Tania Rivera’s son, Luis, is supposed to have started sixth grade by now. But he’s currently stuck at home in South Gate, receiving no schooling, as his mother waits for answers — and braces for bad options.
The dilemma began when Luis’ doctor advised Rivera not to send her son back for in-person classes in the fall. Luis has asthma. He’s 11, and still too young to be vaccinated.
In California, a new back-to-school law — part of Assembly Bill 130 — does give parents the right to opt out, but it also sharply limits the alternatives schools can offer to students who choose to stay off-campus.
The only option left to Rivera? Enroll Luis in an online “independent study” program. In the Los Angeles Unified School District’s program, he’d get a total of two hours of live lessons with a teacher each day, but would have to do most of the work on his own.
To Rivera, the program sounded like a poor fit: Luis isn’t an independent learner. He has autism. He has a hard time using words. At school, he depends on a unique balance of services: time with peers in a “mainstream” classroom, coupled with one-on-one tutoring and specialized therapies.
Rivera didn’t have much of a choice. On July 30, she requested a seat for Luis in LAUSD’s independent study program.
But the decision hardly solved Rivera’s dilemma.
Special education advocates and attorneys — and even some school administrators — say the family’s case demonstrates how the state’s new back-to-school law has given perhaps thousands of California students with disabilities grounds for costly lawsuits against their schools.
Every minute of every service written into Luis’ special education plan — his individualized education program, or “IEP” — is guaranteed by federal law. The pandemic didn’t cancel LAUSD’s obligation to provide those services. How, Rivera wondered, would LAUSD ensure Luis gets all the individual attention he needs from a program that emphasizes independent work?
Three weeks into the new school year, Rivera still doesn’t have an answer. Her son's enrollment in LAUSD’s independent study program still isn’t final. The new state law requires Rivera and Luis’ teachers first meet to discuss his IEP before letting him into the program; the meeting is set for this Thursday, Sept. 9.
In the meantime, Luis is waiting at home. His mom — who quit her job in customer service in part because Luis needed hands-on care — is at her wit’s end.
“Instead of [going] forward, we are going backward, and that affects him a lot,” said Rivera.
I don’t think [lawmakers] consulted with any broad-based group of educators who would’ve said, ‘Wait a minute!'
Last July, when California lawmakers enacted the new back-to-school law, AB 130, they intended to make clear their expectation that in-person instruction would be the norm this year. “Hybrid” or “distance learning” programs would no longer be widely available.
“Hybrid learning as a whole did not serve our students at all,” explained Assembly Budget Committee Chair Phil Ting (D-San Francisco) in an interview. “We wanted to ensure every student got the education the state is paying for.”
However, in closing off all alternatives other than independent study, critics say AB 130 tied many special education administrators into the same dilemma the Rivera family faces. If a student opts out of in-person classes, then what?
Since 1975, a landmark federal law, the Individuals with Disabilities Education Act, has required schools to offer accommodations to students with disabilities. Under the law, parents and teachers negotiate a plan — an IEP — for the student to receive a “free and appropriate public education.” The negotiations often typically specify the classroom environment in which the child will be learning.
The question now: Can independent study — a program normally used to educate child actors, young Olympic athletes or students unable to attend school because of a medical crisis — serve as an “appropriate” environment for a student with disabilities?
Veronica Coates, who oversees special education services for the Tehama County Office of Education in northern California, said that “most often” for these students, independent study is not a good fit.
Most students with disabilities need “much more than just a once-a-week, half-hour or hour appointment. Putting the work on students with limited supports…is just not appropriate,” Coates said. “Then the IEP team is in this ethical and legal dilemma: Do they allow and recommend something that they know is not the true offer of education?”
What’s lacking aren't resources or guidance. What’s lacking is the will to lead at the district level.
Officially, California education officials and districts like LAUSD say independent study programs can be an option for students with disabilities.
“Special education was not meant to be delivered through distance learning,” California schools superintendent Tony Thurmond acknowledged during a recent news conference. But Thurmond added that independent study “is available to all families, including those who are served in special education.”
“There are also students with IEPs that are successful in independent study,” wrote Lesley Clifton, executive director of the California Consortium for Independent Schools, “because they thrive in a quiet, self-paced environment.”
But Myra Ruiz, who lives near Hawthorne in unincorporated L.A. County, wonders how it can be a good option. All four of her kids have IEPs through the L.A. Unified School District.
“We’re talking about a 10-year-old here who has an attention deficit, who requires supervision!” Ruiz recalled exclaiming during a recent meeting with one of her children's teachers.
She’s in a similar bind as Tania Rivera: Ruiz pulled her children out of on-campus classes at their respective LAUSD elementary and middle schools. Each child suffers from a different respiratory and pulmonary condition that puts them at higher COVID-19 risk.
