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By: Lily Crespo Esq.
Local control can be tricky. Schools have been tasked with keeping their doors open during a pandemic with minimal governance at the state or federal level. On the one hand, this has allowed school boards to be flexible and responsive to the needs of their individual communities. On the other hand, this has brought unprecedented scrutiny on each and every action taken by the school district, and a flurry of accommodation requests from parents, patrons, students, and staff.
These accommodation requests should be handled on a case-by-case basis, especially when they relate to a disability. For staff, this often requires engaging in the interactive process established by the ADA. For students, this often requires a meeting of an IEP team or Section 504 group to consider the request and take appropriate action. This approach has been reaffirmed by recent guidance from the federal Department of Education and several federal court cases.
Return to School Roadmap
On September 30, 2021, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released a “Return to School Roadmap” that provides guidance on meeting the individual needs of special education students returning to school after COVID-19 related closures.
OSERS’ Roadmap makes clear that a child’s IEP team is responsible for addressing the school-related needs of a child with a disability in the context of COVID-19. If a parent or IEP team member suggests certain protective measures because of COVID-19, or requests an accommodation from generally applicable measures or protocols, the IEP team must consider those requests.
For example, we’ve seen many accommodation requests related to a district’s masking protocols. In some cases, this takes the form of a request to be exempted from a masking requirement for some or all of the school day. In others, the request is for the school to require masks or face coverings in circumstances in which it would not otherwise require them. In either event, the student’s IEP team should meet to discuss and consider the appropriate response to that request, with the ultimate decision resting with the District Representative on the team. This discussion should center on the individual circumstances related to the student at issue, their needs, and, to the extent appropriate, the needs of their peers.
This means that an IEP team can’t simply rely on the generally applicable policies and rules established by the school board or administration. This is also the reason that some courts have struck down attempts by other state governments to prohibit masking requirements or require that exceptions to those measures be permitted.
For example, courts in Iowa, South Carolina, and Tennessee have issued injunctions preventing state officials from enforcing bans on mask mandates established at the State level. These cases are currently being appealed, and similar litigation is ongoing in relation to masking requirement bans in Texas and Florida. All of these lawsuits center on the application of federal law requirements that disability accommodation decisions be made on an individualized basis.
Educator Takeaway: Fortunately for schools in Montana, the recent guidance from OSERS and the ongoing litigation in other states shouldn’t affect how decisions related to COVID-19 are made. School boards should feel empowered to take the appropriate measures to keep their schools and students safe in a manner that is consistent with their community’s unique needs. In doing so, however, school administrators must be mindful that requests for accommodations on the basis of disability should be referred to the appropriate student team or group for individualized consideration.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.