Late last month, more than 100 parents of students with disabilities commenced a class action lawsuit in the U.S. District Court for the Southern District of New York against “every school district in the United States” and each state’s department of education. The lawsuit essentially alleges school districts improperly denied special education to students with disabilities when defendants closed schools, or caused schools to be closed, due to the COVID-19 pandemic. The plaintiffs allege that defendants violated the Equal Protection and Due Process clauses of the U.S. Constitution, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and state constitutions requiring the education of all students. The plaintiffs also allege that the defendants changed students’ placements and did not comply with individualized education programs (IEPs) during periods when remote instruction was provided.
The lawsuit seeks an order requiring all schools to (a) immediately reopen or issue “pendency vouchers” with which parents can obtain alternative services; (b) conduct independent evaluations of students; (c) establish and provide compensatory education plans based on independent evaluations due to regression resulting from the closures; (d) pay compensatory damages to parents for out-of-pocket expenses related to their failure to educate students per IEPs currently in place; and (e) pay punitive damages.
The Southern District of New York’s clerk of the court has only issued summonses to the New York City Department of Education, New York State Education Department, Mayor Bill de Blasio and the Chancellor of the New York City Department of Education, and only those parties have been served. Absent the issuance of summonses naming each individual school district in the United States, the plaintiffs cannot serve additional districts with process or subject them to the court’s jurisdiction. Any decisions made by the court in the absence of the school districts, other than perhaps dismissal on the merits, will not be binding on districts other than the New York City Department of Education. Bond will continue to monitor this lawsuit and advise its school district clients if the procedural status of this matter changes.
At this time, school districts, other than the New York City Department of Education, do not need to take any action. While summonses have not yet been issued naming additional school districts, that may change, and plaintiffs may eventually be able to serve every school district in the United States. If and when you are served, you should contact your insurer and your counsel to determine your next steps.