August 09, 2019

Legal Updates

NY Lawsuit #1 Repeal of Religious Exemption

August 9, 2019:

A memo of law from the state defendants was submitted opposing our Temporary Restraining Order. Michael Sussman drafted a response and parents submitted over 350 Affidavits which we bound. On July 30, the affidavits and our brief to the court was mailed by the July 31 deadline for all legal papers.

After Mr. Sussman received state defendants’ opposition to the preliminary injunction, he wrote the judge and asked her for a chance to respond to those arguments. We filed a response August 6th. Mr. Sussman also asked for oral argument.

Oral argument was granted by the court to take place on August 14th at 10 a.m. at the Albany County Supreme Court. Following oral arguments by Michael Sussman and Robert F. Kennedy, Jr., a press conference will be held on the steps at 16 Eagle Street, Albany, NY. NY leaders ask that parents please show up in force and be there by 10 a.m. Bring your friends and family. If you see any reporters, introduce yourself and tell them your story. The judge and the press need to see that this law is impacting tens of thousands of families across the state.

August 15, 2019:

On August 14th, attorneys Michael H. Sussman and Robert F. Kennedy, Jr. presented oral arguments on behalf of 55 NYS families, hoping Justice Denise A. Hartman would block a law passed in June or at least issue a preliminary injunction.

Challenging the constitutionality of the legislature’s repeal of the religious exemption to vaccination, they stated that parents who don’t want their children vaccinated will have their First Amendment rights violated if they are forced to do so.

With school less than three weeks away, more than 26,000 NYS families have been thrown into chaos, because their children are barred from school and daycare. Hartman heard an hour of arguments over an injunction, and said she will keep the tight timeline in mind as she deliberates.

A decision has yet to be made.

NY Lawsuit #2 Update on Repeal of Religious Exemption and IDEA

August 5, 2019:

In the IEP litigation, a motion was filed for a preliminary injunction on August 5, 2019. Judge Allyne Ross in the United States District Court for the Eastern District of New York has set an expedited briefing schedule for this motion. The Defendants have to file any opposition papers by August 13 at 5 pm and Plaintiffs have to file their reply by August 15 at 3 pm. A hearing date has not been set but all involved know this issue is time sensitive with the start of school in September. Plaintiffs argued in their motion that the Court should stay the implementation of the amended New York law, especially with respect to students with Individualized Education Programs (IEPs), who have extensive rights under federal law. The amended state law prevents these vulnerable children from going to school and receiving services that the families and districts agree are appropriate and has denied families notice and due process rights they are entitled to under federal law. Thus, Plaintiffs argue, the federal law preempts the state law and states’ law should yield to the federal law. Plaintiffs’ motion argued that they meet and exceed the traditional standards to grant an injunction staying the New York law’s implementation but also that the Court could issue an automatic injunction allowing students to “stay put” in the current placements according to their IEPs.

August 19, 2019

On August 5th, a motion was filed for a preliminary injunction to stop the state of New York from enforcing a recent repeal of religious vaccine exemptions under the NY vaccine law, and allow students to begin school in September and “stay put” in the current placements according to their IEPs. The Defendant’s opposition papers and the Plaintiff’s reply were filed last week.

On Monday, August 19th, Judge Allyne Ross denied the request. Attorney Kim Mack Rosenberg stated:

“We are, of course, disappointed in Judge Ross’s decision denying a preliminary injunction which would have allowed New York’s most vulnerable students with disabilities to return to their classrooms this fall and receive the education placements and related services in the settings mandated by their IEPs. We are carefully analyzing the Court&

August 22,2019

Kim Mack Rosenberg, the lead attorney in V.D. v. State of New York, the lawsuit challenging the denial of an education to special needs students in New York who are not fully vaccinated, issued the following statement yesterday:

Looking strategically at the decision from federal Judge Alleyne Ross denying a preliminary injunction in V.D. v. State of New York, we made the decision to voluntarily dismiss the action and our notice of voluntary dismissal without prejudice was filed on Thursday, August 22, 2019.

There was something of a victory out of this litigation despite the denial of our request for a preliminary injunction. Many districts had been informing families that New York State Education Department (NYSED) was telling districts they did not have to provide services to homeschooled children who do not have all mandated vaccinations. After the filing of our complaint and motion papers, NYSED – in its opposition to our motion, and in the August 16 guidance from the New York State Department of Health- reversed that position and is now telling districts to provide services (there is an issue with the 6/1 deadline to notice districts but none of these families knew they would need to consider homeschool on 6/1 and NYSED is “encouraging” districts to provide services to families who provide post-6/1 notice).

We are looking at additional avenues to address issues regarding children with IEPs, so while this specific case has been dismissed, work is continuing. We continue to be committed to these issues for all children in New York, not only children with special needs.

 

NY: Attorneys make strategic decision to voluntarily dismiss lawsuit on special education students
Kim Mack Rosenberg, the lead attorney in V.D. v. State of New York, the lawsuit challenging the denial of an education to special needs students in New York who are not fully vaccinated, issued the following statement yesterday:

Looking strategically at the decision from federal Judge Alleyne Ross denying a preliminary injunction in V.D. v. State of New York, we made the decision to voluntarily dismiss the action and our notice of voluntary dismissal without prejudice was filed on Thursday, August 22, 2019.

There was something of a victory out of this litigation despite the denial of our request for a preliminary injunction. Many districts had been informing families that New York State Education Department (NYSED) was telling districts they did not have to provide services to homeschooled children who do not have all mandated vaccinations. After the filing of our complaint and motion papers, NYSED – in its opposition to our motion, and in the August 16 guidance from the New York State Department of Health- reversed that position and is now telling districts to provide services (there is an issue with the 6/1 deadline to notice districts but none of these families knew they would need to consider homeschool on 6/1 and NYSED is “encouraging” districts to provide services to families who provide post-6/1 notice).

We are looking at additional avenues to address issues regarding children with IEPs, so while this specific case has been dismissed, work is continuing. We continue to be committed to these issues for all children in New York, not only children with special needs.

 

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