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NEW JERSEY DISTRICTS CAN’T DEMAND WAIVERS IN RETURN FOR SPECIAL EDUCATION SERVICES

May 6, 2020

The New Jersey Department of Education (NJDOE) has issued a firm prohibition to school districts against conditioning special education services on parents waiving their students’ rights guaranteed under the federal Individual with Disabilities Education Act (IDEA). The NJDOE acted in response to a statewide, aggressive push by New Jersey’s education and disability rights advocates, led by Education Law Center (ELC), the New Jersey Special Education Practitioners (NJSEP) and SPAN Parent Advocacy Network (SPAN).

In a March 30 letter, the advocacy groups notified the NJDOE that some school districts were asking parents to sign waivers of any and all claims under IDEA as a condition of receiving special education remotely during the COVID-19 school building closure. The letter included a sample liability waiver that districts were using and asked the NJDOE to halt the practice as a blatant violation of student rights under state and federal law. Over thirty New Jersey organizations, law firms and lawyers endorsed this request.

The Machado Law Group, a private law firm representing approximately 30 New Jersey school districts, submitted a letter attempting to justify the waivers as “needed to protect our state’s school districts, who are funded entirely by taxpayer money.” Led by ELC, the advocates replied, distinguishing between informing parents about any inherent risks of using an online platform and asking parents to sign a release of liability before their children can access “essential and required educational services.”

The April 30 guidance issued by NJDOE Assistant Commissioner Peggy McDonald makes clear that requiring waivers violates federal and state law. In no uncertain terms, NJDOE states that, “[r]equiring the execution of a waiver or release of present or future claims as a condition to implement a student’s IEP is prohibited.”

“By putting an end to this illegal practice, Governor Phil Murphy has demonstrated the type of proactive leadership required to protect our children’s education rights during the COVID-19 pandemic,” said ELC senior attorney Elizabeth Athos. “After closing school buildings, the State remains constitutionally obligated to ensure New Jersey districts provide effective instruction and learning opportunities to all students, including students with disabilities. No parents should be compelled by their district to sign away their child’s rights to a public education, even while sheltering in place.”

 

Press Contact:

Sharon Krengel
Policy and Outreach Director
skrengel@edlawcenter.org
973-624-1815, x 24