According to Disability Rights California, an emergency bill was passed in California on March 17 that included a provision allowing public school districts to waive the typical timeline to develop an assessment plan for a student after receiving a parent request to evaluate. As a result, school districts were authorized to put off conducting initial educational evaluations for students. However, throughout the pandemic, BUSD and all other districts are still responsible for conducting triennial evaluations for students who already had IEPs.
“The way that Berkeley and a lot of other districts responded to that was to say ‘we can’t do evaluations because we have to do them in person, and we only have protocol for this kind of testing in person.’ That was a real problem because we had young kids who desperately needed an evaluation or the school wouldn’t know how to serve that child,” said Cheryl Theis, Disability Rights Education Defense Fund (DREDF) educational advocate.
The temporary provision, which was reversed in July of 2020, was put into place with the understanding that school districts needed time to develop methods to evaluate and support students. However, according to Theis, most school districts, including BUSD, continue to struggle following legal timelines for conducting evaluations.
Theis said it has also been difficult for families to learn exactly what services are available to students in special education during this time, particularly for families who cannot afford an educational advocate or attorney. Barriers to information regarding special education can create inequities among special education students, as families who can hire an attorney or advocate have a clearer path to accessing the necessary services for their child.
“Parents have to be the ones who are pushing. … Typically if you are not able to afford an advocate or attorney, the parents lose out on the fight of getting an appropriate evaluation or service,” said Educational Advocate Tiffany Herron-Lumpkin with Partners in Educational Advocacy. Theis added that families who are undocumented, unhoused, or involved with child welfare may also be less likely to push a district for services, for fear of rocking the boat and creating other issues for their family.
Marian Bradley-Kohr, a parent of a student in special education in BUSD, said her daughter has had good experiences with teachers and staff during her time in special education. However, she has also had difficulties working with BUSD to access services for her child, both during and preceding distance learning. “We have had very combative interactions with the District trying to get things that [my daughter] has needed over the years. … And at the end of the day after getting a lawyer and going through all of those things, she ended up getting what she needed — sort of. So that is a lot of time, money, and frustration that could have been resolved so differently,” said Bradley-Kohr.
According to BUSD Special Education Director Sean Mansager, the district has been working to get through the backlog of students in need of an educational evaluation, and has been able to provide online assessments since October of 2020. To work through the current backlog, Mansager said BUSD is mainly going in chronological order based on when a request for an evaluation was made, with some exceptions for students based on need.
The pandemic has also presented difficulties for all school districts in conducting valid educational evaluations — pre-pandemic, educational evaluations were typically conducted completely in person. Due to the current conditions, Mansager said BUSD has worked to develop online assessments. As of now, evaluations done by BUSD staff are completely virtual.
According to Adrienne Guinn, a former private school and preschool owner and an educational advocate with Partners in Education Advocacy, conducting evaluations virtually or in person with precautions such as masks can affect the validity of educational evaluations. For example, Guinn explained, masks that cover half the face can limit both verbal and non-verbal communication during an evaluation, particularly for younger students. “If you are going to evaluate a four-year-old and you both are going to have masks on, and the four year old does not have strong communication skills, then it is going to be very difficult to understand them. … And when the evaluators have on a mask the four-year-old can’t read the adult’s expressions because they are covered up by the mask. So right there, that to me invalidates the test,” she said.
According to Herron-Lumpkin, a valid educational evaluation during distance learning should be conducted at least partially in person. “[BUSD and other districts] are acting as if they can do it online, and they are giving some caution to it. But they are acting like they are giving this evaluation and meeting the need of the student, and they have not,” she said.
Herron-Lumpkin said that BUSD does currently have the ability to contract with independent evaluators to conduct in-person evaluations. However, she explained, parents who cannot afford an attorney or advocate may have more difficulty learning this service is available.
Mansager said that BUSD has been following guidelines laid out by the California Association of School Psychologists (CASP) in conducting educational evaluations, and is confident in the fully-online evaluations offered to students during the pandemic. “[BUSD has] developed a process to do assessments virtually that we feel is legally defensible. It is more of a struggle because it is done through a virtual environment and requires more from the parent to be involved. But, we have found it to be successful,” he said. Mansager added that he has not seen many families attempt to dispute the validity of the online evaluations conducted by BUSD on the basis of their virtual status.
Students can also seek an IEE (Independent Educational Evaluation), conducted by an evaluator not employed by the school district, if they disagree with an evaluation conducted by the district. However, according to Herron-Lumpkin and Theis, the process of getting a district to fund an IEE can also present challenges.
Under federal law, if a parent disagrees with an educational evaluation conducted by the school district, they have a right to request the district to fund an IEE. As described by Theis, once the parent submits a request for the IEE, the district can agree to fund the evaluation, give their criteria to the parents for the IEE, and consider the IEE when developing an IEP for the student. The district can also refuse the request. However, if the district refuses, they must file for a hearing, and prove to a hearing officer that the district’s evaluation met all the legal requirements. Both Herron-Lumpkin and Theis have seen BUSD, as well as other districts, neglect to follow this process in a timely or legal manner, both during and preceding distance learning.
“[BUSD] will just tell parents no to an IEE, and not in accordance with the law through prior written notice. They just say no through a phone call or an email. Or, they do it through prior written notice — the legal document that they’re supposed to use when saying no — but don’t include all of the criteria or all of the reasons why they’re denying the request to the IEE,” said Herron-Lumpkin.
Theis has also observed BUSD to be more likely to fund an IEE for families with the resources to hire an attorney or educational advocate. “This is another situation where who you are can matter. If you’re a parent who is challenging the assessment with an attorney, it’s our experience that school districts including, but not just Berkeley, are more likely to say ‘let’s not fight about this’ and not want to get into a legal battle,” she said.
Families also have the option to hire their own evaluator to conduct an IEE on their child, and seek compensation from the district after the fact. However, this requires families to have the funds to hire an evaluator, which is costly. This again can create an equity issue as families who can afford to fund their own private evaluation, or who can be confident the district will reimburse them with the help of an attorney or advocate. Students of these families will have more access to an IEE through this path.
Theis emphasized that despite the issues she has seen in special education in BUSD, she has also seen a collective effort to support students in special education from teachers and staff. “I see a lot of goodwill, and teachers working really hard. … I really want to make sure that we recognize for the line staff there has just been a real effort to try to make it work,” she said. However, Theis would like to see solutions from the leadership in BUSD Special Education, as well as more support and guidence from the state of California for all school districts.
In the meantime, some students in Special Education are still waiting for evaluations that would help them to receive the support they need. “When [BUSD creates] delays … there’s a real child waiting there. It’s not just the bureaucracy and administrative rules. There is a child waiting for support, a family who feels like they don’t understand their child’s needs, and a district who has sent the message that they would rather litigate with the family than answer their questions,” said Theis.