COVID-19 (IDEA and § 504) Case Law: Limited Beginnings and Potential Analogies by Perry Zirkel

The primary two-part question arising under the IDEA and Section 504 are (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? Beyond the collective policy issues for state and local education agencies of whether and how to provide what is variously called recovery or impact services, the case law will inevitably decide this two flowchart-like question, along with various other issues (e.g., child find, eligibility, and ESY), via two separate forums: (1) the adjudicative avenue, starting with due process hearings and ultimately culminating in judicial rulings, and (2) the investigative avenues, which are the state education agency’s complaint process under the IDEA and the corresponding OCR process under Section 504 and the ADA.¹

As of January 28, 2020, I have only found one court decision and two state complaint decisions specific to these COVID-19 issues: the federal district court’s June 19 ruling in Chicago Teachers Union v. DeVos, and two earlier state complaint decisions from Iowa and Kansas. All are relatively narrow cases, but they illustrate the impartial legal lens of these two decisional avenues.

The Chicago Teachers Union case was in response to the emergency-type request for a temporary restraining order or preliminary injunction focused on the alleged Chicago school district requirement for every IEP team to meet before the end of the 2019–20 school year to develop a remote learning plan for each IDEA-covered child. Read the decision [PDF], which is highlighted for your convenience, to see the court’s denial of the teacher union’s motion.

The Iowa complaint illustrates the much more frequent likely claim that the school district’s remote learning plan constituted a denial of FAPE. Similarly, read this decision [PDF] to see—again with my highlighting in yellow—the state education’s analysis in favor of the district. In addition to the examination of relevant legal authorities, this decision is based on the distinction between mandatory instructional services, which was one options for local education agencies (LEAs) in Iowa, and “voluntary educational enrichment opportunities,” which the option that the defendant district chose.

The Kansas complaint concerns the more limited issue of access to student records per the 45-day timeline in the IDEA regulations (34 C.F.R. § 300.613(a)). The district did not meet this deadline because some of the records were in the school building, which was entirely closed due to the pandemic. The complaint investigator found in favor of the parents, reasoning that neither the U.S. Department of Education nor Congress had waived or otherwise adjusted this regulatory requirement and, thus, it remained binding in the absence of any mutually agreed-upon extension. The corrective action included training and to have multiple methods of storage in place that assured access in the event of school building closure. Here is the decision [PDF] for your own review.

In light of the obviously limited decisional authority to date, I have provided the following outline of a sample of potentially analogous judicial case law for addressing the central FAPE issue:

IDEA:

• • not an excuse
    • cf. Mills v. Bd. of Educ. of District of Columbia, 348 F. Supp 866, 876 (D.D.C. 1972) – If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom.
  • not a change in placement
    • V.D. v. N.Y., 403 F. Supp. 3d 306 (S.D.N.Y. 2019) – denied preliminary injunction in part because stay-put is not intended for enjoining systemic action
    • N.D. v. Haw., 600 F.3d 1104 (9th Cir. 2010), vacated as moot, 469 F. App’x 570 (9th Cir. 2012) – denied preliminary injunction against systemwide furlough Fridays – not a change in educational placement (triggering stay-put) under the IDEA – fact based (e.g., no complete cut-off) – commenting that “[the] claim is more properly characterized as a ‘material failure to implement [FTI] the IEP’” (citing Van Duyn²)

• • possible resulting FTI denial of FAPE on an individual case-by-case basis
    • e.g., Alex U. v. Dep’t of Educ., Haw., 62 IDELR ¶ 104 (D. Haw. 2013) (sufficient mitigation via “adjustment program”); Noah D. v. Dep’t of Educ., State of Haw., 61 IDELR ¶ 243 (D. Haw. 2013); Haw. v. C.J., 58 IDELR ¶ 10 (D. Haw. 2011); Dep’t of Educ., Haw. v. T.F., 57 IDELR ¶ 10 (D. Haw. 2011). Dep’t of Educ., Haw. v. C.J., 58 IDELR ¶ 10 (D. Haw. 2011); Dep’t of Educ., Haw. v. T.F., 57 IDELR ¶ 10 (D. Haw. 2011)

504/ADA:

Compare McDaniel ex rel. E.E. v. Bd. of Educ. of City of Chi., 2013 WL 3872807 (N.D. Ill. July 25, 2013), denied class certification 2013 WL 4047989 (Aug. 9, 2013) – (preserved disparate impact and reasonable accommodation claims in wake of closure of several district elementary schools due to fiscal crisis), with Smith v. Henderson, 982 F. Supp. 2d 32 (D.D.C. 2013) – requiring intentional discrimination (not disparate impact) in wake of school closures for district reorganization

ESY:

Finally, here is a quick compilation of the primary legal authority specific to the immediate issue of ESY under the IDEA:

• • regulatory criteria: 34 C.F.R. § 300.106
  • judicial precedents:
    • Battle v. Pa., 629 F.2d 269, 280 (3d Cir. 1980)^{3 –} We believe the inflexibility of the defendants’ policy of refusing to provide more than 180 days of education to be incompatible with the Act’s emphasis on the individual. Rather than ascertaining the reasonable educational needs of each child in light of reasonable educational goals, and establishing a reasonable program to attain those goals, the 180 day rule imposes with rigid certainty a program restriction which may be wholly inappropriate to the child’s educational objectives. This, the Act will not permit.
    • M.M. v. Sch. Dist. of Greenville Cty., 303 F.3d 523 (4th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 102728 (6th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986); Yaris v. Special Sch. Dist., 558 F. Supp. 2d 545, 551 (E.D. Mo. 1983), aff’d, 728 F.2d 1055 (8th Cir. 1984); see also N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212 (9th Cir. 2008): JH v. Henrico Cty. Sch. Bd., 326 F.3d 560, 567 (4th Cir. 2003) – ESY requires that “the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.”

¹ Both of these investigative avenues, unlike the due process hearing route, does not have an automatic right of judicial appeal. For OCR letters of findings, the limited opportunity would be to challenge the agency’s enforcement. E.g., U.S. v. Gates-Chili Cent. Sch. Dist., 198 F. Supp. 3d 228 (W.D.N.Y. 2016). For state complaint decisions, the minority of jurisdictions provide for judicial appeal, while a few others provide for administrative review. E.g., Perry A. Zirkel, State Laws and Guidance for Complaint Procedures under the Individuals with Disabilities Education Act, 368 Educ. L. Rep. 24, 43 nn.72-74 (2019). https://perryzirkel.files.wordpress.com/2019/10/cp-state-laws-and-guidance-article.pdf

² Van Duyn ex rel. Van Duyn v. Baker School District 5J, 502 F.3d 811 (9th Cir. 2007); see also L.J. v. Sch. Bd. of Broward Cty., 927 F.3d 1203 (11th Cir. 2019). For a more general overview of the FTI case law, see, e.g., Perry A. Zirkel & Edward T. Bauer, The Third Dimension of FAPE under the IDEA: IDEA Implementation, 36 J. Nat’l Ass’n Admin. L. Judiciary 409 (2016). https://perryzirkel.files.wordpress.com/2017/04/zirkel-bauer-article.pdf

³ For other circuit court opinions that followed this rationale of Battle, see, e.g., Ga. Ass’n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1576 (11th Cir. 1983), vacated and remanded on other grounds, 468 U.S. 1213 (1984); Crawford v. Pittman, 708 F.2d 269, 1028 (5th Cir. 1983).