On July 28, 2020, a complaint was brought in the Southern District of New York, in the case J.T. v. de Blasio, against every school district in the United States alleging that all are or have violated the IDEA when deciding to close schools in March 2020, due to the COVID-19 pandemic. The Plaintiffs not only argued that the students were denied a free appropriate public education (FAPE), but that there were numerous procedural violations, as well. Although filed in the Southern District of New York, the Plaintiffs named nearly every public school district in the United States, and every State Educational agency as Defendants in the suit. The class action sought an injunction to immediately reopen schools for students with disabilities so that they could fully receive their IEP services and instruction, and also brought a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) by accepting federal special education funding while not providing sufficient special education services.

On September 14, the Court issued an Order to Show Cause and Sua Sponte Temporary Restraining Order reasoning that Plaintiffs’ counsel unethically commenced due process hearings for individual students without being retained and without consent from parents in an attempt to get around a defense to the case. The Court also temporarily restrained and enjoined the Plaintiffs’ counsel from commencing any due process hearing on behalf of any member of the class in any jurisdiction unless the parents/guardian(s) of said child, have signed a retainer letter.

As of November 13, 2020, the District Court for the Southern District of New York dismissed the case against all Defendants, including all Wisconsin School Districts, on the following bases:

1. The Plaintiffs failed to state a claim for which relief could be granted;
2. The Plaintiffs failed to plead all essential elements of a RICO claim;
3. The Plaintiffs failed to exhaust all administrative remedies; and
4. The Defendants were not properly served.

Although the case was dismissed against all Defendants, the decision indicated that individuals in their respective states would not be prevented from seeking a remedy. The judge wrote: “[s]everance and dismissal here may well result in the bringing of numerous individual cases against the more than 13,800 school districts across the United States. But that is the nature of IDEA litigation involving individual students and their parents, each of whom has standing to bring claims against just one or two of the thousands of defendants purportedly sued here. No one who was allegedly injured by these thousands of decisions will be denied a chance to obtain a remedy; any individual student who believes s/he is being denied a FAPE by virtue of the closure of schools during the pandemic and/or the provision of services remotely can bring a claim against his/her school district and state, in a federal or state court in that state, for redress. Plaintiffs have attempted to craft a one-size-fits all omnibus lawsuit. But that is not how IDEA cases can or should be handled.”

This case demonstrates the difficulties of maintaining a successful class action lawsuit under the IDEA. The IDEA emphasizes an individualized educational program and placement, which is seemingly contradictory to the basic principles of a class action lawsuit. Thus, although this lawsuit has been dismissed, Wisconsin School Districts are advised to be mindful of the IDEA’s procedural and educational requirements, and their implementation during the ongoing difficulties caused by the current pandemic. Practices on an individualized basis that are consistent with the advice and recommendations of the Wisconsin Department of Public Instruction are the safest course of action in meeting the District’s obligations under the IDEA and Chapter 115.

And, of course, we will keep you advised in the event the decision is appealed.

If you have any questions about this Legal Update, please contact Attorney Emily Turzinski at 262- 364-0268 or eturzinski@buelowvetter.com, or Attorney Gary Ruesch at 262-364-0263 or gruesch@buelowvetter.com, or your Buelow Vetter attorney.