The New York City Department of Education has pervasively fallen short of its obligation to provide free appropriate public education to students with disabilities during the coronavirus pandemic, a proposed class action alleges.
The 49-page lawsuit alleges New York City students with disabilities have since the onset of the COVID-19 crisis been “unable to participate meaningfully in remote learning and have lost the opportunity to make educational progress” and/or regressed academically as a result of the city and state’s failure to provide remote learning services and programs consistent with students’ individualized education programs (IEPs).
According to the complaint, the failures of the defendants—the New York City Department of Education, the New York City Board of Education, New York City School District Chancellor Richard Carranza, the New York State Education Department, New York State Board of Regents and State Interim Education Commissioner Betty A. Rosa—have been compounded by additional shortcomings with regard to providing technology, translation and interpretation services to the families of students who need such resources to learn remotely, leaving these students even further behind.
Per the lawsuit filed November 23, the defendants are aware that students with disabilities have been “disparately affected” by the pandemic, and have publicly acknowledged that compensatory services should be made available for those who were denied their instruction and services amid remote learning. Despite this, neither the city nor state have offered anything amounting to a plan for holding up their end of the bargain, the suit scathes:
“Nonetheless, eight months into the pandemic, Defendants have offered no hint of a plan for processing and delivering upon claims for compensatory services owed to tens of thousands of New York City students, whose losses continue to accrue.”
Compounding matters even further are what the lawsuit describes as substantive procedural failures on the part of the defendants. In addition to lacking a plan, “let alone any sufficient procedures for determining whether a student is entitled to compensatory services as a result of that student’s inability to receive programs and services during remote learning,” the lawsuit says, the defendants also have nothing concrete as far as what compensatory services affected students will require and how any such services will be implemented.
According to the lawsuit, answers should not be expected soon given the city’s myriad shortcomings in assuring no one slips through the cracks on education:
“The current New York City Department of Education (‘NYC DOE’) administrative hearing process offers no solution to these pressing questions. It is ill-equipped and fundamentally unable to resolve what compensatory services are due in light of the NYC DOE’s admittedly large-scale failures caused by the pandemic. The NYC DOE’s due process hearing system is by its very nature adversarial—but an adversarial process here is neither appropriate nor warranted, as Defendant New York State Education Department (‘NY SED’) has stated. Moreover, the students in dire need of compensatory services during remote learning need a forum that offers expedited decisions. The formalities of the current impartial due process hearing process—petitions, motion practice, testimony, and evidence—serve to prolong the denial of critical educational services to students already deprived of them for months.”
Left to bear much of the weight of the above-described complex and prohibitively burdensome legal process are parents, many of whom, the lawsuit says, “cannot afford or do not have access to an attorney or advocate” and therefore rely on New York City’s educational system to administer pandemic-related compensatory educational services.
The complaint places great urgency on the need to provide New York City students with disabilities access to a free appropriate public education while learning remotely to prevent additional loss and regression as the pandemic wears on. Without a “practicable, streamlined process” to determine what compensatory services are needed, students with disabilities are left to file thousands of individual claims in “an already overwhelmed administrative process” hamstrung by a months-deep backlog and unnavigable without legal counsel, according to the case.
In all, forcing students to wait possibly months or even years before receiving the special education services they need “exacerbates the harm they have already suffered,” the lawsuit argues, averring that the pandemic does not serve as an excuse for the defendants to leave a critical segment of students behind.
“While the pandemic may have made it harder to provide services, this does not discharge Defendants of their legal obligations to ensure those services are provided or to remedy the educational losses suffered by students with disabilities,” the complaint reads. “Defendants have failed to meet those obligations and have demonstrated no mechanism or plan to rectify those failures.”
The plaintiffs, pseudonymous minors whose parents filed the case on their behalf, seek the creation and implementation of a specific process and plan to establish, implement, fund and deliver a set of procedures for determining whether a New York City student with disabilities is entitled to compensatory services and what services may be due in light of the educational opportunities lost during the coronavirus pandemic.
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