Commissioner’s Appeal vs DOE failure to ensure parent consent placing child in an online learning class

A Commissioner’s Appeal was filed June 12, 2024  on behalf of Class Size Matters and four parent plaintiffs vs DOE guidance dated May 13, 2024 that advised schools that they could place students in online classes and keep them there until their parents complained, which violates the NY State Education regulations issued April 28, 2024 that instead require prior parental consent. 

Articles about this legal challenge:  Daily News, Parents, advocates ask NY State Dept. of Ed to void remote learning policy as city mulls expansion;   Politico Pro, Advocacy group accuses DOE of failing to ensure parental consent for online classes

On June 16, a corrected version of the Appeal was filed, as well as an additional affidavit from another plaintiff, Amy Ming Tsai, Bronx parent.

Update: As reported in the Daily News, in response to our Appeal, the DOE emailed principals and rewrote its guidance on July 1, 2024, to require prior parental consent before a student can be assigned to an online class. Yet we are not dropping our appeal, for reasons explained here. 

Further update:  After receiving three extensions, the city finally replied to our Commissioner’s Appeal on Aug. 12, 2024;  we responded on September 9, 2024.

On Sept. 13, 2024, Advocates for Children sent a letter of support to the Commissioner, urging her to  to require the NYC DOE to comply with the explicit requirements of the IDEA, Section 504, and New York Education Law by holding IEP meetings before any changes from in-person to virtual classes or schools for students with disabilities.  In their letter they cited a relevant decision from the US Department of Education Office of Civil Rights.

All these legal papers are below.

Documents:

Vender et. al. vs. Board of Education, Verified Petition, filed June 12, 2024

Regarding NYC Dept of Education Issuance of the Virtual and Blended Courses Guidance, which Unlawfully Permits the Respondents to Assign and Place Petitioners’ Respective Children in Virtual or Blended Classes Without First Obtaining Express Written Consent from Parents/Guardians, in Violation of the NYSED Regulations of the Commissioner

Corrected Verified Petition, filed June 16, 2024

Affidavit of Leonie Haimson, Executive Director, Class Size Matters

Affidavit of Amanda Vender, Queens parent and ESL teacher

Affidavit of Tanesha Grant, Manhattan parent and Executive Director, Parents Supporting Parents NY  and Moms United For Black Lives NYC

Affidavit of Naila Rosario, Staten Island parent

Affidavit of Tia Schellstede, Brooklyn parent

Affidavit of Amy Ming Tsai, Bronx parent (filed June 16)

NY State Ed regulations on online learning, approved April 28, 2024  [Exhibit C]

DOE guidance on online learning, updated May 13, 2024 [Exhibit D]

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DOE revised guidance to principals, July 1, 2024

DOE reply to our Appeal,  Aug. 12, 2024

Our response Memo of Law, Sept. 9, 2024

Our Verified Answer, Sept. 9, 2024

Advocates for Children Letter of Support to the Commissioner,  Sept. 13, 2024

Relevant Office of Civil Rights decision, cited in the AFC letter above.  May 16, 2023