Plaintiffs, a group of students with disabilities, filed a lawsuit in the U.S. District Court, Northern District of California, against the State of California, the State Board of Education and the California Department of Education, alleging that Assembly Bill 130 makes distance learning inaccessible to students with disabilities. The district court issued a temporary restraining order enjoining defendants from altering the status quo in effect prior to the enactment of AB 130, requiring a return to the 2020–21 distance learning format for the named students. The ELA filed an amicus brief discussing the numerous issues associated with enjoining AB 130 at this time.

Following a hearing on the preliminary injunction in December 2021, the court issued an order on Feb. 28, 2022, granting the injunction and enjoining the state from failing to ensure that local educational agencies (LEAs) allow disabled students with individualized education programs (IEPs) to participate remotely in their educational program, either as a reasonable modification or through independent study when the student’s health would be put at risk by in-person instruction, as determined by their parent. The court further ordered the state to make clear to school districts that all disabled students whose parents have determined that in-person schooling places the health of their children at risk shall be considered eligible for independent study or any other form of virtual instruction that the IEP team and school districts can craft. The order went on to say the state is enjoined from failing to ensure that LEAs allow disabled students with IEPs to participate remotely in their educational program, either as a reasonable modification or through independent study, when the student’s health would be put at risk by in-person instruction, as determined by their parent.

CURRENT STATUS AND/OR OUTCOME:

After an unsuccessful attempt to stay the February order, the state appealed to the Ninth Circuit. The Ninth Circuit stayed the injunction pending the outcome of the appeal. During the stay, the parties reached a settlement of this matter that disposed of the case and vacated the court’s original order on Plaintiff’s request for a temporary restraining order. The settlement resulted in statutory language proposed by the Governor in the Education Omnibus Budget Trailer bill (AB 181) that was ultimately approved by the Legislature and enacted. The language went into effect immediately and amended the independent study provisions of the Education Code. The new language requires IEP teams to consider independent study for special education students if requested by a parent or guardian due to concerns about health risks to the pupil from in-person instruction, regardless of the student’s inability to work independently or need for adult support. Special education students may also receive instruction through course-based independent study if the IEP team determines it provides a free appropriate public education (FAPE). In addition, LEAs may receive apportionment from students who attend nonpublic schools that provide instruction through virtual programs.