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January 14, 2016 by Jeremy N. NashDownload PDF


Court Certifies Student Classes Denied Special Education ServicesJeremy N. Nash

A New York federal judge recently certified two classes and several subclasses consisting of more than 20,000 New York City students with disabilities in a case alleging that the New York City Department of Education and the New York State Education Department have adopted policies denying them special education services.

The ruling is a reminder that class litigation has utility beyond putting individual investors, consumers, or employees on equal footing with America’s corporate giants.  It also has the capacity to right social injustices.

Plaintiffs are eight New York City students diagnosed with autism spectrum disorder.  The students’ parents also joined as plaintiffs.  They allege that the state and city’s wrongful policies violate several state and federal laws, including the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., which is a federal statute regulating the education of children with disabilities.  

In exchange for federal funding, the IDEA requires participating states to provide disabled children with a free and appropriate public education, which requires satisfying each student’s unique needs and preparing them for further education, employment, and independent living. 

To accomplish those goals, the IDEA requires that each disabled student have a written individualized educational program (“IEP”) in place—developed with input from parents, evaluators, and teachers.  If a local school district is unable to provide the services called for by a child’s IEP, parents can apply for what is essentially a voucher for parents to find an appropriately licensed credentialed outside provider to deliver those services.  Yet the state and city, according to plaintiffs, adopted policies and practices severely curtailing families’ access to services and their ability to tailor what services remained to their child’s individual needs. 

The first class consists of students with various disabilities who attend state-funded private schools because the public schools were unable to meet their needs. Many of these children received para-professionals and occupational therapists from outside agencies, paid by the city, because the schools lacked either the staff or funds.

As a cost-saving measure in 2012, the state required all of these services to be provided directly by the schools, putting families in a difficult position.  Many parents of disabled children were forced to choose among foregoing necessary services, initiating an administrative proceeding in the hopes of obtaining an exception, or forfeiting their child’s participation in the benefits program altogether.

The second class consists of autistic students who are allegedly subject to a New York City policy of denying an instructional strategy that has been proven to be effective for children with autism.  In particular, plaintiffs allege that the City restricts their access to individual instruction, applied behavioral analysis, and after-school services, even if those services are called for by the child’s IEP.

In granting class certification, the judge noted that the class action device is the appropriate vehicle for adjudicating the issues raised by this lawsuit because, absent class certification, thousands of individual students would be required to file for administrative or judicial review to assert the concerns raised by the plaintiffs.  Such review processes are inefficient, burdensome, and available only to those families with the resources to pursue them.

The parties do not have a trial date yet.