E. E. v. California

570 F.Supp.3d 759

E. E., et al., Plaintiffs,

v.State of CALIFORNIA, et al., Defendants.

Case No. 21-cv-07585-SI

United States District Court, N.D. California.

Signed November 4, 2021

Melinda Ruth Bird, Lauren Misako Lystrup, Robert John Borrelle, Jr., Disability Rights California, Los Angeles, CA, Claudia Center, Disabiltiy Rights Education and Defense Fund, Berkeley, CA, David W. German, Vanaman German LLP, Sherman Oaks, CA, for Plaintiffs.

Anthony Pinggera, Los Angeles, CA, Jennifer A. Bunshoft, Department of Justice Office of the Attorney General, San Francisco, CA, Depar Kevin L. Quade, Department of Justice, Sacramento, CA, for Defendant State of California.

Jennifer A. Bunshoft, Department of Justice Office of the Attorney General, San Francisco, CA, for Defendant California State Board of Education.

Jennifer A. Bunshoft, Department of Justice Office of the Attorney General, San Francisco, CA, Depar Kevin L. Quade, Department of Justice, Sacramento, CA, for Defendant California Department of Education.

ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

SUSAN ILLSTON, United States District Judge

On November 4, 2021, the Court held a hearing on plaintiffs’ motion for a temporary restraining order. For the reasons set forth below, the Court GRANTS the motion. As discussed at the hearing, the Court set the following schedule on plaintiffs’ request for a preliminary injunction: defendants’ opposition is due November 18, plaintiffs’ reply is due November 22, and the hearing is scheduled for November 30 at 11:00 a.m. This TRO shall remain in effect until resolution of the motion for preliminary injunction.

BACKGROUND

On September 28, 2021, plaintiffs filed this class action lawsuit against the State of California, the California State Board of Education, and the California Department of Education. Plaintiffs are students with disabilities and an organization that advocates for disabled students and their families, and they bring suit on behalf of "All California students who, now or in the future, have an Individual Education Plan and whose parent, guardian or education rights holder has determined that in-person instruction would put the student at risk." Compl ¶ 21.¹ The complaint challenges a state law – Assembly Bill 130 – that was passed in July 2021 and that provides that Independent Study is the primary avenue for distance learning 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 claim that as a result of AB 130, they are being denied the accommodation of virtual access to school, resulting in numerous students who have missed significant portions of the 2021-2022 school year because they cannot safely attend school in person.

Plaintiffs allege that during the 2020-2021 school year, students with Individual Education Plans ("IEPs") had "distance learning plans" that reflected how the services in their IEPs would be provided during the COVID-19 pandemic. At the beginning of the COVID-19 pandemic in 2020, California enacted new statutes to ensure that school districts offered students access to distance learning. Cal. Educ. Code § 43500 et seq. Under this program,

(b) Distance learning shall include all of the following:

...

(3) Academic and other supports designed to address the needs of pupils who are not performing at grade level, or need support in other areas, such as English learners, pupils with exceptional needs, pupils in foster care or experiencing homelessness, and pupils requiring mental health supports.

(4) Special education, related services, and any other services required by a pupil's individualized education program pursuant to Section 56341, including the requirements of subparagraph (A) of paragraph (9) of subdivision (a) of Section 56345, with accommodations necessary to ensure that individualized education program can be executed in a distance learning environment.

Cal. Educ. Code § 43503(b)(3)-(4).

According to plaintiffs, "in the 2020-21 school year, students with Individualized Education Programs (‘IEPs’) had ‘Distance Learning Plans’ that explained how their school district would provide the supports and related services they needed to learn." Compl ¶ 32. The distance learning provisions that California adopted in 2020 had a sunset date of June 30, 2021. Cal. Educ. Code § 43511(b).

