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For Homeless Children Lack of Internet Is Like No School Bus So SDNY Case Will Proceed

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Dec 30 –    A number of parents and children have sued the NYC Board of Education during the COVID-19 pandemic for denying that a free appropriate public education.  

 On December 30 U.S. District Court for the Southern District of New York Judge Alison J. Nathan ruled that a case by homeless children in the NYC shelter system but without appropriate wi-fi Internet for virtual learning can proceed:

"During the unprecedented COVID-19 pandemic, public schools in New York City have been largely closed since March to in-person learning. For all children, including the City’s approximately 114,000 children who live in homeless shelters, education must be accessed virtually. Just like getting to brick and mortal schools requires reliable transportation, access to virtual school during the pandemic requires access to reliable internet. At the time this lawsuit was filed, however, almost none of the City’s homeless shelters housing school-aged children had broadband WiFi internet installed. Plaintiffs, parents of school-age children who live in homeless shelters and the Coalition for the Homeless, brought this putative class action, alleging that Defendants’ failure to provide adequate and reliable access to the internet has violated the students’ rights under state and federal statutory and constitutional law to receive a sound basic education notwithstanding their residence in homeless shelters. Plaintiffs have filed a motion for a preliminary injunction and seek expedited discovery and an evidentiary hearing on the motion. In their response to Plaintiffs’ preliminary injunction motion, Defendants argue that Plaintiffs had failed to state a claim on their federal and state constitutional and statutory arguments. At base, the City contends that it is meeting its state and federal law obligations by doing its best and working to resolve the issues through a variety of means, including now working expeditiously to install WiFi internet access in all homeless shelters. Defendants ask the Court to resolve these preliminary legal arguments in advance of discovery and a hearing. Having considered the parties’ briefing and held oral arguments, the Court concludes that at least one of Plaintiffs’ claims survives Defendants’ legal arguments at this stage. Accordingly, the Court GRANTS Plaintiffs’ request to set an expedited discovery schedule and schedule an evidentiary hearing and DENIES Defendants’ request that the Court dismiss the motion for a preliminary injunction on the present record....

 In the remote learning context, internet connectivity serves the same function as does transportation when education takes place in person at the schoolhouse. See John Wachen and Mark Johnson, Examining Equity in Remote Learning Plans: A Content Analysis of State Responses to COVID-19, The Learning Partnership,  3 (Nov. 2020), here (“Students’ and families’ ability to access devices  and the internet is critically important for equitable remote learning.”). Without internet connectivity, homeless students are deprived of the means to attend classes. And because homeless children who lack internet access and reside in New York City shelters cannot attend school for as long as that deprivation exists, the City bears a duty, under the statute, to furnish them with the means necessary for them to attend school. Whatever the scope of the particular remedy—the main focus of Defendants’ opposition, see Def. Opp. Br. at 18—the obligation to furnish students with the means to attend classes remains. As pled in the complaint, that duty is not now being met. In that regard, Plaintiffs’ § 3209 claim survives Defendants’ legal arguments. Plaintiffs have stated a claim that they are entitled to receive the means by which homeless students may attend school, and they have pled that, at least for some students, including the named Plaintiffs’ children, the Defendants’ efforts to date have not remedied their injury. As a result, the Court rejects Defendants’ argument that Plaintiffs’ § 3209 claim fails as a matter of law. Having determined that at least one of Plaintiffs’ claims survives, the Court need not reach the viability of Plaintiffs’ remaining claims at this juncture.

IV. Conclusion Defendants’ request to deny the preliminary injunction motion based on the existing record is DENIED. All of the remaining issues that must be resolved prior to the Court’s determination of whether a preliminary injunction should issue—and, if so, what that injunction should look like—require discovery and an evidentiary hearing.2 The Court therefore GRANTS Plaintiffs’ request for expedited discovery on these and other disputed factual issues in advance of an evidentiary hearing. The parties shall discuss with Magistrate Judge Freeman an appropriate schedule for expedited discovery and a proposed week for the Court to conduct an evidentiary hearing. The schedule put in place by Judge Freeman shall control. As soon as the parties inform the Court of the proposed week to conduct the evidentiary hearing, the Court will confirm the specific date and time. The hearing will be conducted remotely using videoconferencing technology." Watch this site.

