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Judge Orders Schools To Offer Better Virtual Classes For Students With Disabilities

Seen from over her shoulder, a student sits in front of a laptop computer. On the screen, a teacher is signing in American Sign Language.
A student in Stamford, Connecticut, takes part in remote distance learning with her deaf education teacher.
(John Moore
Getty Images North America)
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This school year, parents in California who were worried about COVID-19 had only one alternative to in-person classes: enroll their child in “independent study” — a highly specialized program designed for students who can work with minimal supervision from a teacher.

But independent study “is not accessible to many children with disabilities,” a federal judge concluded this week in a pivotal ruling that echoed the objections of many special education advocates and even some school administrators.

U.S. District Court Judge Susan Illston’s decision on Monday means California schools will have to be far more flexible in serving students with intellectual or developmental disabilities when their parents opt them out of in-person instruction.

If independent study isn’t the right fit for a student with disabilities, the judge said schools must “consider different modalities of virtual instruction” for that student. Those alternatives include “participating via video conference in the class that the student would otherwise attend”; or providing an aide for the student, either at their home or virtually.

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Illston’s preliminary injunction orders California Department of Education officials to issue new guidance to schools reflecting her ruling by March 10.

[Parents] were faced with a choice: do I send my kids in person and risk their health and safety or do I keep them home with no education but be sure they’re safe? I would say a lot of our clients … chose to keep their child at home.
— Robert Borrelle, supervising attorney at Disability Rights California

The judge found the state’s original, “confusing” guidance is one reason why “scores” of students with disabilities appear to have been stuck at home without any instruction at all throughout the 2021-22 school year. She ordered the state to direct schools to reach out to chronically absent students with disabilities to inform them of their rights.

Officials at the California Department of Education — a defendant in the case — are “currently reviewing the order and its impacts,” said spokesperson Maria Clayton.

‘These Students Were Really Stuck’

The buildup to Monday’s ruling began last summer, in the waning days of (sorry if this word causes nauseating flashbacks) “distance learning.”

Under California’s distance learning law in 2020-21, schools were allowed to offer a wide range of remote classes — including “hybrid” classes that involved some in-person instruction and some online work. This was far from a perfect arrangement for students with disabilities, but at least the flexibility of distance learning was helpful.

In July 2021, the legislature limited that flexibility. Lawmakers passed Assembly Bill 130 with the goal of prompting all but the most medically fragile students to return to in-person classes. Under AB 130, those who were reluctant to go back could sign up for their school’s independent study program.

A woman in a green shirt conducts virtual teaching on a laptop.
FILE - A teacher at Sylvan Park Early Education Center leads an online lesson during the 2020-21 school year.
(Mariana Dale
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That’s when Robert Borrelle, a supervising attorney at Disability Rights California, said his organization’s special education hotline became flooded with calls.

A sweeping federal law guarantees every student with disabilities a “free and appropriate public education,” often requiring schools to offer lots of one-on-one attention to these students, often from specialists.

Many schools were at a loss for how to offer these individualized services to a student in independent study.

“Schools would deny placement in independent study,” said Borrelle, “because the children needed extensive accommodations. Of course, by law, independent study was the only remote learning option for children this school year.”

In many cases, parents felt their students’ disabilities made in-person instruction especially risky. Some students were medically fragile. Other parents worried their children might not follow mask rules.

“So,” Borrelle said, “these students were really stuck. Really stuck.”

An End-Run Around The Law?

In Sept. 2021, Borrelle helped a group of students with disabilities, the Disability Rights Education & Defense Fund and The Arc of California sue state officials in federal court.

Their lawsuit argued that California had discriminated against the plaintiffs by using the students’ disabilities as grounds for denying them placement in the only remote learning program available to them.

Issues have been compounded by a lack of information, or confusing information, from the state to the school districts about how to accommodate disabled students who require virtual instruction.
— Judge Susan Illston, U.S. District Court for Northern California

In November, Illston issued a preliminary ruling that applied only to the 15 students named as plaintiffs in the lawsuit. She ordered these students’ schools to offer the same “distance learning” accommodations as those students received during the 2020-21 school year.

In court filings last month, attorneys for the state had argued that plaintiffs had overstepped, saying the accommodations they were requesting “would require restructuring California’s current public education scheme.”

The state also argued that in taking the disability advocates’ side, the judge would allow parents to sidestep federal education law — which says parents must negotiate with schools over services and class placements, and seek the help of lower administrative courts to solve disagreements. Parents in special education will recognize this: the process of negotiating an individualized education program, or “IEP.”

“Plaintiffs seek an order,” the state argued, “that would require that a student with disabilities be placed in independent study at the unilateral request of the parent, without regard to whether … a [free and appropriate public education] could be provided to the student in independent study.”

‘Systemic Barriers’

In her ruling on Monday, Illston said the state did have a point: disagreements over individual decisions in individual IEP plans must be handled under the process outlined in federal law.

But Judge Illston again sided in favor of the disability advocates, ruling that students with disabilities “have encountered numerous barriers to accessing virtual learning that non-disabled students do not face.”

“Those issues have been compounded,” Illston wrote, “by a lack of information, or confusing information, from the state to the school districts about how to accommodate disabled students who require virtual instruction.” Her ruling was intended to break down these “systemic barriers.”

Because of this confusion, Illston noted, the plaintiffs have identified “potentially up to 200” students with disabilities who “have been unable to access virtual instruction this school year and have missed school, and in some cases, have lost public benefits.”

Borrelle explained parents he worked with “were faced with a choice: do I send my kids in person and risk their health and safety or do I keep them home with no education but be sure they’re safe?”

“I would say,” he added, “a lot of our clients chose the latter; they chose to keep their child at home.”

What questions do you have about K-12 education in Southern California?
Kyle Stokes reports on the public education system — and the societal forces, parental choices and political decisions that determine which students get access to a “good” school (and how we define a “good school”).