Supreme Court of California

Supreme Court of California

Jorge E. Navarrete, Clerk and Executive Officer of the Court

Jorge E. Navarrete, Clerk and Executive Officer of the Court

Electronically RECEIVED on 12/11/2020 at 1:27:50 PM

Electronically FILED on 12/11/2020 by M. Chang, Deputy Clerk

S266055

Case No.: ______________

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Alliance for Children’s Rights and Learning Rights Law Center,
Petitioners,
v.
Los Angeles Unified School District and Austin Beutner,
in his official capacity as Superintendent of the Los Angeles Unified
School District,
Respondents.

PETITION FOR EXTRAORDINARY RELIEF, INCLUDING
WRIT OF MANDATE AND REQUEST FOR IMMEDIATE
INJUNCTIVE RELIEF;
MEMORANDUM OF POINTS AND AUTHORITIES
IMMEDIATE STAY OR INJUNCTIVE RELIEF REQUESTED
MILBANK LLP
Alex G. Romain (SBN 314694)
Elena Kilberg (SBN 248507)
2029 Century Park East, 33rd Floor
Los Angeles, CA 90067
Telephone: (424) 386-4000
Facsimile: (213) 629-5063

NEWMAN AARONSON VANAMAN
Valerie Vanaman (SBN 042406)
4001 Ventura Boulevard
Sherman Oaks, CA 91423
Telephone: (818) 990-7722
Facsimile: (818) 501-1306

LAW OFFICES OF ALEXIS
CASILLAS
Alexis Casillas (SBN 259148)
510 S. Marengo Avenue
Pasadena, CA 91101
Telephone: (323) 614-5447
Facsimile: (323) 417-5114

Attorneys for Petitioners Alliance for Children’s Rights and
Learning Rights Law Center

 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Petitioners hereby certify that they are not aware of any
person or entity that must be listed under the provisions of
California Rule of Court 8.208(e).

2

 TABLE OF CONTENTS
Page
FACTS........................................................................................................ 13
CLAIMS ASSERTED ............................................................................. 27
RELIEF SOUGHT .................................................................................. 28
VERIFICATION ...................................................................................... 31
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PETITION OF EXTRAORDINARY RELIEF,
INCLUDING WRIT OF MANDATE AND REQUEST FOR
IMMEDIATE STAY OR INJUNCTIVE RELIEF ........................ 32
Introduction .................................................................................... 32
I.

II.

Petitioners Have Standing to Enforce Respondents’
Statutory Duties. ................................................................. 34
A.

Petitioners Have a Beneficial Interest in Securing
Statutorily-Mandated Services for LAUSD’s Students
with Disabilities ......................................................... 34

B.

Petitioners Have Public Interest Standing in
Securing Statutorily Mandated Services for LAUSD’s
Students with Disabilities ......................................... 35

A Writ Should Issue Requiring LAUSD to Comply with the
Legislative Mandate to Provide In-Person Instruction
“Whenever Possible” During the Pandemic. ...................... 36
A.

Classroom-Based Instruction in Small Cohorts Has
Been “Possible” Since September of 2020 When
Public Health Authorities Deemed it Safe If/Where
Conducted in Accordance With Safety Protocols ..... 36

B.

LAUSD Has a Duty and Must Be Compelled to Offer
Classroom-Based Instruction to High-Needs
Students, Consistent with Public Health Guidance. 42

C.

LAUSD Has Failed to Ensure that Special Education
Programs (Including Assessments) Could Be
Executed in a Distance Learning Environment ....... 47

D.

LAUSD Has Failed to Meet its Procedural Duty to
Ensure that NPAs and NPSs Can Provide In-Person
Instruction and Services ............................................ 50
3

 III.

IV.

It is Necessary and Proper for this Court to Exercise its
Inherent Authority to Provide Extraordinary Relief in this
Situation ............................................................................... 52
A.

This Petition Presents a Matter of Sufficiently Great
Importance to the People of the State of California 52

B.

A Speedy Determination on this Petition is Necessary
Because Children Are Suffering Irreparable Harm 53

Petitioners’ Claims Are Not Subject to or Are Otherwise
Exempt From Administrative Remedies ............................ 58
A.

Exhaustion is Not Required ...................................... 58

B.

Exhaustion is Excused Because This Petition Seeks
Systemic Relief That Cannot be Addressed by
Administrative Remedies. ......................................... 61

C.

Exhaustion is Excused Because LAUSD has Adopted
a Policy of General Applicability That is Contrary to
the Law. ...................................................................... 64

4

 TABLE OF AUTHORITIES
Page(s)
Cases
Action Apartment Ass’n v. Santa Monica Rent Control Bd.,
94 Cal. App. 4th 587 (2001) ..................................................................................... 63
Bd. of Soc. Welfare v. County of Los Angeles,
27 Cal. 2d 98 (1945) .................................................................................................. 35
California Redevelopment Assn. v. Matosantos,
153 Cal. 4th 231 (2011) ....................................................................................... 36, 52
Christopher S. v. Stanislaus County,
384 F.3d 1205 (9th Cir. 2005)............................................................................. 65, 67
City & Cty. of San Francisco v. Patterson,
202 Cal. App. 3d 95 (Ct. App. 1988) ...................................................................... 37
Doe By and Through Brockhuis v. Ariz. Dep’t of Educ.,
111 F.3d 678 (9th Cir. 1997)..................................................................................... 64
Everett H v. Dry Creek Joint Elem. Sch. Dist.,
No. 2:13-cv-00889-MCE-DB, 2016 U.S. Dist. LEXIS 136270 (E.D.
Cal. Sep. 29, 2016) .................................................................................................... 62
Fry v. Napoleon Cmty. Sch.,
37 S. Ct. 743 (2017) ............................................................................................. 59, 60
Hall v. City of Taft,
47 Cal. 2d 177 (1956) ................................................................................................ 37
Hernandez v. Grisham,
No. CIV 20-0942 ....................................................................................................... 66
Hoeft v. Tucson Unified Sch. Dist.,
967 F.2d 1298 (9th Cir. 1991)....................................................................... 64, 65, 67
J.G. v. Bd. of Educ. of Rochester City Sch. Dist.,
830 F.2d 444 (2d Cir. 1987) ...................................................................................... 65
Jose P. v. Ambach,
669 F.2d 865 (2d Cir. 1982) ...................................................................................... 65

5

 Knoff v. City etc. of San Francisco,
1 Cal. App.3d 184 (1999) ......................................................................................... 63
Martinez v. Newsom,
5:20-cv-01796-SVW-AFM (C.D. Cal. Nov. 24, 2020) ........................................... 66
McIntyre v. Eugene Sch. Dist. 4j,
976 F.3d 902 (9th Cir. 2020)..................................................................................... 59
Modesto City Schools v. Education,
123 Cal. App. 4th 1365 (2004) ................................................................................. 46
N.D. et al. v. State of Haw. Dep’t of Educ.,
600 F.3d 1104 (9th Cir. 2010)................................................................................... 64
J.S. ex rel. N.S. v. Attica Cent. Sch.,
386 F.3d 107 (2d Cir. 2004) ...................................................................................... 65
In the Matter of Parent on Behalf of Student v. Placentia-Yorba Linda
Unified Sch. Dist.,
OAH Case No. 2014061022 (2014) ......................................................................... 64
Payne v. Peninsula Sch. Dist.,
653 F.3d 863 (9th Cir. 2011)..................................................................................... 59
People v. Picklesimer
48 Cal. 4th 330 (2010) ............................................................................................... 36
Reidy v. City & Cnty. of San Francisco,
123 Cal. App. 4th 580 (2004) ................................................................................... 63
Save the Plastic Bag Coal. v. City of Manhattan Beach,
52 Cal. 4th 155 (2011) ............................................................................................... 35
Student A v. Berkeley Unified Sch. Dist.,
No. 17-cv-02510-JST, 2017 WL 4551514 (N.D. Cal. 2017) ............................. 65, 66
Student A. v. SFUSD,
2020 WL 571052........................................................................................................ 68
T.H. v. Bd. of Educ. of Palatine,
55 F. Supp. 2d 830 (N.D. Ill. 1999) ......................................................................... 54
Venice Town Council, Inc. v. City of Los Angeles,
47 Cal. App. 4th 1547 (1996) ....................................................................... 44, 45, 63

6

 Wenke v. Hitchcock,
6 Cal. 3d 746 (1972) .................................................................................................. 36
Constitutions
Cal. Const. Article VI, § 10 .................................................................................. 9, 10, 52
Cal. Const. Article IX, § 14 ............................................................................................ 37
Statutes
20 U.S.C. § 1313(b)(6) ..................................................................................................... 61
20 U.S.C. § 1415(b)(6) ..................................................................................................... 62
ADA ................................................................................................................................. 65
Cal. Educ. Code
§ 43503(a)(2).............................................................................................................. 15
§ 43503(b)(4) ...................................................................................................... passim
§ 43504 ....................................................................................................................... 38
§ 43504(b) ........................................................................................................... passim
§ 43504(f)(2) .............................................................................................................. 67
§ 43509 ....................................................................................................................... 38
§ 43509(f)(1)(A).................................................................................................. passim
§ 51747(c) .................................................................................................................. 46
§ 56000 ....................................................................................................................... 12
§ 56341 ............................................................................................................. 9, 28, 47
§ 56345(a)(9)(A) .............................................................................................. 9, 28, 48
§ 56501 ....................................................................................................................... 61
§ 56501(a) .................................................................................................................. 62
§ 56504.5 .................................................................................................................... 61
§ 56505(i) ................................................................................................................... 61
Civ. Proc. Code § 1085 ......................................................................................... 9, 10, 36
Civ. Proc. Code § 1086 ................................................................................................... 36
Gov. Code § 65590.................................................................................................... 44, 45
IDEA ......................................................................................................................... passim
Senate Bill 98 ............................................................................................................ passim

7

 Court Rules
California Rules of Court Rule 8.490 ........................................................................... 10
Other Authorities
5 C.C.R. § 3000(b) ............................................................................................... 16, 28, 50
5 C.C.R. § 3062(e)................................................................................................ 17, 28, 50
34 C.F.R § 300.148 ........................................................................................................... 62
34 C.F.R. § 300.512 .......................................................................................................... 61
A Lost Generation, Washington Post............................................................................. 43
Executive Order
N-26-20 ................................................................................................................ 13, 52
N-33-20 .......................................................................................................... 13, 14, 19
Fenske, et al., “Age at Intervention and Treatment Outcome for
Autistic Children in a Comprehensive Intervention Program,”....................... 54
School Campuses Will Remain Shuttered, Los Angeles Times ..................................... 14
Schools Are At Least As Important As Shopping Malls. Keep What’s
Open, Open, Los Angeles Times ....................................................................... 42, 43
We’ve Figured Out It's Safe To Have Schools Open, Let’s Keep Them
Way, Washington Post ............................................................................................ 55
When Schools Reopen Will You Send Your Child Back?, Los Angeles
Times ......................................................................................................................... 25

