The Michigan Department of Education is strongly denying allegations made by the U.S. Department of Education that it harmed students with disabilities by not offering make-up services for instructional time lost due to pandemic school closures.
In a July 2 document, Michigan disputed many of the federal agency's claims that it discriminated against students with disabilities in violation of Section 504 of the Rehabilitation Act of 1973. One of the Education Department's allegations is that the state issued incorrect guidance during COVID-19 school closures about how districts should handle remedies for missed special education services, known as compensatory services.
In an accompanying motion to dismiss the investigation by the Education Department's Office for Civil Rights, the state said OCR's findings are based on a "flawed interpretation of the law, incomplete facts and speculation, and an apparent misunderstanding by Petitioner, the Office of Civil Rights (OCR), regarding guidance documents the Michigan Department of Education (MDE) issued during the pandemic in 2020, 2021, and 2022."
"Plainly put, OCR’s attempt to disparage MDE’s efforts to assist students with disabilities during the pandemic are meritless," said the state's motion, which was filed with the Education Department's Office of Hearings and Appeals.
Michigan's response comes about six weeks after OCR sent the state's assistant attorney general notice that it would hold a hearing about the investigation findings. That probe began in June 2022, and OCR first notified the state of its findings of noncompliance in June 2023. Since then, OCR contends the Michigan Department of Education has refused to come into voluntary compliance.
A Michigan Department of Education spokesperson said in a July 12 email that the department is "strongly committed to providing equal access to educational opportunities to all students in Michigan — including students with disabilities."
OCR plans rare administrative hearing
The escalating dispute between OCR and Michigan is unique because typically OCR findings of civil rights violations result in agreements between OCR and state or local school systems to remedy noncompliance.
The Los Angeles Unified School District, for example, in April 2022 agreed to several improvements after an OCR investigation concluded the district improperly limited special education services during the pandemic.
OCR administrative enforcement proceedings are rare, "because most recipients voluntarily come into compliance after OCR notifies the recipient of a violation or compliance concern," according to a spokesperson for the federal Education Department.
In the case between Michigan and OCR, however, an administrative law judge has already been assigned to the proceedings. Historically, administrative law judges, also known as hearing officers, resolve administrative disputes within the federal government.
OCR could recommend that federal financial assistance to the state be suspended or terminated until it corrects the alleged noncompliance. The last administrative hearing where the Education Department issued a final decision to terminate federal funds came in 1997, according to the spokesperson.
In its motion to dismiss, Michigan makes these arguments against OCR's case:
- OCR lacks jurisdiction to enforce regulations for the federal Individuals with Disabilities Education Act because IDEA compliance falls under the jurisdiction of the Education Department's Office of Special Education and Rehabilitative Services, not OCR.
The state argues the guidance documents it issued during the pandemic addressed IDEA compliance, not Section 504 compliance. It added that OSERS hasn't challenged the state's pandemic guidance. - The Michigan Department of Education has no supervisory authority over local school districts under Section 504 and therefore can't be held accountable for local school districts' actions.
"Even if a district relied on MDE’s guidance documents and if the guidance documents were inaccurate in their description of compensatory services or education (they were not), any violation of Section 504 or its implementing regulations rests at the feet of the district that failed to provide the compensatory services or education OCR asserts should have been provided," the motion said.
The state also argues that OCR's interpretation of Section 504 regulation violates the U.S. Constitution's Spending Clause because funding conditions can only be imposed if they are "unambiguous." In its motion, the Michigan Department of Education acknowledges that it receives federal education dollars, but contends that Section 504 regulations do not clearly say that a state's acceptance of federal funds is conditioned on its responsibility to monitor local district compliance with Section 504. States do not receive federal education funding specifically for Section 504.
Furthermore, the state rejected OCR's stance that said, "regardless of the difficult circumstances during the COVID-19 pandemic, students with disabilities retained their right to FAPE under Section 504." - OCR has not provided sufficient facts to show that any student in Michigan was discriminated against, denied a free appropriate public education, or adversely impacted by the state education department's guidance documents.
- The state denies OCR's claim that it did not have a Section 504 coordinator as required under federal law.
No pandemic-era special education waivers
In guidance issued March 21, 2020, as the pandemic was just beginning to cause widespread school building closures, the U.S. Department of Education said it would not issue waivers for special education rules during the public health crisis. Schools would still be required to offer individualized special education and Section 504 services, even through remote instruction, the agency said at the time.
Marcie Lipsitt, a Michigan resident and advocate for students with disabilities who filed the OCR complaint that kicked off the 2022 investigation, referred to the state's response and motion to dismiss as an effort to "deny, delay, deny, deny, deny."
Lipsitt blames politics and money for playing a hand in the state's response. She said it would be very costly to provide compensatory services for an estimated 207,000 students. Additionally, Lipsitt accuses the state of purposely delaying potential repercussions due to the presidential election. If Donald Trump is elected as U.S. president this year, his administration may decide not to pursue the case, Lipsitt said.
In the meantime, students still have not received make-up supports for missed special education during the pandemic, Lipsitt said, citing OCR's findings. In its July 2 response to OCR's opportunity for a hearing, the state education agency denies this.
Lipsitt said the state's response "only delays providing them [students] with the academic tutoring and related services that they need to make progress that they were not allowed to make during COVID. They've lost so much ground.”
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