AFC and Milbank Tweed Hadley & McCloy LLP filed the class action lawsuit in 2003, alleging that, after parents of children with disabilities received favorable orders in special education administrative hearings, the New York City Department of Education (DOE) was failing to implement the ordered remedies. The parents also claimed that the DOE did not have a system of tracking and monitoring implementation of the orders.

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.

Under the settlement, the DOE is required to implement all impartial hearing orders within the time frame stated in the order or 35 calendar days of the date of the order if no time is specified. Orders that require immediate action must be implemented within 7 business days. An independent auditor reviews the DOE’s implementation of each order and if the auditor finds that the DOE did not timely implement any part of the order, the DOE must notify the parent by letter of its failure to timely implement the order. That notice can be used as evidence during any proceeding to enforce the order. The DOE, however, failed to comply with the terms of the settlement for more than a decade, and students continued to wait for ordered relief.

At AFC and Milbank’s request, a Special Master was appointed in 2021 to investigate the DOE’s delays in implementation of hearing orders. In March 2022, the Special Master, David Irwin from Thru Consulting, issued his findings on the failures within the DOE’s hearing order implementation systems; the following year, the Special Master issued recommendations on DOE actions necessary for timely implementation of hearing orders. In July 2023, Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York issued an order compelling the DOE to change its systems for complying with special education administrative orders. The order incorporates the changes to the DOE’s systems and internal structures that the Special Master recommended, and includes more than 41 required steps that the DOE must take with deadlines ranging from two months to a little over a year. Among other changes, the order requires the DOE to create a structure for parents to contact the DOE when their special education administrative hearing orders are not implemented, including a support hotline for order implementation; improve and build DOE technology systems for implementing hearing orders; and recruit and fund new staff to implement hearing orders.