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  • Robert Lusk

COVID-Related Class Action Filed on Behalf of Special Education Students

Last year, a New York law firm attempted to file a nation-wide class action lawsuit on behalf of IDEA-eligible students whose educations were interrupted by COVID-related school closures and virtual instruction. The federal district court where the case was filed slapped-down the lawyers for the putative class members for trying to file a nation-wide case in New York but left open the door to a state-by-state class action approach. On June 30, 2021, Michigan’s class action lawsuit was filed in the United States District Court for the Eastern District of Michigan, Simpson-Vlach, et al. v Michigan Dep’t of Education, et al., Case No. 21-11532.

The case, filed on behalf of four IDEA-eligible students and their parents, alleges the Michigan Department of Education, the Washtenaw Intermediate School District, the Ann Arbor Public Schools, and their superintendents and special education directors, violated the following statutes and administrative regulations: the Individuals with Disabilities Education Act (IDEA), the Michigan Administrative Rules for Special Education (MARSE), Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act (ADA), Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA), the Equal Protection Clause of the Fourteenth Amendment, and, curiously, the Racketeer Influenced and Corrupt Organizations Act (RICO). Plaintiffs seek to certify as plaintiffs a class of all of Michigan’s IDEA-eligible students and their parents against a defendant class of all of Michigan’s intermediate and local school districts and, presumably, their special education directors. As relief, plaintiffs seek a host of remedies, including: a declaration that defendants violated the IDEA, MARSE, Section 504, the ADA, the PWDCRA, and the Equal Protection Clause; a declaration MDE failed to monitor and provide proper oversight for Michigan intermediate and local districts during the COVID-related closures and virtual instruction; the assignment of a court-appointed special monitor to oversee IEEs to determine the regression experienced by each and every one of Michigan’s IDEA-eligible students, to make recommendations to the court regarding compensatory education, and to ensure those recommendations are included in the students’ IEPs; and, of course, attorneys’ fees for plaintiffs’ attorneys.

Likely, the court will have to resolve two preliminary issues before litigation on the merits begins in earnest. The first is whether plaintiffs have exhausted their administrative remedies. Plaintiffs allege they are not required to, but defendants will undoubtedly take the opposite position. The second issue will be whether this case may proceed as a class action. This analysis will turn on several factors the court will have to consider, issue-by-issue. This will all take some time and, if plaintiffs’ overcome defendants’ exhaustion of administrative remedies arguments, will likely occur over a period of years.

While the parties hash out these issues, school districts would be wise to consider the guidance received from the United States Department of Education (DOE) in March 2020, when the shut-downs began. The attachments to DOE’s guidance directed that, after school resumed, school districts must make individual determinations as to what compensatory education (a/k/a recovery services) was necessary to address learning or skill acquisition was lost, slowed, or stalled by the closures and provide those services. School districts that follow this advice will find themselves ahead of the curve regardless how this case plays out in the courts.