8

 PETITION FOR WRIT OF MANDATE AND REQUEST FOR
IMMEDIATE STAY OR INJUNCTIVE RELIEF
TO THE HONORABLE JUSTICES OF THE SUPREME
COURT OF CALIFORNIA:
PRELIMINARY AND JURISDICTIONAL STATEMENT
By this original Verified Petition for Writ of Mandate,
Petitioners the Alliance for Children’s Rights (“Alliance”) and the
Learning Rights Law Center (“Learning Rights”) hereby seek a
writ of mandate pursuant to California Constitution article VI,
section 10 and California Code of Civil Procedure Section 1085,
requiring Respondents Los Angeles Unified School District
(“LAUSD” or “the District”) and Austin Beutner, in his official
capacity as the Superintendent of LAUSD, to (i) implement
small-cohort in-person instruction to the maximum extent
possible (up to 25% of campus capacity), consistent with
cohorting guidance issued by the Los Angeles County
Department of Public Health on September 2, 2020 and as
required by CAL. EDUC. CODE Sections 43509(f)(1)(A) and
43504(b); (ii) resume in-person assessments and Individualized
Educational Program (“IEP”) services, with accommodations
necessary to ensure that students’ IEPs can be executed in a
distance learning environment, as required by CAL. EDUC. CODE
Section 43503(b)(4) (which mandates continued compliance with
CAL. EDUC. CODE Sections 56341 and 56345(a)(9)(A) during
school closures); and (iii) arrange for non-public agencies
(“NPAs”) and non-public schools (“NPSs”) to provide in-person
9

 special education, related services, and assessments to LAUSD
students who need it, consistent with cohorting guidance issued
by the Los Angeles County Department of Public Health on
September 2, 2020, whenever LAUSD is either unable or
unwilling to provide such education, services, and assessments.
This Petition is brought on the grounds that Respondents
are failing to meet their procedural obligations under California
law to provide in-person instruction for those who cannot access
the education curriculum through distance learning and to
provide special education assessments and services to qualified
students.
Petitioners respectfully invoke the original jurisdiction of
this Court pursuant to California Constitution article VI, section
10; California Code of Civil Procedure Section 1085; and Rule
8.490 of the California Rules of Court. Petitioners invoke that
jurisdiction because the issues presented here are of great public
importance and should be resolved promptly. It is in the public
interest to resolve the questions presented in this Petition and to
provide students with special needs in California with the
appropriate resources to avoid learning loss, prevent behavioral
regression, and protect students’ mental health and wellbeing.
This Petition presents no questions of fact for the Court to
resolve in order to issue the relief sought.

10

 THE PARTIES
Petitioner the Alliance for Children’s Rights is a non-profit
organization formed and existing under the laws of the State of
California, with its principal office presently located at 3333
Wilshire Boulevard #550, Los Angeles, California 90010. Alliance
provides free legal services and advocacy for caregivers, adoptive
parents, and children and teens in Los Angeles County’s foster
system. Alliance advocates for thousands of clients each year—
including abused, neglected, and vulnerable children and teens
in the foster care system, runaway and emancipating youth,
children who need guardians, and the families who step up to
care for them. In 2019, Alliance provided more than 6,400
children and young adults with critical legal advocacy and social
services, trained over 5,000 partners with timely information,
and advanced tremendous policy victories that have changed
lives for youth and families in the child welfare system.
Petitioner the Learning Rights Law Center is a non-profit
organization formed and existing under the laws of the State of
California, with its principal office presently located at 1625 West
Olympic Boulevard, Suite 500, Los Angeles, California 90015.
Learning Rights provides legal services to disadvantaged
students not receiving an equitable public education and
advocates for those who have been denied equal access to a public
education because of disability or discrimination. In 2019,
Learning Rights served more than 6,400 individuals including
students, parents, and stakeholders. Among these, 1,600 lowincome children with education-access issues, their parents, and
11

 other family members were served through its Education Rights
Clinic.
Petitioners Alliance and Learning Rights are non-profit
organizations committed to advocacy for vulnerable children and
educational equity, and they are interested in the enforcement of
Respondents’ procedural duties, given the devastating impact the
COVID-19 pandemic has had on hundreds of thousands of
students who attend schools within LAUSD and the 80,000
LAUSD students with disabilities and who need special
education.
Respondent LAUSD is a public-school district organized
and existing under the laws of the State of California. The second
largest school district in the nation, LAUSD enrolls more than
600,000 students in kindergarten through 12th grade, at over
1,413 schools, including 231 independent charter schools. See Ex.
44, “Fingertip Facts 2020-21) at 1, 2. As a local educational
agency (“LEA”), LAUSD is responsible for all obligations under
the California Education Code, Section 56000 et seq.
Respondent Austin Beutner is the Superintendent of
LAUSD. As LAUSD’s highest administrative officer, Respondent
Beutner shares responsibility with LAUSD to ensure that
LAUSD complies with all laws, including the California
Education Code. Respondent Beutner is sued in his official
capacity only.

12

 FACTS
COVID-19 Pandemic and State Response
On March 4, 2020, California Governor Gavin Newsom
declared a State of Emergency in response to the COVID-19
pandemic. Nine days later, he signed Executive Order N-26-20,
which permitted California’s local school districts to initiate
school closures. Ex. 6 (Executive Order N-26-20) at 1. That
executive order directed that California school districts would
continue to receive state funding if they “deliver[ed] high-quality
educational opportunities to students to the extent feasible
through, among other options, distance learning and/or
independent study.” Id. at 1 (emphasis added). On the same day,
Respondent LAUSD Superintendent Austin Beutner directed
that all LAUSD public schools would be closed—at that point, for
two weeks. Ex. 7 (March 13, 2020 Press Release) at 1. This
closure included all of the special education centers. Id.
On March 19, 2020, Governor Newsom signed Executive
Order N-33-20, which directed all Californians to stay at home,
“except as needed to maintain continuity of operations of the
federal critical infrastructure sectors” as identified by the U.S.
Department of Homeland Security. Ex. 8 (Executive Order N-3320) at 1. Among the employees deemed critical to maintain
continuity of operations “vital to the United States” were
“[w]orkers who support the education of pre-school, K-12, college,
university, career and technical education, and adult education
students, including . . . special education and special needs
teachers. . . [,] [w]orkers who provide services necessary to
support educators and students . . . [,] school psychologists and
13

 other mental health professionals, school nurses and other
health professionals, and school safety personnel.” Id. (emphases
added).
In April 2020, Respondent Beutner extended the LAUSD
school closures through the summer of 2020 and transitioned all
LAUSD students to distance learning for a period of
approximately three months to close the 2019 – 2020 school year.
Ex. 9 (LA School Campuses Will Remain Shuttered, Los Angeles
Times) at 2.
Passage and Provisions of Senate Bill 98
To ensure the continuity of education during the COVID-19
pandemic following the end of the 2019-2020 school year, the
California Legislature passed Senate Bill 98 (“SB 98”). On June
29, 2020, Governor Newsom signed SB 98 into law. Ex. 10 (SB
98) at 1. Senate Bill 98 amended and added various provisions to
the California Education Code (“Education Code”) to clarify the
obligations of LEAs, such as public-school districts, during the
COVID-19 pandemic.
Senate Bill 98 directed LEAs in California to develop new
Learning Continuity and Attendance Plans (“LCPs”) for the 20203021 school year. Ex. 10 (SB 98) at 95. The Bill provided that the
LCPs should address three key issues:
(i)

how the district would address the impact of
COVID-19 and provide continuity of learning,
including addressing the needs of students with
disabilities and the provision of in-person
instruction, see EDUC. CODE § 43509(f)(1);

14

 (ii)

the use of federal and state funding included in
the budget to support the efforts in the LCP, id.
§ 43509(f)(2); and

(iii)

how the district would increase or improve
services in proportion to funds generated based
on the number and concentration of
unduplicated pupils under the local control
funding formula, id. § 43509(f)(3).

Senate Bill 98 also required school districts to develop a
plan that includes in-person instructional offerings and addresses
the actions they would take to “offer classroom-based instruction
whenever possible, particularly for pupils who have experienced
significant learning loss due to school closures. . . .” See EDUC.
CODE § 43509(f)(1)(A). The Legislature noted that a “local
educational agency shall offer in-person instruction to the
greatest extent possible.” Id. § 43504(b).
The Legislature specified that distance learning may be
offered in only two circumstances: “(A) On a local educational
agency or schoolwide level as a result of an order or guidance
from a state public health officer or a local public health officer;”
or “(B) For pupils who are medically fragile or would be put at
risk by in-person instruction, or who are self-quarantining
because of exposure to COVID-19.” EDUC. CODE § 43503(a)(2).
Senate Bill 98 provides further that “[f]or the 2020-21
school year, LEAs that offer distance learning shall comply with
the requirements of subdivision (b),” which mandate that
distance learning fulfill all “special education, related services,
and any other services required by a pupil’s individualized
education programs . . . with accommodations necessary to
15

 ensure that individualized education programs can be executed in
a distance learning environment.” EDUC. CODE § 43503(b)(4).
Budget Allocation for School Districts Regarding COVID19 Response
California’s state budget this year includes a one-time
investment of $5.3 billion intended to assist LEAs in
“address[ing] learning loss related to COVID-19 school closures,
especially for students most heavily impacted by those closures.”
The funds are to be allocated to LEAs “on an equity basis, with
an emphasis on ensuring the greatest resources are
available to local educational agencies serving students
with the greatest needs.” Ex. 11 (CA State Budget K-12
Education) at 32 (emphasis added). The funds may be used for,
inter alia, “[p]roviding additional academic services for pupils,
including diagnostic assessments of student learning needs . . .”.
Id. at 33. Specifically, the Legislature committed $4.4 billion from
the federal Coronavirus Relief Fund, $539.9 million from the
Proposition 98 General Fund, and $355.2 million from the federal
Governor's Emergency Education Relief Fund for these express
purposes. Id. at 32. LAUSD specifically has received a total of
$540,519,500 from the combination of these fund allocations. Ex.
10 (SB 98) at 218.
Use of Non-Public Agencies and Non-Public Schools
California state regulations permit a school district to “use
federal, state, local and private sources of support” in order to
help students with special needs services. 5 C.C.R. § 3000(b).
16

 Accordingly, “[s]tudents with special needs may enroll in both
public and nonpublic school programs to meet their educational
needs, and [LAUSD] will reimburse the nonpublic school or
nonpublic agency for those services.” Id. § 3062(e).
As described in more detail below, the Los Angeles County
Department of Public Health has maintained a consistent stance
that 12-person small cohorts can be conducted safely. LAUSD’s
LCP, which was required to address how it would provide inperson instructional offerings whenever possible, and especially
for those experiencing learning loss, Educ. Code 43509(f)(1)(A),
only included aspirational and unspecific language about its
plans for returning students to campus. It committed merely to
“[c]onsideration of a Hybrid Learning Model” which was “only a
proposal” at the time of the LCP. Ex. 12 (LAUSD Sept. LCP) at
16. For students experiencing learning loss, the LCP only
provided for cycles of one-on-one in-person “tutoring”, which is
not a substitute for “instruction.” Ex. 12 (LAUSD Sept. LCP) at
18. The LCP acknowledged that public health officials had
approved small cohorts of students for specialized services, as
outlined below, but said only that they were “currently
considering this possibility in consultation with our labor
partners.” Id. at 171.

