Lawsuits are being filed as a result of the COVID-19 pandemic, and the K-12 education arena is not being left out. Last month, we reported on a lawsuit brought against the Hawaii Department of Education alleging that disabled children in Hawaii have been denied a free and appropriate public education during school closures due to the COVID-19 pandemic. This month we report on two new lawsuits.

Chicago Teachers Sues DeVos and CPS Regarding Special Education Services During COVID-19

On May 19, 2020, the Chicago Teachers Union (“CTU”) filed a federal lawsuit against U.S. Secretary of Education Betsy DeVos and the Chicago Board of Education.

The lawsuit, which was filed in the U.S. District Court for the Northern District of Illinois, is based on CTU’s claims that the federal government and the Chicago Board of Education failed to provide adequate resources to ensure that students who receive special education services are still receiving appropriate services during school closures due to COVID-19. The lawsuit alleges that the failure to provide waivers or flexibility under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Action of 1973 “impose[s] unnecessary or impossible [] burdens” on large school districts—and thus on CTU members—during remote learning. The CTU is seeking an emergency injunction against the Chicago Board of Education to not require the review and/or revision of existing IEPs and Section 504 plans for the purpose of remote learning for the rest of the current academic year, and an emergency injunction against the U.S. Department of Education from enforcing regulations that require the Chicago Board of Education to require such review and/revision of IEPs and Section 504 plans.

Class-Action Lawsuit Filed Against College Board and Educational Testing Service for AP Exam Mishaps

On May 19, 2020, a class action lawsuit was filed against the College Board and the Educational Testing Service (“ETS”) in a federal U.S. District Court in California on behalf of students who took online Advanced Placement (“AP”) exams and had technical difficulty submitting their answers. The College Board owns the AP program, and the AP exams are created and administered by the ETS. Both are named as defendants in the lawsuit.

As a result of the COVID-19 pandemic, AP exams are being administered for the first time online at home, instead of at school. In addition to other changes to accommodate online testing at home, the AP exams were shortened from several hours to 45 minutes. When the College Board announced that AP exams would be administered online at home, concerns were raised about students who did not have access to computers, the internet, or quiet places to complete the exams, as well as concerns about students with disabilities who would not have appropriate accommodations. Critics also questioned the validity of the shortened exams.

The lawsuit alleges that the students’ inability to submit answers was the fault of the College Board and ETS, that the College Board ignored warnings of technical and other issues, and that the defendants engaged in a number of “illegal activities,” including breach of contract, gross negligence, misrepresentation, and violations of the Americans with Disabilities Act. The lawsuit demands the College Board score the test answers of students who can show the test was completed in time, instead of requiring them to retake the tests this summer. The lawsuit also seeks more than $500 million in compensatory damages as well as punitive damages.

The COVID-19 pandemic has significantly altered the manner in which school districts are able to deliver educational services to their students. Despite this, school districts still have an obligation to ensure that all students, including those eligible for special education and related services, receive a free and appropriate public education. We will continue to monitor developments in these cases and will provide additional updates.

Please contact any attorney in our Students and Special Education practice group with questions regarding the provision of special education services during school closures due to COVID-19. Please contact any attorney in our Labor/Personnel practice group on questions regarding union disputes during school closures due to COVID-19.