September 17, 2020
Remaining as unsettled as the pandemic, the primary two-part question arising under the IDEA and Section 504 as a result of COVID-19 continues to be: (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, typically but not exclusively in the form of compensatory education? Additionally, an interim but significant issue has emerged—upon parental filing for a due process hearing on such pandemic-related issues, what is the “stay-put”?
Further Federal Guidance
The USDE guidance during the most recent month has dropped to a negligible level, with the latest issuance limited to ESSA assessments for students generally. Specifically, on September 3, Secretary DeVos sent a letter to chief state school officers warning not to expect waivers for ESSA summative assessments for the 2020–21 school year. She expressed receptivity to adjustment in the manner of administration but not in repeating this past year’s waiver of these assessments.
State Administrative Decisions [see Addendum PDF]
State Complaints. Since my last special supplement, state complaints filings have increased, and at least three decisions have been issued.
A South Dakota state complaints decision on August 7 concluded in relevant part that the district’s change from in-person to remote delivery in response to the state’s closure of public schools did not constitute a unilateral change in placement and that the district—with a limited exception—did not materially fail to implement the student’s IEP via distance learning. The exception was for the first day of ESY. The corrective action for this violation was compensatory education, which will be (a) via distance learning or in-person depending on the IEP team’s determination, and (b) provided before the start of the school year unless the parents are not reasonably able to do so within that time limited time period.
An August 12 state complaints decision in Texas concluded that each of the three students at issue was not entitled to compensatory education, per the respective IEP team determinations. The reason was that the district made reasonable efforts that resulted in progress, thus not denying FAPE. The circumstances included the partial lack of parental cooperation in two of the three cases.
An August 21 state complaints decision in Indiana found various pandemic-related claims unsubstantiated with a limited exception, the provision of periodic progress reports. The corrective action for this violation was in-service training and a documenting system for these reports. Otherwise, the conclusions were that during the school closure and resulting distance learning, the district sufficiently implemented the student’s IEP during the school closure and, per state law, provided the student with the variety of educational services and programs that the school made available to nondisabled students.
An August 24 state complaints decision in Virginia, which is on appeal, similarly found no violation for a systemic complaint against a large school district’s use of voluntary distance learning plans as a result of the statewide closure of schools. More specifically, the conclusions included that (a) the district’s “voluntary distance learning initiative was reasonably based on federal and state guidance providing flexibility to school [districts] during the extended closure period,” and (b) these temporary learning plans did not constitute amendments to the students’ IEPs, thus not requiring PWNs or parental consent.
Due Process Hearings. Although similarly increasing in filings, the due process hearing avenue thus far has yielded fewer decisions. The primary examples were two California hearing officer decisions, both issued on August 24.
In the Los Angeles Unified School District decision, the hearing officer concluded that the student’s distance learning plan delivered, at most, a third of the 1570 minutes per week of services specified in the IEP, with the shortfall in community-based vocational services particularly affecting her progress, thus constituting a material failure of implementation. For the second and separate issue, however, the hearing officer found that the district formulation and delivery of transition services included a limited procedural violation that did not result in substantive loss to the student, thus not amounting to denial of FAPE. The remedy for the first issue was compensatory education, specifically for the district to “fund a total of 40 hours of postsecondary transition counseling by an appropriately-credentialed counselor of Parent’s choice.” [PDF]
In the Pleasanton Unified School District decision, the hearing officer granted the parent’s stay-put motion for essential related services at home based on “close as possible” approach, with the feasibility finding based on (a) the implementation of compensatory education related services at home during the pandemic pursuant to a separate state complaints decision related services, and (b) the lack of any prohibition for such in-person at-home services in state guidance. [PDF]
Court Actions
Court lawsuits, and to a much more limited extent court decisions, have continued at a more active and publicly visible basis.
The lawsuits since those reported in supplement #4 are as follows:
- Aug. 7: Wilkes v. Wash. State Bd. of Educ. (Wash Super. Ct.) – challenge to governor’s order providing for “continuous learning plans” for full funding, thus waiving full instruction for all, including but not limited to special education, students
- Aug. 21: C.M. v. Jara (D. Nev.) – class action FAPE (especially failure-to-implement) claim against Clark County School District, using “spaghetti” litigation strategy and including requested funding reallocation to parents
- Sept. 2 and 14: J.T. v. de Blasio (S.D.N.Y.) – successive, rather blistering show cause orders against the plaintiff law firm requiring expedited justification for fulfillment of jurisdiction, venue, and related procedural prerequisites
The court decisions since my August 12 supplement are as follows:
- Aug. 20: M.G. v. N.Y.C. Dep’t of Educ. (S.D.N.Y.) – granted parent’s motion to amend its pre-pandemic FAPE suit for alleged violation of hearing officer’s order for 2019-20 school year and for delay in appointing a hearing officer for 2020-21 due process hearing complaint
- Aug. 21 and 26: Wash. v. DeVos (W.D. Wash.) and Mich. v. DeVos (N.D. Cal.) -granted preliminary injunction, based on Administrative Procedures Act, against interim rule for apportionment of CARES funding for private schools
- Aug. 24: Fla. Educ. Ass’n v. De Santis (Fla. Cir. Ct.) – granted preliminary injunction, based on state constitutional provision for safe schools, striking arbitrary and capricious provisions of governor’s funding-based order for full in-person instruction – stay upon expedited appeal (Fla. Dist. Ct. App. Aug. 27)
- Sept. 1: L.A. v. N.Y.C. Dep’t of Educ. (S.D.N.Y.): granted stay-put order for continued placement at private school (which closed during pandemic)
- Sept. 4: NAACP v. DeVos (D.D.C.) – granted permanent injunction, based on Administrative Procedures Act, against interim rule for apportionment of CARES funding for private schools
- Sept. 10: Killoran v. Westhampton Beach Sch. Dist. (E.D.N.Y.) – denied preliminary injunction based on stay-put and alternately on balance of equities for settlement agreement upon closure of library
Continuing Conclusion
Again, the state of the law, like that for the resumption of schools, continues to be a rather fluid and largely indefinite picture that warrants the continued resiliency and creative cooperation of both special educators and parents. While awaiting more definitive answers, the thrust of the legal activity to date specific to special education appears to be on stay-put and failure-to-implement claims. The decisions to date range from adjusted to strict conceptions of FAPE, and the awards of compensatory education have been relatively limited.
Perry A. Zirkel 