Coronavirus Disease 2019 (COVID-19) Response

The outbreak of COVID-19 has created legal issues for K-12 schools, colleges, universities, and educational servicers relating to issues as diverse as public health, student privacy, and financial accountability.

Please contact Vogel Law Firm to obtain timely advice and a strategy to ensure that the legal rights of the institution, as well as students, faculty, and staff, are protected.

Civil Rights and Discrimination

According to Assistant Secretary for Civil Rights Kenneth Marcus, in connection with COVID-19, there has been an increasing number of news reports regarding stereotyping, harassment, and bullying directed at persons perceived to be of Chinese American or, more generally, Asian descent, including students. Title VI of the Civil Rights Act of 1964 requires that every public school and institution of higher education that receives federal funds take appropriate action to investigate or otherwise determine what occurred when responding to reports of bullying and harassment of students based on actual or perceived race, color, or national origin. 

If a school’s investigation reveals that bullying or harassment based on actual or perceived race, color, or national origin limited or denied a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school, then the school must take prompt and effective steps reasonably calculated to end the bullying or harassment, and restore access to the educational program.

Clery Act and Campus Safety

Under certain circumstances, COVID-19 triggers the requirement under the Clery Act for institutions of higher education to issue “emergency notifications.” Emergency notifications are issued to students and employees upon an institution’s confirmation of a significant emergency or dangerous situation occurring on the campus that involves an immediate threat to the health or safety of students or employees.

Disciplinary Proceedings

K-12 schools and institutions of higher education have contractual and, in some cases, constitutional Due Process obligations in connection with disciplinary proceedings that were initiated against students, faculty, and staff. The outbreak of COVID-19 raises important issues concerning the schools’ ability to provide, and the accused’s ability to obtain, the appropriate legal protections at this time. 

Distance Education

The outbreak of COVID-19 has dramatically changed the manner in which students are educated at both the K-12 and higher education levels. Distance education (online learning) immediately became an indispensable mode of learning for students nationwide. K-12 school districts, independent schools, and institutions of higher education are entering into contractual agreements with providers of distance education or online program managers (OPMs), which govern the educational services and the terms of providing those services.

FERPA and Student Privacy

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. It applies to all school districts and public schools, as well as private and public institutions of higher education. Under FERPA, a parent or eligible student must provide written consent before the school or institution discloses personally identifiable information from a student’s education records, unless one of the exceptions to FERPA’s general consent rule applies. 

Under the health or safety emergency exception to FERPA’s general consent rule, schools and institutions may disclose, without prior written consent, personally identifiable information from student education records to appropriate parties in connection with an emergency, if knowledge of that information is necessary to protect the health or safety of a student or other individuals. If COVID-19 is determined to be a significant threat to students or other individuals in the community, then a school or institution in that community may determine that an emergency exists that justifies invocation of the exception.

Homeschooling

With virtually every K-12 student remaining at home during the outbreak of COVID-19, an increasing number of families are considering homeschooling their children going forward. State laws provide families the option to establish a home school in order to educate children outside the traditional school setting. We assist families in establishing home schools, and we have successfully represented families whose choice to home school their children was challenged in court by the school district and the local welfare services agency.

Individualized Education Programs (IEPs) and Section 504 Plans

Based on guidance provided by the U.S. Department of Education, if a public school district or charter school closes to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then it would not be required to provide services to students with disabilities during that same period of time. 

However, once school resumes, the school must make every effort to provide special education and related services to the child in accordance with the individualized education program (IEP) or Section 504 Plan. In addition, the IEP Team and the personnel responsible for ensuring FAPE to a student for purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed. 

If a public school district or charter school continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities have equal access to the same opportunities. Schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP or Section 504 Plan. This means that schools must continue to provide all of the services in the student’s IEP or Section 504 Plan, but the schools may provide the services in a different manner. Many disability-related modifications and services may be effectively provided online.

Shelter in Place or Lockdown Directives

An increasing number of states have issued “shelter in place” or “lockdown” directives that require the population to remain at home, with limited exceptions. These legal directives conflict with, or significantly alter, the obligation of a K-12 school or institution of higher education to provide educational services. Each directive must be examined to determine the institution’s rights and obligations, as well as the rights and obligations of students and employees. 

Tuition and Housing Refunds

Colleges and universities, as well as independent K-12 schools, have contractual obligations to students and families to provide educational services and/or housing. As a result of COVID-19, many institutions have ceased providing the same level, if any, educational services and/or housing. Each institution’s contractual arrangement – as evidenced by the enrollment agreement, catalog, and other documents – governs the legal rights of the parties.