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Archive for April, 2021

FMG Education Law Blog Series: Special Education Issues Facing Schools in the COVID-19 Era

Posted on: April 22nd, 2021

By: Tia Combs and Candice Jackson

Part 2: “A Year Online” 

A New and Deadly Virus

In January 2020, few Americans were aware the outbreak of a novel coronavirus that was about to dramatically alter how nearly every person and institution conducted their daily lives. On January 29, 2020, there were only five cases total in the United States. By mid-March, COVID-19 had caused a global pandemic, shutting down all but the most essential services across the nation.

As the novel coronavirus spread across the world and began to circulate in the United States, educators began to look to the government for guidance on how to cope.  By February 11, 2020, the American Federation of Teachers called for guidance from the federal government as to how schools should handle the threat.  In mid-February, individual schools and districts began to make the decision to close for deep cleaning, planning to reopen after a few days or a week. On February 25, the Centers for Disease Control (CDC), warned that schools should prepare for the threat of the new virus.

Soon after the World Health Organization declared COVID-19 a worldwide pandemic on March 11, 2020, schools across the United States shut their doors to students. The first statewide shut down occurred in Ohio, when Gov. Mike DeWine announced all Ohio Schools would close. By March 25, all public schools in the United States had closed, as to in-person instruction. Most schools continued to be closed until at least the end of the spring 2020 semester. This left schools scrambling to provide educational instruction, with unique questions and challenges regarding providing special education services to students with disabilities.  

School Districts React

From the start of the pandemic schools worked quickly to do what they could to substitute remote learning for in-person education. Schools scrambled to buy and distribute hardware and software needed to make remote learning a reality, amidst questions about equitable access for populations of students on whom the difficulties associated with learning online fall disproportionately.

Chromebooks suddenly became the hottest product on the market. So many Chromebooks were ordered that the New York Times reported that sales of the devices in 2020 rose as much as 41% over 2019. Los Angeles Unified School District alone reportedly spent $100 million on computers in March 2020 to distribute devices to students for online instruction and train teachers and staff. 

Almost all districts had to tackle a preexisting digital divide as the need for good internet access became the deciding factor as to whether a student could go to school successfully or not. Districts purchased and distributed wi-fi hotspots. Some districts whose students have spotty in-home internet access set up mobile wi-fi hotspots in the parking lots where their school buses now sat idle.

As most schools transitioned to teaching students virtually, special education presented a particular problem.

A Specialized Curriculum

To understand the nature of the problem presented by trying to provide special education virtually, it helps to consider what exactly special education is. In Part 1 of this blog series we examined how the IDEA requires all public school districts to provide a “free appropriate public education” (FAPE) to students with disabilities and how the contours of FAPE have been defined and redefined over the years. But, as a practical matter, how does the implementing of FAPE work?

By definition, special education describes “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.” 34 CFR 300.39(a)(1).  Perhaps the crux of the definition is the term “specially designed instruction,” which is also defined as “adapting…the content, methodology, or delivery of instruction to address the unique need of the child that result from the child’s disability and to ensure access of the child to the general curriculum.” 34 CFR 300.39(a)(1). 

School districts generally accomplish designing specially designed instruction for students with disabilities by looking at the grade-level standards and the needs of the individual student. Teaching methods are then adapted to help the individual student get the benefit of the curriculum in a manner that is tailored to that student. For example, a student with dysgraphia, a neurological disorder that impairs fine motor skills and the ability to write, might be provided with a scribe or a computer to help her take notes. Another student with the same disability with might benefit from additional time for assignments and tests, or permission to take a test in a room without the distraction of peers. Or, a student with severe cognitive or developmental disabilities might have an aide assigned just to him that helps him progress through the school day, while another student with the same disabilities may instead be placed in a special education class for all or part of the day. The specific accommodations a child needs are decided upon by his or her IEP Team at a meeting and then memorialized in the IEP.

Depending on the special education services that a student needs, providing those services in a virtual environment, in a manner that is as effective as when the services are provided in-person, may present significant challenges.

