Impact Litigation and Advocacy

The following are lawsuits in which AFC is or has been involved in bringing in order to obtain better educational services for New York City school children.

Free Meals Cases

In C.D. v. New York City Dep’t of Educ., Dep’t of Educ. v. R.G., and Suzan B. v. New York City Dep’t of Educ., AFC and the law firm Weil, Gotshal & Manges LLP represent six students with disabilities challenging the DOE’s failure to provide free breakfast and lunch to children with disabilities who would ordinarily be entitled to receive meals in schools (and who received free meals while attending public schools), but who had to attend special education private schools because the DOE did not offer them an appropriate public school placement. The cases were filed in the Southern District of New York, where they were consolidated for discovery, and are pending before Judge Sidney H. Stein. In February 2009, the Court denied the DOE’s motion for judgment on the pleadings, ruling that the DOE’s failure to provide meals to these students with disabilities could violate Section 504 of the Rehabilitation Act and the Americans with Disabilities Act noting that “Disabled students should not have to choose whether to learn or to eat, and the law does not require them to choose.”
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D.S. v. NYC Department of Education

In 2005, AFC and Morrison and Foerster LLP filed a class action suit on behalf of a class of students who were illegally excluded from Boys and Girls High School. Plaintiffs claimed that the school improperly placed them on shortened class schedules, placed them in an auditorium for a shortened day of non-credit bearing classes, or otherwise excluded them from school. The three-year long class action lawsuit claimed that the school not only denied them a proper education but actually fostered an environment that encouraged students to fail or drop out.

In November 2008, as a result of a class action settlement negotiated by AFC and Morrison & Foerster, New York City’s Department of Education agreed to offer an extensive program of free instruction, counseling and vocational training to hundreds of current and former students of Boys & Girls. In addition, current and future Boys & Girls High School students will be protected from the recurrence of these exclusionary practices and the Department of Education has agreed to outside monitoring of the school through 2010.
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Horne v. Flores

AFC, along with the Asian American Legal Defense and Education Fund, filed a “friend of the court” brief with the U.S. Supreme Court in Horne v. Flores urging that the requirements in the Equal Education Opportunity Act (EEOA) continue to protect students who do not speak English and are not diminished by the No Child Left Behind Act (NCLB). In Horne v. Flores, English language learners in Nogales, Arizona claimed that the inadequate funding for educational programming for English language learners in the state violated the EEOA. The Court of Appeals for the Ninth Circuit agreed. The Speaker of the Arizona House of Representatives, the President of the Arizona Senate, and the Superintendent of Public Instruction of the State of Arizona appealed to the U.S. Supreme Court arguing, among other things, that districts cannot violate the EEOA if they meet the benchmarks for school achievement under NCLB. AFC’s brief sets forth the arguments why NCLB does not replace the EEOA’s requirements, detailing a number of examples in New York City and other communities where the schools are not providing for the needs of English language learners, but the schools are meeting NCLB benchmarks. New York law firm, Paul, Weiss, Rifkind, Wharton & Garrison LLP, assisted Advocates for Children in drafting the brief.
Amicus Brief Filed in Horne v. Flores

J.G. v. Mills

AFC, the Legal Aid Society of New York and Dewey Ballantine LLP have filed a class action suit on behalf of a class of students aged 7-21 who have a history of involvement with the juvenile or adult court systems and who are entitled to an education in New York City schools. All the plaintiffs in this action claim that upon being released from a court-ordered setting, they have been denied timely re-enrollment in New York City schools. The students claim that court-involved youth are regularly denied the opportunity to return to school or warehoused in alternative settings where court-involved youth are segregated and that do not afford them minimally adequate educational services. The complaint also contains allegations on behalf of two subclasses: court-involved youth with disabilities and class members who did not receive adequate educational services while in detention in New York City.
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L.V. v. Department of Education

Pursuant to the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act and New York State law, the New York City Department of Education (DOE) is required to maintain a due process hearing system whereby parents are able to challenge the actions of the Department of Education in providing special education services to their children with disabilities. In the LV case, parents of children with disabilities filed suit claiming, among other things, that they had received favorable orders and settlements in impartial hearings that were not being timely enforced. The parents also claimed that the DOE did not maintain an adequate due process system and did not track and monitor enforcement of the orders. Milbank Tweed Hadley & McCloy LLP and AFC are co-counsel.

