At the start of the 2021–22 school year amid the COVID-19 pandemic, California’s schools eagerly welcomed students back to the classroom, utilizing various mitigation measures to support in-person instruction. Many students in California spent significant portions of the 2020–21 academic year attending school remotely, and local educational agencies and the state government pushed for more in-person learning in the current school year. To promote on-campus learning in the 2021–22 school year, the state restricted the use of distance learning in the 2021 Education Trailer Bill, Assembly Bill 130. The new law did away with distance learning as it existed during the 2020– 21 school year and instead required LEAs to offer students the option of independent study.
CSBA was critical of portions of AB 130 because of the complexities that would arise in implementing the new law and the need for additional guidance for school districts and county offices of education. While studies have repeatedly shown that in-person learning is important and provides myriad benefits for students, it remains a more complicated endeavor amid the COVID-19 pandemic. Thus, it comes as little surprise that disputes have arisen in relation to the legal and practical constructs under which California’s LEAs can operate under AB 130.
On Sept. 28, 2021, a disability rights group filed a lawsuit on behalf of 15 special education students with individualized education programs (IEPs), claiming the state discriminated against the disabled students by not allowing them to participate in independent study this school year. The complaint in E.E. v. State of California alleged that students who are at particularly high risk of COVID-19, such as those with immune disorders, cannot attend in-person school for safety reasons, yet districts are not providing the assistance that some of those students need in order to participate in independent study. The defendants named in the case are the State of California, the California Department of Education and the State Board of Education.
Plaintiffs claimed that AB 130, “limited distance learning to a single format that is inaccessible to students with disabilities, and that many students with disabilities require distance learning during the 2021–22 school year because their parents have determined that their health would be put at risk by in-person instruction.” AB 130 requires schools to offer in-person classes to all students except those who qualify for independent study. As alleged in the lawsuit, some special education students have not been able to attend in-person classes this school year due to COVID-19 health concerns and were shut out of independent study because the students’ IEPs do not specifically provide for it as a means of providing the students with a free appropriate public education.
On Nov. 4, 2021, federal district court Judge Susan Illston granted a temporary restraining order (TRO), requiring plaintiff school districts to provide the same distance learning/virtual instruction they provided in 2020–21 to the plaintiff students during the 2021–22 school year. Although the TRO applied only to the plaintiff students, the expectation was that a subsequent preliminary injunction could apply statewide and have a much broader impact. School districts and school attorneys throughout the state raised the alarm at the potential implications for schools amid staffing shortages and other complexities.
CSBA’s Education Legal Alliance (ELA) quickly filed an amicus brief with the district court, aiming to ensure the court understood the potential impact of a statewide ruling on its members. The ELA’s amicus brief noted CSBA’s ongoing concerns with AB 130 and the importance of ensuring every student was receiving an appropriate education, but highlighted the practical challenges that LEAs may face trying to comply with a potential statewide preliminary injunction, particularly on short notice in the middle of the school year. The amicus brief highlighted the staffing and labor realities and constraints for LEAs, school funding concerns, and the importance of clarity in the scope of application of any injunctive order issued by the court.
The ELA’s amicus brief appeared to have meaningful impact on the case, as the judge asked the parties to address issues raised in the ELA’s brief at the hearing. Ultimately, the court declined to order the preliminary injunction from the bench, rather ordering the case to an “Emergency Settlement Conference” before a magistrate judge. It is both crucial that all students are able to receive an education this year, and a reality that LEAs are navigating numerous obstacles to provide an appropriate education for each student. Although settlement discussions have yet not resolved the case, CSBA is hopeful that any eventual orders in this case will take into account the complexities and practical challenges facing districts and county offices of education this school year.