On the Call: General Education Accommodations

Erin and Jeremy discuss the rules of the game when it comes to general education and implementation of accommodations so that no one ends up offsides. They kick around a recent case from Pennsylvania which resulted in a yellow card for a district that did not properly promulgate policies and procedures to the general education staff related to students in special education classes. They also reiterate some important training points so you are sure to get the ball down the field and into the goal as a team! 

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.





Welcome Back for Season 2! On the Call: FERPA

School’s back in session and so is On the Call! Welcome to the second season of On the Call. In this episode, Erin and Jeremy cover the “F” word and what happens when a mistake is made under FERPA. They share an example of a recent mistake made by a school district in Michigan, how it was quickly addressed, and the SPPO’s response to their efforts. They share some best practices for determining “who needs to know what” so that you can feel like Superman when dealing with sensitive information.

Please email podcast@ennisbritton.com with your questions and any topic ideas you would like to share for the upcoming season. Be one of the first ten to send us an idea, coffee will be on us! We’ll send you a coffee gift card to enjoy while listening to the podcast.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.





On the Call Podcast: Field Trips

On The Call: Field Trips

by Jeremy Neff & Erin Wessendorf-Wortman

Make sure your permission slip is signed and your seat belt is fastened as Jeremy and Erin take us on the field trip roller coaster ride in this season’s final episode. They share insights about the laws covering field trips under 504 and IDEA and complications you should consider when planning your end-of-year outings. Included in the discussion is a recent case from Long Beach, California which highlights safety considerations and when denying participation might be appropriate. They also provide practical tips and encourage you and your team to think critically about how a disability might impact the trip.

You can also listen here or wherever you get your podcasts.

Thank you for joining us for the first season! Be sure to subscribe on your favorite podcast platform so you will be notified when the second season is back. Please email podcast@ennisbritton.com with your questions and any topic ideas you would like to share. We look forward to continuing the conversation in the fall!


On the Call Podcast: Extracurricular Activities

On The Call: Extracurricular Activities

by Jeremy Neff & Erin Wessendorf-Wortman

Go Team! Whether it’s cheerleading, football, e-sports or D&D, ensuring your coaches and club advisors have the proper game plan for extracurricular activity participation can keep you out of the penalty box. Erin and Jeremy cover some of the significant guidance provided under 504 related to extracurriculars and share a recent OCR matter from Georgia which highlights all the right things to do so you won’t have to yell D-E-F-E-N-S-E!

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.


Special Education Update: Court Limits Federal COVID-19 Litigation

Special Education Update: Court Limits Federal COVID-19 Litigation


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.