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Lawsuit claims every district, state failed to provide FAPE during school closures

Lawsuit claims every district, state failed to provide FAPE during school closures

Every state and local school district has been named as a defendant in a special education class action lawsuit filed July 28 in the U.S. District Court, Southern District of New York. The lawsuit alleges nearly one dozen violations of state and federal education laws, stating that students with disabilities were unable to receive the individualized services and supports in their IEPs during school closures this spring in response to the pandemic outbreak.

New York City Mayor Bill DeBlasio and New York City Chancellor of Education Richard Carranza are also named as defendants. J.T. v. de Blasio, No. 20 Civ. 5878 (S.D.N.Y. 07/28/20, complaint filed).

The 350-page complaint asks that all schools open for in-person instruction and provide instruction and services outlined in each student’s IEP; issue pendency vouchers for parents who needed to hire professionals to carry out elements of their child’s IEP; conduct independent evaluations of each student with a disability; reimburse parents for any expenses or loss of employment due to school closures; and pay unspecified punitive damages “based on the intentional and willful violations of the federal rights of parents and students.”

The lawsuit identifies 104 student plaintiffs from 14 states, including Connecticut, Florida, New York, and Washington. Patrick Donohue, founder and chairman of the Brain Injury Rights Group in New York City, who is representing the plaintiffs, said the class action now includes more than 500 student plaintiffs from 25 states.

In an interview with Special Ed Connection®, Donohue said his goal is to have a court decision within the next few weeks. He said schools violated the IDEA’s stay-put provision in the spring when they didn’t reopen after being closed for more than 10 school days. The stay-put provision requires students remain in their current educational placement pending the resolution of an educational dispute.

“Schools did not maintain the status quo of the last agreed upon IEP,” Donohue said.

Closing schools forced students to move to a home placement, likely without formally changing their IEPs, Donohue said. “The IEPs didn’t say the child would be in the most restrictive environment without receiving in-person services,” he said.

What schools should have done in the spring after closing for two weeks was to reopen for special education students in order to provide their educational services entitled to them under the IDEA, Donohue said. “If a school district did all the right things, then I have no issue with them,” Donohue said. “If you find them, I’ll put them on a pedestal.”

The issue of school closures has brought a variety of reactions — and litigation. Lawsuits have also been filed in Hawaii and Pennsylvania by the parents of students with disabilities who say their children were denied FAPE because of the spring school closures. 

Teachers have voiced frustrations about school closures and their concerns about the safe reopening of schools. Special education teachers, service providers, and social workers in Chicago, for example, sued the U.S. Education Department and Chicago Public Schools, claiming the school systems placed unrealistic special education paperwork burdens on them during extended school closures due to the COVID-19 outbreak.

More litigation is likely, said several education administrative advocacy organizations. In a report published in July, the National School Boards Association; AASA, The School Superintendents Association; and the Association of Educational Service Agencies; said providing FAPE to students with disabilities during the pandemic is complex. The groups also said they worry about the costs of responding to pandemic-related special education litigation. 

The Centers of Disease Control and Prevention has issued guidance expressing the benefits of in-person instruction but has also recommended safety precautions to reduce the spread of COVID-19 in school buildings. Because of continued fears of the spread of the virus and because of a high number of positive cases in their communities, some school systems such as Los Angeles Unified School District, District of Columbia Public Schools, and the Miami-Dade County School District have already announced they are planning to start the school year in a virtual-only setting.

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