E.E v. State of California, 3:21-cv-07585

Background

Plaintiffs are students with moderate-to-severe intellectual and developmental disabilities (IEPs) who allege heightened COVID-19 health risks from in-person school and seek virtual instruction as an accommodation.
California’s temporary pandemic law allowing broad distance learning lapsed; AB 130 (2021–22) designates Independent Study as the primary route for distance learning but bars automatic participation by students whose IEPs do not specifically provide for it.
Plaintiffs submitted evidence that many disabled students were denied Independent Study or offered virtual options without required IEP services, faced long IEP delays, missed substantial portions of the 2021–22 year, and in some cases lost public benefits.
Plaintiffs sued under the ADA and Section 504 (Rehabilitation Act); defendants (State, State Board, CDE) argued claims arise under IDEA and must undergo administrative exhaustion and that they lack authority over districts.
The court issued a TRO earlier; after briefing and a hearing, it found the balance of hardships tipped sharply for plaintiffs and granted a preliminary injunction directing the State to issue guidance, require LEA notices, and ensure access to virtual instruction (via Independent Study or reasonable modification) where parents determine in-person attendance poses health risks.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether disabled students whose parents determine in-person instruction is a health risk must be allowed to participate remotely (Independent Study or reasonable modification)	Students are being discriminated against when denied virtual options available to nondisabled peers; they need equivalent virtual instruction with IEP services	The State says Independent Study is available and districts must follow law; implementation decisions belong to LEAs/IEP teams	Court enjoined Defendants to ensure LEAs allow remote participation (Independent Study or reasonable modification) when parent determines health risk, unless it would be a fundamental alteration
Whether plaintiffs’ claims are governed by IDEA (requiring administrative exhaustion) or by the ADA/Rehabilitation Act	Challenges to State-imposed barriers to access (systemic) arise under ADA/Section 504 and are not IDEA-exclusive	State: disputes arise under IDEA and must be exhausted through the IDEA administrative process	Court: systemic, State-level access claims under ADA/Section 504 do not arise under IDEA; individual IEP-placement challenges do require IDEA exhaustion
Whether the Independent Study “alternative curriculum” language categorically excludes students on alternative standards from Independent Study	Language has been used to exclude moderate-to-severe disabled students and those on alternative curricula from Independent Study	State contends the statute does not categorically bar such students, but could not clearly define the provision	Court: treated the statutory language as a barrier in practice and ordered guidance clarifying that Independent Study may include students using California Alternative Assessment standards and that the limitation does not categorically exclude them
Whether students at non-public schools can receive virtual instruction and whether AB 130 precludes that	Families were told non-public schools cannot provide virtual instruction because Independent Study is the only route	State repeatedly stated nothing in law prevents non-public schools from providing virtual instruction	Court ordered guidance that non-public schools may provide virtual instruction as a reasonable accommodation and that such arrangements can be valid and reimbursable

Key Cases Cited

Updike v. Multnomah Cty., 870 F.3d 939 (9th Cir. 2017) (stating public entities must make services accessible to people with disabilities; cited for ADA/Section 504 affirmative obligation)