CSBA tackles tough questions in legal webinar series

The familiar back-to-school process for the new school year looks much different as governing boards across the state are wading through reopening plans in the face of new legal requirements and amid evolving guidance. To aid board members and local educational agencies, CSBA recently held a pair of webinars exploring the many legal impacts on governance and operations during the COVID-19 pandemic with top education law attorneys from CSBA‘s premier affiliate law firms.

Among key topics discussed during part one on July 15 were the legal effects of orders and guidance, distance learning requirements, layoffs, liability and items on the bargaining table. A majority of the questions posed to the panel sought clarity on language in Senate Bill 98, the budget education trailer bill, regarding distance learning, layoff restrictions for classified staff and fears over district liability should a student or staff member become infected with COVID-19.

The webinar also included a breakdown of the various executive orders — with 47 issued to date — from Gov. Gavin Newsom as they apply to schools. Considering the fluidity of the pandemic in California and nationwide, LEAs should expect more of these orders well into the fall semester, said Josh Morrison of Atkinson, Andelson, Loya, Ruud & Romo.

Challenges examined of serving students with disabilities in the new school year

When schools closed for in-person instruction in the spring to prevent the spread of COVID-19, students with disabilities were among those most negatively impacted by the loss of face-to-face interaction with teachers, specialists and aides.

Focus areas in the second webinar on July 29 included learning loss and compensatory education, child find during the pandemic, the Learning Continuity and Attendance Plan, liability and guidance on opening, and the impact of SB 98 on special education.

A key message from each presentation: Document everything.

“One thing that districts are seeing is that not only is this unprecedented, but it keeps changing. This is part two of the webinar series, and things have changed since part one,” said William Tunick, of Dannis Woliver Kelley, noting the best way in which districts can protect themselves later is with thorough documentation. “What may be reasonable based on the information we have today may look a lot different in six months. Being able to go back and have documentation explaining ‘what were the grounds on which this decision was made’ would be a helpful thing to have if there are questions six months from now.”

Distance learning requirements under SB 98

While the language in SB 98 appeared to severely limit options for districts looking at offering hybrid or distance learning instructional plans, legislative intent letters state that is not the case. CSBA previously reported this update, which was reinforced by Sarah Levitan Kaatz of Lozano Smith. “For a lot of school districts, it was incredibly helpful to look at that and say, ‘OK, we do have a lot more flexibility.’”

“The intent of the language of SB 98 was to provide districts with flexibility,” added Namita Brown of Fagen Friedman & Fulfrost.

While there is some flexibility in whether to offer widespread distance learning based on local public health conditions, the Legislature spells out stringent requirements for how distance learning must operate. The standards, Brown said, stem from inequitable digital learning in the spring and fears from state leaders over further learning loss.

California student reading braille
What SB 98 requirements for distance learning mean for students with disabilities

SB 98 raises as many questions as it answers, said Jan Tomsky, of Fagen Friedman & Fulfrost, LLP. Still, there are things that LEAs can start doing now that, when well documented, can help defend or counter claims seeking compensatory services in the future.

More importantly, beginning to implement remediation opportunities for all students now will benefit every child, including those with special needs, English learners and other students most vulnerable to significant learning loss.

However districts choose to proceed in the coming year, Tomsky reiterated the need to document everything done to provide students with Individual Education Program-based services, including efforts to provide services. Administrators should also prepare to assess students upon their return to campus and to analyze student’s progress or regression at that point.

And when it comes to adapting services offered in light of the pandemic, being proactive and clear with parents about how the LEA will provide services will be beneficial.

“We’ve always had the obligation to monitor the progress of students with IEPs, but it has never been more important than now that we monitor progress on goals, that we document that, and that we share that with parents,” Tomsky said. “Because in truth, as in all things related to special education, parental communication is always going to be the key.”

To view past webinars and view presentation slides, visit: