Pro Bono Spotlight

MoFo Helps Secure $2B For Calif.'s Forgotten Students

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Students walked to school in east Oakland, California, one morning in August 2022. Under a recent settlement agreement reached in a class action led in part by students from the Oakland Unified School District, the state is set to provide $2 billion in funding to help low-income students who fell behind academically during the COVID-19 pandemic. (Melina Mara/The Washington Post via Getty Images)

Morrison & Foerster recently helped nab a historic $2 billion settlement to help roughly a million California students — disproportionately from Black, Latino and lower-income families — who say the state failed to provide them meaningful instruction once the COVID-19 pandemic began.

After three years of litigation in California state court, the students and their families, represented by a team of attorneys at MoFo and the pro bono legal services provider Public Counsel, struck a deal with the state in January to resolve allegations that the state discriminated against poorer students of color and deprived them of their constitutional right to an education in the Golden State.

"I'm just so incredibly proud of the settlement we reached for the students of California and very hopeful of the impact that it's going to have on not only our student plaintiffs, but all students similarly situated across California," MoFo associate Chelsea Kehrer told Law360.

Mark Rosenbaum, senior special counsel for strategic litigation at Public Counsel, told Law360 he's hopeful that the settlement in Cayla J. v. California will lift up the students who fell furthest behind during the pandemic, but made clear that the inequities in California's educational system didn't begin in March 2020.

"It wasn't like the pandemic created the inequities. It just exacerbated them considerably," Rosenbaum said.

"Locked Out"

Oakland twins Cayla and Kai were second graders in March 2020 when the pandemic closed their school and moved their instruction online, according to the complaint, in which their family is among the lead plaintiffs.

The twins had only two virtual classes for the rest of the school year, didn't receive opportunities to make up for lost class time, and didn't receive homework packets. After a month at home, Kai's school-issued computer stopped working and the school failed to provide a new one, the plaintiffs alleged.

As a result, the complaint said, the twins fell behind in math fundamentals.

In November 2020, Cayla, Kai and their little sister, who are Black, joined a group of students from lower-income Black and Latino families in bringing a proposed class action urging the state to address what they called "major deficiencies" in its remote schooling program.

The students, through their guardians, claimed that the state had failed to ensure they had the necessary devices and internet access to continue learning from home and claimed they hadn't been provided with the academic or social-emotional support they needed as the pandemic dragged on.

"The idea behind this lawsuit was to remediate the fact that, during the pandemic, students of color and students from low-income families really were just locked out of the digital classroom," said Public Counsel's supervising senior staff attorney, Amanda Savage, who is co-counsel for the students.

Cayla and Kai, now sixth graders, are just two of many California students who say they fell behind — and stayed behind — during the pandemic.

"This case really arose out of the just striking disparity that, to be honest, already existed in California education between the haves and the have-nots, between students of color and their white peers, between low-income students and their wealthier peers," Savage told Law360.

"When the pandemic hit, we saw that just really burst open in a way that made it much more visible and even worse than it already was," Savage said.

State Fought "Tooth and Nail"

While the U.S. made significant gains in recent decades in narrowing achievement gaps between Black and white students, researchers at Stanford, Harvard and Dartmouth released a report in January 2024 finding that in the 20 states for which they had student test scores broken down by race, much of that progress disappeared during the pandemic.

During the years of litigation, the achievement gap for California students continued to widen.

The state's chief deputy superintendent of public instruction, Mary Nicely, estimated in an October 2021 deposition in the case that roughly 800,000 to 1 million California students, or about 1 in 6, still lacked connectivity or devices to gain access to online educational instruction about a year and a half after the pandemic began.

"These kids fell way behind, which obviously had huge mental health consequences on top of the trauma that the pandemic itself worked," Rosenbaum said. "They knew they were falling behind and they knew they weren't seeing a teacher and they knew that wasn't right."

As they attempted to prove their legal claims, however, Rosenbaum said the students and their guardians were subjected to aggressive discovery tactics aimed at shifting any potential blame.

The state "attacked everybody in sight," he said. "They attacked the districts, saying, 'We put it in their hands, they didn't do enough.'"

