MONTGOMERY — Tasha Faruqui would often spend 30 minutes just encouraging her 8-year-old daughter, Soraya, to write her name on the top of a schoolwork paper during remote learning this spring.
“No matter what the school could provide me virtual, I needed a person,” Faruqui said. “It’s very frustrating to see your child struggle and not get much out of the curriculum despite the time being put in.”
As school districts prepare to resume in-person or remote learning, attorneys say, they face unprecedented risks and liabilities which could turn into lawsuits. For special needs children, it could be missing out on therapies and one-on-one attention that they are legally required to receive from schools. For teachers with underlying health problems, it could be the requirement to return to classroom teaching despite an increased risk of complications from COVID-19.
“I think there’s a lot of anxiety on everybody’s part, and this is parents, students, teachers, administrators, everybody, because nobody really knows what’s going to happen and how this year, especially the beginning of this year, is going to go,” said special education lawyer Carla Leader.
Remote learning was difficult for many families this spring after schools shut down during the pandemic. But for the parents of special needs children like Faruqui, it often felt impossible.
Faruqui’s daughter has a complex medical history. She requires a leg brace to walk, a power chair to cover long distances, a gastronomy tube for feeding, and a team of specialists and teachers at Montgomery Elementary to help her thrive.
Remote learning was frustrating for Soraya, who struggled with anxiety, sleep problems and regression.
“She would end up picking her fingers and her cuticles until they would bleed multiple times a day,”Faruqui said. “I do think the school did their best under the circumstances and they were more than accessible, but it didn’t equate to the same services that we needed and that Soraya could benefit from.”
Sycamore Community School District offered parents the choice to return to remote or in-person learning when classes resume next month, and Faruqui and her husband, who are both doctors, decided to send all three daughters, including Soraya, back for in-person classes.
“I worry about more regression, I worry about just more behavior issues and other issues that just weren’t there before if we were to keep her out any longer,” Faruqui said.
Stacey Spencer, director of student services for Sycamore Community Schools, said Individualized Education Plan teams will meet with families of special needs children to come up with a plan for face-to-face learning before classes resume. They will also discuss a distance learning plan in case the district has to move to remote learning.
“To the greatest extent possible, each student with a disability will be provided the special education and related services identified in the student’s IEP,” according to the district’s back-to-school plan.
But returning to school brings its own set of worries, because Soraya requires extra care from school faculty to ride the bus and elevator, as well as to administer her G-tube feedings.
“The biggest risk is her G-tube and thinking about how close an educational staff member would have to get in order to do those G-tube feeds,” Faruqui said. “How does the staff feel? Hopefully they’re feeling safe about getting that close with her.”
Montgomery Elementary faculty has been very receptive to questions, Faruqui said, and she plans to sit down with them a week or two before school starts to talk about a specific plan for Soraya.
“I feel very hopeful we come to agreement that’s safe for everyone while getting her needs met,” Faruqui said.
But not all parents feel that way. Leader began fielding calls from concerned parents of special needs children in March when schools shut down. She told parents to give the schools time before pursuing legal action.
“For us to jump immediately into litigation, for example, would be really premature at this point because we don’t know what the long-term impact is going to be,” Leader said.
Leader predicts that schools will face a slew of liability issues, not just involving special needs students, when classrooms reopen.
“How’s a bus driver going to monitor mask wearing and social distancing while he or she is driving a bus unless they plan to have extra staff on the bus to monitor that, which I think some buses will have a bus aide, but not all,” Leader said. “I think it’s going to be chaos, I really do.”
For families or school districts that opt for remote learning instead of in-person classes, there could be just as many struggles.
Economically disadvantaged families may rely on school lunches and breakfasts for nutrition. They may not have enough computer devices for the household or have poor Internet capability. Older children may have to babysit younger siblings while a parent works, yet also be expected to complete their own online schoolwork, Leader said.
“I don’t even think we know the harm that is going to be caused to students because of this pandemic and I don’t think we will know for a long time,” Leader said. “I think we’re going to see regression across the board … but children with special needs don’t recoup that loss as quickly as other children.”
Monica Schneider’s 8-year-old son, Harrison, has Down syndrome. He usually works with a team of aides and specialists at Maple Dale Elementary School.
But this spring he just had his parents and an occasional babysitter.
It was exhausting and stressful for Schneider to juggle her full-time job as a college professor and her husband’s work as a lawyer while teaching Harrison and caring for his 6-year-old brother.
“It was challenging, to say the least. But especially when you have a child who needs one-on-one, all day, every day,” Schneider said. “He’s not potty trained, he has sensory needs. He needs adult attention.”
She is nervous about sending Harrison back to school in person, especially since he can’t wear a mask because of sensory issues. When he does get sick, it usually turns into a prolonged illness.
But she plans to send both of her sons back to the classroom in September.
“Online school is difficult for everybody from high school, college down. But it’s impossible for my son to do it on his own,” Schneider said. “But developmentally he needs that team of people to be working with him on a daily basis. And I can’t do both that and my job. And my husband can’t do both that and his job.”
Employment attorney Matt Miller-Novak said teachers have their own concerns about returning to the classroom.
“I’ve certainly seen a lot of issues or complaints or fears of teachers with pre-existing conditions that are high risk for COVID who don’t want to have to come back to the classroom,” Miller-Novak said.
But case law in Ohio may make it hard for teachers to win a disability discrimination lawsuit over being at high risk for COVID, he said.
“The mere presence of a disability or even a doctor recommendation is not enough necessarily because accommodations have to be reasonable and not an undue burden on the employer,” Miller-Novak said.
“Even though this is kind of a new scenario, there is case law that says that teaching in person is an essential function of leading a classroom … so I think that most teachers will have to return to the classroom.”
While Miller-Novak has received plenty of calls from workers who have inquired about suing their employers over issues related to COVID, he has not gotten any from teachers yet. He anticipates that will happen once school resumes.
Leader is encouraging families who call her to wait until at least next year to consider taking legal action against a school.
“I’m not saying this is unprecedented, give the schools a break," Leader said. "I’m saying this is unprecedented, give the schools some time."
