Updated August 26, 2020 - 8:03 pm
Parents of students in special education are suing the Clark County School District in federal court over distance learning, charging that CCSD failed to provide their children with an adequate education during school closures.
The class action lawsuit, filed on Aug. 21 in District Court, was brought by eight CCSD parents on behalf of their children, all of whom receive special education services defined by Individualized Education Plans. It also names Superintendent Jesus Jara, Region 1 Superintendent Dustin Mancl, the CCSD trustees and the district as defendants.
It alleges that since schools closed, CCSD has failed to provide a free and appropriate public education as defined by the Individuals with Disabilities Education Act and in conformity with students’ individual plans, which define such things as how many instructional minutes each student is supposed to receive, what kinds of supports they’re entitled to and any additional services or therapies deemed necessary.
“CCSD has either ignored or instructed parents with special need children that their only course of educational relief is to use the same screen based, distance learning program as other children,” the complaint said.
CCSD representatives said the district does not comment on pending litigation.
The plaintiffs are being represented pro bono by Bob Sweetin of the firm Davison Van Cleve. Sweetin is also the Mesquite city attorney.
Bid to reopen schools rejected
He said the primary remedy the plaintiffs are seeking is an order to reopen schools to allow students with special needs to go back to the classroom. A plan to do just that in the Mesquite area was rejected by the district out of equity concerns, Sweetin added.
If it’s not possible to reopen schools, Sweetin said, the plaintiffs want the district to turn over the funds it receives to educate students with special needsto allow them to seek education elsewhere. The lawsuit also asks to award plaintiffs pro bono attorney’s fees and other costs and seeks to force the district to make other changes, like allowing live public comment during board meetings.
“They want their children to be safe from COVID, but we believe we can properly socially distance and reopen schools,” he said. “The potential risks of not going to school and not getting an education outweigh the risks of COVID.”
Sweetin said that since March, the families that filed the lawsuit have experienced several frustrations, including communicating their concerns to the upper echelons of CCSD’s administration. One of the students included in the lawsuit, who has cerebral palsy, was told in her virtual physical education class to do jumping jacks, Sweetin said, while others have been told to type their names when they may not be responsive to their names, let alone know how to use a computer keyboard.
“We were hopeful that the district would do the right thing and provide a remedy for special needs students, but they didn’t, and not only that, they completely ignored special ed students,” he said.
CCSD is not the first district to face litigation over special education during school closures.
Similar cases have been filed in Hawaii, Pennsylvania and New York — the latter representing students nationwide, said Perry Zirkel, University professor of education law at Lehigh University, who writes about special education law on his blog.
Most of the lawsuits are still pending.
Law open to interpretation
Zirkel said the novelty of the situation will leave courts to interpret the law: They could decide that the provisions of federal special education law cannot be set aside during the pandemic because Congress did not offer a waiver to do so earlier this year. But they could decide COVID-19 poses such an emergency that districts can’t be expected provide all of the services they normally would.
A middle-ground approach, used in one Washington court case, would treat each complainant separately, determining which services they were denied and what they may be entitled to in compensatory education.
“COVID-19 is literally unprecedented. … Not only has it never happened before, we don’t have any court decisions to follow either,” Zirkel said.
While the U.S. Department of Education provided guidance in March, the wording left much open to the interpretation, Zirkel said, and is nonbinding. It asks districts to ensure to the greatest extent possible that students with special needs receive the services outlined in their plans.
“But what does possible mean?” he said. “It’s very ambiguous, because on one hand, it means every effort that isn’t impossible, whereas in the Washington case, they interpreted possible to mean every effort reasonably feasible.”