We start to see some Covid-related cases

Today and tomorrow I’m going to tell you about two of the early cases that address how the pandemic is affecting education.   We knew this was coming, and these two cases, one from New York and one from Guam, are just the beginning of what is sure to be a boatload of legal challenges to how districts have handled this situation. 

The New York case involves a “stay put” order for a student with a disability that went into effect prior to the pandemic.   The parent had requested a special education due process hearing which automatically invokes the “stay put” rule, meaning there can be no change of placement while the hearing is pending.  That is routine and would never have caught national attention. But then….coronavirus happened. 

The New York City district wanted to switch to remote instruction for the student, as it was doing for all students.  So the parent sought an injunction requiring the district to provide the services outlined in the pendency order, which would mean in-person services. Thus this federal court in New York was one of the first to be presented with the issue: does a national health crisis override IDEA?  

I would not characterize the court’s ruling as a clear answer to that question.  The court granted the injunction…..sort of.  It held that the district was required to comply with the pendency order, providing in-person services “to the extent that they can be safely performed in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.” 

Hmmm. That leaves a lot of room for interpretation, no?  It looks to me that the district has to provide in-person instruction unless it gets written guidance from health officials stating that such services are not safe.  Furthermore, the court suggested that if the district had done a better job of explaining how the remote services could suffice, the outcome might be different. 

Unclear though it is, there are a few takeaways here. First, IDEA and all of its procedural guardrails remain in place.  Second, “guidance from health authorities” must be complied with.  This means that educators have to do two things simultaneously: serve the student appropriately while maintaining safety for all.   Easier said than done, and that leaves a lot of specific situations to be addressed as we calibrate those two mandates.

This one is L.V. v. NYC DOE, decided by the federal court for the Southern District of New York on July 17, 2020. We found it at 77 IDELR 13.  Tune in tomorrow for a ruling that is more clear.


Tomorrow: Covid-19 and the “stay put” rule.