Simpson-Vlach v. Michigan Dep’t of Educ. (6th Cir. 5/11/23)
On May 11, 2023, the 6th Circuit Court of Appeals denied the request of a group of parents to issue an order governing special education services during future school closures like those that occurred due to COVID-19 in the spring of 2020. The court acknowledged that the parents, all of whom had children might have claims related to past denials of FAPE for their individual children, though such claims would almost certainly be subject to IDEA’s requirement to exhaust administrative remedies.
All of the parents were from Michigan where, like throughout the country, schools were closed for several months starting in March 2020. The parents all had children with IEPs, and argued that switching to remote learning during the initial response to COVID-19 amounted to a change of placement that violated IDEA and the Americans with Disabilities Act. They pointed to the lack of prior written notices about the switch as well as the lack of meaningful parental participation in the switch and in the designing of services for remote learning.
Additional claims were based on state law, as well as the federal Racketeer influenced and Corrupt Organizations Act (“RICO”). Notably, RICO is associated with prosecutions of organized crime (i.e. the mob). The argument of the parents was that school district officials and the state department of education conspired to falsely claim they were complying with IDEA during COVID-19 in order to secure “millions of dollars” in federal funding. Strangely, the only specific disbursement of IDEA funds cited by the parents was one made in August 2019 – well before COVID-19 caused school closures in March 2020.
This was not the first time that an IDEA lawsuit during COVID-19 made claims under RICO. The other suit, previously covered in Ennis Britton’s School Law Review, was J.T. v. de Blasio (S.D.N.Y. 2020). That case was effectively filed as a nationwide class action, and included districts in Ohio. The case was swiftly dismissed and widely criticized. The judge observed of the RICO claims “The utter implausibility of such a contention speaks for itself. No one knew that there was going to be a pandemic. It took the entire world by surprise.”
Returning to the recent 6th Circuit decision, the court observed that none of the IEPs for the students in effect at the time of the school closures specified that they were for in-person services. The court also found it significant that the students with disabilities were on equal footing with their typical peers – all switched to remote learning and back to in-person learning on the same schedule. While the complaint asserted RICO violations, the court focused on the basic legal standards to secure a court order regarding future closures. The court found that among other deficiencies, the parents failed to establish any meaningful likelihood of school closures in the future or of any particularized harm to the parents’ children. Without these elements, the parents’ suit could not proceed.
Regarding the RICO claims, one reason these types of claims have arisen in the unlikely area of special education law is that RICO grants treble (i.e. triple) damages. Along with attorney-fee shifting provisions in the involved federal laws this could allow for significant payments if such a lawsuit could manage to survive dismissal. As with the New York case, the Michigan case failed to advance to a point where an award of damages was considered.
What does this mean for your district?
The window for special education litigation related to the initial COVID-19 closures is largely closed. It would take a very unique set of facts to overcome the different statutes of limitations that would apply to IDEA, Section 504, and ADA claims. While more novel arguments, like those involving RICO, have been made, the courts have been quick to dismiss cases that seem to stretch the bounds of both the facts and the public policy purposes of the law. Because Ohio is part of the 6th Circuit this most recent decision is further assurance that while a minority of parents may see the swift action of schools to abate the risks of COVID-19 in the spring of 2020 as a criminal enterprise, the courts do not.