 This case is E.G, et al. vs. City of New York, et al., 20-cv-9879 (Nathan)

  Back on November 6, 2020 U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held a proceeding. Inner City Press covered it, below.

 Now on November 16 in a larger and more "unwieldy" IDEA case concerning school shutdowns amid the COVID-19 pandemic, SDNY Chief Judge McMahon has issued a series of orders:

"Plaintiffs allege that, when schools were shut down due to the public health emergency  created by the COVID-19 pandemic, every school district in the United States that went from in- person to remote learning (1) automatically altered the pendency placement of every special  education student in the United States; and (2) ceased providing every one of those students with a FAPE, in violation of IDEA’s substantive and procedural safeguards. Approximately one month after filing this lawsuit, Plaintiffs’ counsel moved before the Part I judge for a temporary restraining order (“TRO”) and a preliminary injunction. The application for an immediate TRO was denied, with the Part I judge expressing grave doubt about the ability of this case to go forward in the posture proposed by Plaintiffs.

At about the same time, some of the defendants around the country who had received service of process (or at least attempted service of process) began filing motions to dismiss the case, or indicated by letter their intent to do so. In an effort to manage so unwieldy a lawsuit, this Court issued a number of orders to show cause, which were designed to tease out some of the many defects that seemed apparent, first to my colleague in Part I and then to me, from the face of the Complaint. The Court allowed Plaintiffs’ motion for a preliminary injunction to proceed only against the only defendants named in the actual caption of the complaint – the NYC Defendants – who not only opposed the motion but promptly moved to dismiss the Complaint as against them. The action as to all other defendants was stayed until the Court could address the potential pleading deficiencies that were immediately apparent. This opinion explains the reasons for the Court’s entry of the following orders: 

(1) An order dismissing the Complaint without prejudice as against all defendants located outside the State of New York – 49 State Departments of Education, D.C. State Board of Educations, Departamento De Educatión Gobierno De Puerto Rico, and the over 13,000 school districts in states other than New York – for myriad reasons: (1) the Court lacks personal jurisdiction over any of those defendants, (2) venue does not lie against those defendants in this district; and (3) even if (1) and (2) were not the case, permissive joinder pursuant to Fed. R. Civ. P. 20 – the only applicable form of joinder, by Plaintiffs’ admission – is so grossly inappropriate that severance and dismissal is the appropriate remedy. See Nassau Cnty. Ass’n of Ins. Agents, Inc. v. Aetna Life & Cas. Co., 497 F.2d 1151, 1153–54 (2d Cir. 1974) (“The misjoinder here, resting on thousands of unrelated transactions, is such a gross abuse of procedure that dismissal under F[ed.] R. Civ. P. 41(b) for failure to comply with the federal rules is warranted.”).

(2) An order dismissing the Complaint as against all defendants except the NYC Defendants and the New York State Department of Education, on the ground that permissive joinder is not appropriate and that dismissal rather than severance is the appropriate remedy. See Nassau Cnty. 497 F.2d at 1153–54.

 (3) An order dismissing as plaintiffs all parents who do not have children enrolled in the New York City public schools (non-New York City Plaintiffs), on the ground that they lack standing to assert any claims against the NYC Defendants.

(4) An order denying the New York City Plaintiffs’ motion for a preliminary injunction and dismissing the Complaint as against the NYC Defendants without prejudice;

 and (5) An order sua sponte dismissing the claims against the only remaining Defendant in this case, which is the New York State Department of Education."

This case is J.T., et al., vs. Bill De Blasio, et al. 20-cv-5878 (McMahon)

 In the more local case on November 6, SDNY Magistrate Judge Netburn asked one of the parties to not use the name of a child - which was given - but instead the initials, Y.G.. 

She asked the court reporter to change the transcript, or to let her know and she would redacted it. Inner City Press was covering the proceeding and heard it, but is going with Y.G.. The point is the case.

It is M.G. et al v. NYC Department of Education et al., 17-cv-7612 (Abrams / Netburn)


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