Federal Response

Initial Confusion

With districts and schools faced with the seemingly insurmountable challenge of adjusting to closed school buildings with little or no preparation, the United States Department of Education (ED) issued its “Questions and Answers on Providing Services to Children with Disabilities During a COVID-19 Outbreak” on March 12, 2020. In that document, ED stated:

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

The document went on to state that “The Department understands there may be exceptional circumstances that could affect how a particular service is provided.” However, the overly simplistic statements from ED did little to allay the fears of school administrators that provision of FAPE might not be possible, at least for some students with disabilities, in an all-remote setting. The legitimate concern over whether schools could provide FAPE online led some districts to decide not to offer any educational services, at least in the short run, during a time when the general public’s view was that COVID-19 was a short-term problem and that schools and the rest of the country would be “back to normal” after we had “stopped the spread.” Lots of schools, imagining that the pandemic shut-downs would only be for a brief period, closed schools altogether with the hope and expectation that schools could re-open even before the end of the spring term.

However, we learned throughout March and April of 2020 that COVID-19 would not be a short-term problem.  ED realized quickly that its initial statements in the March 12, 2020 Q & A were having the perverse impact of contributing to school closings out of fear of not being capable of providing FAPE online. Only 9 days after the March 12 Q & A, ED published its “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” in an attempt to further clarify.

In the Supplemental Fact Sheet, ED stated:

At the outset, OCR  and  OSERS must  address  a  serious  misunderstanding  that  has  recently  circulated  within  the  educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities. Rather, school systems must make local decisions that take into consideration the health,  safety, and well-being of all their students and staff.  

To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction. 

ED further noted that “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency…although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies.” The Supplement also encouraged states, districts, and parents to work together to agree on extended timelines and otherwise make mutually beneficial compromises for state complaints, due process hearings, IEPs, eligibility determinations, and reevaluations.

ED Declines to Waive Special Education Requirements

Section 3511(d)(4) of Division A of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (March 27, 2020) requested the Secretary of Education, Betsy DeVos, provide Congress with recommendations concerning whether additional waivers of the IDEA’s provisions were necessary to assist states and local educational agencies with meeting the needs of students and adults with disabilities during the COVID-19 crisis.  

Many districts were dismayed when on April 27, 2020, ED issued its report to Congress stating that Secretary DeVos was “not recommending Congress pass any additional waiver concerning the Free Appropriate Public Education (FAPE) and Least Restrictive Environment (LRE) requirements of the IDEA, reiterating that learning must continue for all students during the COVID-19 national emergency.”

Teachers and districts fretted that without waivers they would fall short of the requirements of FAPE. When the Chicago Board of Education determined that compliance would require a revision of 56,000 IEPs and 10,000 Section 504 Plans, teachers in Chicago went to federal court requesting a waiver of these requirements. Specifically, the Chicago Teachers’ Union filed suit against ED, DeVos, and the Board of Education of the City of Chicago, alleging that ED’s refusal to request waiver of any FAPE requirements pursuant to the CARES Act would require teachers and case managers to revise all of those IEPs and Section 504 Plans within the last six weeks of school. The federal judge, however, held that the case was unlikely to succeed on the merits and was ultimately dismissed.

ED Offers New Guidance

Helpfully, having worked with school districts for half a year at that point to navigate COVID-19 challenges, ED issued a new Question and Answer document on September 28, 2020 addressing how districts should implement IDEA during the COVID-19 pandemic. ED highlighted that while a student’s education could be provided through remote/distance instruction, in-person instruction, or some combination of both, districts remained responsible for ensuring that FAPE is provided. The September 2020 Q&A noted that it was appropriate for an IEP team to consider how special education and related services described in an IEP might be provided both in traditional in-person methods and using remote instruction. When discussing how remote instruction might be provided, ED pointed out that this might include “online instruction, teleconference, direct instruction via telephone or videoconferencing, or consultative services to the parent.”

This guidance was similar to that being provided by state departments of education. Most states issued guidance reminding districts that FAPE was still required but that it might look significantly different than prior to COVID-19.

