In preparation for a program for Varsity Tutors on February 24, 2021, I have updated my research on COVID cases and updated our "COVID" webpage. In that process, there are two new developments that may be of interest. A NM 10th Circuit case is predicted to end up at the US Supreme Court. The other is a NV Decision by Review Officer Perry Zirkel. Both cases are on our website in this new COVID caselaw page at: https://www.wrightslaw.com/law/caselaw/covid/ Tenth Circuit case Hernandez v. Grisham and the State of New Mexico District Court Case # CIV 20-0942 JB\GBW. Tenth Circuit Case # 20-2176 On September 17, 2020, NM attorneys Blair Dunn and Marshall Ray filed a COVID, refusal to educate case against the State. In a 92 page opinion, District Court Judge Browring dismissed the case on December 18, 2020, explaining that "although the Supreme Court has explained that there is no general right to education, it has left open the question whether `a minimally adequate education is a fundamental right' . . . The Court declines recognize a new fundamental right to education in this case." (page 68) With regard to the numerous USDOE documents about COVID and FAPE, the Court said that "the guidance documents . . . are unpersuasive, because they lack thoroughness, valid reasoning, and consistency with prior guidance." (page 85) The case is now on appeal to the Tenth Circuit. I talked with Blair and Marshall last month and they believe that the District Court wrote the opinion in a manner such that the U.S. Supreme Court will be forced to hear the Tenth Circuit's decision because of the above positions regarding right to an education and refusal to consider the impact of the USDOE documents. (One of the attorneys clerked for Judge Browring and has a sense as to how he thinks.) Their initial thirty page brief was filed with the Tenth Circuit on Monday, February 22, 2021. They are seeking a preliminary injunction and addressed the COVID issues, right to an education, FAPE and LRE, closing with "if the student can’t, because of their disabilities be educated in a mainstream classroom that is conducted virtually, then the requirements of the law are not being met when the only mainstream classroom offered is a virtual classroom." We are watching this case closely. ******************************************** Nevada Review Decision Student v. Clarke County Sch. Dist. December 18, 2020 Law Professor Perry Zirkel has published numerous books and articles about special education law. He issues a monthly newsletter about spec ed law. I have known him since 1990 when I regularly attended his annual January seminars in FL. (Years later we had a personal falling out.) For many years he was a Review Officer in PA and now is a Review Officer in Nevada. Since last year he has published a number of documents about COVID and special education law and keeps abreast of decisions from the due process level to the Court of Appeals. As a Review Officer in Nevada, on December 18, 2020, he reversed a due process hearing officer and issued a pro-child ruling in regard to COVID and comp ed. It is well written and full of helpful legal citations. He explained that, for this current year beginning in August, 2020, "the District opted for distance education for all students. The distance learning consisted of both synchronous and asynchronous instruction, with the difference being availability for interaction with the teacher. The IEP team did not consider any other modality of instruction, such as in-person delivery via private contractors, for the Student." (pages 6-7) "On September 25, the District held the IEP meeting for the Student, which started with distribution of the previous draft but with the minutes filled in for the specially designed instruction, with the proposed amounts for synchronous and asynchronous distance delivery per a District directive. These allocations per week represented a notable reduction from the corresponding amounts in the previous IEP, causing a change from 49% to 32% of his time in special as compared with general education." (page 8) "[S]ince the issuance of the new IEP, the aforementioned lack of OT services has continued despite the unchanged IEP specification of 30 minutes per week." (page 8) "Moreover, for the pandemic period, neither Congress nor, in its more limited capacity, the U.S. Department of Education has provided any jurisdictional or FAPE exception for the pandemic period." (page 10) He found a predetermination of the IEP, explaining that "establishing of these amounts [of time for specialized instruction] based on the District’s prior cross-the-board determinations for synchronous and asynchronous learning without careful consideration of and customization to the Student’s individualized needs. . . the cross-the-board reduction of specially designed instruction in all four areas of the Student’s identified needs cannot be said to be 'reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.'" (pages 12-13) He chastised the school district for it's "failure to make any problem-solving efforts, such as arranging for a different OT provider" so that the child could receive the services "identified in his IEP." (page 15) As a part of the relief, he ordered that the parent could make "her own arrangements for a licensed occupational therapist" to be paid for by the District, and that the parent was awarded reimbursement and a new facilitated IEP meeting had to occur. Again, the detailed footnotes and case citations are quite helpful. ************************************************************** Hopefully these cases will be of interest. They are quite educational. Over time I expect to add more cases to this COVID caselaw webpage and I will update this text file accordingly or even create a specific webpage for it.