Federal Judge in Brooklyn, NY Clears the Way For a Class Action Lawsuit Against the NYCDOE for Special Ed Violations
The New York City Department of Education may have to not only admit their actions violated Federal Laws, but Change their policies. E-Accountability Opinion: Advocates For Children, please DO NOT SETTLE THIS CASE, but pursue discovery, so that the entire story of New York City's non-compliance can be investigated.
Students' Suit on Special Ed Becomes Class Action
By ELISSA GOOTMAN, NY TIMES, July 30, 2004
A federal judge has cleared the way for a class action lawsuit arguing that the New York City school system has improperly removed thousands of disabled and special education children from their classrooms, placing some of them for months at a time in settings that lack the services they need.
The development in the suit was announced yesterday by Advocates for Children, a nonprofit group that filed the suit two years ago. The lawsuit charges that over the years, children with special needs have been suspended, expelled, transferred, discharged or otherwise removed from city schools without adequate notice, without being informed of their legal rights, and, in some cases, without required procedures.
The students, the lawsuit argues, are sometimes placed in settings that cannot provide the conditions or services they require and are entitled to by law, like smaller student-teacher ratios and instruction tailored to their special needs. Some students, it contends, are turned away without being told where to go.
According to the complaint, the Department of Education "instituted a policy, practice and custom" under which children with disabilities have been "illegally excluded from school and denied educational services to which they are entitled by federal and state law." The complaint claims that these students "have missed days, weeks and months of educational services."
The lawsuit has nine plaintiffs, who are identified by their initials. The ruling allowing the class action lawsuit to proceed was filed yesterday by Judge Charles P. Sifton of Federal District Court in Brooklyn.
Elisa Hyman of Advocates for Children, the students' lead lawyer, said the practices cited in the lawsuit began before Mayor Michael R. Bloomberg took control of the school system and have continued.
"This is not this administration's fault. However, this administration has been on notice of these problems since the beginning and hasn't taken any real steps to address them," Ms. Hyman said. "The department has basically been turning a blind eye to the fact that thousands of children are being improperly excluded from school and denied educational services, in violation of federal law."
The significance of the judge's ruling, Ms. Hyman said, is that if the lawsuit is successful, the Department of Education could be forced to make widespread changes in its practices instead of having to simply address the problems of the nine plaintiffs.
The city's Department of Education declined to comment, saying it was its policy not to discuss pending litigation.
Al-Yasid Johnson, 11, a plaintiff who was identified by his family, who is classified as autistic but functions relatively well, spent about two months in the fall of 2002 in a classroom by himself, visited by teachers but without peers, even though his individualized special education program requires that he be placed in a general education classroom with special supplementary services, lawyers in the case said. Ina Farmer, the boy's sister and foster parent, said he was kept in the room alone even after a hearing officer ruled that he should be returned to a regular classroom. This did not happen, Ms. Farmer said, until Al-Yasid became a plaintiff .
"He was very sad about it," she said. "He would come home and ask me, 'Why don't they like me? What did I do wrong?' "
In another case cited in the complaint, a 17-year-old student classified as learning disabled said he was told in the spring of 2002 that he had to transfer from one high school to another. But according to the lawsuit, the boy was later told he could not enroll in the second school, and he was out of school for eight months.
Another plaintiff, a disabled first grader, "spent much of the 2002-2003 school year out of his class, in the in-house suspension room and time-out rooms," the complaint states, adding that his mother "never received any notice or information" about his rights. He was "denied educational services for weeks at a time," it states.
The suit contends that other children were sent to "alternative" centers "that do not provide special education services or minimally adequate regular instruction."
"After spending weeks or months in these centers, the students fall completely behind in their schoolwork," the complaint said.