J.Z. v. New York City Department of Education

Background

J.Z. and S.S. sued the New York City Department of Education, the Board of Education of the City School District of the City of New York, Chancellor David Banks in his official capacity, and the City of New York. They sought a preliminary injunction requiring defendants to implement their sons’ “stay-put” rights under the Individuals with Disabilities Education Act (IDEA). Those rights generally preserve a student’s educational program while an administrative dispute is pending.

A.F. is a 17-year-old boy with autism and significant developmental and support needs. E.S. is a 12-year-old boy with CHARGE syndrome and multiple health complications. Impartial hearing officers had ordered services for the children. For A.F., the orders required speech-language, occupational, and feeding therapy, including direct provision by the Department upon his parent’s request. For E.S., an order required continuation of vision education services and feeding therapy. The parents stated that the children had received none of the required services.

The preliminary-injunction request

The parents sought immediate implementation of the ordered services. The Department later represented that it had located some providers for A.F. and was working on services for E.S., but the record showed that the services had not yet begun. The Department argued that it was required only to fund certain services rather than provide them directly and pointed to logistical difficulties in finding providers.

To obtain a preliminary injunction, the parents had to show irreparable harm and either a likelihood of success on the merits or serious questions warranting litigation with the balance of hardships favoring them. The court stated that the parents satisfied the more demanding standard applicable to mandatory preliminary relief, but it did not decide whether that heightened standard applied.

Court’s analysis

The court found a substantial likelihood that the parents would succeed on their claims concerning the following services:

- A.F.: 1:1 speech-language therapy, 1:1 occupational therapy, and 1:1 feeding therapy, each for 60-minute sessions five times per week. - E.S.: 1:1 vision education services and 1:1 feeding therapy, each for 60-minute sessions twice per week.

For E.S., the court rejected the Department’s effort to rely on a proposed new individualized education program calling for shorter feeding-therapy sessions. The court explained that the stay-put provision preserves the educational status quo and that the Department could not unilaterally change E.S.’s pendency services without S.S.’s consent.

For A.F., the court found that his parent’s September 28, 2023 request triggered the Department’s obligation to provide the specified services directly, not merely fund them. The court reached a different conclusion concerning A.F.’s 2:1 speech-language therapy for one 60-minute session per week. The hearing order submitted by the parents required funding for that service but did not require direct provision upon request, and J.Z.’s September 28 email did not specifically request its direct provision. The court therefore found no substantial likelihood of success on that particular direct-provision claim.

The court also found irreparable harm. It relied on evidence that A.F. had experienced developmental delays and had lost sixteen pounds during a period without feeding therapy. E.S. had regressed in feeding and would no longer eat pureed foods. The court stated that the denial of required educational services and the resulting developmental and health effects could not be fully remedied with money.

The public interest and balance of hardships also favored an injunction. The court stated that the public interest supported requiring the Department to comply with the IDEA and with the orders issued by its impartial hearing officers. It recognized the Department’s logistical challenges but found that its efforts had been incomplete and that the children urgently needed the services.

Disposition

The court granted in part and denied in part the motion for a preliminary injunction. It ordered defendants to provide:

- A.F.: 1:1 occupational therapy for 60 minutes five times per week and 1:1 feeding therapy for 60 minutes five times per week. - E.S.: 1:1 vision education services for 60 minutes twice per week and 1:1 feeding therapy for 60 minutes twice per week.

To the extent the parents sought an injunction requiring A.F.’s 1:1 speech-language therapy for 60 minutes five times per week, the court denied that request without prejudice to renewal because the service was expected to begin on May 1, 2024. The court directed the parents to notify it within two weeks if the service did not begin by that date. To the extent the parents sought direct provision, rather than only funding, of A.F.’s 2:1 speech-language therapy for 60 minutes once per week, the court denied that request because the parents had not shown a likelihood of success on the claim.