LAUSD’s LCP is deficient on its face in that it does not specify
what concrete actions LAUSD will take to offer classroom-based
instruction to students who have experienced significant learning
loss, as required by CAL. EDUC. CODE § 43509(f)(1)(A). But
1

17

 Department of Public Health Guidance on Safe Small
Cohorts and LAUSD’s Response
On July 17, 2020, the California Health and Human
Services Agency, through the California Department of Public
Health (“CDPH”), issued a framework “to support school
communities as they decide[d] when and how to implement inperson instruction for the 2020-2021 school year.” Ex. 13 (CDPH
Reopening In-Person Learning Framework) at 1. That framework
provided that schools could reopen for in-person instruction
subject to conditions outlined by the local public health
department. Id.
To prepare for safe school re-openings, the CDPH issued its
“Guidance Related to Cohorts” on August 25, 2020 (later updated
on September 4, 2020). This guidance provided for “necessary
in-person child supervision and limited instruction,
targeted support services, and facilitation of distance learning in
small group environments for a specified subset of children and
youth.” Ex. 14 (CDPH Guidance Related to Cohorts) at 1. The
CDPH authorized small cohorts of up to 14 children or youth and
up to 2 supervising adults, or any configuration of 16 total
individuals in the cohort. Id. Among other requirements for these

Petitioners do not seek to challenge or modify LAUSD’s
LCP. Rather, Petitioners request this Court’s immediate
intervention to compel the District to provide students with
disabilities and other vulnerable groups meaningful access to
education during the pandemic, consistent with local public
health guidance.
18

 small cohorts, adults had to maintain the appropriate physical
distance between themselves, to the extent possible, and all
adults and students had to wear masks at all times.
On September 30, 2020, the CDPH issued further guidance
in response to frequently asked questions regarding special
education during the COVID-19 pandemic. In response to
whether a local educational agency is permitted to offer in-person
supports and services to small groups of students with
disabilities, CDPH replied: “Yes. The [CDPH] released guidance
on August 25, 2020, permitting the provision of in-person
targeted, specialized support and services in stable cohorts when
the school is able to satisfy all of the conditions detailed in
CDPH’s guidance related to cohorts.” Ex. 15 (CDPH Special
Education Guidance for COVID-19) at 1. And in response to
whether local education agencies must continue to conduct
special education assessments while providing distance learning,
CDPH replied: “Yes. The U.S. Department of Education (USDOE)
has not waived the requirement for LEAs to conduct a full and
individual initial evaluation for a student suspected of having a
disability, nor has the USDOE waived requirements relating to
triennial assessments.” Id. at 2. Further, in response to whether
special education assessments can be conducted in-person, CDPH
makes clear that: “Yes. Current guidance from the California
Department of Public Health and the California Department of
Education does not expressly prohibit in-person assessments,” and
in certain cases, “service providers may be considered ‘Essential

19

 Critical Infrastructure Workers’ under Executive Order N-33-20.”
Id. at 5.
The Los Angeles County Department of Public Health
(“LADPH”) issued its own, similar guidance permitting “limited,
on-campus operation for schools in L.A. County,” beginning on
September 14, 2020. That guidance stated that “[b]eginning
Monday, September 14, schools K-12 may offer in-school services
for small cohorts of students with Individualized Education Plans
(IEP), students requiring instruction for English as a Second
Language (ESL) or students needing assessments or
specialized in-school services, as long as the school is able to
fully implement the Health Officer’s re-opening protocols.” Ex. 16
(LADPH Revises Health Officer Order) at 1 (emphasis added).
The LADPH’s guidance for small cohorts recommended a
maximum of 12 students, with 2 adults.
With guidance from the CDPH, California has devised a
Blueprint for a Safer Economy (“the Blueprint”) to usher in safe
re-openings for counties across the State. The Blueprint
established a framework that considers reliable data from the
CDPH and recommends specific restrictions to address COVID19 surges. The Blueprint permits K-12 schools to allow up to 25%
of enrolled students to return to campus “to serve students . . .
who have other special needs.” Ex. 17 (Blueprint for a Safer
Economy) at 1.
Despite unwavering public health guidance, since August
2020, that providing in-person instruction to small cohorts of
students with exceptional needs is both safe and feasible (when
20

 conducted with specific safety protocols), LAUSD has cited public
health guidance to justify a policy of denying assessments and inperson instruction for those who simply cannot access the
educational curriculum through distance learning. Ex. 18
(LAUSD SPED August/September Newsletter) at 1.
In its August/September 2020 newsletter, LAUSD’s
Division of Special Education reiterated its policy to not conduct
assessments, despite guidance by public health officials
permitting them to do so safely. That newsletter acknowledges
that “[t]he LAUSD is aware of the recently issued LADPH order
indicating schools may allow for specialized in-school services for
small cohorts of specific populations of students. . . . However,
first and foremost, safety of our staff and students is our priority.
Plans for in-school services will move forward once we ensure
appropriate safety measures. . . are in place.” Ex. 18 (LAUSD
SPED August/September Newsletter) at 1. The newsletter offered
no basis to dispute the judgment of the LADPH regarding the
safety and feasibility of in-person instruction in small cohorts.
After the LADPH released its guidance allowing limited
return, Respondent Beutner nevertheless declined to modify his
position to be responsive to public health guidance and the
mandate in the law that in-person instruction be offered
“whenever possible.” In a September 14, 2020 press release,
Beutner said: “Changing guidelines and rules aren’t something
we can respond to on a daily basis. . . . We start with the overall
state framework. Los Angeles is purple on the state dashboard,
the highest risk category, defined as widespread COVID-19
21

 transmission in the area. That means it’s not appropriate for
students to be back in classrooms.” Ex. 19 (A. Beutner Sept. Press
Release) at 5. Superintendent Beutner does not have the
discretion to determine what is an “appropriate” public health
guideline.
LAUSD Side Letter Agreements with United Teachers Los
Angeles (UTLA)
On October 7 and 8, 2020, LAUSD entered into two
“sideletter agreements” with its teachers’ union, the United
Teachers Los Angeles (“UTLA”), regarding (i) voluntary in-person
tutoring services and (ii) voluntary in-person student assessment
services. Ex. 20 (UTLA Oct. 7, 2020 Sideletter) at 1; Ex. 21
(UTLA Oct. 8, 2020 Sideletter) at 1. The October 7 sideletter
agreement provided for, among other things, one-on-one tutoring
sessions for 50 minutes per week at a school site. Ex. 20 at 1. The
October 8 sideletter agreement provided for, among other things,
in-person assessments in a classroom, subject to social distancing
protocols and adequate air circulation. Ex. 21 at 1. Both
sideletter agreements provide that “[p]articipation by UTLA
bargaining members shall be voluntary.” Ex 20 at 1; Ex. 21 at 1.
Providing limited in-person instruction to vulnerable
students in small cohorts does not mean that students, teachers,
and/or staff who have high-risk, or live with someone who is highrisk, will be required to participate in or provide in-person
instruction. See Ex. 22 (April 8, 2020 Side Agreement Between
LAUSD and UTLA) at 1 (providing that “[u]nit members who are
age 60 or older, have underlying medical conditions, or are caring
22

 for a family member in a high-risk group may be assigned to
work from home during the period of school closure. If work from
home is not possible, as determined by the supervisor, the
employee is not expected to report to work.”).
LAUSD Begins De Minimis Effort to Provide In-Person
Instruction and Assessments
On October 20, 2020, LAUSD sent a letter to all principals
regarding special education assessments. That letter noted that
“[d]ue to the COVID-19 pandemic, the Division of Special
Education will be utilizing the following methods of assessing
students, as appropriate: 1) Assessments during remote learning
that do not require in-person interactions, and 2) Voluntary, inperson, one to one assessments (UTLA side letter of 10/08/20).”
Ex. 23 (LAUSD Oct. 2, 2020 Letter to Principals) at 1.
Almost two weeks later, on November 2, 2020, Respondent
Beutner announced that LAUSD would begin to provide
“additional support for students at schools.” Ex. 24 (A. Beutner
Nov. Press Release) at 2. Beutner acknowledged that “[w]hile
educators in schools are trying their best to help students
continue to learn online, we know the best learning takes place at
schools. And for certain types of students – early learners,
students learning English, students with differences and
disabilities and those who were struggling before school facilities
closed – the absence from school has made the challenges even
greater.” Id. at 2.
Beutner noted further that “the struggle to cope with
COVID-19 and online learning for children and their families is
23

 very real. The struggle to get by and the resulting attendance and
academic challenges are even greater in high-needs
communities.” Id. at 3. Accordingly, Beutner directed that,
beginning on November 9, 2020: “The one-on-one instructional
efforts at schools will also include small groups of students, with
up to three students in each group”; “Special education
professionals will conduct assessments for students, as well as inperson instruction in small groups”; “Coaches will lead athletic
conditioning on school fields outside and students will be kept in
small, consistent cohorts.” Id. at 2.
In tandem with these new directions from Beutner, LAUSD
and UTLA entered into two new side agreements. The agreement
dated October 29, 2020 provided for one-on-one instructional
services to students with disabilities who are having difficulty
accessing virtual services or learning. Ex. 25 (UTLA Oct. 29, 2020
Sideletter) at 1. The agreement dated November 2, 2020 modified
the previous one-on-one tutoring agreement to allow for tutoring
in groups of one-to-six (one employee and six students). Ex. 26
(UTLA Nov. 2, 2020 Sideletter) at 1.
LAUSD has over 600,000 students and approximately
64,772 students in special education. As defined by the National
Association of Special Education Teachers, “[a]n assessment in
special education is the process used to determine a child’s
specific learning strengths and needs, and to determine whether
or not a child is eligible for special education services.” Ex. 27
(NASET Assessment in Special Education) at 1. Between
November 9 and December 2, 2020, however, LAUSD provided
24

 few assessments and little in-person instruction for those who
cannot access the educational curriculum through distance
learning. The Los Angeles Times has reported that “[s]o far, few
people have been on any L.A. Unified campus. The vast majority
of teachers are working from home, and only 2,275 students —
fewer than one half of 1% — are coming to campus periodically
for individual or small-group tutoring, and that effort began only
recently.” Ex. 28 (When Schools Reopen Will You Send Your
Child Back?, Los Angeles Times) at 5-6 (emphasis added).
Current School Shutdown Orders
On December 2, 2020, Los Angeles Mayor Eric Garcetti
issued a new “Targeted Safer at Home Order” asserting that the
City “must resume some of the more restrictive measures [it]
instituted in the Spring.” Ex. 29 (Targeted Safer At Home Order)
at 1. The Order requires Los Angeles residents to stay home and
businesses to close apart from specially designated services. Id.
at 2. But the Order lists numerous activities that are exempt
from its restrictions, including educational institutions, which
“[s]ince September 14, 2020, K-12 schools may offer in-school
services for a small, stable cohort of students with Individualized
Education Programs (IEPs) or English Learners (ELs) needing
assessments and/or specialized in-school services, with priority
given to students with disabilities.” Id. at 4. This Order also
provides that indoor malls or shopping centers may reopen
at up to 20% of overall mall or shopping center capacity. Id. at 7.
On December 3, 2020, the CDPH also issued a Regional
Stay at Home Order in response to the increase in COVID-19
25

