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legal insights

by Elaine Yama-Garcia

LEAs need relief from special education lawsuits


hat does the future hold for students with disabilities and the local educational agencies that are unable to provide each and every student with special education and related services pursuant to their individualized educational program during an unprecedented crisis?

There are currently conflicting federal and state mandates regarding the matter — federal law mandates a free and appropriate education (FAPE) and the state has mandated the majority of schools remain closed due to the pandemic. So, schools are left in a conundrum of how to provide FAPE with campuses closed, limited resources, limited methodologies, limited technology, limited funding or even because of absolute impossibility in some cases. What’s left? Well, it appears it’s a lawsuit by parents, with no immediate assistance from the Legislature or courts.

In some cases, FAPE may be provided through alternative resources — such as distance learning, telecommunications or other methods to meet the needs of special education students — but in many instances, these methods are not providing FAPE, and face-to-face instruction/services are necessary. Every student’s disability and needs are unique and individualized services agreed to by the parents at an individualized education program team meeting are required through an IEP. But what happens when it becomes impossible to provide certain instruction or services pursuant to the IEP through distance learning or the inability to be face-to-face during a pandemic? What about the federal and state governments’ claims that the health and safety of all should come first during this COVID-19 pandemic, yet LEAs are continuing to be held liable for failing to provide special education? How is this possible?

There are no answers to these questions — just finger pointing and lawsuits by parents. The federal and state governments created this collision by implementing and enforcing mandates and responsibilities for LEAs, yet failing to provide answers and viable resources or guidance to provide FAPE to special education students. While the state can close down schools and the state and local public health departments can determine when they can reopen — who is protecting the students with disabilities who need their federally mandated special education and related services? Who is protecting the LEAs that are hindered from providing the FAPE required by federal law due to state-mandated school closures, and that can only provide inappropriate alternative learning methods that are unmanageable for some students or unviable for school personnel who are in fear for their health and safety?

IEP on blocks

Schools and states are being sued for denying special education students a FAPE required by the federal government, but the federal government has not provided any viable resources or assistance to schools or states to do the impossible. Does anyone in the federal government system truly understand that during a pandemic it may be impossible for the federal mandates to be implemented for many reasons? I think not. It is clear that the majority of our federal legislators and even our U.S. Department of Education has little to no understanding about the needs of special education students and the resources that are truly required for these children. They do not understand the severity of disabilities or the continuum of resources needed to provide FAPE to students with special needs. Without the education and knowledge of these issues, how can we expect anything less than their insistence on continuing to require LEAs to provide students with disabilities the needed special education and related services with no assistance, no monies, no resources and no viable alternatives during this pandemic?

Even prior to the pandemic, schools struggled with balancing their budgets and resources to ensure a FAPE was provided to students with disabilities pursuant to the requirements of the Individuals with Disabilities Education Act. The federal government mandates these services and promised to fund 40 percent of the costs when IDEA was implemented. Yet, it has only provided LEAs with around 10 percent and, in some cases, less. State and local governments are left to pick up the rest.

Year after year, monies and resources have been scarce for special education programs, but schools have done what is necessary to ensure students with disabilities are provided the needed services, because they care. Yes, elected education officials and personnel care about all students. They care about their education, health and welfare. They care about the quality of instruction, they care about their medical and mental health, they care about their future success and their contribution to a future society. They live every day with the understanding of the needs and education that each student requires.

This pandemic is not the fault of schools, teachers, the students or the government. It is a global tragedy, and it should not lead to lawsuits throughout our nation and our state. We need our Legislature and courts to address this conundrum now, instead of simply saying, “Well, it needs to be done — no matter the circumstances or consequences, no matter the cost, no matter the bankruptcy or destruction of our educational system … no matter the impossibility.” That is unconscionable and unacceptable.

An average cost of a lawsuit relating to the IDEA is several hundreds of thousands of dollars, and in most cases, that is just the cost of the attorneys’ fees that LEAs are responsible for if found out of compliance. With the consideration of a global pandemic, and without action from our government, that is what every school district may be faced with for each special education student’s lawsuit. That is millions and millions of dollars wasted when it could be used to ensure students are provided what they need when it is determined safe to do so without restrictions from the state or public health departments.

When Gov. Gavin Newsom signed the executive order with guidance from the public health department requiring schools to be closed and for all to shelter-in-place, how was it possible for any student, let alone special education students, to receive the same level of education? When schools are missing the resources and staff to provide special education, how does this impossibility coincide with the federal mandates requiring LEAs to continue to provide special education at the same time? LEAs are being sued unfairly and unjustly, starting from day one of the shutdown.

We need our federal and state governments to work together to resolve these issues forthwith. If not, our special education and educational system as we knew it 10 months ago will no longer exist. Not because LEAs don’t care about students and education, but because our state and federal governments do not understand what is being mandated by each of them. They are working against each other; LEAs and students are caught in the middle.

CSBA strives to bring our members the most up-to-date information. The questions keep coming and solid answers are still unknown as of the time of this writing. We continue to recommend that all school districts and county offices of education continue to stive to meet the federal mandates within the constraints of the state mandates; keep your district and county offices of education safe and healthy; work with your parents, students and teachers; reach out to the community; and access all available resources to ensure special education students receive a FAPE.

As you continue to do the best you can, CSBA and its Education Legal Alliance will continue to meet with legislators and others to express our members’ concerns and issues. We will continue to fight for a fair and just outcome to the special education issues that students and schools are facing daily. You can help by contacting your local federal and state legislators. Together, we can have a strong voice at the table as we speak loudly, firmly and with urgency on behalf of LEAs. Together, we will get answers.

Elaine Yama-Garcia is the deputy general counsel for CSBA.
The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.