Michigan fight over special ed services lingers, years after Covid shutdown

Six years after the pandemic, it’s unclear if state will be forced to provide make-up services for students
Long-time special education advocate Marcie Lipsitt filed the complaint in 2021
The Michigan Department of Education wants the issue dismissed

Six years after the COVID-19 pandemic led Michigan to close its public schools, big questions remain unresolved: Does the state owe make-up services to special education students, many of whom were unable to take advantage of virtual learning? And who, if anyone, can force the state to provide them?

Long-time special education advocate Marcie Lipsitt is among those waiting to hear. She filed a federal complaint against the Michigan Department of Education in 2021 over its guidance about compensatory services for students with disabilities.

The US Department of Education Office for Civil Rights investigated and determined that Michigan had failed to provide proper information about compensatory services and failed to put someone in place in charge of compliance for federal disability law.

The federal government and state education department did not reach an agreement to address concerns, and later the issue was referred to an administrative law judge, a rare step. When and how that judge will rule remains unknown.

The Michigan Department has filed a motion to dismiss the matter.

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Lipsitt told Bridge Michigan that the federal lawyers have stopped responding to her emails. The administrative judge requested the parties let him know when they would be available for a pre-hearing meeting next week.

“In order to ascertain what the parties believe remains to be addressed in this appeal, a prehearing conference shall be scheduled to ascertain the Office of Civil Rights current position on this matter,” the judge said in his scheduling order.

“How can there not be outstanding issues? The MDE was found in violation,” Lipsitt told Bridge.

“My fear is that the OCR is going to dismiss the complaint.”

The US Department of Education did not respond to Bridge Michigan’s request for comment. The Michigan Department of Education said it “generally doesn’t discuss matters that are related to ongoing litigation.”

After the pandemic prompted school closures, Gov. Gretchen Whitmer directed MDE to “make individualized determinations whether and to what extent compensatory services may be needed for students” because of school closures.

MDE did offer guidance, technical assistance and other materials, but the US Department of Education determined that the state’s guidelines “unlawfully limit the circumstances in which compensatory services must be provided to students with disabilities.”

Students with disabilities may receive special education through an Individualized Education Program, also known as an IEP. Or students with disabilities may have a 504 plan, which provides accommodations for the students in a general education setting.

There are 215,449 students with IEPs this school year, an increase of 1.8% from the previous year. Students with 504 plans could potentially qualify for compensatory services too.

A rare move

Dan Scharf, an education lawyer who spent nearly 18 years in the Office for Civil Rights, told Bridge he does not remember an instance where a case made it to an administrative judge. Normally, he said, a school district or state would work with the Office for Civil Rights to reach some sort of resolution.

He said the administrative judge could determine that the Office for Civil Rights is incorrect. If the judge sides with the Office for Civil Rights, there could be an order to withhold federal funds which would be “catastrophic” for districts, Scharf said.

In the meantime, districts are waiting to see if anything changes.

Tina Lawson, vice president of the Michigan Association of Administrators of Special Education, said districts used “due diligent efforts in trying to support the students and provide those services.”

“We followed the guidance that came out from the state,” she said.

She said she’s unsure how districts would look at each student to determine what, if any, losses they experienced and how school districts would even make up that time for students.

Lipsitt is also worried about the broader impact of the Trump administration. For example, the administration closed the Office for Civil Rights regional office in Cleveland and the US Department of Education last year.

Lipsitt said she has filed four other federal complaints, including concerns about substitute staffing, waivers for special education students who want to move school districts, services for students with visual impairments and state assessments for students with disabilities.

“The OCR had been my only, only hope of holding the MDE accountable to children. I have no other help. No one’s been willing to file a lawsuit in Michigan. No one’s been willing to do anything,” Lipsitt said.

The federal complaint process is one way parents and advocates can challenge school districts’ actions. They can also have information discussions, a facilitated meeting or mediation. There is also a due process complaint option or state complaint option. State complaints are rising.

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