Ruling allows lawsuit to proceed that pits special education parents against N.J.

A federal judge has granted class certification to parents of students with disabilities who sued the state in 2019 for sometimes yearslong delays in how education officials resolve disputes between parents and public schools over their children’s special education programs.

U.S. District Judge Noel L. Hillman’s decision Friday puts the lawsuit on track for trial, possibly as soon as late fall.

The parents of 10 children with disabilities sued the state Department of Education in May 2019, accusing the agency of routinely failing to resolve special education disputes in the time federal law allows.

Special education in public schools is governed by the federal Individuals with Disabilities Education Act. Under that law, if a parent disagrees with local school officials about their child’s education, the parent can request a due process hearing, which must be completed with a decision rendered within 45 days (with certain exceptions). The state Department of Education oversees that process.

But the parents who sued waited substantially longer than 45 days for a decision — 791 days in one case — with most of the children receiving no or inadequate special education services during that time, according to the lawsuit.

The parents want the federal court to step in and require the state Department of Education to fix the problem, as well as determine how long the state has not complied and assess whether the state misrepresented its compliance. Hillman in May 2020 rejected the state’s motion to dismiss the complaint.

Attorney John Rue represents the parents, along with several other lawyers and the Education Law Center. The 45-day rule is critically important because it recognizes that time is of the essence when it comes to educating children, Rue said.

“The due-process hearing system is profoundly broken — and has been for a generation,” Rue said. “This is not a pandemic problem. It’s an endemic problem. We’re trying to fix a broken system so parents have recourse when they disagree with their school district.”

The Office of Administrative Law, an independent state agency that decides disputes involving the state or state agencies, hears such cases. About 1,000 cases a year get filed, but the office has a shortage of judges that has helped fuel a “gigantic backlog,” as well as an insufficient number of judges trained specifically on special education matters, Rue said.

A 2018 report by the New Jersey Special Education Practitioners found that administrative law judges took close to nine months to decide disputes in 2017 — twice as long as they took just three years earlier.

At the time, the group urged Gov. Phil Murphy to add more judges to hear cases and direct the Department of Education to implement systemic reforms to decrease the need for special education hearings. Vacancies also plague the state Superior Court, hitting a historic high in May and creating severe backlogs throughout the state. Lawmakers have only chipped away at the shortage since then.

New Jersey’s approach to special education has caught criticism before.

A report earlier this year from the Education Law Center found the Garden State is the worst in the country in including special education students in general education classes, with a majority of special education students spending most or all of their school days in segregated classrooms or out-of-district placements.

New Jersey gets more than $400 million a year in federal aid for public school students with special education needs, according to Rue’s office.

The state Department of Education did not return a request for comment.