Special education advocates seek court order to keep N.J. schools open

A New York-based group representing special education students has asked a federal judge for an emergency order to prevent any New Jersey schools from switching to virtual learning.

The Brain Injury Rights Group filed a motion Monday in U.S. District Court in Newark seeking a temporary restraining order to ensure the 237,000 students ages 3 to 21 who receive special education services in New Jersey will remain in person in schools this week and weeks to come.

The motion came as some districts shifted to remote classes after winter break, when a spike in COVID-19 cases left many schools short-staffed.

This is the latest fight in a battle the group has waged since July 2020, when it filed a class-action, civil rights lawsuit to challenge remote learning. The group argues school districts broke federal law by failing to provide legally mandated services to special-needs students. Remote learning especially hurts students who need one-on-one assistance, the group says.

Tuesday afternoon, U.S. District Court Judge John Michael Vazquez presided over a call-in hearing to hear the motion filed Monday.

About 20 lawyers and school officials tuned in from districts around the state, including Camden, Toms River, West Orange, and Manasquan. Some denied that their schools closed this week, and others said many special-education students are in out-of-district placements they have no authority over.

Others insisted they have to follow state guidance. The state ordered schools closed early in the pandemic and, since the current school year started, left it to districts to decide whether and when to teach in person or online.

At least 25 districts started this week off remotely, as the highly contagious omicron variant sent COVID-19 cases surging statewide. Gov. Phil Murphy said Monday he believes schools should remain in person — but also said he asked legislators to approve a 90-day extension for some of the emergency powers he was given during the pandemic.

During Tuesday’s hearing, no one from the state was on the line, leaving the plaintiff’s attorney clearly frustrated.

“What the problem here is that districts all over the state, as I’m sure you’ve read, are just closing, and it’s not a legal term: it’s willy-nilly. There’s no real state guidelines on when they close the schools,” said attorney Keri Avellini.

A spokesman from the state Department of Education did not respond to a request for comment. Alyana Alfaro, a spokeswoman for the governor, declined to comment.

Patrick Donohue, a civil rights attorney and founder of the Brain Injury Rights Group, was aghast at the absence of any state officials at the hearing.

“This is the only lawsuit in the state challenging remote learning and they’re AWOL? That should be the headline: Gov. Murphy turns his head on these kids going remote,” Donohue said.

Vazquez ended the hearing without a decision, directing Avellini to inform the state Department of Education of the motion and prepare a list of schools that have gone remote.

Donohue started the Brain Rights Injury Group when his daughter, now 16, suffered a brain injury as a newborn after her baby nurse shook her. He also started a school, the International Institute for the Brain, in Manhattan for medically fragile children ages 5 to 21.

His group’s national lawsuit challenging virtual schooling was dismissed over jurisdictional issues but has been appealed. The group subsequently filed state-based lawsuits in New Jersey, California, Connecticut, Massachusetts, Michigan, and Virginia and plans to file cases in New York and Illinois this week, Donohue said.

“We’re two years into this. We’re past this being an emergency. This is a chronic situation, and they’re using the term ’emergency,’ as if that has any real meaning,” Donohue said. “The issue here is that these kids who have special education have a placement, an agreement. An IEP (individualized education program) is like a contract between the school district and the parents, backed up by the federal government. Local public health does not supercede federal law.”