When Drew Basile was born in 2004, he was diagnosed with optic nerve hypoplasia, a congenital condition that can lead to visual impairment. Now 17, the Brooklyn, New York, high school senior is legally blind. “I am supposed to get front-row seating in all of my classes but the teacher still has to repeat what is written on the board,” he told Truthout. “Hearing the information aloud helps me learn and retain the material.”
COVID-19 upended this arrangement.
“From March until June , I was kind of okay with remote learning, but my grades dropped because I was not getting the live instruction and verbal repetition I needed,” Basile explains. “Being on the computer all day bothered my eyes and I started getting very mentally concerned. By the start of 11th grade in September 2020, I was anxious and depressed, and by January, I had to be hospitalized.”
Basile’s story is sadly common.
In fact, Advocates for Children, a New York City nonprofit that works to ensure that the city’s 1.1 million students — 200,000 of whom have a disability — receive a high-quality education, is suing the city on behalf of children whose documented need for specialized services went unmet during the school system’s COVID-19 shutdown. They are hoping to win compensatory services — essentially make-up sessions of physical, occupational and speech therapy, as well as other specialized services that were not provided during the remote learning period.
According to the complaint, New York City’s Department of Education failed to provide disabled students with a host of services and programs — including sign language interpreters, readers and therapies — when classes were offered via Zoom. Some students, they charge, did not receive iPads with adaptive technologies for months. Other issues include denying students with disabilities consistent access to written assignments; not providing materials to English Language Learners in their primary language; and failing to offer multilingual information to parents or guardians who can neither read nor speak English.
Director of Litigation at Advocates for Children Rebecca Shore calls the situation frustrating and notes that, “Students and parents typically know that they are entitled to a free and appropriate public education. But what that means is not always made clear by the schools.”
What’s more, she emphasizes that these issues predate COVID — by decades.
Legal Protections Exist on Paper
Students with disabilities — at last count, numbering 7.3 million, or 14 percent of public-school enrollment nationwide — are protected by three pieces of legislation: the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973.
The goal of these bills is to ensure that people with disabilities are allowed the accommodations they need to access both education and employment.
The ADA, passed in 1990, requires public schools to make educational opportunities, extracurricular activities and buildings open and accessible to every child. Disability rights attorneys and activists say that in practice, facilities constructed after 1977 are expected to be fully compliant with architectural mandates for hallway width, working elevators and the accessibility of bathrooms, auditoriums and gym facilities, while older buildings are supposed to do whatever is needed — including installing ramps or reconfiguring the space — so that everything is accessible. In addition, all renovations need to comply with ADA specifications for equal access.
IDEA, passed 46 years ago, compliments the ADA by requiring states that accept federal education dollars to provide concrete accommodations to those whose educational needs are spelled out in an Individualized Education Program or IEP. This can include specific therapies; a modified course schedule; extended time for tests and the submission of work; readers or sign language interpreters; specialized computer equipment; accessible door knobs and hardware; grab bars in bathrooms; accessible stalls with sinks and hand dryers that wheelchair users can reach; ramps; accessible parking; elevators; automatic doors; and uniforms made from fabrics that don’t aggravate skin sensitivities.
Similarly, Section 504 of the Rehabilitation Act of 1973 protects students, their parents or guardians, and school employees from discrimination based on disability. Violations are supposed to be investigated and mitigated by the Office of Civil Rights (OCR) of the Department of Justice.
In August of this year, for example, the OCR found that the Volusia County School District in Florida had “failed to implement behavioral supports and training to properly respond to disability-related behaviors,” and had instead used the state’s Baker Act to involuntarily commit children as young as 5 to psychiatric facilities for 72 hours of observation. The OCR further found that the district had required parents to remove their children from school — denying them the education they were legally entitled to — and had employed law enforcement to take unruly children, including kindergarteners, out of their classrooms. As a result of OCR’s investigation, the district agreed to make minimal changes: training staff in techniques for handling a range of disabilities and agreeing to be monitored for compliance.
But disability activists charge that even small wins like this are few and far between.
Enforcement Falls to Families
Selene Almazan, legal director of the Council of Parent Attorneys and Advocates, a group that advocates for students with disabilities, told Truthout that it is usually up to families to enforce their rights. “It should be up to the district,” she says. “It’s complicated to file a complaint. Someone once described IEP meetings as giving people instructions on procedures that are written for a 19th grade reading level.” Moreover, she points out, many public-school students with disabilities live in poverty, are housing insecure and may have parents who are not fluent in English. “If it’s a challenge for people with resources to file a complaint, when families have other challenges to deal with, it can be nearly impossible.”
At the same time, this can allow non-compliance, and sometimes abuse, to run rampant.
Sam Crane, legal director of the Autism Self Advocacy Network, a 15-year-old organization run by and for autistic people, says that seclusion and restraint policies, which are often used to control kids with developmental disabilities, autism and psychiatric conditions, can lead to serious trauma.
