Kirkland settles landmark case over COVID remote learning

Kirkland & Ellis has secured a proposed settlement with the Los Angeles Unified School District that, if approved, would provide three years of intensive tutoring and small-group support for more than 100,000 vulnerable students set back by COVID-19 remote learning--a no-fees, pro bono resolution the defendants accepted without admitting wrongdoing.

"From our perspective the focused tutoring is really important and has a direct relationship to improve student outcomes," Mark Holscher, lead partner on the case, said in a phone interview. "All our experts tell us this high-dose, one-on-one tutoring can have the most dramatic impact on helping students overcome learning losses."

The settlement of the lawsuit against the school district and the teachers' union was announced Wednesday. It is set for possible approval on Dec. 11 by Superior Court Judge Elaine Lu, the third to handle the case since it was filed. Keshara Shaw et al. V. Los Angeles Unified School District, et al., 20STCV36489 (L.A. Super. Ct., Sept. 24, 2020).

The defendants denied any wrongdoing and stated in the agreement that they do not believe the plaintiffs would have been able to certify a class.

If approved, the agreement would provide, through summer 2028, millions of hours of one-on-one tutoring for more than 100,000 of the district's most vulnerable students, along with small-group sessions, summer school, teacher training, and other supports, according to a news release from the firm. The deal also includes commitments to collect, report, and evaluate data to measure outcomes.

Eligible students include those enrolled in L.A. K-12 schools during the 2019-20 and 2020-21 academic years, though benefits are limited to students earning Ds and Fs, English learners, low-income or minority students, or those with chronic absences.

Though all schools in the district were closed at the time, the lawsuit focused on these categories under its claim that remote learning unconstitutionally deprived children in these groups of their right to a basic education. Many of these families had no computers or internet at home, for example.

The firm said that dozens of Kirkland & Ellis lawyers collectively spent more than 10,000 hours, amounting to millions of dollars in fees over the past five years.

"We started this in 2020, and we are not seeking fees. We are donating our time," Holscher said.

A significant development was the firm's success in winning court of appeal reinstatement of the litigation after the trial court had dismissed it as moot because the schools had reopened. "I hope this situation never arises again," Holscher said. But if it does, "this court of appeal opinion will be helpful to others if poor or minority students' access to education is interrupted."

The students missed 18 months of classroom time during the shutdown. "Our position is that our case wasn't moot when school restarted because the learning loss had already occurred. The students needed these extra tools to make up for lost instruction time," Holscher explained.

Another firm partner, Edward Hillebrand, stated in a declaration filed Wednesday that the plaintiffs sought declaratory and injunctive relief "to both prevent the implementation of unconstitutional distance learning policies going forward and to remediate the ongoing harm" caused by the policies.

He outlined the highlights of the litigation. The firm sought a preliminary injunction, but the Los Angeles court automatically stayed the case for an initial status conference. Judge Kenneth Freeman was initially assigned. He denied the plaintiffs' ex parte application without prejudice, then recused himself.

The case was reassigned to Judge Yvette Palazuelos, who allowed expedited discovery on the preliminary injunction. She denied the defendants' first demurrers and motions to strike, but later granted a second round, eventually dismissing the action with prejudice on Aug. 16, 2021. The district had resumed in-person teaching.

The court of appeal reversed on Sept. 19, 2023. It "concluded that plaintiffs adequately alleged constitutional claims for Intradistrict and Interdistrict Discrimination and reinstated Plaintiffs' classwide prayer for remedial injunctive relief," Hillebrand wrote.

The state Supreme Court denied review on Jan. 12, 2024, and remitted the case to Judge Lu's court. Mediation failed. Lu lifted discovery on May 31, 2024, and "thereafter, the parties engaged in 13 months of intense and hotly contested merits discovery, participated in several informal discovery conferences with the court and filed numerous motions and other briefs to address myriad discovery disputes," Hillebrand wrote.

The Los Angeles Unified Board of Education said at a meeting in June it was planning on $1.6 billion in budget reductions in fiscal years 2027 and 2028. The nation's second largest school district had about 408,000 students in early January, a decline over the past several years. Its 2025-26 budget was estimated at $18.8 billion.

The district's media office was unable to reply to telephone or email questions by press deadline.