Trial News

In a lawsuit filed on behalf of more than 11,000 grade school students residing in over 200 New York City shelters who have struggled with virtual learning because of unreliable internet access, the city has agreed to a settlement requiring wireless internet to be installed in the shelters. The settlement addresses concerns that homeless students continue to have unequal access to education more than one year into the pandemic. (E.G. v. City of N.Y., No. 20-cv-9879 (AJN) (S.D.N.Y. Apr. 5, 2021).)

New York City students, like students around the country, shifted to virtual learning in March 2020, relying on tablets or other electronic devices to log in to virtual classrooms up to five days per week and to access and submit classwork and homework. Although the city made efforts to provide children in shelters with needed technology for remote schooling, months passed, and large numbers of students could not connect to virtual classrooms and participate in school.

In November 2020, a group of students and their families, along with the Coalition for the Homeless, filed a class action in federal district court against the city and several of its agencies—including the Department of Education (DOE), the Department of Homeless Services (DHS), and the Human Resources Administration (HRA)—alleging that the failure to provide student shelter residents with reliable internet violates state and federal law. The class comprised students enrolled in New York City public or charter schools who resided in the city’s shelters for the homeless or for domestic violence victims during the pandemic and who lacked reliable internet access.

The plaintiffs claimed the city’s failure to provide them with Wi-Fi for remote learning violates the New York Constitution’s guarantee of a “sound basic education” for all children and state statutory law requiring that indigent children receive the tools needed for school attendance (N.Y. Educ. Law §3209). The plaintiffs also brought equal protection claims under the Fourteenth Amendment and alleged violations of the McKinney-Vento Homeless Assistance Act, a federal statute requiring homeless children to be provided with “equal access to the same free, appropriate public education as is provided to other children.” (42 U.S.C. §§11431-11435.)

They requested a preliminary injunction ordering the city to equip all shelters that house school-age children with reliable Wi-Fi access by Jan. 4, 2021, and expedited discovery.

The city argued an injunction was unnecessary, but the district court disagreed. It issued an order in December 2020 calling for expedited discovery and an evidentiary hearing to determine what the injunction should require. (E.G. v. City of N.Y., 2020 WL 7774346 (Dec. 30, 2020).) At a minimum, the court said, the plaintiffs “adequately pleaded that transitioning to remote learning without providing homeless students reliable means to access the internet creates the kind of ‘barriers to the . . . attendance of homeless children in school or their receipt of comparable services,’” contemplated in N.Y. Educ. Law §3209. It rejected the defendants’ arguments that §3209 could not be interpreted to require the installation of Wi-Fi in shelters—even under a “severely abbreviated timeframe” due to the pandemic—and that §3209 does not obligate the city to accommodate the plaintiffs’ specific request for Wi-Fi when there may be other ways to comply with the statute’s prohibition on barriers to educational access for indigent students.

The April 2021 settlement sets a timeline for shelter in-unit Wi-Fi installation and mandates that all shelters with eight or more families reporting connectivity issues provide the service by Aug. 31, 2021. For those shelters the plaintiffs identified that did not have in-unit Wi-Fi by April 1, the settlement requires that shelter staff work with families and the DOE to conduct connectivity testing and provide on-site support as needed. The DOE also may address access issues by placing students in its Learning Bridges free child care program for students through eighth grade. If students lacking access live near a community Wi-Fi hot spot, the city may work to make these hot spots available for use. If adequate internet access cannot be achieved within one week, the DHS and the HRA must consider whether it is possible to relocate the family or expediently install Wi-Fi at the shelter.

The settlement also addresses other remote learning concerns for shelter residents. It will ensure shelter residents are aware of available tech support: Shelters must post multilingual signage and provide residents with fact sheets on the availability of DOE helpdesk and tech support. In addition, the DOE must respond promptly to families’ reports of tablet-related issues—families must receive support within one day and be provided an opportunity to exchange tablets if necessary within three days of reporting an issue.

“Forcing the city to install Wi-Fi in all family shelters was a huge step toward bridging the digital divide,” said New York City Legal Aid Society attorney Susan Horwitz, who represented the plaintiffs. “Kids experiencing homelessness already have huge barriers to school success, and the lack of access to virtual school during the pandemic made it impossible for many kids to attend regularly, if at all. Fully wiring the shelters with Wi-Fi will have positive effects that will last long past the pandemic.”

New York City attorney Deborah Diamant of the Coalition for the Homeless is grateful for this settlement. “We first objected to the city’s failure to ensure that homeless students have the same educational access as their permanently-housed peers nearly a year ago as the lack of internet access kept so many children in shelters from participating in online learning. Now, an accelerated timeline for Wi-Fi installation in family shelters will help thousands of children gain internet access more quickly. We will continue to fight for their right to learn and succeed academically.”