Author: Anisa Pillai, Attorney at Law
On May 6, 2020, the U.S. Department of Education (USDOE) released its long-anticipated final regulations under Title IX of the Education Amendments Act of 1977 (Title IX), which govern sexual harassment and sexual assault policies on K-12 and college campuses.
The Trump Administration withdrew Obama-era guidance on Title IX in 2017 and published proposed regulations in November 2018. Subsequently, the USDOE’s Office for Civil Rights (OCR) has spent the last year and a half reviewing over 124,000 public comments and holding meetings with various interested parties before releasing the final regulations in May 2020. The final regulations took effect on August 14, 2020.
Title IX prohibits discrimination on the basis of sex, including sexual harassment, in education programs or activities receiving federal financial assistance. The new regulations will be the first Title IX guidance to have the force of law; rules issued by OCR under the Obama Administration in 2011 and 2014 were administrative guidance. The new rules make several changes to the ways in which K-12 schools must handle sexual harassment and sexual assault claims. The major changes are summarized below.
Changes the Definition of Sexual Harassment
The new rules define sexual harassment as:
- Quid pro quo harassment;
- Unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies the victim equal educational access; or
- Sexual assault; dating violence; domestic violence; or stalking.
Obama-era guidance explicitly included verbal conduct in the definition of sexual harassment, such as making sexual comments or jokes, spreading rumors, or creating emails or websites of a sexual nature, and schools were encouraged to investigate sexual harassment before such conduct became severe or pervasive. The new rules appear to reject the idea that conduct may not be severe and pervasive but may contribute to creating a broader hostile environment and, as such, qualify as sexual harassment.
Responding to Complaints of Sexual Harassment
The new rules change a school’s obligation to investigate complaints. Pursuant to Obama-era guidance, schools were required to respond to sexual harassment complaints of which they had actual knowledge or they should have been reasonably aware. The new rules only require a school to respond when they have actual knowledge of sexual harassment. However, the new rules establish that all K-12 school staff are mandated Title IX reporters in that they are required to report incidents of sexual harassment to the appropriate school authorities for investigation.
Location of Sexual Harassment
The new rules require schools to respond to sexual harassment that occurs “in the school’s educational program or activity” which includes “locations, events, or circumstances over which the school exercised substantial control over the respondent and the context in which the sexual harassment occurred.” Under the Obama-era guidance, schools were required to process all complaints of sexual harassment regardless of where the conduct occurred, to determine whether the conduct had a continuing effect on the campus community. Notably, the new rules only apply to conduct that occurs in the United States, thereby leaving students in study abroad programs without Title IX protections.
The new rules require schools to immediately provide “supportive measures” to students, with or without a formal complaint. These supportive services include counseling, extensions of deadlines or other course-related adjustments, modifications of class or work schedules, the provision of campus escort services, mutual restrictions on contact between the parties, changes in work or housing location, leaves of absence, and increased security and monitoring on campus. To compare, Obama-era guidance required schools to provide “comprehensive, holistic victim services” such as free medical services and academic support such as tutoring. The prior rules also contained remedies for the broader student population such as counseling and mental health services.
Hearings Optional for K-12 Schools
A K-12 school may hold live disciplinary hearings in sexual assault misconduct cases and schools may allow the cross-examination of witnesses. While Obama-era guidance did not prohibit live hearings or cross-examination, the guidance did not encourage such practices. K-12 schools are allowed to make the hearing procedures less formal than hearings conducted by colleges and universities as long as schools provide an equal opportunity to both parties to present evidence. Schools must give each party an opportunity to submit written questions to the other party; provide each party with the answers; and allow for additional follow up questions from each party.
Establishes Detailed Grievance Procedures
The new rules establish detailed grievance procedures and various protections for individuals accused of sexual harassment or assault. Specifically, among other protections, the new rules require schools to presume that the respondent is innocent until a determination is made at the conclusion of the grievance process. The new rules also require schools to provide written notice of the allegations to both parties (and their parents) upon receipt of a formal complaint, and require schools to provide a copy of the investigative report, which fairly summarizes the relevant evidence, before the hearing. The new rules also provide each party with an equal opportunity to present evidence and appeal the school’s decision. Obama-era guidance provided less detailed grievance procedures which allowed individual schools to establish procedures of their own. Under the Obama-era guidance, schools were authorized to place heavier pre-determination restrictions on the individual accused of sexual harassment, such as changing the respondent’s schedule. The new rules also authorize schools to choose whether to apply either the “preponderance of the evidence” standard, which was required under the Obama-era guidance, or the “clear and convincing evidence” standard, which creates a higher burden of proof for victims. Schools are required to use the same standard for all complaints, including complaints that involve school staff.
