5 Questions for Denise Marshall on Threats to Special Education

A recent wave of massive layoffs have further gutted the U.S. Department of Education, which President Donald Trump has pledged to fully dismantle – in a move he said is intended to restore greater control of schools to individual states and communities. The Office of Special Education Programs (OSEP) was one of the divisions severely impacted by recent reductions in the workforce. On Oct. 15, a federal judge temporarily halted the firings of nearly every federal staffer in that division, as well as several other federal agencies.  (For more on the education-related layoffs and the fallout, take a look at a thorough explainer from Education Week.)

The Education Writers Association spoke with Denise Marshall, CEO of Council of Parent Attorneys and Advocates, about these developments and what education reporters should know to cover the short-term chaos, looming legal challenges, and what these developments mean for special education students and their families, educators, schools and states. 

COPAA, a nonprofit organization, has over 3,700 members across the country, of which nearly two-thirds are attorneys and special education advocate members. The organization focuses on advocacy, litigation, and professional development around advocating for the legal and civil rights of students with disabilities and their families. 

Q&A: Understanding Federal Threats to Special Education 

The greatest concern right now is understandably among parents and families who are wondering what this means for their children. How does this situation impact students who need services, such as an evaluation for a new Individualized Education Plan (IEP) or other accommodations, which, for now, are still legally required?  

Denise Marshall: I think that’s an important message. First of all, these services are still legally required. Nothing in the [Trump] administration’s actions changes the law. Nothing changes the rights of the students. That would take a supermajority in the Senate to do that. The administration knows that, and so that’s why – in our estimation – they’re doing an end-run around the law. The most important thing to communicate is that the law is still in effect. Student IEPs and 504 plans are still in effect. The states still have the obligation to make sure that those students and families receive their rights.

The Council of Administrators of Special Education (CASE), which represents over 6,000administrators across the country, have said that they’re very concerned that the layoffs and furloughs leaves OSEP seriously understaffed to meet federal requirements, and that states need those supports that the federal agency provides so that they can then use that information on best practices to support their districts. That’s what the Department of Education is legally supposed to do. 

You know, Congress made that promise to students with disabilities 50 years ago, that there would be critical supports from the federal government. It doesn’t mean that the promise isn’t still there, but everything that’s happening now makes it much, much harder, if not impossible, to keep it.

You mentioned some of the politics and history entwined with special education law. These programs and services have typically had strong bipartisan support, including from multiple Republican presidents. What happened? 

Marshall: I believe special education still has strong bipartisan support. We hear that when we talk with individual members of Congress on both sides of the aisle.  This administration is taking actions that fly in the face of that. The Individuals with Disabilities Education Act (IDEA) is an unusual law when you compare it to other statutes, in that Congress was very specific about the requirements for the Education Secretary. I think the reasons they did that were that they understood students with disabilities were an at-risk population that really required the federal government to step in and make sure they got what they were entitled to – that they weren’t subjected to the political whims of whoever’s the current person in charge. 

I wish someone would sit down with Education Secretary Linda McMahon and ask, “Why are you reneging on the promise you made during your confirmation hearing? You said the rights of students with disabilities were not in jeopardy or threatened at all. You said you understood that Congress was the one that needed to make any changes to the law, which specifically spells out the obligations the Secretary of Education has, and I want to know how you are going to ensure those obligations are fulfilled.”

In addition to advocacy and policy work, COPAA handles litigation on special education issues. Is there enough capacity to meet what’s likely to be a growing need for representation and legal guidance?

Marshall: There could be an increase in individual cases. Or, it’s possible people are going to turn more to pressuring states to fulfill the obligations they agreed to when they accepted the federal funds. We have two cases right now, which predate the current situation, against the Clark County School District (Las Vegas, Nevada) and the state of Oregon, both for failing to implement IDEA as intended or as required under the law. 

We don’t want there to be an increase in either legal challenges or complaints if districts fail to provide students with the free and appropriate public education to which they are entitled, or if families are denied their rights under the law. Reinstating federal ED employees with expertise about the requirements of the law helps through guidance, monitoring and technical assistance.

While we’re talking about capacity, do states have the staff, resources, and institutional knowledge to take on this kind of special education delivery and enforcement – essentially what the federal government seems to be trying to hand to them? 

Marshall: The responsibility falls much more heavily on the states in this scenario. That’s why we’re hearing an outcry from the educators on the ground because they understand that a critical piece of their support line – the role the U.S. Department of Education is supposed to play here – is gone. We can’t even get basic questions answered from the department. Just multiply that by a thousand when it comes to the type of technical expertise that is necessary to uphold the law. 

It’s not just about capacity or even equity, such as whether the funds will get to the students most in need in each state. There’s also a serious question of transparency. There’s no guarantee that the funds would be used in the way that they’re intended. Federal reporting requirements mean I can go online and look up whether a state is in compliance or not. Education reporters need to go to each individual state Department of Education and ask them, “How do you plan to do this? What mechanisms are in place to ensure transparency, fairness and equity?”

What are some other story ideas for journalists covering special education right now, or things you’d like to see them keep in mind as the dismantling of the U.S. Department of Education continues? 

Marshall: Exploring the impact of these developments at the local level is obviously a big story. Some of these impacts will take more time to reach folks, or they might be subtle in nature. But we already know many schools are reporting special education staffing shortages and shortages of related service providers. Reporters should pay close attention to that. As for sourcing ideas, we had a sign-on letter with disability and education groups across the country. Reporters may see agencies in their local communities that have signed on and want to reach out.

I’d also like to see education reporters be mindful of the larger issues at play here. I realize it’s strategic that the administration keeps calling this a “Democratic” issue, but we know from our gatherings with other advocates, from hearing from parents who are Republican and may have voted for this administration, who are horrified right now. It’s building a false narrative around students with disabilities and their families. 

This isn’t just about the Department of Education. The cuts across all the departments that support those students and families and touch their lives. It’s the Administration for Community Living (a federal entity that supports programs and services for older and aging adults with disabilities), and it’s the Rehabilitation Services Administration (job training and placement services for disabled adults). Looking at the bigger picture, it’s really an across-the-board attack on the rights of people with disabilities to be equal participants in society.