The opinion
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3
4 E. E., et al., Case No. 21-cv-07585-SI
5 Plaintiffs,
ORDER RE: PRELIMINARY
6 v. INJUNCTION HEARING
7 STATE OF CALIFORNIA, et al.,
8 Defendants.
9
10 Plaintiffs’ motion for a preliminary injunction is scheduled for a hearing on December 2 at
11 11:00 a.m. The Court directs the parties to be prepared to address the following questions:
12
13 Students Covered By TRO
14 1. What has happened with the 15 students covered by the TRO? From the briefing it
15 appears that for at least some of these students, school districts planned to implement virtual
16 instruction this week. Has that happened, and how has it been implemented, including for students
17 at non-public schools?
18 2. Plaintiffs’ December 1 filing states that counsel have identified 11 additional
19 students from five school districts who need immediate relief. How many school districts are
20 involved among all the 26 students? When are plaintiffs filing declarations regarding these
21 students?
22
23 California Education Code
24 3. Cal. Educ. Code § 51745(a)(3) states that “independent study may include, but shall
25 not be limited to, the following . . . (3) Individualized alternative education designed to teach the
26 knowledge and skills of the core curriculum. Independent study shall not be provided as an
27 alternative curriculum.”
1 and that neither California nor federal law defines “alternative curriculum.” What is the State’s
2 position about the meaning of “Independent study shall not be provided as an alternative
3 curriculum”? Has the State provided any guidance to school districts about what this sentence
4 means?
5 4. Plaintiffs assert that AB 130 imposed the requirement that disabled students can only
6 participate in independent study if their IEPs provide for independent study. However, the School
7 Boards’ amicus brief at page 18 (Dkt. No. 54) states this is a longstanding requirement that predated
8 AB 130. Which is correct?
9 5. Cal. Education Code § 46393 (which relates to funding in the event of a school
10 closure due to an emergency) provides that school districts are required to have a plan for
11 independent study during closures and that the plan “shall comply with all of the following:
12 (1) Independent study is offered to any pupil impacted by any of the conditions listed
in Section 46392 [listing various emergency conditions, including “epidemic”]
13 within 10 days of the first day of a school closure or material decrease in attendance.
Pupils who are individuals with exceptional needs shall receive the services
14 identified in their individualized education programs pursuant to paragraph (9) of
subdivision (a) of Section 56345 and may participate in an independent study
15 program.”
16 (emphasis added).
17 Does this statutory requirement undercut the arguments about (1) the need for individualized
18 determinations about whether independent study is appropriate for each disabled student and (2) the
19 logistical and operational issues related to providing IEP services through independent study?
20
21 Administrative Exhaustion
22 6. On November 19, the Ninth Circuit issued an en banc decision in D.D. v. Los Angeles
23 Unified School District, __ F.4th __, 2021 WL 5407763 (9th Cir. Nov. 19, 2021) (en banc). The
24 court held that a disabled student who alleged that his school district violated the Americans with
25 Disabilities Act was required to exhaust administrative remedies under the IDEA because the
26 gravamen of the claim was the failure to provide a FAPE, notwithstanding the fact that he only
27 sought compensatory damages, a remedy not available under IDEA. The court reached that decision
1 that he needed to access his education, and that as a result he suffered loss of educational
2 || opportunity.
3 Here, the complaint alleges that the students need the services in their IEPs in a virtual setting
4 to access their education, and that the denial of that accommodation has resulted in a loss of
5 || educational opportunity. Defendants note that after the TRO, plaintiffs’ counsel emailed the school
6 || districts of the 15 students covered by the TRO requesting that the districts “prepare a written offer
7 || of FAPE for each student that utilizes virtual supports and instruction.” The proposed preliminary
8 || injunction order directs defendants to direct districts to provide virtual instruction “including direct
9 assistance from trained instructors, opportunities for interaction with peers, and the supports and
10 || accommodations in their IEPs needed for these students to meaningfully access their education” and
11 directing districts to notify families of their right to request compensatory education, which is an
12 || IDEA remedy. Why don’t these facts show that plaintiffs are in fact seeking relief available under
5 13 IDEA and therefore that exhaustion is required?
14 7. IDEA states that a parent can file an administrative due process complaint “with
3 15 respect to any matter relating to the identification, evaluation, or educational placement of [their]
16 || child, or the provision of a free appropriate public education to such child[,]” 20 U.S.C.
3 17 § 1415(b)(6). If a school district determines that FAPE can only be provided in-person and not
18 || through independent study, can a parent challenge that “educational placement” through the
19 administrative process?
20 8. Is it correct that as a result of AB 130, disabled students attending non-public school
21 are precluded from accessing any form of virtual instruction even if the non-public school is willing
22 || and able to provide such instruction? Can these families seek relief through the IDEA administrative
23 process?
24
25 IT IS SO ORDERED.
Sun Mle
27 Dated: December 1, 2021
SUSAN ILLSTON
28 United States District Judge