02.03.2023 | Chalkbeat NY | 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 ruling reverses a lower court’s decision last year to dismiss the case. 

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.” Read article