Geneva's Guidance

Powell, Youngblood & Taylor’s Special Education Practice Group Leader, Geneva Taylor was invited to speak on NBC affiliate KPRC Channel 2 Houston Newsmakers with Khambrel Marshall about the COVID-19 special education class action lawsuits, J.T., ET. AL. V. BILL DE BLASIO, ET. AL. The lawsuit seeks an order to force schools to open for in-person instruction for special education students or, in the alternative, provide private school vouchers. Ms. Taylor advocated for public education and discussed the merits of the case.

In the interview, Ms. Taylor praised the efforts of our Texas public schools and emphasized that the program provided to special education students must be individualized and there can be no one-size fits all approach. Ms. Taylor reminded viewers that families and parents should work collaboratively to develop a program for their students. She pointedly noted that taxpayer dollars are better spend in our classrooms rather than on costly litigation.

We believe in public education and we will continue to zealously advocate for public schools. PYT...

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Through a July 27, 2020 lawsuit, two New York attorneys filed the first of possibly many COVID-19 special education class action lawsuits which includes as a defendant the Texas Education Agency (“TEA”) and nearly, if not all, Texas Public Schools. The 350 pages included in the lawsuit alleges that every state education department and school district failed to provide a free, appropriate public education (“FAPE”) to students and discriminated against disabled students under the Individuals with Disabilities Education Act, (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504)”) and the Americans with Disabilities Act (“ADA”). Notably, the ADA does not apply to Texas public schools because they receive federal funding. The lawsuit further contends that all defendants violated students’ rights under the Civil Rights Act.

The lawsuit contains hundreds of allegations of fact against the various state education departments and school districts. Essentially, plaintiffs contend that the national school closures during the Spring of 2020 resulted in wholesale...

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Getting FERPA-Smart in the Virtual Learning World

As many Texas schools are being rapidly compelled into the virtual learning world, school districts should consider providing professional development to teachers on how to protect student privacy in the video or virtual world.

FERPA is the federal law that protects the privacy of personally identifiable information in students’ educational records. Current technology and telecommunication have expanded the opportunity for distance learning to virtually any student with internet and through pre-recorded video or telephone conference to student’s without reliable internet access. Many earlier technologies did not naturally lend themselves to concerns over student privacy because the nature of the technology did not automatically disclose names, photos, locations, or real-time video of students. Times have changed. Prudence suggests that school districts must equip their teachers with an understanding of how to protect the privacy of all students in the virtual world. We offer video professional development on FERPA...

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Statewide School Closures and Funding Quid Pro Quo Mark a Turning Point for Special Education

On March 19, 2020, Governor Greg Abbott announced a statewide order in response to new federal guidance from the Center for Disease Control (“CDC”) and a dramatic increase to the number of Texan’s infected and diseased from the COVID-19 Coronavirus. The order includes four limitations or prohibitions, including an executive order for the temporary closure of all Texas schools until, at the earliest, April 3, 2020. Notably, despite the statement made by Governor Abbott during the announcement, and suggestions from the media, the Executive Order is void of any requirement that school districts provide education during the closure.

Many superintendents agreed in the past weeks to provide distance learning in exchange for funding. However, some school districts had opted to remain open, and others were planning short term temporary closures such as extending their spring break and thereby not providing instruction during the brief shutdown. The Governor’s order has...

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While neither the United States Department of Education (“USDOE”), nor Texas Education Agency (“TEA”) has yet to provide specific guidance for public school district on providing educational services to students with disabilities during school closure, the following guidance is based upon federal and state law and best practices. PYT attorneys are available 24/7 during this crisis to answer any questions, prepare the below recommended written notices and waivers, and provide guidance specific to your school district. As always, we will continue to disseminate information and advice as soon as it becomes available.

Closing Schools and Not Providing Education During Closure

If a school district closes to prevent the spread of the COVID-19 Coronavirus (“Coronavirus”) and does not provide any educational services to the general education student population, then the school district is not required to provide services to students with disabilities during that time. If no education is provided during emergency closure, we recommend:

• The no service school...

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