The new rules make several significant changes to Title IX. As such, a local educational agency (LEA) should consider reviewing these changes to determine whether the LEA must revise its own policies on sexual harassment and/or sexual assault to reflect these new rules.
Author: Omer A. Khan, Attorney at Law
Recently, the Office of Administrative Hearings (OAH) has held in two cases that a student was denied a free appropriate public education (FAPE) because the Local Educational Agency (LEA) changed the student’s educational program that did not adequately implement Student’s IEP. On August 24, 2020, OAH decided the Los Angeles Unified School District case (Case No. 2020050465) and followed up with the Norris School District case (Case No. 2020010423) on September 2, 2020.
In Los Angeles Unified School District, the 22-year old student was eligible for special education under the category of autism, with additional impacts from her intellectual disability and deficits in speech and language, social-emotional functioning, and adaptive behaviors for independent living. Student’s last agreed upon IEP provided a nonpublic school placement for the student, which included special education services for 1,545 of the 1,950 minutes Student attended school each week, plus 60 minutes per week of small-group speech and language services. Forty percent of Student’s weekly schedule – 630 minutes – was devoted to community-based instruction, and 240 minutes per week of hands-on vocational skills training. The student’s speech and language services were provided in either a class or community-based environment to aid her expressive and pragmatic language skills.
On March 19, 2020, Student’s IEP was implemented through the District’s distance learning program due to school closures. As a result, Student received half of the amount of instructional minutes required by her IEP and lost 116 hours of hands-on community-based instruction and vocational training. Parent alleged that this inadequate implementation of Student’s IEP was a denial of FAPE and sought as a remedy that ability for Student to return to the nonpublic school for an additional semester once in-class instruction resumes.
The hearing officer referred to guidance published by the United States Department of Education Office of Special Education and Rehabilitative Services (OSERS) and the California Department of Education (CDE) to LEAs for how to implement special education during the COVID-19 lockdowns. The hearing officer noted that, although the OSERS guidance promised to “offer flexibility where possible,” the guidance did not substantively rescind an LEA’s responsibility to implement a student’s IEP, nor did it create a safe harbor for LEAs who make an attempt to provide special education services through distance learning. Additionally, the guidance published by CDE encouraged the use of distance learning, and did not indicate that there was any waiver or relaxation of existing IDEA or Education Code requirements for providing FAPE to students with disabilities.
As a result, the hearing officer concluded that LAUSD’s services fell materially short of adequately implementing the student’s IEP by not providing student the number of minutes of instruction required by Student’s IEP, and the type of instruction required for the student to make meaningful progress on her vocational, social skills, community skills, behavioral, and transition goals. Under these unique circumstances, the Student was not entitled to an IEP meeting to consider the need for compensatory education services or to return for a semester at the nonpublic school because the student had “aged out” of special education by the time the decision was issued. Instead, the hearing officer ordered the District to provide 40 hours of post-secondary transition counseling to assist the parent with coordinating with the reginal center, Department of Rehabilitation, and other agencies to locate an adult day program and/or employment for Student.
In Norris School District, Student was on an IEP that provided for 6,300 out of 6,420 monthly minutes in the general education classroom, 160 minutes a month of one-to-one specialized academic instruction in the general education classroom, and 120 minutes a month of speech and language services in a separate classroom. In this case, the LEA ultimately was forced to shut down instruction completely for 28 school days between March 28, 2020 and May 8 2020. The student was not provided with any direct instruction, whether in-person or virtual. Nor did the LEA provide Student with any in-person or virtual speech therapy. Student was provided with distance learning plan packets (which included worksheets and other tools) and weekly contact with Student’s teachers and service provider. The parent alleged, among other things, that Student was denied FAPE during school closures.