Schools and Teachers Rise to the Occasion

Education professionals have done an admirable job of finding creative ways to deliver services during the COVID-19 pandemic. Teachers mastered new technologies and conducted classes online, including specialized services for children with disabilities. This required constant adaptation as both students and teachers adjusted to a new paradigm of teaching and learning.

Particularly difficult was the delivery of services that had traditionally been provided only in person such as gross motor skills and behavioral therapy. There were also a lot of questions about setting up online schooling for non-verbal students and those that need one-on-one directions with prompts, redirection, or hand-over-hand instruction.

Special education teachers worked overtime to assess students’ needs in light of the pandemic. Teachers made endless phone calls to determine what tools and other support students would have at home.  They coached parents to help their children in new ways and worked with them to assess goals and objectives to create benchmarks.

Teachers also got involved with more than just students’ academic lives. IDEA requires districts to also address students’ management, physical, and social needs. Teachers recognized that the support their students needed was ongoing and continued to work with students and their parents to get students the education they needed.

Despite heroic efforts by schools and educators, frustrated and frightened parents have filed lawsuits in several states claiming (among other things) that school closures and virtual learning violate the IDEA by failing to provide FAPE. While most such lawsuits are still on-going, at least one court (in New Mexico) has already held that it is possible that some students cannot be provided with FAPE using remote learning. The legal uncertainty around online provision of FAPE thus continues to present schools with significant concerns and risks. Because the heart of FAPE is individualized services based on each individual student’s needs, it is difficult for a court to conclude, for instance, that FAPE can never be provided virtually or that FAPE must always be provided virtually whenever educational services are provided virtually for students without disabilities.

In other words, educators, students, and families have strived mightily to meet unparalleled challenges with a shared goal of continuing to provide quality educational services for American children. But a year into the pandemic, how successful has mass incorporation of virtual learning been, especially for students with disabilities, and what are the legal risk factors facing schools in the coming year? Our third and last blog in this series will discuss the road ahead for school districts when it comes to providing FAPE against the backdrop of long-term changes COVID-19 has wrought on American education, including hybrid distance learning models and learning losses resulting from the pandemic.

For more information about this topic please contact Tia Combs at [email protected] or Candice Jackson at [email protected].

Robinhood v. The Commonwealth

Posted on: April 20th, 2021

By: Kirsten Patzer

Even before Robinhood made headlines with the GameStop debacle earlier this year, the Massachusetts Securities Division and Secretary of the Commonwealth, William Galvin, had Robinhood in their sight. On December 16, 2020 the Massachusetts regulators brought their first action under the recently implemented fiduciary rule standard, alleging Robinhood aggressively targeted young people with little to no investment experience, failed to follow its own supervisory policies and procedures, and used gamification strategies to encourage frequent trading on their platform breaching the fiduciary conduct standard under Massachusetts law.        

Now Robinhood is fighting back.

Last week, in response to Secretary Galvin amending the original administrative complaint calling for the revocation of Robinhood’s brokerage license with the Commonwealth, Robinhood filed a Complaint for Injunctive and Declaratory Relief. The Complaint, filed in the Business Litigation Session of Suffolk Superior Court, is not just claiming Robinhood did not breach the new fiduciary standard, they are challenging the rule itself as invalid under both Massachusetts and federal law.

Robinhood argues the new rule is invalid because it contradicts the Massachusetts’ Supreme Judicial Court’s prior rulings that, as a matter of law, brokerage firms are not fiduciaries of their customers and the Massachusetts Constitution specifically prohibits the Secretary from usurping the authority of the judiciary or creating or amending laws passed by the legislature.

Robinhood also attacks the underlying administrative proceeding as “futile”, noting the presiding officer over the action is a “senior attorney in the Division who: has worked for the Secretary for decades; was instrumental in enacting the very regulation that Robinhood is challenging; and participated in the Division’s investigation of Robinhood.” And, even if the administrative officer were to find in Robinhood’s favor, the Securities Division’s director can overturn their decision.

Additionally, by implementing the fiduciary standard, Robinhood alleges the Division and Secretary have violated the Supremacy Clause of the United States Constitution, as the new rule directly conflicts with the new Regulation Best Interest standard promulgated by the SEC in June 2020, the Dodd-Frank Act, and the Commerce Clause.