 cases, hospitalizations, and test positivity rates across California.
Ex. 30 (CDPH Dec. Regional Stay At Home Order) at 1. In this
Order, too, the California Department of Public Health noted that
“Guidance related to schools remain in effect and
unchanged. Accordingly, when this Order takes effect in a
Region, schools that have previously reopened for in-person
instruction may remain open, and schools may continue to
bring students back for in-person instruction under the
Elementary School Waiver Process or Cohorting Guidance.” Id. at
2. In line with this order, the LADPH made clear on December 7,
2020 that “[s]chools that have previously reopened for either
high-need students or through the waiver program can
remain open.” Ex. 31 (LADPH Public Health Officials Urge Full
Compliance) at 1.
Notwithstanding the requirement in statute for LAUSD to
offer in-person instruction “whenever possible” and guidance
from the California Department of Public Health and the Mayor
of Los Angeles that educational institutions could safely provide
in-person instruction to small groups of students with special
needs, on December 7, 2020, Respondent Beutner announced that
special education assessments and in-person instruction would be
ceased and “shift to online.” Ex. 32 (A. Beutner Suspends SchoolBased Instruction) at 1. These changes went into effect on
December 10, 2020. Id. LAUSD has also informed independent
educational evaluators that (i) only the portions of an
Independent Educational Evaluation (“IEE”) that can be
completed remotely can be conducted until LAUSD schools are
26

 opened to in-person instruction; (ii) IEE reports will not be
accepted until in-person observation at the school can be
completed; and (iii) virtual test administration will not be
accepted because of the likelihood of invalidating the test results.
Ex. 3 (Fernandez Declaration) at 2.
In this Order, too, the California Department of Public
Health noted that “Guidance related to schools remain in
effect and unchanged. Accordingly, when this Order takes
effect in a Region, schools that have previously reopened for inperson instruction may remain open, and schools may
continue to bring students back for in-person instruction
under the Elementary School Waiver Process or Cohorting
Guidance. Ex. 30 (CDPH Regional Stay at Home Order) at 2.
In December 2020, LAUSD conducted a survey of its
LAUSD families. Ex. 33 (LAUSD Preliminary Survey Results) at
1. The preliminary results indicated that 70% of LAUSD families
would prefer to close malls and to reopen schools. Id.
CLAIMS ASSERTED
If the Court does not issue a writ requiring Respondents to
comply with the law by making in-person instruction available in
accordance with the requirements of Senate Bill 98, and
requiring that Respondents comply with their duties to provide
in-person assessments, then students will suffer potentially
irreparable harm.
LAUSD is under an obligation to utilize all available
resources to fulfil these procedural duties created by Senate Bill
27

 98. See 5 C.C.R. § 3000(b); 5 C.C.R. § 3062(e). LAUSD also has a
procedural duty to use private sources of support to meet the
needs of its special education students, as well as to reimburse
students who seek private entity support.
Petitioners believe that there is no requirement in this
circumstance to exhaust administrative remedies.
RELIEF SOUGHT
Wherefore, Petitioners request the following relief:
That this Court forthwith issue a writ of mandate directing
Respondents to:
1.

implement small-cohort in-person instruction to the
maximum extent possible (up to 25% of campus
capacity), consistent with cohorting guidance issued
by the Los Angeles County Department of Public
Health on September 2, 2020 and as required by Cal.
Educ. Code Sections 43509(f)(1)(A) and 43504(b);

2.

resume in-person assessments and Individualized
Educational Program (IEP) services, with
accommodations necessary to ensure that students’
IEPs can be executed in a distance learning
environment, as required by Cal. Educ. Code Section
43503(b)(4) (which mandates continued compliance
with Cal. Educ. Code Sections 56341 and
56345(a)(9)(A) during school closures); and

3.

arrange for non-public agencies (NPAs) and nonpublic schools (NPSs) to provide in-person special
education, related services, and assessments to
LAUSD students who need it, consistent with
cohorting guidance issued by the Los Angeles County
Department of Public Health on September 2, 2020,
whenever LAUSD is either unable or unwilling to
provide such education, services, and assessments;

28

 That, upon Respondent's return to the alternative writ, a
hearing be held before this Court at the earliest practicable time
so that the issues involved in this Petition may be adjudicated
promptly, and if this Court deems appropriate, pursuant to an
expedited briefing and hearing schedule;
That, pending such return and hearing, the Court grant an
immediate injunction or order requiring Respondents to: (i)
implement small-cohort in-person instruction to the maximum
extent possible (up to 25% of campus capacity), consistent with
cohorting guidance issued by the Los Angeles County
Department of Public Health on September 2, 2020; (ii) resume
in-person assessments and Individualized Educational Program
(IEP) services, with accommodations necessary to ensure that
students’ IEPs can be executed in a distance learning
environment; and (iii) arrange for non-public agencies (NPAs)
and non-public schools (NPSs) to provide in-person special
education, related services, and assessments to LAUSD students
who need it, consistent with cohorting guidance issued by the Los
Angeles County Department of Public Health on September 2,
2020, whenever LAUSD is either unable or unwilling to provide
such education, services, and assessments;
That, following the hearing upon this Petition, the Court
issue a peremptory writ of mandate directing Respondents to
take the measures outlined above;
That Petitioners be awarded their attorneys’ fees and costs
of suit; and

29

 For such other and further relief as the Court may deem

just and equitable.

30

VERIFICATION
I, Jennifer L. Braun, declare:
I am the CEO of Petitioner the Alliance for Children’s
Rights in the above-entitled action. I have read the foregoing
Petition for Writ of Mandate and know the contents thereof. I am
informed and believe and based on said information and relief
allege that the contents are true.
I declare under penalty of perjury that the foregoing is true
and correct. Executed in Los Angeles, California on December 10,
2020.

_______________________
Jennifer L. Braun
CEO of Alliance for Children’s Rights

31

 MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PETITION OF EXTRAORDINARY RELIEF,
INCLUDING WRIT OF MANDATE AND REQUEST FOR
IMMEDIATE STAY OR INJUNCTIVE RELIEF
Introduction
In Los Angeles County today, shopping malls and retail
stores are open, at up to 20% of their capacities. But for students
in the Los Angeles Unified School District, their schools – all of
them – are closed. This blanket policy, in effect as of December
10, 2020, violates the mandates of Senate Bill 98 and will
irreparably harm thousands of LAUSD students who simply
cannot access the educational curriculum through distance
learning. It also ignores the relevant public health guidance:
since September 2, 2020, the Los Angeles County Department of
Public Health has consistently maintained that for those who
need it, in-person instruction and services can be provided safely,
in small cohorts, following the Department’s safety protocols.
To be clear, this petition does not seek to compel any
student, teacher, or staff with high-risk factors—or who lives
with someone with high-risk factors—to participate in or provide
in-person instruction or services. Instead, the Petitioners seek to
enjoin the District from denying these services to those who want
it and for whom it is an essential service.
Senate Bill 98, the emergency legislation enacted on June
29, 2020 in response to COVID-19, aimed to ensure that K-12
education would not become another casualty of the
pandemic. Specifically, the Legislature required LEAs such as
LAUSD “to offer classroom-based instruction whenever possible,
32

 particularly for pupils who have experienced significant learning
loss due to school closures.” CAL. EDUC. CODE § 43509(f)(1)(A)
(emphasis added). It was “the intent of the Legislature that
LEAs offer in-person instruction in 2020−21 to the greatest
extent possible.” Ex. 34 (June 26, 2020 California Assembly
Daily Journal, 196th Session Day) at 31. With respect to special
education students, the Legislature required LEAs to provide the
accommodations necessary to ensure their individualized
education programs can be executed during the period of school
closures.
There is no question that severe learning loss has already
occurred, is ongoing, and will lead to irreparable harm for these
students. This slow-motion catastrophe—with potentially
irreversible and life-long negative consequences for students—
can and should be immediately addressed, consistent with state
and local public health guidelines which (as of early September
2020) allow for in-person instruction and related services in small
cohorts of 12 (with 2 adults) and up to 25% of school campus
capacity.
LAUSD itself identified vulnerable student populations
who have experienced significant learning loss and acknowledged
that in-person instruction and other in-person interventions are
critical for these student populations. On June 15, 2020, LAUSD
Superintendent Beutner stated: “We do know with certainty” that
“those who may have been less prepared to learn independently –
elementary students, English Learners, students with learning
differences and disabilities, and those who were struggling before
33

 school facilities closed – will need more, not less” support. Ex. 35
(A. Beutner June Press Release) at 2. To date, LAUSD has not
lived up to this commitment, and instead has now suspended its
already limited on-campus programs which served fewer than
one-half of 1 percent of the District’s students.
Because LAUSD has failed to comply with its obligations
under Senate Bill 98, Petitioners respectfully request that this
Court exercise its original jurisdiction to issue a writ of
mandamus to compel the District to perform its statutory duties.
I.

Petitioners Have Standing to Enforce Respondents’
Statutory Duties.
A.

Petitioners Have a Beneficial Interest in
Securing Statutorily-Mandated Services for
LAUSD’s Students with Disabilities

Petitioners Alliance and Learning Rights are not-for-profit
organizations seeking to enjoin LAUSD from abandoning its
public duty to comply with the mandates of Senate Bill 98 and to
provide assessments and in-person instruction to those students
who are experiencing the greatest learning loss because they
cannot access distance learning. The Alliance provides free legal
services and advocacy for caregivers, adoptive parents, and
children and teens in Los Angeles County’s foster system, and
advocates for policy change to help vulnerable children, many of
whom have been abused or neglected. Learning Rights provides
legal services to students who have been denied equal access to a
public education due to disability or discrimination. As nonprofit
organizations whose core missions are to enforce the rights of
special needs students every day, Petitioners have a beneficial
34

 interest distinct from the public at large in ensuring that LAUSD
is meeting its legal obligations under the Education Code.
B.

Petitioners Have Public Interest Standing in
Securing Statutorily Mandated Services for
LAUSD’s Students with Disabilities

Moreover, Petitioners are also interested as citizens in
ensuring that LAUSD abide by the Education Code. Courts have
found standing for citizens to enforce compliance with public
duties when the writ petition is a matter of public interest. See
Bd. of Soc. Welfare v. County of Los Angeles, 27 Cal. 2d 98, 100-01
(1945). The California Supreme Court has explained that “where
the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the
relator need not show that he has any legal or special interest in
the result, since it is sufficient that he is interested as a citizen in
having the laws executed and the duty in question enforced.” Id.
at 100-01. This public interest exception “promotes the policy of
guaranteeing citizens the opportunity to ensure that no
governmental body impairs or defeats the purpose of legislation
establishing a public right.” Save the Plastic Bag Coal. v. City of
Manhattan Beach, 52 Cal. 4th 155, 166 (2011) (quoting Green v.
Obledo, 29 Cal. 3d 126, 145 (1981)). There is substantial public
interest in ensuring that LAUSD meets its obligations to its most
vulnerable students and those who would suffer the most
learning loss as a result of virtual learning.

35

 II.

A Writ Should Issue Requiring LAUSD to Comply
with the Legislative Mandate to Provide In-Person
Instruction “Whenever Possible” During the
Pandemic.
A writ of mandate must be issued where the petitioner

demonstrates: “(1) that no plain, speedy, and adequate
alternative remedy exists []; (2) a clear, present . . . ministerial
duty on the part of the respondent; and (3) a correlative clear,
present and beneficial right in the petitioner to the performance
of that duty.” People v. Picklesimer 48 Cal. 4th 330, 339-40
(2010) (internal quotations and citations omitted); Civ. Proc.
Code, §§ 1085, 1086. This Court has original jurisdiction over
this proceeding for extraordinary relief because “the issues
presented are of great public importance and must be resolved
promptly.” Wenke v. Hitchcock, 6 Cal. 3d 746, 750-751 (1972);
California Redevelopment Assn. v. Matosantos, 153 Cal. 4th 231,
252 (2011). The status quo—where every LAUSD student is in
distance learning, regardless of the child’s ability to access the
educational curriculum in that manner—violates the law (Senate
Bill 98) and is not tenable.
A.

