On July 27, 2020, a class action complaint,  J.T. v. DiBlasio, was filed in the Southern District of New York on behalf of students with special needs and their parents.

In a press release announcing a “national class action lawsuit,” posted on the website www.braininjuryrights.org, the Brain Injury Rights Group, and Patrick Donohue, an attorney, allege that when schools began remote learning in mid-March, they violated the federal civil rights of special education students under the  federal Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act and the equal protection/due process clauses of the U.S. Constitution.

The defendants include the mayor and education chancellor of New York City, the school district of New York City, numerous other school districts throughout the U.S., including more than 580 districts and charter schools in New Jersey, and all 50 state education agencies. The plaintiffs seek the immediate in-person reopening of schools to provide a program substantially similar to the students’ previous program, or vouchers for parents to obtain such a program, reevaluations to determine the students’ regression and their current needs, and compensatory damages.

The crux of the complaint is that anything less than in-person instruction, as it was prior to the pandemic closures, is an automatic violation of the rights of those students with special needs.  One of the difficulties with such broad-based claims, however, is that it ignores the highly individualized nature of these services and any proposed accommodations or remedies that districts may currently be working on with parents and students as a result of the pandemic closures.

The complaint raises other procedural and substantive issues as well. On Sept. 2, a federal district court judge issued an order to plaintiffs to show cause why the complaint should not be dismissed for all of the districts outside New York over whom the federal district court might not be able to exercise jurisdiction. The plaintiffs must file their response by Sept. 11, 2020.

The New Jersey School Boards Association is monitoring the case and will provide updates as needed. Should you have any questions or wish further information about the case, please contact your board attorney or the NJSBA Legal and Labor Relations Services Department at (609) 278-5254.