In December 2007, AFC and Milbank, on behalf of Lead Plaintiffs and the Class, entered into a settlement agreement with the DOE that provides injunctive and compensatory relief to class members. The Settlement was approved by the Honorable Richard J. Holwell at the Settlement Fairness Hearing held on April 10, 2008. Judge Holwell appointed Daylight Forensic & Advisory LLC to serve as Independent Auditor to monitor the DOE’s compliance with certain terms of the settlement agreement.
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E.B. v. Department of Education

Along with the firm of Davis Polk and Wardwell, Advocates for Children represents the class of all children with disabilities who have been excluded from school without proper notice and due process. The suit alleges, among other things, that the Department regularly suspends, expels, transfers and otherwise excludes student with disabilities from its programs without providing them and their parents adequate notice as is legally required and, in so doing, denies them the free appropriate public education to which they are entitled under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. The case is pending in federal court in the Eastern District of New York before Judge Charles P. Sifton and Magistrate Judge Marilyn D. Go.
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The Trilogy of Push-Out Cases: Ruiz v. Pedota, RV v. Department of Education and SG v. Department of Education

In January 2003 AFC filed a lawsuit against Franklin K. Lane High School for its illegal practices in discharging students fitting the above description. Within a few weeks, the City Department of Education agreed to undertake a mailing to approximately 5,000 students who had been discharged or transferred from FKL. In this mailing, the Department explained that these students each had a right to return to school and to stay in school until the year in which they turned 21. As a consequence of this mailing, hundreds of students were offered the opportunity to reenroll at FKL High School.

In the summer of 2004, Department of Education officials admitted that there was a long-standing citywide problem with schools pushing students out. The issue itself, as well as city officials' admission was covered extensively in the local press, most notably the New York Times.

In the fall of 2003 AFC filed similar lawsuits against two additional individual high schools. All three of these cases were filed in federal court in the Eastern District of New York before Judge Jack B. Weinstein.
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Jose P. v. Mills

Jose P. was filed by a group of disabled New York City School children over two decades ago to force the Department of Education to obey federal laws that require appropriate evaluation, placement and services be provided to all students with disabilities. In 1979 a judgment was issued directing a variety of relief measures. Numerous subsequent orders and so-ordered stipulations have been issued since 1979. The case is filed in federal court for the Eastern District of New York. Co-counsel on the case are Roger Maldonado of Balber Pickard Battistoni Maldonado &Van Der Tuin, PC and Chip Grey, Esq. Along with co-counsel, AFC continues to monitor implementation of the Jose P. judgment and orders.
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LIH v. Board of Education

In the summer of 2000, AFC obtained a preliminary injunction directing the Department to implement provisions of the federal law protecting the rights of special education students with disabilities during summer school.
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Ray M. v. NYC Board of Education and NYS Department of Education, et al.

The Ray M. suit was brought in 1994 by New York City parents of preschool children with disabilities, and alleged that these children were denied their rights to appropriate educational services under state and federal law. One of the Ray M. claims alleged that preschoolers with disabilities were wrongfully denied timely referrals and evaluations to special education and were automatically being placed in the most restrictive classroom settings in violation of state and federal law. Another claim alleged that disabled preschool students with limited English proficiency were denied timely special education evaluations in the appropriate language and were being placed in inappropriately restrictive classroom settings. This case was filed in federal court for the Eastern District of New York. During its time, the case was extremely successful in creating new inclusive educational environments for preschool students with disabilities, who had previously been warehoused in segregated settings.
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Boe v. NYC Board of Education, et al.

Boe was brought against the NYC Board of Ed. in 1980 on behalf of suspended high school students who challenged the NYC suspension policies and procedures.
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