LAS VEGAS — Parents of special education students are suing the Clark County School District in federal court, charging that CCSD has failed to provide their children with an adequate education during COVID-19 school closures.
The class action lawsuit, filed Aug. 21 in district court, was brought by eight CCSD parents on behalf of their children who receive special education services defined by “individualized education plans.” It names CCSD Supt. Jesus Jara, Region 1 Supt. Dustin Mancl, the CCSD trustees and the district as defendants.
The case alleges since schools closed, CCSD has failed to provide a free and appropriate public education as defined by the Individuals with Disabilities Education Act in conformity with students’ individual plans, which define specific educational needs such as how many instructional minutes each of the students are supposed to receive, the kinds of support 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 stated. The plaintiffs are being represented pro bono by Bob Sweetin of Davison Van Cleve, who is also the Mesquite city attorney.
The remedy the plaintiffs seek is an order to reopen schools and allow special needs students to go back to the classroom. A plan to do that in the Mesquite area was rejected by the district out of equity concerns.
“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 needs to allow them to seek education elsewhere. The lawsuit also seeks to cover plaintiffs attorney’s fees and other costs and seeks the district to make other changes, in particular 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,” Sweetin said, adding “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 behind the lawsuit have experienced several frustrations, including an inability to communicate their concerns to CCSD administration. One of the students 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. 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 one in New York representing students nationwide. Most of the lawsuits are still pending, said Perry Zirkel, professor of education law at Lehigh University.
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. They also could decide COVID-19 poses such an emergency that districts can’t be expected to provide all the services they normally would.
In a Washington court case, the court treated 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 interpretation, and is nonbinding. It asked districts to ensure to the greatest extent possible that students with special needs receive the services outlined in their plans.