In November 2020, Advocates for Children of New York (“AFC”) and Patterson Belknap Webb & Tyler LLP filed a class action complaint in federal court against the New York City Department of Education (“DOE”) and New York State Education Department (“NYSED”) on behalf of students with disabilities who have not received an appropriate education during the time of remote learning as a result of the COVID-19 pandemic.

When schools closed their physical spaces due to the COVID-19 pandemic, tens of thousands of students with disabilities in New York City were unable to access appropriate services and programs during remote learning. Under the federal Individuals with Disabilities Education Act (“IDEA”), school districts must provide a free and appropriate education (“FAPE”) to all students with disabilities. When the school district fails to do so, the law requires that they must provide “compensatory services” to make up for the education and therapies that the student lost. Although the widespread inability of the students to access their IEP-mandated services and program during remote learning has resulted in a denial of FAPE in violation of the IDEA, Section 504 of the Rehabilitation Act, and New York Education Law, the DOE has not announced any plans to develop a system for identifying which students with disabilities require compensatory services, determining what services they need, and providing those services.

The complaint asks that the DOE create an expedited and efficient process to provide make-up services for the instruction and services students with disabilities have lost during the period of remote learning, rather than requiring that each of the tens of thousands of parents of students with disabilities litigate individually to receive the services their children need and require.

NYSED and the DOE moved to dismiss the complaint in 2021, claiming that the plaintiffs needed to exhaust their administrative remedies under the IDEA before filing a claim in federal court. In March 2022, the Court agreed with the defendants dismissing the complaint in its entirety. Although the Court dismissed the complaint, we continued to fight. We filed an appeal to the Second Circuit, with supporting amici briefs from organizations including the New York City Bar Association, Student Support Services, The Legal Aid Society, NYPLI, Council of Parent Attorneys and Advocates, The New York Legal Assistance Group, and more. The Court of Appeals for the Second Circuit reversed this dismissal, noting that the class action complaint “sets forth precisely this allegation of systemic delay” for which exhaustion of administrative remedies is not required.

After the DOE filed another motion, the court held in March 2024 that Plaintiffs’ IDEA claims against the DOE could proceed.