On November 4, 2021, District Court Judge Susan Illston from the Northern District of California released an order granting a temporary restraining order (TRO) requiring a number of school districts to provide virtual instruction to 15 specific disabled students during the 2021-2022 school year commensurate with their distance learning programming from the prior school year.
A group of students with disabilities and an organization that advocates for disabled students (Plaintiffs) brought suit against the State of California, the California State Board of Education, and the CDE, challenging AB 130, a state law requiring school districts and county offices of education to offer Independent Study as a program option during the 2021-2022 school year.
Plaintiffs claim that AB 130 “has limited distance learning to a single format that is inaccessible to students with disabilities, and that many students with disabilities require distance learning during the 2021-2022 school year because their parents have determined that their “health would be put at risk by in-person instruction.”
Plaintiffs allege that Independent Study under AB 130 is not accessible to students with disabilities because it only authorizes Independent Study under the IEP process and Independent Study is, by design and implementation, for students who have the ability to work independently. Plaintiffs then sought a TRO to restore the virtual learning these 15 students had access to in the 2020-2021 school year.
The District Court granted the TRO, ordering the Defendants to restore what the court determined to be the “status quo” by requiring Defendant – as well as a number of school districts not named in the suit or represented at the hearing – to provide access to (1) virtual instruction comparable to that provided in the 2020-2021 school year; and (2) the services and accommodations in the IEPs. Specifically, the Court held that these school districts must ensure all LEAs provide the 15 identified students with access to virtual instruction that mirrors the minutes and form of instruction received in the 2020-2021 school year.
Administrative Exhaustion under IDEA
In a unique and unexpected determination, the Court agreed with Plaintiffs that administrative exhaustion under IDEA was not necessary because the Court confirmed that Plaintiffs are not seeking relief under IDEA but are instead challenging the discriminatory impact of AB 130. Rather than find the heart of the claim as a direct challenge to IDEA and, more specifically, a denial of FAPE, the Court instead contended that the crux of the complaint was not directed at the decisions of IEP teams about what services and accommodations are needed for FAPE, but is instead an objection to the barriers imposed on districts by the discriminatory limitation of AB 130. This is particularly notable as the Court saw this as a broad access issue despite districts’ differing approaches to implementing Independent Study.
ADA and Rehabilitation Act
The Court further held that “Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Rehabilitation claims.” The Court found that the barriers unintentionally placed on disabled students are not the results of decisions made by IEP teams but are the product of “the limitation imposed by AB 130 that restricts distance learning during the 2021-2022 school year to Independent Study, as well as the historic structure and design of the Independent Study program.” This decision is particularly significant in light of the CDE’s FAQs guiding all districts to make Independent Study accessible for all students but likewise recognized school districts’ corresponding obligation to ensure a student’s individualized education program provides them with a FAPE.
The Court then disagreed with Defendants’ claim that the requested relief would constitute a “fundamental alteration” of the educational system, noting that schools and districts “have experience with providing distance learning to disabled students consistent with the services and accommodations listed in their IEPs” from the unprecedented 2020-2021 virtual school year. However, the Court did note in its order that the State, the CDE, and the CSBE “must provide assurances to these school districts that they will be reimbursed for this virtual instruction” they must now provide.
The Court found that AB 130 has “forced parents to choose between the harm of their children losing educational opportunity or risking their health and safety.”
Balance of Equities and Public Interest
Finally, the Court determined that these factors favor granting the TRO because the order is limited to a small group of 15 students and, in unanimity with all parties, the Court contended that allowing these students to attend school safely is in the public’s best interest. This finding is noteworthy as the Court has limited the impact of the order to these students.
On November 12th, the Court released an Order clarifying its November 4, 2021, order “in the interest of ensuring compliance with the TRO …” The Court emphasized that the TRO “is not directing defendants to effectuate a ‘change of placement’ for any student in violation of the IDEA.” The Court emphasized that the TRO was issued to ensure compliance with the ADA and Section 504 and that the TRO directed defendants “to take steps necessary to stop the discriminatory impact of the AB 130 on the fifteen students covered by the TRO.” The Court then amended the TRO to include language proposed by defendants that the Court found “helpful and appropriate.” The amendment stated that AB 130, as applied to the 15 students, “is enjoined to the extent it limits or otherwise prohibits school districts’ ability to provide instruction and services under an IEP virtually.”
Impact & Recommended Next Steps
This decision emphasizes the unintended consequences of AB 130 and the novel terrain being navigated by school districts to ensure its students with disabilities have equitable access to programming but, are also provided with the free appropriate public education the law guarantees them. This court order applies only to the specific group of disabled students listed within it. However, in consideration of the order and the likelihood of upcoming CDE guidance on this issue, we recommend that, to the extent school districts have not been already doing so, they begin reviewing logistics and appropriate infrastructures to support virtual instruction with IEP accommodations for disabled students in their respective districts. This recommendation aligns with our previous guidance and the current CDE FAQs directing school districts to establish and implement independent study in an individualized and accessible manner.