"They attacked the families themselves," Rosenbaum said.

To Savage, the litigation felt surreal at times, such as when the state repeatedly argued against the plaintiffs' equal protection claim, insisting that students of color and students from lower-income families weren't similarly situated to their white and wealthier peers, and that there were various other structural and systemic reasons to explain why they were struggling academically.

"It's like, 'Is the California Department of Education really arguing that these students aren't similarly situated because they're just at such a structural disadvantage that this doesn't really mean that their lack of access to the classroom is impactful?'" Savage said.

The state was "fighting tooth and nail for most of this case," Savage said.

"There was really a disconnect between arguments that the state was making in this case and what we believe to be, in a very real sense, the state's deep commitment as they have shown through this settlement, to educational equity," Savage said.

Savage said another surreal moment for her came after the plaintiffs enlisted a group of education researchers whose work regularly draws on information they receive via data-sharing agreements with the state.

"When lawyers for the California Department of Education learned that we were using testimony from those experts to support our case, they threatened them," she said.

One of the experts, Stanford University education professor Thomas Dee, submitted to the court a July 2023 letter he received from the state threatening legal action, a $50,000 fine, and the revocation of his institution's access to state educational data going forward if he didn't withdraw his declaration supporting the students' position in the case.

"It was a very not subtle effort to really kneecap our experts," Savage said, adding that after some media attention, the state backed off.

Kehrer, one of the MoFo attorneys who worked on the case with recently retired firm partner Michael Jacobs, told Law360 that as the trial date approached, plaintiffs' counsel prepared to present evidence of the vast educational disparities that predominantly impacted students of color from low-income families during the pandemic's remote learning period.

"We were also going to present evidence that the opportunity and achievement gap between Black and Latinx and low-income students compared with their wealthier, white peers widened," Kehrer told Law360.

This evidence, Kehrer said, would have included the personal experiences of the student plaintiffs, as told through their guardians, and testimony from half a dozen educational experts detailing the detrimental impact of the pandemic on students' education, including test scores.

California's Department of Education did not respond to Law360's multiple requests for comment on the litigation.

A Trailblazing Settlement

On Jan. 24, after more than three years of litigation — and more than 9,000 hours dedicated to the case by MoFo attorneys — the parties told the court they'd struck a deal.

The plaintiffs' attorneys told Law360 that they know of no larger educational settlement in California, or U.S. history, either in terms of dollars or the magnitude of the impact they believe it will have.

They believe the settlement will address the underlying disparities that caused the pandemic to be so damaging for low-income students of color in the first place.

As part of the settlement, California agreed to allocate at least $2 billion from existing Learning Recovery Emergency Block Grants to targeted, evidence-based programs and services for the lowest-performing students in the school districts. The deal requires students to be identified using a data-driven needs assessment and requires the outcomes of those initiatives to be measured and adjusted, if needed.

Plaintiffs' attorneys expect that much of the funding will go toward tutoring, extended school days and mental health specialists. In a first for California, the settlement also lets school districts partner with community-based organizations with track records of improving student success.

Savage praised the settlement's strong accountability measures, telling Law360 that it takes "what was previously a process that operated a lot on trust and on families having to hold their school districts accountable, and turns that into a much more robust process" in which any Californian who suspects the state isn't living up to its obligations under the deal can file a complaint, even anonymously.

"That's huge," Savage said, noting that only an interested party could do that under the old system, which frequently resulted in the least-resourced families fighting to ensure that their children obtained the education they deserved.

Rosenbaum has high hopes for what he describes as a "terrific settlement," and believes that it provides a path to address educational inequities.

"Our hope is that it's a model, a template for the country," Rosenbaum said.

But Rosenbaum is also quick to note that some kids won't be able to reap its benefits because they've moved on from California's school system.

"Let's be honest," Rosenbaum said. "It's going to be hard to recapture everything that got lost here."

Rosenbaum said he expects the state's duties under the settlement to be written into law by June, telling Law360, "This is going to happen and there's a huge shotgun behind the door, which is, if it doesn't, we're back in court."

"And if we have to go to court, we'll win," he said.

--Editing by Robert Rudinger.

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