Classroom-Based Instruction in Small Cohorts
Has Been “Possible” Since September of 2020
When Public Health Authorities Deemed it Safe
If/Where Conducted in Accordance With Safety
Protocols

This Court has declared that, “[t]he public schools of this
state are a matter of statewide rather than local or municipal
concern; their establishment, regulation and operation are
covered by the Constitution and the state Legislature is given
36

 comprehensive powers in relation thereto.” Hall v. City of Taft,
47 Cal. 2d 177, 179, (1956). Accordingly, public education is a
matter of statewide concern and school districts must act in
accordance with the California Education Code and other state
laws. Importantly, this also means that local municipalities may
not create ordinances or laws that bind school districts in ways
that conflict with existing state law. See City & Cty. of San
Francisco v. Patterson, 202 Cal. App. 3d 95, 101-102 (Ct. App.
1988); Cal. Const. art. IX, § 14.
Senate Bill 98 requires LEAs to take “actions . . . to offer
classroom-based instruction whenever possible” to address the
educational needs of students “who have experienced significant
learning loss.” CAL. EDUC. CODE § 43509(f)(1)(A); see also CAL.
EDUC. CODE § 43504(b) (LEAs “shall offer in-person instruction
to the greatest extent possible.”) (emphasis added). The authority
to determine when, to what extent, and under what conditions inperson instruction is “possible” during a pandemic rests,
properly, with state and local public health officials, not with
individual school districts, such as LAUSD.
In the months following the passage of SB 98, public health
authorities for the State of California and Los Angeles County
determined that in-person instruction in small stable cohorts is
safe when conducted according to safety protocols articulated by
the Department of Public Health. Ex. 16 (LADPH Revises Health
Officer Order) at 1; Ex. 14 (CDPH Guidance Related to Cohorts)
at 1. Such in-person instruction is therefore “possible” and so
LAUSD has a statutory duty to “offer” such instruction to those
37

 who need it, pursuant to Education Code Sections 43504 and
43509. To begin, on August 25, 2020, CDPH issued “Guidance
Related to Cohorts,” which it updated on September 4, 2020.
CDPH authorized cohorts of up to 14 children or youth and up to
two supervising adults, or any configuration of 16 total
individuals in the cohort, if participants maintained physical
distance to the extent possible and wore masks at all times. Id.
at 1. CDPH has made it clear its guidance with respect to small
cohorts applied to in-person instruction. Responding to a
question on its website about whether an LEA was permitted to
offer in-person supports and services to small groups of students
with disabilities, the California Department of Public Health
(CDPH) answered unequivocally: “Yes. The [CDPH] released
guidance on August 25, 2020, permitting the provision of inperson targeted, specialized support and services in stable
cohorts when the school is able to satisfy all of the conditions
detailed in CDPH’s guidance related to cohorts.” Ex. 15 (CDPH
Special Education Guidance for COVID-19) at 1. CDPH’s August
25, 2020 guidance was intended to provide for “necessary inperson child supervision and limited instruction, targeted
support services, and facilitation of distance learning in small
group environments for a specified subset of children and youth,”
namely, students with disabilities. Ex. 14 (CDPH Guidance
Related to Cohorts) at 1.
On September 2, 2020, Los Angeles County Department of
Public Health (LADPH) followed suit and issued similar
cohorting guidance which expressly authorized, among other
38

 things, “limited, on-campus operation for schools in L.A. county.”
Ex. 16 (LADPH Revises Health Officer Order) at 1. Specifically,
LADPH guidance provided for in-person instruction in small
cohorts of up to 12 students, so long as the overall number of
students on campus does not exceed 25% of the total student body
at any one time. This stated purpose of the guidance issued by
the LADPH in September was to ensure that “students most in
need of in-person learning”— specifically, students with
disabilities and English language learners—would receive it. Id.
at 1.
This position is shared by the Los Angeles County Board of
Supervisors. On October 21, 2020, Kathryn Barger, Chair of the
Los Angeles County Board of Supervisors, announced that
schools in L.A. County could open up to 25% capacity for highneeds students, explaining that the decision would give more
students access to the “on-site support systems that are so critical
for their growth and for their education.” She further noted that
“we have prioritized children with special needs, and the English
learners as the most in need of in-person teaching.” Moreover,
Barger acknowledged that young children are “unable to learn
online” and also qualify as “high need students” who would
benefit from the updated policy allowing more students back to
school. Ex. 36 (K. Barger Press Conference Tweet) at 1. Once
LADPH issued guidance in early September allowing limited oncampus operations to resume, LAUSD had a duty to offer
classroom-based instruction “to the greatest extent possible,”
meaning up to 25% of campus capacity, prioritizing high-needs
39

 students who experienced significant learning loss. LAUSD
refused to perform this duty. Two months elapsed before LAUSD
announced on October 20, 2020 that the District would begin inperson instruction. Ex. 23 (LAUSD Oct. 2, 2020 Letter to
Principals) at 2. Two weeks later, Superintendent Beutner said
that LAUSD would begin, as of November 9, to offer small
cohorts in groups of three students (although the guidance
permitted groups of twelve students). Ex. 24 (A. Beutner Nov.
Press Release) at 2.
Importantly, the local and state public health authorities
have maintained their directive that small cohort in-person
instruction and services can be conducted safely and, therefore,
remain “possible,” notwithstanding the recent surge in COVID-19
cases in California. And as previously noted, teachers and staff
with risk factors or who live with people who have risk factors, or
who are age 60 or older, would not be needed to serve these
students. The stay-at-home orders issued recently by CDPH and
Los Angeles Mayor Eric Garcetti specifically exempted schools, in
recognition of the importance of educating vulnerable groups of
children in-person during the pandemic. Ex. 29 (Targeted Safer
At Home Order) at 4. To counter rising cases of COVID-19 in Los
Angeles County, on December 2, 2020, Mayor Garcetti issued a
“Targeted Safer at Home Order” requiring residents to stay home
and non-essential businesses to close. But the Order reaffirms
that “[s]ince September 14, 2020, K-12 schools may offer in-school
services for a small, stable cohort of students with Individualized
Education Programs (IEPs) or English Learners (ELs) needing
40

 assessments and/or specialized in-school services, with priority
given to students with disabilities.” Such “in-person specialized
services” remain “permissible” with “maximum stable cohort size
[of] twelve (12) students and two (2) staff (not including aides
assigned to children with special needs),” and “schools must limit
the number of students . . . allowed at any one time on campus
for essential assessments and/or specialized in-school services to
25% or less of the total student body.” Id. at 4-5.
Similarly, California’s December 3, 2020 Regional Stay at
Home Order provides that “[g]uidance related to schools remain
in effect and unchanged.” Ex. 30 (CDPH Dec. Regional Stay At
Home Order) at 2. Even when “this Order takes effect in a
Region, schools that have previously reopened for in-person
instruction may remain open, and schools may continue to bring
students back for in-person instruction under the Elementary
School Waiver Process or Cohorting Guidance.” Id. at 2. And on
December 9, 2020, CDPH clarified in the FAQ section of its
website that the Regional Stay At Home Order “does not modify
existing state guidance regarding K-12 schools.” CDPH confirmed
that the Order did not require a freeze of existing (“previously
reopened”) in-person programs, and that LEAs can continue to
expand such programs consistent with the school guidance issued
by the CDPH: “[a]ll schools that have not yet reopened for inperson instruction are able to continue to serve small cohorts of
students (e.g., students with disabilities) following CDPH
Guidance.” Ex. 37 (CDPH FAQ Section) at 1 (emphasis added).
Even so, Superintendent Beutner used the recent surge as
an opportunity to shut down the minimal in-person services that
41

 LAUSD was providing. As of December 7, 2020, when
Superintendent Beutner abruptly announced the indefinite
suspension of the District’s in-person programs for high-needs
students, fewer than one percent of LAUSD’s total student
population were receiving any classroom-based instruction or
other services—nowhere near the 25 percent capacity authorized
by local health directives.2 LAUSD’s effort, which would be
generously characterized as de minimis, did not satisfy LAUSD’s
duty to provide in-person instruction “to the greatest extent
possible.” § 43504(b). And today, LAUSD school campuses are
closed to all students.
LAUSD has therefore failed to comply with the
requirements of 43509(f)(1)(A) because it has been possible to
offer in-person instruction for months, and LAUSD has all but
refused to implement it.
B.

LAUSD Has a Duty and Must Be Compelled to
Offer Classroom-Based Instruction to HighNeeds Students, Consistent with Public Health
Guidance.

Throughout the fall semester, LAUSD has largely
disregarded cohorting guidance issued by state and local DPH
and impermissibly substituted its own public health judgments

The Los Angeles Times reported that there are no known cases
of COVID-19 transmission among the 4,000 students who had
participated in LAUSD’s short-lived in-person instruction. Ex. 38
(Schools Are At Least As Important As Shopping Malls. Keep
What’s Open, Open, Los Angeles Times) at 2.
2

42

 without having the necessary authority or expertise to make such
judgments. LAUSD’s posture has had the (predictable) effect of
denying the benefit of education to the District’s most vulnerable
students and creating what has been decried as a “lost
generation” of youngsters.3 On August 17, 2020, Superintendent
Beutner updated the LAUSD community on the District’s plans
for the 2020-2021 school year, stating that “health factors in the
community don’t allow us to bring students back to school at this
time.” Ex. 39 (A. Beutner Aug. Press Release) at 1. Even after
CDPH and LADPH released cohorting guidance in late August
and early September allowing the District to resume in-person
instruction and related educational services for high-needs
students, Superintendent Beutner declined to modify his
position. In a September 14, 2020 press release, Beutner
responded to the LADPH cohorting guidance by saying that
“[c]hanging guidelines and rules aren’t something we can respond
to on a daily basis . . . .” Ex. 19 (A. Beutner Sept. Press Release)
at 5. But as previously noted, the public health guidance has
been consistent since September 2020.

