In October 2020, the United States District Court in New Mexico issued an important ruling related to COVID and IDEA in Hernandez v. Grisham, a case originally filed as a class action.
Plaintiffs challenged the state’s COVID-19 reentry policy for the public schools. The state’s policy gave schools discretion for in-person instruction if they met reentry criteria or with a priority, on a small-group basis, for K-3 students, students with disabilities, and students needing additional support.
Plaintiffs claimed that this policy did not provide for in-person instruction with sufficient uniformity and rapidity. The basis for their claims included the Fourteenth Amendment equal protection and due process clauses on behalf of students generally, and the IDEA for those students with disabilities.
The court singled out one plaintiff — the only plaintiff who had a student with disabilities — as having standing under the IDEA. That parent’s local school had remained closed and offered only remote instruction.
The student had not received all of the services in her IEP because all students’ IEPs were earlier amended to include only remote learning services. The parent 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, as a result, the child had regressed.
In a preliminary motion, the judge granted the parent’s request for injunctive relief to provide the student with a FAPE. The New Mexico State Department of Education was ordered to require that the local school district to revise the student’s IEP to include in-person instruction.
While the case is still pending, the judge’s willingness to grant injunctive relief indicates that the parent’s claim is likely to prevail as the trial proceeds.
