School districts are struggling to decide how schools might open for the upcoming school year. The options being considered run the full gamut from 100% virtual instruction to 100% in-person instruction, with many variations in between, such as 40% in-person instruction with the remainder of teaching being via virtual means. Most schools in Pennsylvania and Delaware do not anticipate opening on time for full in-person instruction, and many have already announced limited in-person instruction when schools finally open. Unfortunately, lost in most of these discussions is the process by which to provide children with disabilities their ongoing entitlement to a Free Appropriate Public Education (FAPE) during times of total or partial school closure even though in-person instruction can be properly accomplished in empty or partially occupied buildings. This legal entitlement has not been diminished by the pandemic. The "default button" currently appears to involve providing special education students with the same percentages of in-person instruction as regular education students. Such a policy operates to needlessly deprive children with disabilities of their entitlement to FAPE contrary to federal and state law, and ignores the studies which establish that students with disabilities are often the most negatively impacted by a lack of in-person instruction. And the situation for the upcoming school year is very different from mid-March, 2020, when the emerging pandemic, and the limited knowledge of the scientific community regarding transmission, required statewide lockdowns and the total closing of schools.
We now have much greater information about the virus, and federal and state guidelines have been propounded concerning the necessary factors to allow children with disabilities to receive in-person instruction.
