Covid-19 shutdown lawsuit against every school district in the country is dismissed

Another Covid-19 shutdown case has reached the Second Circuit. This one alleges that the remote-learning thing that kids went through in 2020-2021 violated the students' right to a free and appropriate public education. The case raises a novel theory, but novel theories don't really fly in the Court of Appeals. The case is dismissed.

The case is KM v. Every School District in the United States, a summary order issued on August 31. That caption is no joke. The real defendants are dozens of school districts and state governments around the country. Plaintiffs brought this putative class action on behalf of all students and parents against New York officials "as well as all 13,821 public school districts in the United States and the state departments of education in all fifty States," Washington DC and Puerto Rico. (The real caption is KM v. Adams). 

The putative class would consist of all public school students with a disability. The Court of Appeals (Chin, Sullivan and Menashi) writes, "Alleging principally that the shift from in-person to remote instruction constituted a per se deprivation of the 'free appropriate public education' guaranteed to disabled students under the [Individuals with Disabilities in Education Act], the Students and Parents brought claims – as relevant to this appeal – under the IDEA and RICO." RICO is the federal conspiracy law that the government used to take down the Mafia. The idea is that the Individualized Education Programs (IEP) for disabled students cannot all be complied with through remote learning, as some services can only be provided in-person.

The problem for plaintiffs is procedural: to bring a claim under the IDEA and related laws, you have to exhaust administrative remedies, which means prior to the lawsuit, you have to seek your remedies through state educational agencies. No such exhaustion is needed if such a route is futile or the agency has no authority to grant the relief you are looking for. The courts rarely find futility under the IDEA, and it does not do so here, holding that plaintiffs cannot show the State Education Department would have taken forever to resolve this claim. Nor have plaintiffs preserved the argument that the agency had no power to grant them the relief they want, as plaintiffs did not advance that argument in the district court. What it all means is the district court lacked subject matter jurisdiction to hear the case in the first instance.