Educating students with IEPs during the COVID-19 pandemic continues to create challenges
Proposed language changes to independent study legislation attempt to address issues
A teacher helps out a student with their classwork

The COVID-19 pandemic has required local educational agencies to constantly adjust as the course of the pandemic has shifted. The transition LEAs made to distance learning in March 2020 was a difficult endeavor, but one that board members, administration and staff embraced.

However, as soon as K-12 public education hit its stride in distance learning, the Legislature enacted Assembly Bill 130, which asked LEAs to once again adjust by creating only two methods for delivery of public K-12 education: (1) through in-person instruction; or (2) through traditional independent study. This created a number of challenges for LEAs. This article discusses the litigation that arose from this “all or nothing” approach and its impact on students with disabilities as well as the current iteration of proposed trailer bill language, which has not been introduced to the Legislature as of this writing, amending AB 130 and the independent study statutes.

On Sept. 28, 2021, several students, the Disability Rights Education & Defense Fund, and The ARC of California filed suit against the State of California and the State Board of Education (E.E. v. State of California), alleging that the plaintiff students with disabilities were unable to access independent study and could not attend in-person instruction due to their risk of serious complications for COVID-19. The Education Code provides that students with individualized education programs (IEPs) shall not be served through independent study unless it provides them with a free appropriate public education (FAPE). (Ed. Code, 51745 §, subd. (c).) Among other things, the plaintiffs claimed that they had been denied independent study because their districts believed it did not offer a FAPE or were offered distance learning but without the services and accommodations in the students’ IEPs. According to the complaint, many did not receive any educational services after the enactment of AB 130.

On Feb. 28, 2022, the trial judge in the federal court for the Northern District of California issued a preliminary injunction requiring the California Department of Education to provide statewide guidance to LEAs regarding how to serve immunocompromised students with IEPs. The injunction was based on a determination that the defendants had violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by creating barriers to students with disabilities’ access to public education. Among other things, the injunction ordered CDE to provide statewide guidance to LEAs that their IEP teams must consider “reasonable modifications” to student educational programs that would allow them to participate in their education virtually. The State of California and CDE appealed the preliminary injunction to the Ninth Circuit Court of Appeals.

The settlement

On May 16, 2022, the parties reached a settlement resulting in proposed budget trailer bill language from the Governor to address the plaintiff’s claims. This language, which is still subject to amendment by the Legislature, proposes to amend trailer bill language issued in January 2022 while retaining some of the earlier language. (As CSBA understands it, the parties have agreed to a process to potentially reopen the litigation if the language is not adopted by the Legislature as agreed to by the parties.) The trailer bill language would amend the independent study provisions in the Education Code, including some parts of AB 130. As set forth last year in AB 130, the requirement for all LEAs to offer independent study expires on June 30, 2022. However, for LEAs who offer independent study outside of the requirement imposed by AB 130 for the 2021–22 school year, the trailer bill retains the provision allowing parents to opt in to independent study if the parents determine the pupil’s health would be put at risk by in-person instruction. The trailer bill language appears intended to address how LEAs provide a FAPE to a student whose parents opt them out of in-person instruction due to risks to their health when the IEP team determines the student cannot receive a FAPE through independent study.

The previous iteration of proposed budget trailer bill language (from January 2022), added Education Code § 51744, which sets forth the Legislature’s intent that LEAs: (1) offer a range of quality educational options tailored to pupils, including classroom-based, nonclassroom-based and hybrid programs; (2) consider offering more than one independent study model; and (3) offer educational programs that best serve the needs of their students. The trailer bill language also deletes the prohibition on using independent study as an “alternative curriculum,” which may provide additional flexibility. This language remains in the trailer bill, but in response to the settlement, new language has been proposed that adds uncodified legislative intent language, stating that the revisions “are intended to clarify the legal requirements” for LEAs to serve special education students when offering independent study. The language also acknowledges that the implementation of independent study under AB 130 “highlighted several areas where additional clarity in the law would benefit [LEAs] and students and families.”

The proposed trailer bill language provides that if a parent of a special education student requests an independent study placement, the IEP team must make an individualized determination as to whether the pupil can receive FAPE in independent study. While that has always been the case, the proposed language goes on to state, “A pupil’s inability to work independently, the pupil’s need for adult support, or the pupil’s need for special education or related services shall not preclude the IEP team from determining that the pupil can receive a [FAPE] in an independent study placement.” This language addresses the E.E. plaintiffs’ claims that students were being denied independent study participation due to the three issues cited in this article. The language addresses another concern of the settling plaintiffs, allowing LEAs to claim apportionment for a pupil who receives services through a “virtual program” in a nonpublic school if certain circumstances are met.

In changes unrelated to the settlement of the E.E. matter, the revised trailer bill language also provides for LEAs to claim apportionment for synchronous distance learning within independent study, which would allow more flexibility in developing IEPs for students in independent study. Finally, the trailer bill language requires LEAs to develop an improvement plan for special education students in their Local Control and Accountability Plan by Jan. 31, 2025.

It remains to be seen whether the proposed trailer bill language will address the gap in services for special education students who are immunocompromised. Not every special education student will be able to receive a FAPE in an independent study placement, even with the proposed changes in the new trailer bill language. In addition, to the extent that this language requires LEAs to develop new programs and services, doing so will be a challenge with current staffing challenges and funding limitations, including declining enrollment. However, any new flexibility is likely to be welcomed. The pandemic has so often been an exercise in frustration for parents, students and LEA staff, but perhaps the new trailer bill language as presently written will provide at least some remedies.