Lawsuit: Washington COVID-19 rules deny basic education to kids who can’t learn remotely

OLYMPIA, Wash. — Several Puget Sound families filed a lawsuit against the Washington State Board of Education and the Office of the Superintendent of Public Instruction Tuesday, challenging rules from those agencies in response to the coronavirus pandemic.

The petition for judicial review filed in Thurston County Superior Court said, “In response to the COVID-19 pandemic, the Washington State Board of Education and Office of the Superintendent of Public Instruction adopted emergency rules that strip away the basic education constitutionally required for every student. Petitioners seek to restore access to a basic education for children whose learning needs cannot be met remotely.”

The families, who live in Tacoma, Olympia and Normandy Park, have children in districts that are planning for remote learning when school resumes. They say some of their children rely on in-person support, such as paraeducators, for their education.

“Petitioners respectfully ask the court to immediately invalidate the rules as a shortcut around constitutional and statutory rights of students, so that the state will promptly develop and fully fund safe, adequate and fair solutions to the school system’s current health crisis,” the lawsuit said.

OSPI spokesperson Katy Payne said Wednesday morning: “We received the petition late yesterday afternoon and our legal team is reviewing it currently. As such, we don’t have a comment at this time.”

State Board of Education spokesperson Stephanie Davidsmeyer also said Wednesday morning they are “working with their legal team” and they “do not have a response at this time as it involves pending litigation.”

The OSPI’s rule April 29, the lawsuit said, “allowed school districts to receive full state funding for basic education in the 2019-20 school year without satisfying requirements for at least 180 school days and 1,000 instructional hours that year.”

Then the State Board of Education adopted a rule July 21 “to count remote modalities as ‘instructional hours’ for purposes of the 1,000-hour annual requirement,” the lawsuit said. “The rule changes the definition of ‘instructional hours’ for the entire 2020-21 school year although, by statute, an emergency rule may not last more than 120 days.”

The rule also said days where instructional hours are offered count toward the requirement for 180 school days.

“The OSPI rule interfered with and impaired the rights of petitioners’ children to receive a basic education in the spring,” the lawsuit said. “The board rule poses an immediate threat to their basic education rights in the fall.”

In March, the lawsuit said: “the petitioners’ children no longer could access a basic education, including special education and related services designed to meet their unique needs arising from disabilities. The petitioners were expected to take over services themselves, despite having full-time jobs and lacking educator training. Their children were not capable of self-directed learning. ... If the State Board of Education rule is upheld, they will experience another school year without the basic education that is constitutionally and statutorily required, and they will fall further behind peers.”

Adrienne Stuart, a Tacoma resident, helped file the petition after she was told a paraeducator would not be available to work with her son unless they were inside a school building, she told The News Tribune on Wednesday. Her son, who is 6, does not communicate by speaking.

He uses an “eye-gaze device to interact with the world,” the lawsuit said. “This device requires daily practice with his paraeducator and family, and guidance of an experienced speech language pathologist, which he was receiving at school before the closure.”

“When COVID hit, he was immediately cut off from his paraeducator, who he loved, and who he had a relationship with,” Stuart said. “That was just ripped away from him.”

In April and March, he “did not receive any speech language therapy, and no support from his 1:1 paraeducator, both services guaranteed in his Individualized Education Plan (IEP),” the lawsuit said. “He also did not receive occupational therapy or physical therapy from the school. Instead, he received a half hour of story time during a TEAMS call once per week. Parents were expected to independently deliver all educational services and related therapies during that time.”

The agencies, the families argue, didn’t have the statutory authority to make the rules and violated Article IX of the state constitution.

“It is the state’s paramount duty to fully fund a basic education for all Washington children, and offerings may not be scaled back for reasons unrelated to educational policy,” the lawsuit said. “... Remote services are inaccessible to those students with disabilities who need intense support in order to learn and make progress. Reliance on such services for all students violates the uniformity requirement by effectively cutting off basic education to certain populations.”

Stuart said she’s speaking out for more than just her family through the petition.

“If we lost my income, that’s not going to have as great of an impact on us as it is for the family who are working minimum wage jobs, trying to get by,” she said.

Stuart added that she worries about the impacts to marginalized communities, including students that rely on schools for meals and therapies.

“These kids are an afterthought,” she said. “Kids with disabilities are an afterthought.”

Gov. Jay Inslee and Superintendent of Public Instruction Chris Reykdal announced last week that distance learning will be strongly recommended, but not mandated, for schools in high-risk counties — those with more than 75 cases per 100,000 people over two weeks.

“Schools in these counties are strongly recommended to use distance learning with the option for limited in-person instruction in smaller groups with students with the highest needs, such as students with disabilities,” the governor said.

Inslee said the recommendation for moderate-risk counties such as Thurston (25 to 75 cases per 100,000 people) is to consider distance learning for most middle schoolers and high schoolers, and possibly in-person learning for elementary school students and students with special needs.

Cox Media Group