While Massachusetts is the first to implement a higher fiduciary standard for broker-dealers operating in their jurisdiction, other states, like Nevada and New Jersey, are well on their way to adopting the stricter standard. This action could change the regulatory landscape governing the securities industry as the courts now have to tackle, head on, the question of whether states can create their own set of standards.

For more information, please contact Kirsten Patzer at [email protected].

A Quick Summary of the Ethics Rules on Discrimination for California Lawyers

Posted on: April 20th, 2021

By: Greg Fayard

For decades, the California State Bar had an anti-discrimination ethics rule applicable to lawyers. That rule prevented lawyers from unlawfully discriminating in hiring, promoting, firing, or accepting or not accepting cases based on certain protected characteristics—the big ones that people thought about in the early 1990s: race, sex, religion, sexual orientation, national origin, disability. However, for the State Bar to get jurisdiction over a lawyer for being discriminatory, a court had to first find the lawyer engaged in unlawful discrimination.

That never happened, so this rule was never enforced.

The current discrimination ethics rule addresses the prior jurisdictional gap, and now confers original jurisdiction upon the Office of the Chief Trial Counsel of the State Bar of California to investigate and prosecute discrimination claims and make recommendations on disciplinary orders to the California Supreme Court.  California’s ethics rule says lawyers shall not discriminate, harass, or retaliate in not taking a case, ending representation of case, or not hiring, or firing someone based on protected characteristics. These protected characteristics went from seven to 19 and now include genetic information, military status, veteran status, color, marital status, among others. There is no longer a requirement that a court first find the lawyer engaged in discrimination before this rule is triggered.

So in summary, rule of Professional Conduct 8.4.1, says a California lawyer cannot discriminate based on the 19 characteristics when:

  1. Representing,
  2. Terminating, and
  3. Refusing to accept a case.

As to a lawyer’s employees or potential employees, the lawyer cannot discriminate based on the 19 characteristics when:

  1. Hiring
  2. Refusing to hire or
  3. Firing.

If a lawyer is charged by the State Bar for violating this rule, the lawyer has to notify the California Department of Fair Employment and Housing, and the U.S. Department of Justice or federal Equal Employment Opportunity Commission of the disciplinary charge, depending on the type of charge. Given the breadth of civil state and federal discrimination law, this rule was controversial, passing the State Bar Board of Trustees and going to the California Supreme Court for approval on a 7 to 6 vote. In any event, civil liability is not the only penalty for the discriminatory lawyer. Now discriminatory California lawyers can be disciplined by the State Bar.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

California Supreme Court Clarifies Duty of Care, With Special Implications for Claims by Students and Minors

Posted on: April 19th, 2021

By: Candice Jackson and Robert A. Cutbirth

April is Sexual Assault Awareness Month. On the first day of this important month, the California Supreme Court issued Brown v. USA Taekwondo. Arising from allegations of sexual assault by members of the United States’ women’s taekwondo team against their coach and the sport’s governing bodies, the decision redefines the process Courts must undertake in determining whether a defendant owed a duty of care to protect a plaintiff from physical or emotional harm allegedly caused by a third party.

In a unanimous decision, the California Supreme Court confirmed that upon a demurrer (motion to dismiss) or later motion, the judge must apply a two-step analysis to determine whether a defendant can be held liable in negligence for physical or emotional harm caused by a third party (non-employee): (1) did plaintiff factually allege a “special relationship” or other circumstances imposing on the defendant an affirmative legal duty to protect plaintiff from the harm alleged, and, if so (2) do the Rowland v. Christian public policy factors limit or negate that duty. Confirming that the Rowland factors do not create legal duties, they only limit or negate otherwise established duties of care, the Supreme Court confirmed that if a plaintiff cannot factually plead the existence of a special duty to protectively act, the defendant is entitled have the case dismissed by the judge without further consideration.