The hearing officer determined that Student was denied FAPE during school closures because (a) the District did not discuss options with Parents or the possibility of offering Parent training to help deliver the services to the student with virtual assistance by staff, (b) the District’s prior written notice regarding services during school closures was not specifically individualized to the Student or explained how the District proposed to change or modify the delivery of Student’s IEP, and (c) the District should have held an IEP meeting to consider alternative methods of delivery of Student’s services given that the parents were struggling to deliver all of the materials provided by the District. The hearing officer reasoned that there were no exception to implementation of an IEP for physical school closures caused by pandemics or other directives to close schools
During the COVID-19 lockdowns, LEAs have had to significantly adapt their special education programs. These due process hearing decisions provide helpful reminders that LEAs should consider holding IEP meetings where parents may be struggling to provide support at home and consider whether additional parent training is warranted. Another important takeaway is that LEAs must find ways to implement a student’s IEP both quantitatively (number of minutes of instruction, activities, etc.) as well as qualitatively (addressing all of the student’s needs as written in their IEP) to the greatest extent possible.
For further guidance on small group, in-person services, see http://girardedwards.com/new-guidance-and-permission-for-small-group-in-person-services-when-general-in-person-instruction-is-still-prohibited/
New Guidance (and Permission) for Small-Group, In-Person Services When General, In-Person Instruction is Still Prohibited.
Author: Eric Stevens, Attorney at Law
On August 25, 2020, the California Department of Public Health issued “Guidance for Small Cohorts/Groups of Children and Youth” laying out the conditions under which K-12 schools may deliver small group, in-person services. The conditions are relatively straightforward and they are summarized below, but whether the “guidance” is suggestive or mandatory and how the guidance fits into the larger scheme for school reopening is less clear.
However, Governor Newsom simultaneously issued “Providing Targeted, Specialized Support and Services at School” to help clarify what the new CDPH guidance means for schools. When the August 25 CDPH guidance and the Governor’s clarifications are read together, it becomes clear that K-12 schools are permitted (but not required) to deliver in-person targeted, specialized services (like special education services) while the July 17 Framework for reopening schools prohibits them from offering general in-person instruction.
As a reminder, the July 17 Framework prohibits in-person instruction while a school’s county is on the state’s County Monitoring List and until the county has been off the monitoring list for 14 consecutive days, with a possible exception for elementary grades if the school district or charter school receives a waiver from its local public health officer.
While a school is still prohibited from offering general in-person instruction, it may choose to offer “small group, in-person services” so long as the school follows (1) CDPH’s August 25 guidance and (2) any local public health directive that is more restrictive than the state’s July 17 Framework and the COVID-19 Industry Guidance for Schools and School-Based Programs. A school district or charter school does not need express permission from local public health officials to offer small-group services under the August 25 guidance.
Schools considering offering in-person services should carefully read the August 25 guidance and the Governor’s clarifications, but in summary, schools may deliver in-person services to small, isolated cohorts of students, with the following restrictions and exceptions:
- Cohort size must be limited:
- No more than 14 children and youth in the cohort, even when all children are not participating at the same time.
- No more than two supervising adults.
- Requirements for adult to child ratios continue to apply for licensed child care programs.
- Cohorts may be subdivided, as needed, into subgroups of children and youth from the same cohort, as long as the 14-to-2 ratio is not exceeded.
- Cohorts must be isolated from other cohorts:
- Prevent interactions between cohorts, including interactions between staff assigned to different cohorts.
- Adults should be assigned to one cohort and work solely with that cohort.
- Short-term substitutes are allowed, but should only work with one cohort per day.
- Meetings among staff from different cohorts should be conducted remotely or with face coverings and appropriate social distancing.
- Assign children and youth who live together or carpool together to the same cohort, if possible.
- Avoid moving children and youth from one cohort to another, unless needed for a child’s overall safety and wellness.
- Cohorts must be kept separate from one another for special activities such as art, music, and exercise. Stagger playground time and other activities so that no two cohorts are in the same place at the same time.
- Prevent interactions between cohorts, including interactions between staff assigned to different cohorts.
- One-to-one specialized services are a limited exception:
- One-to-one specialized services can be provided to a child or youth by a support service provider that is not part of the child or youth’s cohort.
- “Specialized services” includes but is not limited to occupational therapy services, speech and language services, and other medical, behavioral services, or educational support services as part of a targeted intervention strategy.
- Services must be provided consistent with the COVID-19 Industry Guidance for Limited Services.
The Governor’s clarifications state that which students to target for in-person services and what services to provide are individualized decisions for each school district or charter school. However, the Governor goes on to state that “Students with disabilities should be prioritized by the LEA and school for receiving targeted supports and services. In addition, English learners, students at higher risk of further learning loss or not participating in distance learning, students at risk of abuse or neglect, foster youth and students experiencing homelessness may also be prioritized.” Notably, the Governor includes assessments related to IEPs among that list of potential specialized services that may be provided in-person. Specifically, the services “include but are not limited to occupational therapy services, speech and language services, and other medical services, behavioral services, educational support services as part of a targeted intervention strategy or assessments, such as those related to English learner status, individualized educational programs and other required assessments.”
