ARNALDS AND BONOBO'S "LOOM") Transcript provided by NPR, Copyright NPR.