A class action lawsuit seeking to force New York City to expedite makeup services to students with disabilities has been revived by an appeals court, according to a ruling released Friday.
The lawsuit, filed in November 2020 by Advocates for Children, claims thousands of city students missed out on crucial services as the city struggled to distribute remote learning devices and provide adequate instruction after officials shut down school buildings during the pandemic. Other services, such as physical therapy, were extremely difficult to deliver remotely.
Students with disabilities are entitled to compensatory services if their school doesn’t provide the therapies or specialized instruction listed on their individualized education program, or IEP. If schools don’t agree to provide extra services, families can file what’s known as a due process complaint and go through an administrative legal process.
But in New York City, that system has experienced an explosion of due process complaints and faces a backlog of thousands of cases. In previous years, cases have dragged on for hundreds of days, beyond the 75-day legal limit. (City and state officials did not offer updated figures on how long cases are taking to resolve, though they recently sought a contract to hire outside lawyers to respond to cases.)
Advocates for Children’s lawsuit argues that the city must create a streamlined process for adjudicating families’ requests for makeup services, as the current process has broken down and would be too burdensome and time consuming for families to navigate.
A federal district judge rejected that argument last March, noting that none of the families who brought the lawsuit had attempted to use the existing process. The judge, Andrew L. Carter Jr., ruled that families needed to exhaust the existing process before bringing a federal lawsuit. But on Friday, the U.S. Court of Appeals for the Second Circuit overturned that decision, sending the case back to the lower court.
“We’re very pleased with the ruling and think it is the right decision,” said Rebecca Shore, the litigation director for Advocates for Children. “We hope that the DOE will create a system without engaging in prolonged litigation because students with disabilities in New York City have been without these compensatory services since 2020.”
The city’s education department has made some significant efforts to provide students with disabilities additional services to make up for pandemic disruptions outside of the impartial hearing process. The department offered after-school and Saturday sessions to any family who wanted them. However, the rollout was bumpy — yellow bus transportation was not provided, and most families did not participate.
This school year, officials scaled back those programs and directed school staff to make individual decisions in consultation with families about whether students need extra services during their annual IEP meetings. City officials have argued that students should be automatically considered for extra services at those meetings, circumventing the need for a separate process for awarding compensatory services.
Shore countered that the process has not worked to effectively deliver services and that schools often don’t raise the possibility of extra support during IEP meetings.
The appeals court did not directly weigh in on whether the city’s current system of discussing compensatory services at IEP meetings was sufficient or implemented as city officials described, noting that both sides of the case could present evidence to the lower court.
Still, despite the immediate victory for families of students with disabilities who want additional services for their children, it’s unclear how quickly the case will be resolved — a point one of the appeals court judges dwelled on during oral argument in November.
“This is one of the most frustrating areas to be a judge in,” he said, “these are services that these kids need now, not two years from now. It would be a pyrrhic victory for the appellants to win five years from now because many of their clients would be 23.”
A spokesperson for the city’s education department said officials are reviewing the decision. The state education department, which is also a defendant in the lawsuit, did not return a request for comment.
Alex Zimmerman is a reporter for Chalkbeat New York, covering NYC public schools. Contact Alex at firstname.lastname@example.org.