Finally, this permission and the associated conditions for providing services in isolated cohorts only applies while a school is otherwise unable to offer general in-person instruction under the July 17 Framework. Once a school is permitted to reopen, it should continue to follow the COVID-19 Industry Guidance for Schools and School-Based Programs, and for Limited Services. However, as with so many things related to COVID-19, we are in a fluid, ever-changing situation. Existing guidance, clarifications, and requirements are subject to change.
Author: Anisa Pillai, Attorney at Law
Senate Bill (SB) 98, the education omnibus budget trailer bill, which was chaptered on June 29, 2020, makes several changes to the laws governing the provision of special education to children in California in response to the COVID-19 global pandemic.
Individualized Education Programs
Specifically, SB 98 made changes to Education Code section 56345 which governs the contents of and requirements for individualized education programs (IEP). An IEP is a written document that is developed for each public school student who is eligible for special education. An IEP must be reviewed annually and developed in accordance with both federal and state law. Pursuant to Education Code section 56345, an IEP must include various elements, including, but not limited to, a statement regarding a child’s present levels, a statement of measurable annual goals, a description of the manner in which the progress of the pupil toward meeting the annual goals will be measured, and a statement of the special education and related services and supplementary aids to be provided to the child.
SB 98 now requires an IEP to include a description of the means by which the IEP will be provided under emergency conditions, including fire, flood, epidemic, and earthquake, in which instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than ten school days.
Pursuant to SB 98, this emergency description must include the following information:
- Special education and related services
- Supplementary aids and services;
- Transition services, as defined in Education Code 563451; and
- Extended school year services pursuant to 34 C.FR. 300.106
SB 98 requires local educational agencies (LEAs) to take into account public health orders when designing and implementing these emergency descriptions. Furthermore, this new requirement applies to the development of an initial IEP or the next regularly scheduled revision of an IEP.
Extended School Year (ESY)
Section 96 of SB 98 specifies that an LEA may claim apportionment for distance learning during summer 2020. Specifically, pursuant to Section 96, an LEA may claim apportionment for ESY services for pupils with disabilities offered through distance learning for the summer 2020 (defined as the period of time between the end of an LEA’s 2019-2020 academic year and June 30, 2020). LEAs may claim apportionment under the following conditions:
- The time value of the pupil’s work products shall be determined by the certified teacher assigned to the child for ESY and shall be equivalent to the day requirements specified in 5 C.C.R. 3043, and the equivalent in time value to a minimum day pursuant to Education Code §§ 46112, 46113, 46117 and 46141, for each day that attendance is claimed, unless otherwise specified in a child’s IEP to meet the child’s unique needs; and
- The pupil’s work must be aligned with the goals in the pupil’s IEP to promote measurable progress and completed by the established due date.
As special education laws and guidance change rapidly due to the COVID-19 pandemic, it’s important that LEAs make every effort to comply with new mandates in a timely manner.
The Claims Presentation Requirement of The Government Claims Act Can Protect Local Educational Agencies Administering An Individualized Education Program
Author: Omer A. Khan, Attorney at Law
On June 26, 2020, the First Appellate District of the California Court of Appeals denied the parents’ appeal seeking to recover damages from a school district after their child tragically committed suicide. (Neeley v. San Mateo Union High School District (2020) 120 LRP 19625.) The court reasoned that the Government Claims Act, which permits claimants to collect money damages from public agencies for personal injuries, requires that claimants first give notice of potential claims to the District directly by presenting the factual basis for their claims in a manner prescribed by the District. Here, the court found that the parents’ claim was not factually specific enough to give the District notice.
The student was a senior in high school and a member of the school’s football team. The student was also on an Individualized Educational Program (“IEP”) because he had been experiencing mental and emotional difficulties. On January 13, 2014, the student tragically took his own life. About four months later, the parents presented their written government claim to the school. The parents alleged that a trainer for the football team had physically injured the student by massaging a muscle the student had strained during a football game causing the student to become severely depressed which, in turn, ultimately caused him to commit suicide. However, the parents’ written claim did not make mention of the student’s mental health issues or the school’s management of his IEP. The District denied the parents’ claim.