See Ex. 40 (A Lost Generation, Washington Post) at 1; see also
Ex. 38 (Schools Are At Least As Important As Shopping Malls.
Keep What’s Open, Open, Los Angeles Times) at 4 (“Without the
commitment to keeping the most vulnerable, high-poverty and
disabled students in school, the state’s current situation will
worsen . . . .”).
3

43

 Between March and September 2020, LAUSD expressly
based its school closures on the public health guidance provided
by local and public health officials. Those officials have not lost
their authority (or expertise) to determine when and how inperson instruction can be offered safely. LAUSD cannot have it
both ways—refusing to implement existing public health
guidelines for small cohort in-person instruction, while invoking
public health concerns to justify shutting school doors to all of its
students, including “pupils who have experienced significant
learning loss due to school closures.” CAL. EDUC. CODE §
43509(f)(1)(A).
The phrases “whenever possible” and “to the greatest
extent possible” in SB 98 do not absolve LAUSD of its obligation
to make classroom-based instruction a priority and to offer such
instruction to students who cannot learn remotely in a manner
authorized by public health guidelines (such as in small cohorts).
When it used the word “possible,” the Legislature recognized that
in-person instruction may have to be limited to certain categories
of students, such as, for example, students with disabilities who
are more at risk of experiencing significant learning loss than
their typical peers. The Legislature did not, however, grant
LAUSD the discretion to deny any in-person instruction to all
students. The ruling in Venice Town Council, Inc. v. City of Los
Angeles, 47 Cal. App. 4th 1547 (1996) is instructive. There,
petitioners argued that the Mello Act (Gov. Code §§ 65590)
imposed a ministerial duty on the City of Venice, California, to
replace residential units or to pay an in-lieu fee whenever it
44

 demolished or converted low-to-moderate-income coastal
residential units. Id. at 1552. The act provided, in relevant part,
that “[t]he conversion or demolition of any residential structure
for purposes of a nonresidential use . . . shall not be authorized
unless the local government has first determined that a
residential use is no longer feasible in that location.” Id. at 1553;
Gov. Code § 65590(b). The city argued that the “no longer
feasible” requirement meant that the act did not impose a
ministerial duty, and that the city had discretion to replace the
residential units. Id. at 1552. The court disagreed, holding that
the plain language of the statute did impose a ministerial duty.
Id. at 1559.
LAUSD has a duty to offer in-person instruction during the
pandemic to the maximum extent authorized by public health
officials, with priority given to students experiencing significant
learning loss. If school districts such as LAUSD could simply
decide (for whatever reason, however noble) not to offer any
classroom-based instruction even when such instruction is
expressly authorized as safe by state and local health guidelines,
the provisions requiring LEAs to do so would become a nullity.
In-person instruction in small cohorts is “possible” as long as it is
safe from a public health perspective. LAUSD therefore has a
clear duty to provide such instruction.
Nor is it sufficient compliance with Senate Bill 98 for the
District to make vague, aspirational statements about its
professed desire and inchoate plans to provide in-person
instruction at some yet-to-be-determined date in the future, or to
45

 impose additional conditions (not specified by the Legislature)
before it would be willing to consider offering such instruction. In
Modesto City Schools v. Education, 123 Cal. App. 4th 1365 (2004)
the district filed a petition for writ of mandamus to overturn an
administrative finding that it had failed to comply with CAL.
EDUC. CODE § 51747(c), which sets forth requirements relating to
independent study such as distance learning. The court rejected
the district’s position, finding that “[s]ection 51747 does not
merely refer to general policies of student accountability; it
prescribes the content and form of such policies.” Id. Thus “[i]t
cannot plausibly be argued that [the district] has ‘put into effect’
the policy required by section 51747 when all that it does is
express approval in principle without implementing the
requirements set forth in the statute.” Id. at 1375 (emphasis
added). The court further noted that it was the “unequivocal
legislative intent to require districts to include the specific
elements enumerated in section 51747, subdivision (c) in each
and every written [independent study] agreement,” and that the
“fundamental purpose behind [section 51747 is] to ensure that
independent study agreements contain specific elements and to
prevent students participating in such programs from falling
behind their peers.” Id. at 1377 (emphasis added).
Here, LAUSD has repeatedly acknowledged the importance
of returning special education and other high-needs students to
the classroom, including most recently in its response to
Petitioners’ counsel. Ex. 41 (LAUSD Nov. 12 Letter to A.
Romain) at 1 (expressing concern “about the impact that COVID19 has had on the delivery of instruction to our most vulnerable
46

 students” and “agree[ing] that it would be ideal if we could
swiftly resume in-person instruction for all students with
exceptional needs”). But the District has adamantly refused to
take the actions necessary to make in-person instruction
mandated by SB 98 a reality for high-needs students. Instead,
the District keeps coming up with a slew of reasons about why inperson instruction on any scale cannot be provided at this time
(notwithstanding public health guidance to the contrary).
C.

LAUSD Has Failed to Ensure that Special
Education Programs (Including Assessments)
Could Be Executed in a Distance Learning
Environment

Education Code Section 43503(b)(4), enacted as part of SB
98, requires school districts to make “accommodations necessary
to ensure that individualized education programs can be executed
in a distance learning environment.” CAL. EDUC. CODE §
43503(b)(4). The Legislature made clear that LEAs must
continue to provide “[s]pecial education, related services, and any
other services required by a pupil’s individualized education
program pursuant to [California Education Code] Section 56341”
during school closures. Id. Section 56341 requires LEAs to hold
“meeting[s] to develop, review, or revise individualized education
program of an individual with exceptional needs” and also to
assess students to determine whether they are eligible for special
education services and, if so, what services they require to
address their learning disabilities. Id. (requiring participation of
“at least one member . . . qualified to conduct individual
diagnostic examinations of children, such as a school
47

 psychologist” and that “at least one [IEP] team member shall
observe the pupil’s academic performance and behavior in the
areas of difficulty in the pupil’s learning environment, including
in the regular classroom setting”). Section 43503(b)(4) also
requires compliance during school closures with Section
56345(a)(9)(A), which provides that a student’s IEP must include
“[a] description of the means by which the individualized
education program will be provided under emergency conditions .
. . in which instruction or services, or both, cannot be provided to
the pupil either at the school or in person for more than 10 school
days.” CAL. EDUC. CODE § 56345(a)(9)(A). The Legislature
therefore recognized that special education assessments and
services cannot be disrupted or suspended during the pandemic.
But LAUSD has violated its duties under these provisions
by, among other things, failing to provide initial assessments to
students suspected of having learning disabilities, as well as
periodic assessments required thereafter. There is no public
health justification for the District’s failures. As with small
cohort in-person instruction, assessments are allowed under
public health guidelines. The CDPH has made this clear on their
website. For example, in response to a question as to whether
LEAs must continue to conduct special education assessments,
the CDPH answered unequivocally: “Yes. The U.S. Department of
Education (USDOE) has not waived the requirement for LEAs to
conduct a full and individual initial evaluation for a student
suspected of having a disability, nor has the USDOE waived
requirements relating to triennial assessments.” Ex. 15 (CDPH
48

 Special Education Guidance for COVID-19) at 2. And in response
to whether those assessments can be done in-person, the CDPH
made clear that “[c]urrent guidance from the [CDPH] and the
CDE does not expressly prohibit in-person assessments.” Id at 2.
Special education assessments and services are therefore
“possible,” and this Court should compel the District to provide
them.
Since the start of the pandemic, LAUSD has repeatedly
denied assessments in a systematic fashion and as a matter of
policy to children who are by law entitled to them. In its
August/September 2020 newsletter, LAUSD’s Division of Special
Education reiterated its policy of refusing to conduct assessments
notwithstanding guidance and protocols issued by public health
officials permitting the District to do so safely. The District’s
newsletter stated, in relevant part, that “[t]he LAUSD is aware of
the recently issued Los Angeles County Department of Public
Health order indicating schools may allow for specialized inschool services for small cohorts of specific populations of
students . . . . However, first and foremost, safety of our staff and
students is our priority. Plans for in-school services will move
forward once we ensure appropriate safety measures . . . are in
place.” Ex. 18 (LAUSD SPED August/September Newsletter) at
1.
LAUSD has also failed to ensure that the special education
services required by students’ IEPs can be provided during school
closures. LAUSD’s failure to provide, and/or delays in providing,
assessments and special education services is causing significant
49

 and irreparable harm to high-needs students, including students
with disabilities. Ex. 1 (Whitbread Letter) at 2; Ex. 2 (Falvey
Letter) at 2.
D.

LAUSD Has Failed to Meet its Procedural Duty
to Ensure that NPAs and NPSs Can Provide InPerson Instruction and Services

SB 98 imposes a procedural duty on LAUSD to ensure that
all special education services and IEPs be delivered during the
COVID-19 pandemic. CAL. EDUC. CODE § 43503(b)(4). LAUSD is
under an obligation to utilize all available resources to fulfil this
duty under Senate Bill 98. See 5 C.C.R. § 3000(b) (“[LEAs] . . .
shall use federal, state, local, and private sources of support
which are available to provide services as specified in an
individualized education program (IEP)”) (emphasis added); see
also 5 C.C.R. § 3062(e) (“Services may be provided through dual
enrollment in public and nonpublic school or nonpublic agency
programs to meet the educational requirements specified in the
IEP . . . . The nonpublic school or nonpublic agency shall be
reimbursed by the LEA for services [provided].”). LAUSD has a
duty to use private sources of support to meet the needs of its
special education students, as well as to reimburse students who
seek private entity support.
LAUSD has ceased in-person educational resources and has
instituted a de facto policy of discouraging parents and guardians
of special needs students from seeking any third-party services.
Ex. 32 (Superintendent A. Beutner Suspends School-Based
Instruction) at 1. As one example, Petitioners have attached the
declaration of Vindia G. Fernández, Ph.D., who founded the
50

 Center for Pediatric Neuropsychology, a private practice located
in Los Angeles. Much of their work involves conducting
Independent Educational Evaluations (IEEs) for students with
Individualized Education Programs (IEPs). When the COVID-19
pandemic began they quickly adapted their assessment practices
to include both remote testing, and in-person with a multitude of
safety protocols (including health screenings the day before
testing, temperature checks on arrival, medical-grade air
purifiers, touch-less hand sanitizing stations, Personal Protective
Equipment (PPE) worn by all clients and staff at all times, test
materials and surfaces being disinfected between visits, parent
interviews are being conducted via Zoom in advance of the faceto-face testing, no eating in the office or waiting area, and no
additional family members permitted to wait in the waiting
room). Despite these measures “LAUSD informed [Fernández]
that: (i) only the portions of the IEE that can be completed
remotely (i.e., document review and parent/teacher
questionnaires) can be conducted until ‘Safer at Home orders
and/or school closures are lifted or amended’; (ii) IEE reports
would not be accepted until [an] in-person observation at the
student’s school—which typically takes approximately 90
minutes—is completed; and (iii) that LAUSD would not accept
the results of any virtual assessments.” Fernández states that
“[i]n other words, LAUSD has prohibited me from testing
children either in-person or remotely.” Ex. 3 (Fernandez
Declaration) at 2; see also Ex. 5 (Heimov Declaration).

51

 This Court should enjoin LAUSD’s actions because they
violate LAUSD’s duty to ensure that special education
requirements are met during the pandemic under Senate Bill 98.
III.

It is Necessary and Proper for this Court to Exercise
its Inherent Authority to Provide Extraordinary
Relief in this Situation
Article VI, section 10 of the California Constitution grants

the Supreme Court of California “original jurisdiction in
proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition.” CAL. CONST. ART. VI, § 10;
Matosantos, 53 Cal. 4th at 252. The Supreme Court of California
“will invoke [its] original jurisdiction where the matters to be
decided are of sufficiently great importance and require
immediate resolution.” Matosantos, 53 Cal. 4th at 253.
This Court should exercise its inherent authority in this
case because if this Petition is not granted, LAUSD will continue
to fail to provide the services that they are required to provide
under the law and prohibit thousands of students’ from accessing
in-person education and resources that they desperately need.
This will cause irreparable harm to these students, including to
their mental health and physical wellbeing.
A.

