Litigation and school districts: Providing FAPE amid the COVID-19 pandemic

Despite the remarkable efforts school districts have made to meet the legal and practical requirements of educating all students during the COVID-19 pandemic, lawsuits related to distance learning and school closures were inevitable, including lawsuits related to educating students receiving special education services. For some students, there may be a disconnect between the services that schools have been able to provide during these emergency closures and the requirements of a student’s individualized education program. The California Department of Education has provided guidance for school districts, Special Education Guidance for COVID-19 (, that continues to be updated to reflect the options and requirements for districts and students. However, many of the cases now working their way through the Office of Administrative Hearings (OAH) and the federal courts address special education services provided by districts at the beginning of the pandemic, prior to the updated guidance.

Class action cases

Class action cases have arisen in New York (J.T. v. de Blasio) and in California (Martinez v. Newsom), and in each case, the plaintiffs have named most of California’s school districts, among others, as defendants. The lawsuits generally seek relief under allegations that special education students were denied a free appropriate public education (FAPE) during the time schools have been closed and providing distance learning for students during the COVID-19 pandemic.

In J.T. v. de Blasio, where plaintiffs have filed claims against school districts throughout the country, in addition to the denial of FAPE allegation, plaintiffs claim that students receiving special education services were discriminated against in violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act.

In Martinez v. Newsom, plaintiffs allege that the state has not properly addressed the Individuals with Disabilities Education Act in Gov. Gavin Newsom’s executive orders; that the state has mishandled and inadequately implemented the IDEA through its COVID-19-related guidelines and regulations; and that school districts have not complied with the IDEA. Plaintiffs are asking the court to require the state and school districts to catch up special education students for any learning loss through intensive makeup services, to require school districts to comply with the IDEA for the 2020–21 school year, and to ensure students receiving special education services are allowed to return to in-person learning.

The class action lawsuits are in their initial stages with various types of procedural issues creating delays. Plaintiffs in the New York case must exhaust their administrative remedies in the local state process before filing the matter in court, and the district court and OAH have issued Orders to Show Cause to determine whether the New York attorneys can represent students in California in this case. Both cases have raised questions about whether plaintiffs have properly served the named school districts as required by law.

Individual student cases

The more common route for potential litigation on this issue is through individual students seeking administrative remedies through OAH. Multiple individual student plaintiffs have filed due process hearing requests before OAH, and filed complaints alleging that their district denied them a FAPE during the COVID-19 school closures by failing to provide appropriate, in-person special education or related services.

Depending on the individual student circumstances, OAH and the courts may look at a school district’s obligations under the IDEA and determine that, despite good faith efforts, the district remained responsible under the IDEA for materially implementing the IEP during the school closure, even if by alternate methods of delivery; or courts may decline to issue stay-put orders that require in-person or other services in a student’s IEP, taking into account the district’s action under this unprecedented health crises.

For example, in Parent on Behalf of Student v. Norris School District, the student asserts the district failed to implement the student’s existing IEP by failing to provide appropriately tailored special education services when it implemented distance learning during the time the school was closed. OAH found that although it was not possible to implement the student’s IEP as written, the district was still obligated to offer a temporary placement and program that “closely approximated” the student’s last educational placement.

However, in E.M.C. et al. v. Ventura Unified School District, a federal district court denied a student’s request for a temporary restraining order to require the district to provide an in-person aide to assist the student with distance learning, as the “stay put” placement pending the outcome of the administrative hearing. In this case, student received “intensive individualized services” consisting of one-on-one behavioral support throughout the school day prior to the COVID-19 pandemic, but did not receive in-person support during distance learning. CDE had issued guidance on April 9, 2020 stating that IEP services may be provided in-person notwithstanding public health restrictions only in “exceptional situations” after an “individualized determination”.[1]

The court found that while the evidence suggests that the plaintiff has experienced considerable difficulties during the weeks of distance learning, the plaintiff has not met her burden to show that she is likely to be irreparably harmed in the few months that may pass before her administrative claims are adjudicated. The court noted that the school closures protect the health and safety not only of students but also of teachers, staff, families and anyone at risk of serious illness or death as a result of a school-based outbreak. The court noted that while the CDE April 2020 guidance permitted in-person services under “exceptional circumstances,” there is a strong public health interest in maintaining uniform adherence to policies and in limiting the use of exceptions, and that on balance, given the unprecedented health crisis to which the district’s IEP implementation seeks to respond, the public interest factor favors the district.

School districts throughout California will face similar questions as they continue to navigate the pandemic. CSBA’s Legal and Governmental Relations departments have engaged a workgroup of legal and special education experts to support CSBA’s members and explore possible legal and legislative avenues to help districts navigate this ongoing challenge of adjudicating the issue of learning loss for special education students during the state of emergency. Legal remedies ensuring additional special education services for students may meet district goals as well, but CSBA and member districts want to ensure limited school district funds can be spent on educating students, and not on legal proceedings.

[1] School districts should note the guidance from CDE has been updated over time, and currently allows for in-person targeted, specialized support and services in stable cohorts when the school is able to satisfy all of the conditions detailed in CDPH’s guidance related to cohorts.