The U.S. District Court has blocked California’s attempt to deflect a lawsuit over the right of students with disabilities to access Independent Study back to the IDEA Due Process system. On February 28, the U.S. District Court for Northern California granted an amended preliminary injunction against the state of California in the case E.E. et al v. State of California. This lawsuit was brought by Disability Rights Education & Defense Fund (DREDF) and the ARC of California on behalf of children with disabilities who have been prevented by their school districts from participating in distance or remote learning since California passed AB 130, which made Independent Study the only option for distance learning. The suit, which is represented by David German of Vanaman German LLP and lawyers from Disability Rights California (DRC), argues that while parents with nondisabled children were given the right to determine if their children were safe to go to school in-person or needed a remote option, children with disabilities required their IEP team to decide whether independent Study was a suitable placement. The plaintiffs also argue that Independent Study is set up to exclude children with extensive support needs, such as some of the children represented in the case who have Down syndrome or autism, and bars students who use “alternate curriculum” and/or take California Alternative Assessments from participating in Independent Study.
The defendants — which include the State of California, the California Department of Education (CDE), and the State Board of Education (SBE) — argued that the case had to be brought individually by families under IDEA, through the Due Process system. U.S. District Judge Susan Illston determined that the case did not fall under IDEA, and could be heard directly under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. It will now be heard by the U.S. District Court on March 14, 2022.
David German tells us that the preliminary injunction order "is a strong indication of the Plaintiffs’ likelihood of prevailing on the merits of the case. The court has essentially acknowledged that the law controlling the funding for K–12 education throughout the state has had an undeniably discriminatory effect on a large group of the state’s most vulnerable students. Given how far we are into the school year and the compromises that parents were forced to make with their children’s educations, many families who were harmed by this policy will not seek to change their child’s educational placement for the last few months of the school year. Had we been able to obtain this order in September or October, it would likely have applied to thousands rather than hundreds of students. But that fact just establishes that for many families, the discriminatory effect of the law and how it was applied will be irreversible. It does not diminish the importance of the federal district court’s acknowledgment that this legislation caused great harm to many families and discriminated against thousands of students solely based on their disability-related differences in educational needs.”
Dr. Sarah Pelangka, special education advocate, BCBA-D, and owner of KnowIEPs, adds that, in effect, the suit shows that districts were “discriminating against students with IEPs, as they were not affording them an opportunity to access FAPE by only offering Independent Study. Now, the State of California needs to issue guidance to all Local Education Agencies (LEAs) to ensure that ALL students have access to their IEPs and some form of virtual instruction that will provide meaningful benefit. No later than March 17, families whose students were already placed on Home Hospital or Independent Study, and who already waived their rights to any portions of their IEP, must be afforded access to their IEP and the updated requirements.”
The updated requirements include the following:
Students can participate in Independent Study virtually, including via video with access to the services listed in their IEP.
The limitation on the use of an “alternative curriculum” in Independent Study does not exclude students participating in the California Alternative Assessment standards.
If the student’s IEP team concludes that Independent Study is not appropriate, the student is still entitled to a reasonable modification to enable them to study remotely, including participating via video conference in the class that the student would otherwise attend, with access to the services listed in the student’s IEP — including a one-to-one aide at home when the student is participating virtually.
If you requested Independent Study and the district asked you to waive your child’s right to accommodations and services in your IEP as a condition of participation in Independent Study, that agreement is no longer valid.