Nonetheless, they’re routinely used. In the 2015-16 academic year — the most recent year for which statistics are available — 122,000 kids between the ages of 5 and 21 were restrained or secluded; 71 percent of those who were restrained and 66 percent of those who were secluded were disabled. Predictably, Black and Brown kids were disproportionately impacted.
“Before IDEA, a lot of kids with intellectual and other disabilities were not in school at all, or were in institutional settings,” Crane told Truthout. IDEA gave these kids the right to a public education in the least-restrictive environment. This, she continues, often means placement in a mainstream classroom in a neighborhood school. “Under the law, a school district needs to have a good reason to move a kid into a segregated setting, but they often promote transferring them without having one,” she explains. “Parents are told that moving their child to a private school setting will ensure that the child gets whatever services are needed, paid for with public dollars.”
While Crane concedes that some private schools are adequate or better, she stresses that the use of seclusion rooms — essentially a closet with padded walls and a window so that a supervisor can periodically check in on them — and physical restraint are more common in segregated settings than they are in public schools. This, she says, puts children enrolled in them at risk of abuse.
In addition, she continues, approximately 30 percent of autistic people have a significant communication impairment, ranging from no speech to inconsistent speech. “Schools tend to treat kids who do not speak as if they have an intellectual disability.” Some are given a PECS board — often just a laminated piece of cardboard with a few photos of frequently requested objects or foods. “The few words available to them, like bathroom, snack, juice, or outside give students a way to ask for what they want, but these are the only words available to them,” Crane told Truthout.
Other technology combines icons with the ability to type, but these, too, can be problematic. Augmented Alternative Communication devices, Crane explains, do not always have a full complement of available words and leave out phrases and terms that the school doesn’t want the student to use. “Say there’s a square with the words ‘ice cream’ that the student keeps repeating over and over. The school may remove ‘ice cream’ from the board so the child can’t say it anymore. It doesn’t sound serious, but it is. Someone else is deciding what a student can or can’t say. Their communication is contingent on someone else’s approval.”
Then there are the architectural issues for students with mobility impairments.
Jennifer Garman, director of government affairs at Disability Rights Pennsylvania, a federally funded and mandated program, says that while many school buildings in her state have been retrofitted to install ramps, some, especially in low-resourced areas, have not had the funds to do what is needed. “When there is an emergency and people need to evacuate, those who have mobility limitations are told to wait for someone to come help them,” she told Truthout. “Meanwhile, everyone else is running out of the building.”
“Emergency evacuation is a frequently overlooked component of ADA compliance,” Crane agrees. “There are tools like stairlifts and chair trackers that someone can transfer to from their wheelchair to go down a flight of stairs if the elevator can’t be used. Every school should have them in the stairwell so that in an emergency, they’re ready. Schools also need better ways of announcing a fire drill or emergency for people with noise sensitivities.”
“We have all these rights under federal law but it is not always easy to get folks what they are entitled to,” Garman adds.
And there are no one-size-fits-all methods to ensure the education of people with disabilities.
Howard A. Rosenblum, CEO of the National Association of the Deaf, told Truthout that for children who are deaf or hard of hearing, separate educational programs are typically superior to integrated public school classrooms. “Most school systems across the U.S. utterly fail the needs of deaf and hard of hearing students,” he says. Expecting a student to learn to lip-read, use hearing aids, or undergo cochlear implant surgery, “results in serious educational and linguistic deficits that cannot be resolved. Any child who experiences language deprivation from birth to age 5 has lost the most important opportunity for educational development. This loss cannot be reversed. Conversely, every child who uses sign language from birth or an early age has access to language.”
This, he adds, is also true in districts that supply sign language interpreters. “Many schools hire and retain interpreters who are not fluent in sign language, which severely impacts the language development of deaf and hard of hearing students,” Rosenblum says. It is better, he argues, for them to attend separate programs that “provide them with a (sign) language rich environment.”
Discrimination Extends to School Staff
Students, however, are not the only disabled people whose needs go unmet in educational settings.
Nikos P. — he asked that his full name not be used — has a degenerative form of neuropathy and left teaching in 2021 because of his disability. “Right after I was diagnosed, I was basically okay,” he told Truthout, “but as time went on, I lost the range of motion in my arms and needed help handing out materials, photocopying, carrying my books and creating bulletin boards.” Nikos asked his principal to assign a paraprofessional to assist him, but was rebuffed. He subsequently filed a complaint with his state’s Human Rights Commission and ultimately settled without going to court. The settlement provided him with an aide who helped him until he retired.
“I deserved better,” he says, “as did the many disabled students I taught.”
“Every student should be able to access a high-quality education that allows them independence and dignity,” Almazan says. “Whether it’s blind students who need software that reads to them so they can access the same curriculum as everybody else; compensatory speech, occupational or physical therapy to make up for sessions missed during the COVID-19 quarantine; or accessible bathrooms for students who use wheelchairs, there is much work to be done and much room for improvement.”