Tuesday, July 28, 2020

Whose Fault is it?

Whose fault is it?


If a child goes to school and contracts the COVID19 virus, who is to blame?   The US is one of the most litigious countries in the world.  We sue people for hot coffee.

At the present time the Congress is considering federal law to protect businesses from liability if a person can trace the contraction of the virus back to a particular business.  Congress is seriously considering that.

As Trump presses for children to return to school, Boards of Education and local superintendents are very concerned that that there will be an onslaught of special education litigation either for contracting the virus directly or for the failure of schools to provide compensatory education for the time the schools have been on distance learning.  Everyone pretty much concedes that distance learning negatively impacts children with disabilities more profoundly than it does plain kids.

U.S. Secretary of Education, Betsy DeVos, has said that there would be no “waiver authority for any of the core tenets of the IDEA”.   Disability advocates have insisted that no waivers should be warranted because of Covid.  Advocates are saying that this is just an excuse for school systems to get out of providing services to kids.  They insist that as of this time there is no indication that the so-called outpouring of litigation has happened at all.  Advocates acknowledge that children with disabilities have suffered under distance learning.  They also say that school districts have not even begun to try to level the playing field for children with disabilities.

On the other hand, the School Superintendents Association, the National School Boards Association and the Association of Educational Services Agencies have insisted they need protection.  They insist that their energy needs to go towards providing instruction not toward fending off lawsuits.  The groups have not said how long they would like these protections to last.

The reality is that these same organizations have been saying for over 45 years!  that providing a free and appropriate education for children with disabilities is too heavy a lift.  In fact at the signing of EHA 94-142, President Ford said he was signing the bill into law but doubted it could be achieved.

The latest proposal from the Senate for Covid relief does include liability protection for businesses and schools.  So the question is- is this a legitimate concern or just another way to wiggle free of the responsibility to provide FAPE.  As the old saying goes, “it is an ill wind that doesn’t blow somebody some good”.

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