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By DANA DIFILIPPO
New Jersey Monitor

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 remote 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. Montclair public schools have remained open to in-person learning, but are offering families the option of 10 days of remote learning starting Jan. 5. East Orange will hold remote learning until Jan. 18, that district has announced. The South Orange and Maplewood district will be remote until Jan. 10.

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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. Gov. Phil Murphy has said recently individual school districts will need to decide whether and when to close in the current coronavirus surge. Nearby Wayne schools, though, in an FAQ posted to their website, pointed specifically to Montclair’s optional-remote policy as something that district couldn’t do, as a state executive order allowing for remote instruction had expired. Department of Education spokesman Michael Yaple told Montclair Local Tuesday he was looking into the matter.

At least 25 districts started this week off remotely, as the highly contagious omicron variant sent COVID-19 cases surging statewide. 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.

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A spokesman from the state Department of Education did not respond to a request from New Jersey Monitor 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 remote 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 supersede federal law.”

This story is provided by New Jersey Monitor, and originally appeared here. Edits have been made from the original version to provide information about Montclair, Wayne, East Orange and South Orange Maplewood schools.

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