In the context of physical or emotional harm to students and minors, this is the second recent decision by the California Supreme Court. In Regents of Univ. of Calif. v. Superior Court, the Court held in 2018 that the University had a special relationship with its students, creating a duty to protect them from harm during classroom/curricular activities, because the University controlled the physical location of the classes and the requirement of attendance. In Brown, the Court specifically approved of its Regents decision, yet reached the opposite result as to the United States Olympic Committee (“USOC”), upholding its dismissal because plaintiffs could not allege that the USOC had sufficient control over the events, coach, or physical locations where the assaults allegedly occurred in order to create a legal duty of protection, even though the Court agreed that there is a “problem of sexual abuse of minors in organized youth sports and other activities.” As to defendant USA Taekwondo (“USAT”), the governing body which sanctioned events, picked locations, and could discipline and/or manage access by coaches and others, the Court held the facts pled in the complaint could support a protective duty of care allowing the case to proceed past the pleadings stage, even if the perpetrator was not an employee of USAT, requiring USAT to further defend itself in the trial court.

The California Supreme Court’s decision is not limited to claims by students, athletes, or minors, but the Brown decision is of primary importance to public and private schools, colleges, and universities, churches and religious organizations, community recreation leagues, and public and private community support organizations, whose events, facilities, or programs often involve access/potential access to vulnerable individuals by third parties intending to use such access to engage in wrongful conduct. While Brown provides and clarifies important defense arguments, your facility use or operational agreements, your grant or operational funds (particularly important for educational providers receiving federal funds, where care must be taken to comply with anti-harassment and response obligations imposed by the 2020 updated U.S. Department of Education regulations, as well as anticipated updates to those standards discussed here), and other statutory obligations (dealing with health or psychiatric care, for instance) must still be considered in determining your exposure and your risk management/risk avoidance plans.

FMG’s practice groups utilize an interdisciplinary approach across substantive areas of law such as tort, commercial litigation, and employment as well as industry-specific practice teams in areas such as education, health care, and non-profit organizations, to help clients ameliorate legal risks and defend against claims. If we can provide assistance in these areas, or if you desire additional information on this topic, please contact Candice Jackson or Robert A. Cutbirth

Illinois Puts The Squeeze On Employers

Posted on: April 19th, 2021

By: Eileen Darroll

Illinois has passed three new laws that expand employee’s rights. These laws will impact the way employers hire and retain employees in substantial ways. 

SB 1480 amends the Illinois Human Rights Act making it a violation to discriminate against an individual based on his or her prior convictions unless (1) there is a “substantial relationship” between the conviction(s) and the position sought; or (2) granting the employment or continuing the employment would involve an “unreasonable risk” to property or the safety or welfare of specific individuals or the general public. 

A “substantial relationship” means the employer must consider whether the position creates the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conviction will recur in the position. 

To determine if a “reasonable risk” exists, the employer must take certain factors into consideration such as the length of time since the conviction, the number of convictions, and the nature and severity of the convictions, the relationship to safety and security of others, the facts surrounding the conviction and evidence of rehabilitation.  If the employer decides not to hire the individual or to disqualify an employee from a new position because if his or her criminal record, there are written notification requirements the employer must follow to comply with the law.

SB1480 also amended the Business Corporations Act of 1983 by requiring corporations that file an EEO-1 report with the EEOC to provide the same information to the Illinois Secretary of State, which will publish the information on the gender, race and ethnicity of the corporation’s employees on its website.  Corporations must comply with this demographic information report with the corporation’s annual report filed on and after January 1, 2023.  The language of the Act seems to suggest that the corporation must report demographic information on all of its employees, wherever they are located, not just in Illinois.

SB1480 also requires private employers with more than 100 employees to in Illinois to obtain an “equal pay registration certificate” from the Department of Labor by March 23, 2024.  Any corporation that does not obtain the certificate or who’s certificate is suspended must pay a civil penalty of 1% of gross profits.  The certificate has five categories of information on wages that must be provided, and new corporations must obtain a certificate within three years after commencing operations.  The Act also includes whistleblower protections.  Employers should review their pay practices to ensure they are in compliance by 2024.

For more information contact [email protected].