This Petition Presents a Matter of Sufficiently
Great Importance to the People of the State of
California

Governor Newsom has acknowledged that “schools are
critical to the daily lives of many Californians.” Ex. 6 (Executive
Order N-26-20) at 1. LAUSD has over 600,000 students,
including 13.2 percent of students with IEPs, and about 23,000
52

 disabled students in special day classes. Ex. 432
(Superintendent’s Final Budget 2019-2020) at 2, 5. Thousands of
students across LAUSD are currently not receiving the in-person
instruction or services or assessments that they need and that
Senate Bill 98 directs that they must receive. This ongoing
failure is of great importance because it damages tens of
thousands of California students and their families.
B.

A Speedy Determination on this Petition is
Necessary Because Children Are Suffering
Irreparable Harm

LAUSD’s indiscriminate closure of schools for all students,
regardless of ability and need, and of all in-person assessments
and services is causing irreparable harm to tens of thousands of
LAUSD students and their families. This harm requires that
there be no delay in addressing the matters in this Petition.4
Currently, more than 75% of California parents with
disabled children report that their school failed to provide them
with instructional materials to support their child’s remote
learning. Ex. 1 (Whitbread Letter) at 2. Leslie Heimov, the
Executive Director of Children’s Law Center of California
(“CLC”), notes that this directly “limit[s] [student’s] ability to
meaningfully participate in their education.” Ex. 5 (Heimov

Although LAUSD had been doing the bare minimum (since the
end of October 2020) to meet its obligations under the law, only
this week did LAUSD expressly announce that it would cease all
in-person instruction and assessments.
4

53

 Declaration) at 2. Megan Stanton-Trehan, Director of the Youth
Justice Education Clinic at Loyola Law School, notes that even
where students are provided with remote educational materials,
students with certain individual disability-related needs “have
trouble logging on to the online classes and maintaining focus
consistently, understanding the material as delivered virtually,
and connecting with service providers to receive regular related
services such as educationally related intensive counseling
services (“ERICS”), speech and language services, and behavioral
intervention implementation (“BII”) services.” Ex. 4 (StantonTrehan Declaration) at 1.
Challenging behaviors that are manageable with gentle,
natural approaches, and in inclusive settings, for small children,
become far more stigmatizing and risk wholly segregated
educational environments, restraints and seclusion if they persist
in older, bigger, stronger children. See T.H. v. Bd. of Educ. of
Palatine, 55 F. Supp. 2d 830, (N.D. Ill. 1999) (ordering intensive
ABA noting potential to develop skills for future access to general
education settings). See also Ex. 44 (Fenske, et al., “Age at
Intervention and Treatment Outcome for Autistic Children in a
Comprehensive Intervention Program,” Analysis and
Intervention in Developmental Disabilities, Vol. 5, pp. 49-58
(1985)) (noting that positive outcomes diminish sharply when
intensive, high-quality services are not begun before age five). As
one prominent U.S. public health expert recently observed:
We must recognize that schools fill essential
functions in our society . . . [W]e must ensure that
schools remain able to serve, at all times, those
54

 students who need in-person instruction . . .
Pandemic resilience means in-person learning is
available to all students who need it throughout the
whole course of the pandemic. Just as hospitals
never close, schools should never close to some
students . . . .
Ex. 45 (We’ve Figured Out It's Safe To Have Schools Open, Let’s
Keep Them Way, Washington Post) at 2.5 Relatedly, the CDPH
has concluded that in certain cases, service providers may be
considered “essential” workers under Governor Newsom’s
executive order N-33-20.
Mary A. Falvey, Ph.D., a retired California State
University, Los Angeles (Cal State LA) Special Education
professor of thirty-eight years, notes that “[t]his shutdown has
resulted in limited to no learning for so many students with
disabilities. . . . Every additional day that students with
disabilities are denied access to face-to-face direct instruction by
being kept out of classrooms is having a debilitating effect on
them as learners. . . . The longer that students with disabilities
are denied access to an individualized education, the more dire
the situation becomes.” Ex. 2 (Falvey Letter) at 1-2. Similarly,
Kathleen Whitbread, Ph.D., the research and training
coordinator for the Literacy and Education Center at Down
Syndrome Association of Connecticut, notes that “[r]esearchers

See also Ex. 46 (Joint Statement of Governors from
Northeastern States) at 1.
5

55

 have projected that the average student will fall more than seven
months behind academically as a result of pandemic-related
school closures (Dorn et al. 2020). For students with disabilities,
the learning losses will be devastating, long lasting and in many
cases, irreparable.” Ex. 1 (Whitbread Letter) at 2 (emphasis
added).
While LAUSD’s failure to provide the required in-person
education to these students undoubtably leads to education loss
and regression, it is also detrimental to these students’
behavioral advancement and health, and that of their family
members and guardians. The caregivers of students with
specialized educational needs “struggle to monitor the daily
online lessons of the youth in their care given their work
obligations and the high needs of these students. The caregivers
note that they are experiencing the emotional and physical toll of
taking on the additional role of educator, behavioral aide, or
therapist when those services providers cannot connect with their
child.” Ex. 4 (Stanton-Trehan Declaration) at 2. These students
face emotional and behavioral harms as well “often suffer[ing]
from emotional outbursts and challenging behaviors in the home
due to low frustration tolerance or the effects of social isolation.”
Id. at 1. One subset of these students, children with autism,
demonstrate the dire behavioral consequences of LAUSD’s
policies. “Abrupt changes in routine are extremely difficult for
[students with autism] and the stress caused by these changes
can lead to severe and devastating regression, an increase in

56

 problem behavior, and disrupted sleep (Clopton, 2020).” Ex. 1
(Whitbread Letter) at 3.
Students who require individualized educational support
are not the only students harmed. As Leslie Heimov noted,
“[s]ince distance learning began in March 2020, there have been
significant delays in assessments for establishing eligibility for
IEP services for our LAUSD clients. These delays are causing
direct harm to our clients and impacting their ability to access
their educational curriculum.” While a lack of in-person
education and resources affects thousands of students’
educational and behavioral progression, thousands more students
are falling through the cracks without ever even being assessed
by LAUSD. If these students or their parents attempt to acquire
an assessment from non-public agencies or non-public schools,
“LAUSD has refused to validate these assessments without their
assessors first completing an assessment to confirm or deny the
findings of the independent assessors,” leaving these students
who desperately need individualized or specialized educational or
behavioral resources with nothing. Ex 5 (Heimov Declaration) at
2.
A client of the Youth Justice Education Clinic at Loyola
Law School (referred to by his initials, “C.A.”) demonstrate the
drastic effect this lack of assessments causes. “[C.A.] should have
received a functional behavioral assessment in the spring 2020
semester. This assessment was postponed indefinitely and his
behavioral concerns of inattention and trouble with work
completion persist. This student has ADHD-like characteristics,
57

 but also performs at the 1st percentile in reading, writing,
and math. He is currently failing classes, which could harm his
ability to graduate on time. Without the much-needed FBA,
C.A.’s focus and attention concerns will not be meaningfully
addressed through a data-driven approach.” Ex. 4 (StantonTrehan Declaration) at 3-4 (emphasis added). C.A. is just one
example of thousands of similar students left in limbo by
LAUSD’s failure to provide assessments.
A speedy determination of this case is necessary because
with each passing day, the harm that these high-needs students
experience becomes more severe and irreparable.
IV.

Petitioners’ Claims Are Not Subject to or Are
Otherwise Exempt From Administrative Remedies
A.

Exhaustion is Not Required

In their requests for relief, Petitioners seek LAUSD’s
compliance with its mandatory procedural obligations regarding
assessments and in-person instruction for selected students.
Specifically, Petitioners request that this Court enjoin LAUSD
from denying requests to conduct assessments that are otherwise
procedurally required by law for students with disabilities (a)
who are transitioning out of early intervention (and develop
IEPs) and (b) who had not received an initial assessment or an
updated assessment (and convene IEP meetings to discuss). In
addition, Petitioners request that this Court enjoin LAUSD from
refusing to permit in-person instruction for those students who
cannot access the educational curriculum through distance
learning. This suit, therefore, is not of the type that requires the
58

 exhaustion of any administrative remedies. See Fry v. Napoleon
Cmty. Sch., 37 S. Ct. 743, 752 (2017). Specifically, exhaustion is
required when the petitioner seeks: (i) “an IDEA remedy or its
functional equivalent”; (ii) to enforce rights arising as a result of
a denial of FAPE; or (iii) “seeks prospective injunctive relief to
alter an IEP or educational placement of a disabled student.”
Payne v. Peninsula Sch. Dist., 653 F.3d 863, 875 (9th Cir. 2011).
“What matters is the crux—or, in legal-speak, the gravamen—of
the plaintiff’s complaint, setting aside any attempts at artful
pleading.” Fry, 137 S. Ct. at 755.
Fry enumerates two factors to guide this inquiry: (i)
whether the plaintiff could have brought essentially the same
claim if the alleged conduct had occurred at a public facility that
was not a school, and (ii) whether an adult could have pressed the
same grievance. Id. at 756. If the answer to both questions is
yes—as in this case—then free and appropriate public education
(FAPE) is likely not the gravamen of the complaint. Id. First, a
disabled student could seek in-person services from a public
facility other than a school, as many essential public facilities
(including medical treatment centers) remain open, or partially
open. Second, a disabled adult employee could seek to work on
site as a reasonable accommodation, given that LAUSD will keep
portions of school buildings open for food programs and COVID19 testing. See, e.g., McIntyre v. Eugene Sch. Dist. 4j, 976 F.3d
902, 914-16 (9th Cir. 2020) (holding the accommodations of a
quiet location to take exams, extra time to complete exams, and

59

 compliance with an emergency health protocol did not constitute
FAPE)
Moreover, while Fry and its progeny weigh disabilityspecific laws (i.e., the IDEA and the ADA/Section 504), the
provisions on which Petitioners rely in Senate Bill 98 are not
disability-specific but focus instead on those students who have
experienced “learning loss” and are specifically intended to
maintain continuity of learning during the pandemic. For
example, Section 43509 references “pupils who have experienced
significant learning loss due to school closures in the 2019–20
school year or are at greater risk of experiencing learning loss
due to future school closures.” CAL. EDUC. CODE § 43509(f)(1)(A).6
It is therefore both possible and likely that a non-disabled
student facing actual or threatened learning loss (such as a foster
child who is the client of Petitioner the Alliance) could seek to
enforce this provision. Accordingly, this petition does not require
the exhaustion of any administrative remedies.

Notably, the statute goes on to discuss, with regard to the
distance learning plans, “pupils with unique needs,” “English
learners, pupils with exceptional needs served across the full
continuum of placements, pupils in foster care, and pupils who
are experiencing homelessness during the period in which
distance learning is provided,” id. at § 43509(f)(1)(B)(vi), and,
with regard to addressing learning loss, “pupils who are classified
as English learners, are eligible for a free or reduced-price meal,
or are foster youth, …, individuals with exceptional needs, pupils
in foster care, and pupils who are experiencing homelessness,” id.
at § 43509(f)(C)(ii).
6

60

 B.

Exhaustion is Excused Because This Petition
Seeks Systemic Relief That Cannot be
Addressed by Administrative Remedies.