The parents then filed a petition in court for personal injury and wrongful death, asserting not only the same causes of action asserted in their prior written petition, but also adding that the District’s failure to provide a mental health assessment and mental health services pursuant to the IEP was a contributing factor to the student’s suicide. The trial court asserted that since the parents did not include these IEP-based allegations in their written claim to the District, they were not permitted to bring these allegations to court. The parents then appealed the court’s decision.
The Court asserted that that the written claim to the District was required to provide “[a] general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim,” and “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” The purpose of such requirements was “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.”
Here, the written claim to the District failed to give the District notice regarding the nature of the parents’ claim. Their later claim regarding the failure of the school’s IEP team was based on an entirely different set of facts and involved different employees engaged in different allegedly wrongful acts than their personal injury claim initially included. Their special education theory of wrongful death was, simply put, entirely different from the football injury theory of wrongful death asserted in the claim submitted to the District. Since the parents failed to meet the written claim requirements, their special education causes of action could not proceed.
Properly implementing the Government Claims Act can be a daunting challenge for school officials due to the prospect of liability. However, local educational agencies should know that the Act itself includes a number of provisions designed to give them a chance to defend themselves. As described above, one such provision is the written claim presentation requirement, which requires the claimant to provide the LEA with the specific facts underlying the claim so that it may properly consider the claim. If an LEA receives a Government Claims Act written claim, the first step is always to review the written claim for timeliness and specificity. A deficiency in either category may significantly impact the outcome of a claim. In addition, LEAs should promptly contact their legal counsel and insurance provider whenever a claim is received.
Office of Administrative Hearings Rules in District's Favor on Reasonable Restrictions to Nonpublic Agency Aide Attendance at IEP Meetings and Communication with Parents
Author: Michael Tucker, Attorney at Law
On May 15, 2020, the Office of Administrative Hearings (OAH) ruled that failure to include a nonpublic agency aide in a student’s IEP meeting did not significantly impede the parent’s participation. OAH also ruled that setting reasonable restrictions on communication with the aide, while still providing meaningful contact, did not significantly impede the parent’s participation in decision making. (Parent on Behalf of Student v. Mountain View Unified School District, Case No. 2019100681.)
Student qualified for special education under the categories of autism and speech and language impairment. Student’s IEP included a behavior technician aide provided by a nonpublic agency. Student’s parent requested that the aide be present at an IEP meeting. While the aide did not attend the meeting in question, the aide’s two clinical supervisors were in attendance.
The Local Educational Agency (LEA) also directed all communication related to the aide through the Student’s special education teacher. Instead, Student’s parent sought raw data from daily behavior logs, contemporaneous communication with the aide and other detailed information.
Student filed a Due Process Complaint alleging that the LEA’s decision to deny parent’s request that the Student’s aide be present at an IEP meeting denied Student a Free Appropriate Public Education (FAPE). Specifically, Student claimed that he was denied meaningful participation in the IEP meeting because the aide’s attendance was essential to Student’s participation in the meeting.
Student also alleged that the LEA denied Student FAPE by preventing free communication between Student’s parent and the nonpublic agency aide. Particularly, Student claimed that the LEA’s restrictions on communication received from the aide prevented the parent from meaningfully participating in the decision making process.
After a hearing, OAH ruled in favor of the LEA on both issues.
A student is denied a FAPE if procedural inadequacies significantly impede the parent’s opportunity to participate in the decision making process. (20 U.S.C. § 1415(f)(3)(E)(ii)(I)-(III).) The parents of a child with a disability must be afforded an opportunity to participate in IEP meetings. (34 C.F.R. § 300.501(b).) “A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.” (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5.) In this case, Student alleged that he was denied meaningful participation because the LEA failed to include the aide as an essential IEP team member. Essential IEP members are often considered to include the following:
- the student’s parents;
- a general education teacher;
- the student’s special education teacher;
- LEA representative;
- an individual qualified to interpret evaluations; and
- at the discretion of the parent or the LEA, other individuals that have knowledge or special expertise regarding the child, including related services personnel as appropriate.
(20 U.S.C. § 1414(d)(1)(B)(i)(vi); 34 C.F.R. § 300.321.)
