And so it begins. While we have encouraged schools to focus on meeting student needs during the school closure and planning to meet student needs when we return to school buildings, we knew the temptation to jump ahead to compensatory education questions would be strong. Guidance documents from the U.S. Department of Education and ISBE have contributed to such concerns by stating that IEP teams will need to make individual compensatory education determinations for students when school resumes. Now, a putative class action lawsuit has been filed in Hawaii. The suit alleges that Hawaii denied students FAPE by failing to implement their IEPs during the school closure and seeks to establish a set of parameters and procedures to identify and address lost educational opportunities for students. While class action lawsuits and the specter of numerous due process complaints raise our collective blood pressure, we continue to advise that schools focus on doing their best to provide reasonable services to meet individual student needs, communicate with parents, and document, document, document. These actions will prepare schools to address requests for compensatory services if and when they come.
Here’s why we’re not too worried about lawsuits like the one in Hawaii. Legally, the suit has two big hurdles. The first is that the IDEA requires parents to exhaust their administrative remedies before filing suit in federal court, and that didn’t happen here. Exhaustion means parents need to file a due process complaint unless doing so would be futile. In this situation, a due process hearing is a better vehicle to determine whether an individual student was provided FAPE and, if not, what compensatory education would remedy the loss. Courts have previously denied attempts to use a class action to obtain compensatory services for large groups of students because individualized determinations are necessary under the IDEA. So the failure to exhaust is a significant weakness in the plaintiffs’ case against Hawaii.
The second hurdle is that the suit assumes a widespread denial of FAPE due to the school closure, which will not be true across the board. While some students may have experienced unreasonable delays in services or other problems, merely moving to remote learning is not an automatic denial of FAPE, especially when the change was mandated for all students by emergency orders during a pandemic. The Department of Education has acknowledged flexibility in methodology and how services are delivered during this challenging time. And as we have discussed, the FAPE standard includes consideration of the student’s circumstances. For some students, appropriate progress in light of school closures and stay at home orders will be different from appropriate progress in a traditional school setting. The suit’s claim that the school closure automatically led to a denial of FAPE for every student is unsupported.
Turning to the relief sought, the lawsuit explicitly claims that its purpose is not to burden the school system, but to avoid a flood of due process complaints and to push the state to create a system of procedures to determine compensatory services for students in a uniform and transparent manner. The lawsuit does not, however, propose any details of how such a system would work. Federal or state guidelines addressing responses to any lack of progress or regression may be forthcoming. In the meantime, planning to address these issues should be done locally, by schools and districts that know students and their needs.
While we disagree that universal compensatory education awards are warranted, developing a framework to assess and meet student needs as we continue with remote learning, move to a transitional stage, and ultimately return to school buildings is essential. In planning to address these issues, we encourage stakeholders to remember that the process will be ongoing. Schools cannot hold IEP or compensatory education meetings for every student in the first week we return to school. And minutes cannot be made up minute-for-minute; the days have only so many minutes and providing nonstop services before and after school and on weekends and breaks will not be possible or productive for students.
While the prospect of numerous and sizable compensatory education awards is daunting, schools can take steps now to minimize the risk. Providing reasonable, individualized services, communicating with parents, and documenting efforts and student progress, as well as planning to assess student needs and adjust programming as needed when we return to school buildings will help schools appropriately educate students during this time while also limiting exposure to compensatory education claims. For questions about these steps or any other issues, contact the authors of this post or any other member of our special education law team.