DeVos pressed on states' education of migrant children with disabilities

The chairman of the House Education and Labor Committee is fighting with the Department of Education over whether states have a legal responsibility under the law to locate migrant children with disabilities who are in federal custody.

The Department’s position that states do not is “unsupported by both the case law and the legislative history" of the Individuals with Disabilities Education Act, Rep. Bobby Scott (D-Va.) wrote in a July 2 letter to Education Secretary Betsy DeVos.

“While it is unthinkable that any children would be subject to these horrendous conditions, this sort of inhumane treatment is likely to have a particularly devastating impact on children with disabilities,” he wrote. 

Based on case law and legislative history, Scott wrote that IDEA’s “child find” requirement applies to minors with disabilities in the custody of the Department of Health and Human Services' Office of Refugee Resettlement or the Department of Homeland Security. “Child find” requires states to identify, locate and evaluate all children with disabilities in need of early intervention or special education services. 

Scott was responding to an April 9 letter from the Department of Education stating that the Department’s “longstanding position” is that IDEA “places no obligations on states and school districts to conduct child find and provide special education and related services to children with disabilities in the custody of federal agencies.”

Scott argued that case law suggests a state could be forced to provide compensatory educational services.

“If a state is forced to wait until immigrant children with disabilities are released into the local community then the amount of those compensatory education services is likely to be significantly higher,” he wrote. “These children may very well also have a cause of action against the states for failing to uphold their IDEA obligations.”

Asked for comment, a spokesperson for the Department of Education pointed to a quote from a May 22 Congressional Research Service analysis that Scott requested and sent to the department.

It says, “Indeed, the circumstances surrounding migrant children in federal custody—many of whom lack a legal foothold in the United States and who are in proceedings to determine whether they should be removed from the country—may present unique issues that have no parallel among the other cases where the federal government takes custody of an individual.”