As described in this Petition, there is a systemic flaw in
LAUSD’s policies and practices concerning the provision of inperson instruction and assessments in LAUSD. The claim here is
not about any specific student, but LAUSD’s facially unlawful
policy of not providing for any in-person instruction or provision
of in-person assessments. And as explained in more detail below,
the IDEA’s administrative process does not offer a remedy for the
claims made in this petition.
Under the IDEA, where a parent disagrees with an offer of
FAPE, the parent has the right to initiate an administrative due
process hearing in order to have the state educational agency
determine whether the offer of FAPE is appropriate. 20 U.S.C. §
1313(b)(6); CAL. EDUC. CODE § 56501. In California, the agency
responsible for conducting special education due process hearings
is the Office of Administrative Hearings, Special Education
Division (“OAH”). Pursuant to Education Code Section 56504.5,
the California Department of Education has an interagency
agreement with OAH to facilitate due process hearings. If the
parent disagrees with the determination of OAH, the matter may
be appealed to a state court or to the federal district court. CAL.
EDUC. CODE § 56505(i); 34 C.F.R. § 300.512.
But the jurisdiction of the OAH is expressly limited to the
following circumstances, none of which entails the systemic
claims brought here:
(1)

There is a proposal to initiate or change the
identification, assessment, or educational
61

 placement of the child or the provision of a free
appropriate public education to the child.
(2)

There is a refusal to initiate or change the
identification, assessment, or educational
placement of the child or the provision of a free
appropriate public education to the child.

(3)

The parent or guardian refuses to consent to an
assessment of the child.

(4)

There is a disagreement between a parent or
guardian and a local educational agency
regarding the availability of a program
appropriate for the child, including the
question of financial responsibility, as specified
in Section 300.148 of Title 34 of the Code of
Federal Regulations.

CAL. EDUC. CODE § 56501(a); see also 20 U.S.C. § 1415(b)(6). Each
of these provisions contemplates that there is a specific child,
parent, or caregiver, with a specific request, disagreement, or
issue. That framework does not encompass the facts of
Petitioners’ claims. Here, the Petitioners are two organizations,
the Alliance and Learning Rights, not individual parents or
students who have been denied any specific service or are
challenging one of LAUSD’s decisions or a child’s placement. See,
e.g., Everett H v. Dry Creek Joint Elem. Sch. Dist., No. 2:13-cv00889-MCE-DB, 2016 U.S. Dist. LEXIS 136270, at *31 (E.D. Cal.
Sep. 29, 2016) (“[The complaint’s] allegations clearly go beyond
the scope of student-specific due process charges over which the
OAH could preside. While the Court recognizes that merely
labeling claims as systemic as a way of circumventing the
administrative process could make the requirement to exhaust
62

 meaningless . . . it cannot summarily discount the allegations of
the Complaint at this time.”).
California courts have made clear that plaintiffs need not
seek an administrative remedy when doing so would be futile. In
Knoff v. City etc. of San Francisco, 1 Cal. App.3d 184 (1999),
taxpayers sought a writ of mandate to require San Francisco to
address systemic deficiencies in property tax assessments caused
by corruption uncovered by a grand jury proceeding. Id. at 190,
199. The California Court of Appeal held that the petitioners
were not required to exhaust their remedies because the
available administrative body, the board of equalization, was
empowered only to correct individual assessments. Id. at 198.
The petition’s purpose was not to have particular assessments
changed but to “bring about examination and correction of
wholesale deficiencies in the San Francisco assessment situation
which reasonably require, not the adjustment of some specific
assessments or the recovery of taxes paid upon them, but the
examination of all assessments and the adjustment of those
which require such action and can legally be reached.” Id. at 199.
Because “the local equalization procedure would not reach the
real problem with the assessor,” no prior administrative remedy
was provided by law for this purpose. Id. See also Venice Town
Council, Inc. 47 Cal. App. 4th at 1547 (1996); Action Apartment
Ass’n v. Santa Monica Rent Control Bd., 94 Cal. App. 4th 587,
615 (2001); Reidy v. City & Cnty. of San Francisco, 123 Cal. App.
4th 580, 594 (2004).

63

 Administrative law judges from the OAH have routinely
dismissed claims that allege system-wide deficiencies raised in a
due process complaint because they lack jurisdiction to hear
systemic claims. See, e.g., In the Matter of Parent on Behalf of
Student v. Placentia-Yorba Linda Unified Sch. Dist., OAH Case
No. 2014061022 (2014) (“[S]ystemic claims on behalf of other
students are not only outside of OAH’s jurisdiction, but run
contrary to the express purpose of a due process proceeding to
focus on the individual child and his or her unique educational
needs.”). Due process hearings, thus, are not designed to
adjudicate systemic cases, and ALJs cannot order systemic relief
on behalf of similarly situated students.
C.

Exhaustion is Excused Because LAUSD has
Adopted a Policy of General Applicability That
is Contrary to the Law.

The administrative exhaustion requirement is also excused
where the district “has adopted a policy or pursued a practice of
general applicability that is contrary to the law.” N.D. et al. v.
State of Haw. Dep’t of Educ., 600 F.3d 1104 at 1110 (9th Cir.
2010). This exception requires that: (i) the challenge of an
unlawful policy involves a question of law; and (ii) a due process
hearing would not have furthered the general purpose of
exhaustion and the congressional intent behind the IDEA
administrative scheme. Hoeft v. Tucson Unified Sch. Dist., 967
F.2d 1298, 1305 (9th Cir. 1991). This exception applies when the
plaintiff challenges an “agency decision, regulation, or other
binding policy” that would not be corrected through
administrative hearings. Doe By and Through Brockhuis v. Ariz.
64

 Dep’t of Educ., 111 F.3d 678, 684 (9th Cir. 1997). The exception
can also apply when the complaint alleges systemic violations of
laws. See Hoeft, 967 F.2d at 1304-05. Here, the disabled students
who cannot access distance learning are excluded from education
entirely. Cf. id. at 1304 (complaint seeking access to component
of special education program was not systemic challenge).
In Christopher S. v. Stanislaus County, 384 F.3d 1205 (9th
Cir. 2005), three autistic students filed an action against the
county and local educational authorities alleging that the policy
of providing a shorter school day to autistic students constitutes
discrimination in violation of the ADA and Section 504. Id. at
1213. The Court held that exhaustion was not required because
the County Office of Education’s decisions to have shorter school
days for autistic students “were blanket policies that had nothing
to do with the content of individual IEPs—no individualized
decisions were made on a case-by-case basis.” Id. at 1211.7 See
also Student A v. Berkeley Unified Sch. Dist., No. 17-cv-02510JST, 2017 WL 4551514 (N.D. Cal. 2017) (holding that exhaustion
was excused because the complaint clearly raised issues with
systemic policies and procedures applicable to all students with

Numerous appellate court cases have held that plaintiffs
alleging systemic failures to follow the IDEA’s mandates need not
exhaust administrative remedies. See e.g., J.S. ex rel. N.S. v.
Attica Cent. Sch., 386 F.3d 107, 115 (2d Cir. 2004); J.G. v. Bd. of
Educ. of Rochester City Sch. Dist., 830 F.2d 444 (2d Cir.
1987); Jose P. v. Ambach, 669 F.2d 865, 867 (2d Cir. 1982).
7

65

 reading disorders and the CDE and district failed to remedy the
harm after being presented with multiple compliance
complaints).
Similarly, in Hernandez v. Grisham, No. CIV 20-0942
JB\GBW, 2020 U.S. Dist. LEXIS 191301, 2020 WL 6063799
(D.N.M. Oct. 14, 2020), the district court found that the disabled
student plaintiff and her parent were not required to exhaust
IDEA remedies because the school’s refusal to provide her with
in-person instruction during COVID-19 was based on a
misinterpretation of state health regulations—a pure question of
law. Id. at **207-08 (citing Ass'n for Cmty. Living in Colorado v.
Romer, 992 F.2d 1040, 1044 (10th Cir. 1993) (recognizing an
exception to the IDEA's exhaustion requirement where a Plaintiff
presents a “purely legal” question)). The court also noted that
“the IEP prioritizes the LEA's apparent preference for fully
remote instruction over creating a program that will enable
Woodworth's daughter to make academic progress,” and found
that “[a]dministrative exhaustion therefore would likely be futile
and consequently is probably unnecessary.” Id. at 209. Similar to
Hernandez, where the question was whether the district has
misinterpreted state health regulations, this petition requires
this court to interpret SB 98 and determine whether LAUSD has
followed its duty including under SB 98.
This case is not like Martinez v. Newsom, 5:20-cv-01796SVW-AFM (C.D. Cal. Nov. 24, 2020), a recently dismissed
putative state-wise class action complaint alleging that CDE
guidance during the COVID-19 pandemic that allowed school
66

 sites to remain closed and for districts to not evaluate students
violated the mandate to provide a free appropriate public
education FAPE to students with IDEA disabilities. This writ
seeks compliance with Senate Bill 98 and statutory provisions
CAL. EDUC. CODE § 43504(b), (f)(2); CAL. EDUC. CODE §
43509(f)(1)(A). The petition challenges LAUSD’s failure to
develop any procedures for timely identification and provision of
in-person services to students with disabilities who cannot access
distance learning during school closures, despite the direction of
Senate Bill 98 to create such a plan. The writ does not require an
assessment of whether any individual has been denied a free
appropriate public education. Indeed, because LAUSD has
issued a district-wide order that does not provide for in-person
services for any class of disabled students despite a state-level
mandate, “no individualized decisions were made on a case-bycase basis.” Christopher S., 384 F.3d at 1211; see also id. (“As the
LEAs admit, the school schedule was an across-the-board
administrative decision by SCOE, not a decision that resulted
from any individual Student’s IEP process.”).
Moreover, for LAUSD students who cannot participate at
all in distance learning, LAUSD’s policy is truly one in which the
“IDEA’s basic goals are threatened on a system-wide basis.” See
Hoeft, 967 F.2d at 1305. The failure to provide essential inperson services to disabled students unable to access distance
learning is similar to the denial of entire days of instruction in
Christopher S. and is among the set of issues that requires
“immediate court action . . . to prevent an incipient or ongoing
67

 emergency such that exhaustion should be excused.” Student A.
v. SFUSD, 2020 WL 571052, at *6.

68

 Conclusion
For the reasons stated above, Petitioners respectfully urge
this Court to grant the relief sought in the attached Writ
Petition.
Dated: December 11, 2020

Respectfully submitted,
ALEX G. ROMAIN
ELENA KILBERG
Milbank LLP
VALERIE VANAMAN
Newman Aronson Vanaman
ALEXIS CASILLAS
Law Offices of Alexis Casillas
By: /s/ Alex G. Romain___________
Attorneys for Petitioners Alliance
for Children’s Rights and Learning
Rights Law Center

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 CERTIFICATE OF WORD COUNT
PURSUANT TO RULE 8.204(c)(1)
Pursuant to California Rule of Court 8.204(c)(1), counsel for
Petitioners hereby certifies that the number of words contained
in this Petition For Extraordinary Relief, Including Writ of
Mandate And Request For Immediate Injunctive Relief;
Memorandum Of Points And Authorities, including footnotes but
excluding the Table of Contents, Table of Authorities, and this
Certificate, is 13,878 words as calculated using the word count
feature of the computer program used to prepare the brief.

By: /s/ Alex G. Romain

70