The Legal Brief: Class Action Lawsuit Filed Regarding Special Education Instruction and Services During COVID-19

On July 28, 2020, a class action lawsuit was filed in Federal District Court for the Southern District of New York against the New York Department of Education, as well as school districts in the United States and state departments of education in the United States, alleging public school districts violated federal law by not fully providing special education instruction and related services during the COVID-19 pandemic. The plaintiffs, represented by the Brain Injury Rights Group and Patrick Donahue Law Firm, allege violations of the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act (“Section 504”), the Americans with Disabilities Act (“ADA”), and the Equal Protection/Due Process clauses of the U.S. Constitution. Though not named individually, virtually every public school district in the United States, and every State Educational agency, are named as defendants in this class action lawsuit.

This class action lawsuit seeks an injunction to immediately reopen schools for students with disabilities so that they can fully receive their previously recommended services and instruction. In the alternative, the plaintiffs seek “vouchers” to allow parents to “self-cure” by obtaining these services and instruction from agencies outside the public schools. The lawsuit also seeks re-assessment of all students with disabilities, including Independent Education Evaluations, and monetary damages, both compensatory and punitive.

At this point, all parties are awaiting instruction from the Court regarding how this class action will proceed (including service of the class action lawsuit upon all of the named defendants).  There are jurisdictional questions regarding whether school districts in Texas are subject to jurisdiction in the Southern District of New York, in addition to issues regarding exhaustion of administrative remedies prior to filing litigation in court.  If you receive any correspondence or documentation regarding this class action by certified mail or in-person delivery, you will be deemed to have been served by the plaintiffs and a response will be required.  We recommend that you do not agree to accept any documents by electronic delivery or download documents from a file share site without consulting with an attorney.

We are closely monitoring this class action and will advise what actions, if any, individual school districts should take as more information becomes available.

Written By: Hans P. Graff