Two children are at home and not yet enrolled in LAUSD’s independent study program. She’ll meet with one child’s IEP team on Monday, Sept. 13 — almost a full month after the district’s new school year began. She doubts LAUSD can fulfill the terms of their IEPs in an independent study program.
Ruiz knows her options are limited. She’ll likely be forced to accept independent study slots, despite her misgivings. But she wants for the district to document its reasons — and she wants to put her objections on the record, too. She doesn’t want to be steamrolled.
“Why is it,” Ruiz asked, “that when a white person asks the questions…information is given, but when our Hispanic community asks the questions — legitimate questions — we get overrided?”
“So yes, you’re right, I’m going to consent,” Ruiz said. “But I need an explanation.”
Ruiz’s attorney, Valerie Vanaman, said the confusion is all the result of the back-to-school law, AB 130 — a “not-well-thought-out piece of legislation,” she called it.
“I don’t think [lawmakers] consulted with any broad-based group of educators,” said Vanaman. She said had they done so, those educators "would’ve said, ‘Wait a minute! We just spent 18 months setting up pretty good hybrid programs, and all of a sudden you want us to…move the Titanic on a dime and go to solely independent study?’”
“The people who passed the law — their tires aren’t on the ground,” added Vanaman.
Last week, Thurmond said there would be “opportunities to improve” AB 130’s provisions and said he was open to working with the legislature and governor to enact “adjustments.” Thurmond also promised that the agency he leads, the California Department of Education, would issue guidance to help school districts offer special education services.
Barrett Snider, a lobbyist on education issues with the Sacramento firm Capitol Advisors, said the department’s guidance can only go so far. He said lawmakers may need to step in to resolve the confusion.
“It’s not clear that the independent study program … meets the standards of [the federal law],” Snider said, “and if it doesn’t, [schools] need another option to provide these families… That needs to be statutory clarification.”
But Ting, the top budget-writer in the California Assembly, said the problem was not with state law, but with districts’ attempts to implement it. Gov. Gavin Newsom signed AB 130 in early July, along with record levels of funding, including an extra $550 million in special education funding. With that kind of money and lead time, he believes, districts should have been able to resolve this dilemma.
“What’s lacking aren't resources or guidance,” Ting said. “What’s lacking is the will to lead at the district level.”
Over the weekend, state lawmakers introduced a lengthy package of “clean-up language” for the K-12 education budget. If enacted as expected, the new bill would at least make clear that school districts won’t lose funding if they determine an independent study program isn’t a good fit for a student with disabilities.
That helps, Coates and Snider said — but lawmakers still haven’t resolved the underlying dilemma: an independent study program demands a lot of any student, and many, if not most, students with disabilities would have a tough time shouldering those demands.
Revisiting California’s back-to-school law involves reopening a political can of worms.
“This is hotly politicized,” said Ivan Carrillo, a legislative advocate with the Association of California School Administrators, during a recent YouTube Live forum. “Vaccines, quarantines, in-person, distance learning — these are all things that legislators have had to deal with in their districts and have been getting beat up on … so you have a real reluctance to open the independent study box [again] and start unpacking that stuff.”
The number of students caught in the conflict between federal disability law and California’s AB 130 is likely relatively small, though exact numbers are hard to come by.
In LAUSD, the parents of around 2% of the district’s roughly 447,000 students asked to enroll their children in independent study.
Ana Mendoza, an education attorney with the ACLU of Southern California, said many parents had trouble finding information about independent study in their district. While LAUSD provided enrollment information for its program in Spanish, Mendoza said other districts did not.
It’s also not clear how many of the students who have requested independent study have IEPs. (When we asked for this figure, an LAUSD spokesperson said that figure would have to be disclosed through a public records request.)
In California, around 13% of all K-12 students have an identified disability. The figures in LAUSD are similar.
Vanaman, who has represented students with disabilities since the inception of the federal special education law, said students with IEPs are probably no more likely than non-disabled students to opt out of in-person instruction.
But the risk of more disruption in services to students with disabilities could be particularly damaging, Vanaman said — especially since the last year-and-a-half has already been especially difficult for them.
“The horror of the pandemic is that we’ve literally lost valuable years of education for many students with disabilities that we can’t ever recoup,” she said. “The fact that we’ve now got this piece of legislation [AB 130] that is forcing us to continue to do that is exacerbating it.”
Tania Rivera knows this better than most.
Children with autism spectrum disorders often regress when they miss services. Before the pandemic, Luis — who is considered “nonverbal” — had started to engage with others, even occasionally saying hello to his teacher. His recreational therapist had even spotted Luis playing with his classmates for stretches as long as “five or eight minutes,” Rivera said.
Now, Rivera said, all of that interaction has disappeared. He’s more easily frustrated and more prone to temper tantrums.
And he doesn’t want to go back to school at all.
“As a mother,” Rivera said, “I feel really frustrated.”