I. AB 130

AB 130 was adopted on July 9, 2021, and amended various provisions of the California Education Code relating to Independent Study. As amended by AB 130, California Education Code section 51745 provides in relevant part,

(a) Commencing with the 1990-91 school year, a local educational agency may offer independent study to meet the educational needs of pupils in accordance with the requirements of this article. For the 2021-22 school year only, the governing board of a school district or a county office of education shall offer independent study to meet the educational needs of pupils. Educational opportunities offered through independent study may include, but shall not be limited to, the following:

...

(3) Individualized alternative education designed to teach the knowledge and skills of the core curriculum. Independent study shall not be provided as an alternative curriculum.

...

(6) Individualized study for a pupil whose health would be put at risk by in-person instruction, as determined by the parent or guardian of the pupil, or a pupil who is unable to attend in-person instruction due to a quarantine due to exposure to, or infection with, COVID-19, pursuant to local or state public health guidance.

...

(c) An individual with exceptional needs, as defined in Section 56026, shall not participate in independent study, unless the pupil's individualized education program developed pursuant to Article 3 (commencing with Section 56340) of Chapter 4 of Part 30 specifically provides for that participation.

...

Cal. Educ. Code § 51745 ; see also Cal. Educ. Code § 57149.5(a)(7) ("An individual with exceptional needs, as defined in Section 56026, shall not participate in course-based independent study, unless the pupil's [IEP] developed pursuant to [the state special education statute] specifically provides for that participation.").

On October 12, 2021, the California Department of Education ("CDE") issued guidance about AB 130. Calomese Decl., Ex. B (Dkt. No. 26-2). Heather Calomese, Director of the Special Education Division at CDE, states,

Immediately after the enactment of AB 130, which expanded the Independent Study statutes for the 2020-21 school year, the CDE began working on FAQs regarding the implementation of Independent Study on this broader scale. When CDE became aware of claims that some [local education agencies "LEAs"] may be misinterpreting the independent study requirements to categorically preclude students with disabilities from participating, on October 12, 2021, CDE issued clarifying guidance in the form of "Assembly Bill 130 Independent Study FAQs." The guidance confirms that independent study is available for students with disabilities, if the IEP team determines that a [free appropriate public education "FAPE"] can be provided with academic and other supports in independent study. It further explains that "nothing in the statute supports imposing a condition that a student is required to complete work independently in order to qualify for independent study." It also confirms that independent study is a change of placement for a special education student, requiring an agreement of the parent/district in an IEP meeting or via amendment of the IEP without a meeting.

Calomese Decl. ¶ 15 (Dkt. No. 26); see also id. Ex. B ("FAQs").

II. Plaintiffs’ Claims and Evidence

The complaint alleges causes of action under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. , and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794(a). Plaintiffs allege that defendants are discriminating against students with disabilities in violation of the ADA and the Rehabilitation Act because AB 130 effectively excludes a group of COVID-vulnerable disabled students from public school in the state by denying them the accommodation of a safe way – distance learning – to access their education. Plaintiffs contend that the Independent Study program is not accessible to students with disabilities because, inter alia , (1) Independent Study can only be authorized for a disabled student who has an IEP after that student's IEP team has determined that Independent Study is appropriate, and the IEP process is time-consuming and disabled students are not receiving any instruction in the interim unless they attend in-person school that risks their health; (2) Independent Study is only available to students who are studying the "core curriculum," yet many disabled students are studying an alternate curriculum, such as students with moderate to severe disabilities, including those with intellectual and developmental disabilities; and (3) Independent Study is designed for students who have the ability to work independently and thus excludes disabled students who need adult assistance and other accommodations to learn, such as students with intellectual and developmental disabilities. Plaintiffs assert that since the beginning of the 2021-2022 school year, disabled students throughout the state have requested to participate in distance learning through the Independent Study program and that those requests have been denied, forcing these students to choose between in-person schooling that places their health at risk due to possible exposure to COVID-19 or staying at home and foregoing their education.²

The named plaintiffs, E.E. and I.N., are...