Department of Education Struggles Against Inertia
Today I want to talk about a recent motion that was filed in a special education class-action case that's in front of the United States District Court, Southern District of New York. It spells out potentially good news for parents who are suing for tuition reimbursement and other special education issues.
Like all legal cases, this one requires some context.
The lawsuit began in 2003 when a number of plaintiffs — mostly parents acting on behalf of their children with disabilities — sued the Department of Education for failing to implement final administrative orders in a timely fashion. All of the students party to this suit are either classified (or improperly denied classification) as students with disabilities under the federal Individuals with Disabilities Education Improvement Act, which is why it's in federal court.
The plaintiffs alleged that the DOE was routinely and systematically failing to implement the orders of administrative law judges in a timely way — that is, within 35 days unless a different timeline is set out by the judge. At the time the initial complaint was filed, some cases were taking up to 19 months for the implementation of an order.
According to the plaintiffs, there was no timely, effective, or comprehensive enforcement of the administrative orders. Furthermore, there was no system to track or monitor the implementation.
In 2007, the DOE voluntarily entered into a stipulation of settlement with the plaintiffs. The settlement essentially demanded radical changes to the way these orders were implemented, but left it up to the DOE to determine exactly what changes needed to be made. Instead of a step-by-step roadmap, the settlement provided three escalating, concrete benchmarks to measure the DOE's progress.
To satisfy each benchmark the DOE had to achieve timely implementation of a certain percentage of all orders that were implemented over a certain period of time. As each benchmark was achieved, the expected percentage of timely implementation would escalate. The initial goal started at 75%, ramping up to timely implementation of 91.5% of total orders by late 2011.
The stipulation also provided that, in the event that the DOE failed to meet any of these benchmarks, it had to create a corrective action plan within three months. That plan would trigger a “last-chance” period to meet the benchmark that the DOE had previously failed to achieve. If the DOE went on to fail again, then the plaintiffs could request any remedy deemed appropriate.
In 2008, the plaintiffs brought a motion alleging that the DOE failed right off the bat. Instead of meeting 75% of total orders being implemented in a timely fashion, the DOE’s rate was only 51.6%. Compounding that failure, the DOE didn't make any corrective action plan within the following three months. Finally, during its “last-chance” period after the corrective action plan, the DOE again failed to meet that first benchmark requirement.
In 2010, the plaintiffs requested that the federal court appoint a special master to oversee systemic change in the DOE. In opposition, the DOE argued that it was close to that first benchmark, and that no meaningful improvements were needed. They also responded by creating the “implementation unit,” a team within the DOE dedicated to solving the problems alleged in the initial complaint. The court told the plaintiffs that it didn't want to appoint a special master before seeing the implementation unit's impact on the DOE's ability to implement the orders.
That brings us to today. This new motion alleges that, more than eight years later, the DOE still hasn't met the third benchmark. At the present moment, the rates of timely implementation of orders are worse than they were in 2010. In addition, there is a growing backlog of orders that the DOE needs to implement.
The result of all this has been a hardship imposed on schools and parents. Parents aren't able to get the funds to provide the services their children need, and some private schools are taking out loans to be able to provide services for students with disabilities. Although parents are entitled to money from the City, the City is just not making those payments. In fact, some service providers have stopped working with the DOE altogether because of the problems in implementation.
The DOE hasn't responded to the motion yet, but parents would not be wrong to view it as a potential beacon of hope.
At Gottlieb & Gottlieb, we know first hand that too many parents struggle with making ends meet from one year to the next. It should uplift the community that there is an attempt going forward to create some systemic and long-lasting change to the way things are done at the New York City Department of Education. Hopefully, it will result in an easier, smoother process for parents of kids with special needs.
Jonathan Gottlieb
Partner
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Jonathan@GottliebFirm.com
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