Robbins Geller and Friedman and Moses Obtain Class Certification for Children with Disabilities
NEW YORK, January 6, 2016 – In a comprehensive 48-page opinion made public yesterday, the Honorable Shira A. Scheindlin of the United States District Court for the Southern District of New York has allowed the claims asserted on behalf of children with disabilities in a lawsuit against the New York City Department of Education, the New York State Education Department and the Commissioner of Education to proceed as a class action.
Samuel H. Rudman and David A. Rosenfeld of Robbins Geller Rudman & Dowd LLP ("Robbins Geller") and Elisa Hyman, Of Counsel to Friedman and Moses LLP ("F&M"), are representing the classes and subclasses. According to Mr. Rudman, a founding partner at Robbins Geller, "Ms. Hyman has worked tirelessly on behalf of these children for years and we are happy to bring our firm's talents and resources to join her in this effort." As a leader in class action litigation, Robbins Geller was brought in to assist the plaintiffs on a pro bono basis as this case approached the class certification stage. F&M had initiated the suit, which evolved out of the firm's practice on behalf of low and middle-income families of children with disabilities.
As discussed in the opinion, the litigation was brought on behalf of children in New York City who have been diagnosed with Autism Spectrum Disorder ("ASD"), as well as children with other significant disabilities who have been placed by New York City in specialized private schools (non-public schools, or "NPS"). Both classes of students allege that the defendants adopted certain systemic policies that impede the provision of adequate special education services to students in violation of federal and state law.
Children in the ASD class seek to change existing policies that deny them the individualized special education services they are afforded under the law; children in the NPS class similarly seek fair access to the special education and related services that they are entitled to under the law.
Plaintiffs allege that the number of children diagnosed with ASD in New York City has grown significantly over the years. Despite this, New York City's special education services and programs for children have not subsequently expanded and adapted to meet their obligations under state and federal law to provide a free and appropriate public education to children and offer their parents appropriate procedural protections. To date, children with ASD in New York City are unable to access certain specialized services, such as one-on-one instruction, research-based instructional methods (such as Applied Behavior Analysis) and after-school services, without individually bringing their own lawsuits. Unfortunately, for most families insurance does not cover these services, and the out-of-pocket expenses are far too burdensome.
Mr. Rosenfeld, a partner at Robbins Geller representing the plaintiffs, hailed yesterday's opinion as "a major victory for New York City children with disabilities and a critical step in ending the constant litigation cycle that these children and their parents have had to endure." Ms. Hyman further commented that "the long-standing blanket restrictions on services for children with ASD can now be challenged on a class-wide basis, and we look forward to expanding the available special education menu options for these children, especially for those whose families cannot afford lawyers."
With respect to the class of children in NPS programs, plaintiffs allege that the defendants implemented policies that resulted in a loss of special education services that were offered by the school district but not the individual schools. Ms. Hyman noted that "children whose disabilities render them unable to attend public school programs are entitled to individualized determinations about their special education services. They cannot be denied access to special education or general education based upon the nature of their disabilities or the fact that they are placed in private schools."
The case was filed under various federal and state laws and includes alleged violations of the Individuals with Disabilities Education Improvement Act, the federal special education law, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based upon disability. The suit was also filed under 42 U.S.C. §1983, the Fourteenth Amendment of the U.S. Constitution, the New York State Constitution, and New York State Education Law.
Robbins Geller Rudman & Dowd LLP
David A. Rosenfeld
Friedman & Moses