While Student argued that the aide possessed “knowledge or special expertise regarding the child”, OAH found that “a person with knowledge or special experience…is not an essential member of the IEP team, unless they are also qualified to interpret evaluations, under 34 Code of Federal Regulations part 300.321(a)(5).” Therefore, OAH found that the aide was nonessential because the aide was not qualified to interpret evaluations and exclusion from the IEP meeting was not a violation of FAPE.
OAH also found that the LEA’s restrictions on parent’s communication with the aide were reasonable. LEAs are generally permitted to place reasonable restrictions between providers and a parent to minimize “unproductive communication.” (L.F. v. Lake Washington School District #414 (2020) 947 F.3d 621.) Here, OAH found that reasonably restricting communication while still providing detailed “daily, weekly, and monthly communications” with the parent did not amount to a FAPE violation.
While LEAs should carefully consider parent’s requests, parents are not entitled to unfettered access to school staff. Here, OAH agreed with the reasonable restrictions placed on the parent’s requests by the LEA. Specifically, OAH pointed out that not every parent request to invite certain school staff to an IEP is a required attendee as an essential IEP member. While OAH did not make much of the fact that the aide’s supervisors were at the IEP meeting, it’s worth noting that their presence may have made the aide’s input redundant. OAH also found, through a recording of the IEP meeting, that the parent was able to fully participate despite the aide’s absence.
Moreover, restrictions can be placed on a parent’s request for communication so long as the LEA’s restrictions are reasonable considering the amount of communication offered to the parent. Specifically, OAH agreed that contemporaneous communication as requested by the parents was not required considering the LEA’s already robust communication offerings.
LEAs are encouraged to carefully consider a parent’s request with this guidance in mind.
Author: Omer A. Khan, Attorney at Law
On April 28, 2020, the U.S. District Court in the Eastern District of California granted a parent’s motion for attorney’s fees against a Local Educational Agency (LEA) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) One month prior, the court had ruled in favor of the parent in a motion to enforce a judgment for the amount of $177,144 that the LEA had failed to pay the parent within the prescribed statutory period. This motion resulted in an additional $10,142 of fees imposed on the LEA.
Plaintiff was the mother of a kindergartner with orthopedic impairments. The parent initially won a ruling in January 2016 for a denial of a free appropriate public education (FAPE); the order granted Student 12 hours of services by a Board Certified Behavior Analyst. The LEA appealed, and in May 2017, the District Court issued a judgment in favor of the parents, awarded $135,876.75 in attorneys’ fees and $2,805.00 in costs. This decision was upheld in November 2018 by the Court of Appeals.
The LEA was required to pay the amount due by June 30, 2019; it failed to do so.
The parent filed a petition in District Court to enforce the judgment in February 2020 to collect the amount owed. The LEA contended that the delay was reasonable; there was a lack of funds available to pay the full amount of $138,681.75 to the parent and the matter would be addressed at the March 10, 2020 board meeting.
The District Court rejected this contention. The Court noted that, even by the March 18, 2020 Board meeting, the Board was “merely told the payments were still unresolved.” The Court questioned whether the LEA had addressed the payment at issue and its dedication to comply with its legal obligation under Government Code § 970.5 to pay the judgments owed. The Court ordered the LEA to pay the amount owed by June 30, 2020, plus interest for every day the LEA was late. At this point, the LEA owed the parent $177,144 in total fees.
Finally, in April 2020, the parent filed a petition to recover attorneys fees for this latest round of litigation. The District Court agreed that the parent was entitled to an award for fees on her motion for enforcement of judgment; this holding added an additional $10,142 to the amount owed by the LEA, resulting in a grand total of $187,286
The Individuals with Disabilities Education Act (IDEA) includes a fee-shifting provision that allows a prevailing parent to recover reasonable attorney’s fees, subject to certain limitations. In addition, courts have allowed parents to recover attorney’s fees for their counsel’s work on claims brought under this fee-shifting provision. In other words, “fees on fees” may be available where attorney continue to work on the case after a court’s award of attorney’s fees. Moreover, Government Code § 970.5 obligates LEAs to pay judgments owed within the fiscal year the judgment becomes final. The statute imposes interest payments if the LEA is late in satisfying these debts. As a result, LEAs must demonstrate urgency in arranging payments of such judgments. This case should serve as a cautionary tale: the initial amount owed by the LEA was $138,681.75, but due to the delay the Court imposed an additional $48,604.25 in costs. If the LEA absolutely cannot make the payments within the fiscal year, it should demonstrate that it is taking the judgment seriously using proper documentation.
