COVID-19 class action update: Current, resolved cases

Current suits and resolved cases revolving around pandemic-related school closures.
By: | November 16, 2020
Photo by Tingey Injury Law Firm via Unsplash.

COVID-19 class action update

Most FAPE claims arising out of the pandemic-related school closures will focus on the services provided to a specific student. In some instances, however, parents impacted by the school closures may seek more far-reaching relief. This could include a request for a court order reopening all schools for in-person instruction, a declaration that the educational agency in question violated the rights of all students with disabilities, or an order mandating enforcement of certain IDEA regulations. Use this chart to keep track of putative class actions relating to the extended school closures. (LRP links within this grid are only available to subscribers of specialedconnection.com)

Last updated: Nov.
16, 2020

Current
cases

Case name

Overview of complaint

Statute(s) at issue

Latest action

Hernandez v. Lujan Grisham,
No. 2:20-cv-00942-JB-GBW (D.N.M. 09/16/20, complaint
filed
).

The mother of a student with a
disability sued the State of New Mexico and three state officials on behalf of all students with disabilities in 10 school districts that remained closed for in-person instruction, alleging that the state denied those children FAPE by prohibiting schools from reopening. The parent asked the District Court for:

·

A declaration that the state officials violated the constitutional rights of all students in those 10 districts by prohibiting in-person instruction without a hearing or reasonable
justification.

·

A declaration that the state officials denied FAPE to students with disabilities in those districts.

·

A court order enjoining the state officials from prohibiting in-person instruction without providing “equal and acceptable alternatives.”

·

Reasonable attorney’s fees and expenses.

·

Section 1983 (IDEA and 14th
Amendment)

Nov. 5, 2020

The District Court denied the
governor’s and the education secretary’s motion to dismiss the parent’s Section 1983 claims, which alleged a violation of the student’s 14th Amendment right to due process, a violation of her 14th Amendment right to equal protection under the law, and a violation of her right to FAPE under the IDEA. However, the court dismissed the parent’s Section 1983 claims
against the state of New Mexico and its health secretary. Hernandez v.
Lujan Grisham
, 120 LRP 34107 (D.N.M. 11/05/20).

C.M. v. Jara, No.
2:20-1562-JCM-DJA (D. Nev. 08/21/20, complaint
filed
).

The parents of six unrelated
students with disabilities sued the Clark County (NV) School District,
its superintendent, and one of its region superintendents on behalf of all Nevada students eligible for special education services. According to the
parents, the district and its administrators violated the students’ IDEA and Section 504 rights by failing to offer an option other than virtual
instruction at the start of SY 2020-21. The parents are asking the District Court for:

·

A declaration that the
district’s back-to-school order was unlawfully enacted;

·

Unspecified damages; and

·

Attorney’s fees and costs.

·

Section 1983 (Section 504,
IDEA, FERPA, and 14th Amendment)

·

State law

Nov. 10, 2020

The District Court denied the parents’ ex parte motion for a temporary restraining order that would require the district to resume in-person instruction.
However, the court scheduled a hearing for Nov. 20 to discuss the parents’ motion for a preliminary injunction. C.M. v. Jara, 120 LRP 34536 (D.
Nev. 11/10/20).

W.G. v. Kishimoto,
1:20-cv-00154 (D. Hawaii 04/13/20, complaint
filed
).

The parents of four unrelated
students with disabilities sued the Hawaii Department of Education on behalf of all Hawaii children with IEPs and Section 504 plans. They
claimed the state ED denied the students FAPE by failing to provide necessary services and supports during the pandemic-related school
closures. The parents asked the District Court for:

·

A declaration that the state ED violated the students’ rights under the IDEA, Section 504, and the 14th Amendment’s Equal Protection Clause.

·

A court order requiring the state ED to develop a process with parameters for determining compensatory services for students with
disabilities when they return to in-person classes.

·

Attorney’s fees and costs.

·

Section 1983

·

IDEA

·

Section 504

Oct. 14, 2020

The District Court postponed the
parties’ scheduling conference to Jan. 5, 2021, based on the parties’ ongoing settlement negotiations.

Resolved
cases

Case name

Complaint overview

Statute(s) at issue

Latest action

J.T.
v. de Blasio
, No. 20 Civ.
5878 (S.D.N.Y. 07/28/20,
complaint
filed
).

The parents of students with
disabilities from 14 states sued every state and local educational agency in the country over their response to the COVID-19 pandemic.
They claim the districts denied the students FAPE by closing schools for in-person instruction. The parents are seeking:

·

A nationwide return to
in-person instruction.

·

Pendency vouchers for parents who arranged private services during the school closures.

·

Independent educational
evaluations of all students with disabilities.

·

Reimbursement for any expenses or loss of employment relating to the school closures.

·

Punitive damages for the agencies’ “intentional
and willful failure” to provide the students FAPE.

·

IDEA

·

Section 504

·

ADA

·

Section 1983 (IDEA and 14th
Amendment)

·

Racketeer Influenced and Corrupt Organizations Act

·

State law

Nov. 13, 2020

The District Court permanently
dismissed the parents’ civil RICO claims against all of the educational
agencies. It dismissed the parents’ IDEA, Section 504, ADA, and Section 1983 claims without prejudice, which will allow each parent to file claims on behalf of her child and only against her child’s district after she
seeks relief in an IDEA administrative proceeding. J.T. v. de Blasio,
120 LRP 35493 (S.D.N.Y. 2020).

Doe v. Wolf, No.
2:2020-cv-02320 (E.D. Pa. 05/18/20, complaint
filed
).

The parents of two unrelated
students with autism sued the Pennsylvania Department of Education, the state education secretary, and the governor on behalf of all nonverbal and partially verbal children with autism in the state who receive augmented or alternative communication supports. They claimed that the state ED “intentionally and/or with deliberate indifference” failed to ensure the students
received FAPE during the school closures. The parents asked the District Court for:

·

A court order directing the governor to classify in-person education of nonverbal and partially
verbal students with autism as a “life-sustaining” service
exempt from any statewide shutdown orders.

·

A declaration that the
governor violated the IDEA, Section 504, and the ADA by omitting
in-person instruction from the list of “life-sustaining” businesses.

·

Compensatory damages.

·

Attorney’s fees.

·

Any other equitable relief the court deemed “just, necessary, and proper” to protect the students
from further harm.

·

IDEA

·

Section 504

·

ADA

June 10, 2020

The District Court dismissed the
parents’ lawsuit without prejudice, meaning the parents may file again, after the parents filed a notice of voluntary dismissal.

Amy E. Slater, Esq., covers
special education legal issues
for LRP Publications.

Copyright 2020© LRP Publications