United States Department Of Education Issues Letter Guidance Regarding Private Evaluator’s Access To Classrooms For Student Observation

Once again, the Department of Education, Office of Special Education and Rehabilitative Services (“OSERS”) has weighed in on the rights of school districts to limit outside evaluators from accessing school classrooms. The most recent guidance addresses the issue of whether a public agency may limit the length of time an independent evaluator hired by a parent may observe a child is his/her educational setting.

The United States Department of Education (the “Department”) previously opined that the Individuals with Disabilities Education Act (“IDEA”) and its regulations “do not provide a general entitlement for third parties, including attorneys and educational advocates, to observe children in their current classrooms or proposed educational settings.” Letter to Savit, February 10, 2014.  In that same opinion, however, the Department noted that there are times when an independent evaluator may need to observe the child in the classroom setting when conducting an independent educational evaluation.  Further, the Department opined that in a situation where the school district had agreed to pay for an Independent Education Evaluation (“IEE”), it would be inconsistent with the IDEA to limit an outside evaluator conducting the IEE to only two hours of classroom observation unless it also restricts its own evaluators to only two hours of classroom observation.

In Letter to Anonymous, August 23, 2018, OSERS addressed the question as to whether a school district can limit the amount of time that a private evaluator hired and paid by the parent (as opposed to one conducting an IEE) can observe a child in his/her classroom.  Under the IDEA, a school district is required to consider independent evaluations provided by the parent in determining eligibility and programming for special education students.  In Letter to Anonymous, OSERS expanded its prior opinions to suggest that it would be inconsistent with the right of a parent, to have their independent evaluations considered by a public agency, for the public agency to limit an independent evaluator’s access in a way that would deny the independent evaluator the ability to conduct an evaluation that meets the public agency’s evaluation criteria for its own evaluators.  Thus, OSERS suggests that independent evaluators hired by parents must be given equal access to students in their classroom settings as would be given to a similar evaluator retained by the school district.  This opinion, however, does not stand for the proposition that an independent evaluator gets unfettered access to observe a child in the educational setting.  Rather, any such time limits on in-school observations, must be in line with the public agency’s criteria for its own evaluators.  School districts, of course, retain the ability to schedule the outside observations in ways that result in the least disruption to the classroom.

The Connecticut State Department of Education (“CSDE”) also recently weighed in on the issue of classroom observations with their Guidelines for In-School Observations. The CSDE noted that the IDEA does not provide an entitlement for parents, attorneys or educational advocates to observe students in their classrooms.  The CSDE, however, still encourages districts to create observation policies allowing such observations.  In their recommendations the CSDE suggests that when there is a request for an in-school observation that the District (1) determine a reasonable amount of time for the observation and (2) not arbitrarily limit it to only one type of setting (e.g. academic classroom).  In recognition of the significant issues of safety and privacy that in-school observations may implicate, the CSDE also acknowledges that:

  1. school district administrators may restrict observations due to safety concerns;
  2. school districts must ensure that they maintain the privacy of other students’ educational records during an observation; and
  3. school districts have a right to maintain an educational environment with limited distractions and disruptions

Please note: A school that has questions as to whether it can prohibit a specific in-school observation should contact its attorney for advice.