Author: Anisa Pillai, Attorney at Law
On May 6, 2020, the U.S. District Court, Eastern District of California granted a student’s request for a 60-day extension of time to serve a peer harassment lawsuit on a school district.
On February 20, 2020, the student filed an initial complaint against the district alleging that the student had faced bullying and harassment by other students based upon the student’s disability. Thereafter, the student attempted on multiple occasions to effectuate service upon the district via personal delivery using the services of a registered process server. However, on each occasion, the district’s offices were closed with no one available to accept service due to the COVID-19 related school closures.
On May 4, 2020, the student filed a motion for a 60-day extension of time to serve the district due to the student’s inability to reach the district. Normally, a lawsuit must be served on a defendant within ninety days – the student had until May 7, 2020 to serve the school district.
The court granted the student’s request for an extension of time to serve the lawsuit on the district. The court found that the student had good cause for the failure to effect timely service on the district due to the school closures caused by COVID-19. Specifically, the court noted that the student had made multiple attempts to serve the district but, on each occasion, the building was vacant due to the school closures. The court also pointed out that the student had continued to monitor the status of the district’s operations and the district’s website informed the public that the district would remain closed through May 15, 2020. Furthermore, the court pointed out that the student had attempted to call the district’s main line and was unable to leave a message because the voicemail box was full. Based on the totality of the circumstances, the court found that the student had good cause for a 60-day extension to serve the district.
The takeaway from this case is that local educational agencies must consider developing a contingency plan during extended school closures, including summer breaks, for how to route voicemail messages and accept important documents. Furthermore, the U.S. Department of Education has not waived special education due process timelines during this global pandemic – these timelines continue to run even during school closures. As such, the failure to assign someone to review voice messages and receive documents during school closures may unnecessarily expose local educational agencies to liability and additional litigation.
Electronically Sending Personally Identifiable Information to Unsecured Email Address May Violate FERPA
Author: Michael Tucker, Attorney at Law
The band director at a Kentucky school district (“District”) sent an email to a student’s parent regarding the student’s removal from band. The email was sent to the parent’s work email address, not the personal address that was provided to the District when the parents initially completed the student’s registration.
School closures due to the COVID-19 pandemic have forced local educational agencies (“LEA”) to rely more heavily on electronic communication. However, FERPA and other privacy provisions still apply to communication of personally identifiable information.
IDEA regulations also explicitly give LEAs the option to send notices required by IDEA to parents via email as long as the parent “elects to receive notices … by an electronic mail communication [and] the [district] makes that option available.” (34 CFR §300.505.) Nonetheless, given the potential ramifications for not sending notice, LEAs will need to consider how to document the fact that notice was sent and that parents have elected to receive notices via a particular email address. For many families, email should be sufficient provided that the parent has elected to receive notices via email. However, for other families, who may not regularly use email or have access to email, mailing a hard copy may be necessary.
As such, LEAs should take care to confirm email addresses with parents to ensure: 1) that the email is secure and private; and 2) that the parent consents to use that email address. It may be convenient to immediately reply to an email received from a parent from an email address that is different than the email provided by the parent as the appropriate means of contact. However, as this guidance points out, an LEA should still confirm consent to receive sensitive information, including notices, at that address prior to sending to ensure that private information remains confidential.
CDE and HHS Release Guidance on Distance Learning, School Meals, Child Care, and Student Supervision
Author: Eric Stevens
The California Department of Education released guidance on March 17 for local educational agencies (“LEAs”) regarding educating students through distance learning and providing school meals to students during school closures due to COVID-19. Health and Human Services, in consultation with CDE, simultaneously released guidance on child care and providing student supervision during the current public health emergency. All of this guidance is available on CDE’s website. The guidance contains numerous links to other resources to support LEAs.
The guidance is issued in response to Executive Order N-26-20 which provides that even if LEAs close campuses due to COVID-19, the LEAs will continue to receive funding for those days so that they may:
- Continue delivering high-quality educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study;
- Provide school meals in non-congregate settings through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture;
- Arrange for, to the extent practicable, supervision for students during ordinary school hours; and
- Continue to pay employees.
Distance learning includes any instruction in which a student and teacher are in different physical locations. This may include any combination of video or audio instruction, communication by phone or computer, print materials incorporating assignments that are reviewed by the teacher, and check-in time with the supervising teacher.
