Hernandez v. Grisham (2020), FAPE, & COVID-19

On October 14, 2020 the United States District Court in New Mexico issued a ruling in the case of Hernandez v. Grisham.  One of the issues the court addressed was the provision of a FAPE during the COVID-19 pandemic.  One of the plaintiffs in the case, Shannon Woodworth, had a child with a learning disability who had an active IEP.  Unfortunately, the child did not receive all the services in the IEP because her home school was closed because the schools in New Mexico were shut down by order of the state’s governor, Lujan Grisham.  Because of COVID-19, educational services were provided remotely and students’ IEPs were amended to include only remote learning services.  Shannon Woodworth alleged that the school district denied her child a FAPE because some of the services in her child’s IEP could not be provided remotely and the child had regressed despite having remote instruction. 

Shannon Woodworth asserted that the school district needed to provide some in-person services for her child to receive a FAPE. The district court judge recognized that even though safety and health were very important considerations but for some students school closures and remote learning would not be effective and in-person instruction may be necessary.  Because Shannon Woodworth’s child had suffered severe educational loss when receiving only remote special education services, the judge held that the State Department of Education was to order the school district to revise the IEP to include in-person instruction and granted the parent’s request for an injunction to provide the student with a FAPE. The request for the injunction was granted because the judge believed that Shannon Woodworth was very likely to succeed in an IDEA claim that her child was not provided a FAPE. 

What does the decision mean for special education administrators and teachers?  First, a ruling from a U.S. District Court only applies to the district court’s jurisdiction, which in this case was the state of New Mexico.  Nonetheless as a ruling from a U.S. District Court, and one of the first to address the issue of FAPE and COVID-19, it is very likely to have persuasive authority in hearings or courts that encounter similar FAPE and pandemic-related issues.  Second, the ruling was a preliminary injunction issued because in the eyes of the court, the plaintiff was likely to succeed if she brought a denial of FAPE suit against the school district.  It is quite probable that this clear signal from a federal court judge that the district will lose in a FAPE case, will result in the child’s IEP being amended and in-person services be provided.  Third, this does not mean that all school districts should immediately require in-person services to all students with disabilities; rather, as always, students’ IEP teams must make decisions on the basis of the individualized needs of students.

Further information on this case and the importance of providing FAPE during the COVID-19 pandemic will appear in a future issue of Rethinking Behavior.

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