As part of its ongoing effort to secure vital in-person educational services for students with special needs amid the COVID-19 pandemic, on December 28, 2020, a Milbank LLP pro bono team filed a reply memorandum in its lawsuit against the Los Angeles Unified School District (“LAUSD”) in the Supreme Court of California. The Milbank team led by partner Alex G. Romain represents the Alliance for Children's Rights (“the Alliance”) and the Learning Rights Law Center (“Learning Rights”), which seek to compel LAUSD to provide safe, in-person instruction and assessments to students with special needs for whom distance learning is impossible.

After the Supreme Court directed LAUSD, on December 14, to respond to the organizations' petition for a writ of mandate, LAUSD filed its preliminary opposition on December 22, claiming that its December 10 suspension of all in-person services was within its discretion and in accordance with county and state public health guidance in light of the COVID-19 pandemic. Los Angeles Mayor Eric Garcetti's December 2 executive order issuing restrictive measures to stop the spread of COVID-19, however, expressly exempted special education services, among other important services. According to the reply memorandum, California's Senate Bill 98 (“SB 98”) requires school districts to provide in-person instruction and services whenever possible to those who experience the greatest learning loss as a result of the pandemic. The California and the Los Angeles County Departments of Public Health have also consistently maintained (since August 25 and September 2, respectively) that it is possible to have small-cohort in-person instruction services, with strict safety protocols.

In its opposition, LAUSD claims that the Alliance and Learning Rights want a “vague and sweeping order” that would reopen all schools. As the Alliance and Learning Rights reiterate in their December 28 filing, they seek only the in-person instruction and assessments that are currently approved by the local public health authorities. The organizations' brief also highlights that despite LAUSD's claim to the contrary, it has never complied with SB 98's mandate for in-person instruction and has offered only limited tutoring services.

Since filing, the Alliance and Learning Rights have garnered broad support for their petition from parents, disability rights organizations and subject-matter experts, resulting in the filing of 19 amicus curiae letters on behalf of the petitioners. Morgan Polikoff, associate professor (with tenure) at the University of Southern California's Rossier School of Education, highlights in one letter a recent survey where only 15% of Los Angeles teachers indicated that their schools were “often” meeting the needs of students with disabilities. Another amicus curiae letter submitted by the Disability Rights Education & Defense Fund details a survey of Los Angeles parents of disabled students, in which nearly 75 percent of respondents said their children were showing signs of regression resulting from distance learning. Adverse impacts have included forgetting the alphabet, behavioral meltdowns and self-injury.

“We will not accept the false choice presented by LAUSD: continuity of education for our most vulnerable students or the health of the broader school community,” said Mr. Romain. “We can and should have both. Our state and local public health authorities issued guidance months ago to safely educate students with special needs. That guidance is still in effect, but LAUSD has never provided the in-person instruction required by Senate Bill 98. It has been too long and these vulnerable students can wait no longer.”

The Alliance and Learning Rights are represented by a Milbank pro bono team which includes Mr. Romain, special counsel Mark Villaverde, associates Elena Kilberg, Emile Ayoub, David Jonas, Ben Nicholson, Mollie Galchus, Lou Testani, and law clerks Jordyn Paperny, Emily Clarke, and David Louison. The organizations are also represented by co-counsel Valerie Vanaman, of Newman Aaronson Vanaman, and Alexis Casillas, of The Law Offices of Alexis Casillas. Representatives for the Alliance include Ms. Braun and Angie Schwartz, Vice President, Policy and Advocacy. Representatives for Learning Rights include Ms. Janeen Steel.

Originally Published by Milbank, January 2021

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