LEAs “should immediately begin developing a plan for distance learning for their students and providing training and professional development for their teachers to implement the adopted distance learning strategy as effectively as possible.” CDE suggests key elements that a distance learning plan might cover and encourages LEAs to consider what is feasible in the short-term and what may be possible if a longer-term closure (more than two weeks) becomes necessary.
An LEA will need to assess its ability to deliver instruction online, through the delivery of paper materials, and in-person in light of the availability of devices and high-speed internet in the community and the LEA’s ability to provide devices and internet access to students in need. CDE’s guidance stresses that “we cannot lose track of our most disadvantaged students” and that LEAs need to ensure equitable access to curriculum and, if online learning is used, devices and internet access.
CDE provides a continuum of delivery strategies from a purely online approach to in-person instruction:
- Teacher interaction and assistance through on-line learning platforms.
- Online curriculum for students to work on at home.
- Online curriculum in a computer lab or classroom, consistent with social distancing guidelines.
- Paper packets of instruction materials for students to work on at home.
- In-person instruction, consistent with social distancing guidelines.
CDE highlights different school districts and charter schools as examples of some of these strategies in practice.
LEAs should also consider ways to re-purpose and redirect resources to support distance learning, especially resources that may not be used to capacity during campus closures like student transportation and transportation staff. CDE points out that vehicles and transportation staff can be redirected to distribute meals to students most in need, instructional packets, and wireless equipment and devices.
Distance Learning, Special Education, and English Learners
CDE acknowledges that, at this time, the federal government has not waived federal requirements under the Individuals with Disabilities Education Act (“IDEA”). Accordingly, federally mandated timelines continue to apply. CDE is convening a workgroup of practitioners and experts in special education to assess various models for effectively serving students with disabilities in a distance learning environment and provide additional guidance to LEAs.
The unique learning needs of English learners should be considered and addressed in a distance learning plan. When campuses reopen, an English learner’s progress should be evaluated to determine whether the student needs additional services and supports to account for how distance learning may have impacted the student’s progress toward proficiency.
Federal child nutrition meal programs have provided flexibility to CDE and LEAs during COVID-19 campus closures.
For LEAs that already have approval to operate the National School Lunch Program Seamless Summer Option (“SSO”) or the Summer Food Service Program (“SFSP”), CDE can provide authority to offer non-congregate meals under SSO or SFSP during a COVID-19 campus closure. Requests may be submitted to SNPINFO@cde.ca.gov and CDE’s guidance identifies the information to include in such a request. LEAs can also request permission to offer shelf-stable meals for multiple days and USDA is expected to provide additional guidance soon on applicable heightened monitoring requirements.
LEAs are encouraged to consider various means of delivering meals, including:
- Distributing meals using a school food truck.
- Sending a box or bag meal(s) home with students for multiple days.
- Keeping some school sites open to allow students to receive a meal.
- Partnering with local libraries that remain open to serve meals.
- Setting up a drive through system in the parking lot to minimize contact. Families can drive through and pick up a meal for all children in the vehicle.
However, CDE notes that it is not permissible to provide meals to children who are not present when meals are distributed.
LEAs should consider multiple communication strategies and use multiple languages to reach families and students with information about the availability of meals, including messaging through community partners.
Child Care and Student Supervision
HHS released broad guidance for families with children during COVID-19 campus closures.
For LEAs specifically, CDE reminds them that Executive Order N-26-20 directs LEAs “to the extent practicable” to arrange for supervision of students during ordinary school hours. CDE states that LEAs should:
- Develop a plan for ensuring that students are supervised during school hours.
- Consider allowing their school sites for use as critical pop-up childcare programs for working families in need of care for their children.
- Partner with their local resource and referral agency to connect families in need of care. The R&R can help link them to available care facilities in their area.
- Inform families that they can call the statewide consumer education hotline at 1-800-KIDS-793 or go to the website at https://rrnetwork.org/ and https://rrnetwork.org/family-services/find-child-care for additional information.
- Provide families with a list of known local programs that remain open for services.
- Collaborate with their Local Planning Council and other local childcare entities to ensure continuity of services to families in need of childcare.
- Work with the regional Community Care Licensing office, which may have a list of facilities that are open, to identify providers that can serve children at this time.
CDE directs LEAs to consider a list of multiple factors when developing a plan for student supervision:
- Family needs.
- Early learning and care programs operating on an LEA’s campus.
- LEA facilities as a community resource.
- Working with community partners.
- Child age.
- Collaborating with other state and local government entities.
- CDC guidance for school closures.
For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.