One important function of our legal system is to decide how the law applies in specific situations. Whenever there is a new situation, such as the school closure due to Covid-19, we look to the courts to provide guidance about our rights, our liberties, and our responsibilities. This year, we've discovered that not all school districts got it right. Perry A. Zirkel, University Professor Emeritus of Education and Law at Lehigh University, recently compiled several special education cases and complaints brought forth by parents in 2020, providing an overview of legal battles and victories that parents have experienced since distance learning began.

We spoke with Special X legal consultant and special education attorney Grace Clark to better understand the state of SpEd and the law this year: “Our legal system is currently giving new meaning to the term '2020 hindsight,' as courts deciding issues related to school closure and Covid-19 have started issuing published decisions. In these decisions, a few of which are summarized below, we see a trend of courts granting relief for students with disabilities when IEPs were not implemented correctly following the school closure, and the schools had not done everything they could to prevent the violation.” 

Grace emphasizes using this news to remain optimistic and determined when advocating for our kids: “This provides hopeful news for many families whose children continue to struggle with learning loss, distance learning, and poorly implemented IEPs. As we reflect on 2020 and the recent case law, we gain a better understanding of what to expect and demand from our schools.”

Compensatory Education Wins

  • In Indiana (Porter Township Sch. Corp.), a state complaint decision on August 31 ended in favor of the parent. The parent reported that once distance learning began, the district failed to provide the 30 minutes of speech and language therapy services written in the child’s IEP. The parent won compensatory services for the child, with the therapist specifically ordered to provide “nine 30-minute sessions either in-person or via telephone or videoconference.”
     
  • A state complaint decision in Wisconsin on September 30 concluded that the district had not implemented the child’s IEP “to the greatest extent possible.” As a corrective action, the IEP team was ordered to meet and plan compensatory services to bring the child back up to speed.
     
  • In a due process hearing on November 10, it was decided that Springfield Public Schools in Massachusetts had not provided at least two weeks of virtual ESL speech and language services. The district was then ordered to provide two hours of compensatory speech and language services.
     
  • The Norris School District decision on September 2 resulted in a victory for parents, specifically ruling that the California district had not made “every effort” to provide a free, appropriate public education (FAPE) in the time between schools shutting down and distance learning beginning. The district was ordered to provide compensatory education and schedule IEP meetings to create adequate distance learning plans.

Court Victories

  • In California, the Norris School District had attempted to move a student into a more segregated class at the start of distance learning, despite the child’s pre-pandemic IEP placing them in general education classes. In E.E. v. Norris Sch. Dist., a California federal court ruled in favor of the parent and granted a stay-put order to enforce the child’s previous IEP and allow the child to stay in general education classes.
     
  • In Hernandez v. Grisham on October 14 and November 5, a federal court in New Mexico did not rule in favor of most parents who challenged the district’s COVID-19 reentry plan, but the court did rule in favor of a parent of a child with disabilities. The court ruled that because the child had fallen so far behind while distance learning, the district failed to follow the Individuals with Disabilities Eduation Act (IDEA). The court ruled that the child could “ return to school for small-group instruction with social distancing and other requisite precautions.”

We celebrate these victories and look to them for hope should we find ourselves needing to advocate for our children in court. It’s important to note that not all cases have ended in agreement with the parents, though. For example, in J.M. v. Jara on November 10, a federal court in Nevada “denied the parents’ motion for a temporary restraining order for their IDEA claims” because they could not prove irreparable harm. In the J.S. and Lenape School District due process hearing in New Jersey on October 14, a parent seeking an at-home 1:1 nurse for a child with multiple disabilities was denied based on the conclusion that the parent had been able to provide care to the child and did not have proof of irreparable harm. 

Zirkel adds that it’s difficult to discern a specific pattern in the rulings of special education legal cases thus far, so it’s important to stay as strong as one possibly can: “The best course continues to be maintaining positive resiliency and creative cooperation of both special educators and parents.”

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