Class-Action Lawsuit Continues Forward; Related Service of Transportation at Core of Suit Against District of Columbia's OSSE

A class-action lawsuit against District of Columbia's Office of the State Superintendent for Education (OSSE) will continue forward. The case was filed by five parents of students who have disabilities and by The Arc of the United States (The Arc). It focuses on the related service of transportation, specifically alleged failures to provide "safe, reliable, and appropriate" transportation for students who have disabilities.

January 16, 2025, U.S. District Judge Paul L. Friedman issued an opinion on the district's Partial Motion to Dismiss the case, Robertson et al v. District of Columbia. The district's motion sought dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In his opinion, Judge Friedman denied in part and granted in part the district's Partial Motion to Dismiss.

Of specific note, Judge Friedman 1) reconfirms that advocate groups such as The Arc may bring litigation on behalf of their members; 2) rejects arguments that students who have disabilities must meet a heightened standard in order to bring education discrimination claims; and 3) places weight on "repeated denials of systemic relief" in deciding "The Arc's attempt to request systemic relief through the administrative process is likely futile. . ."

More specifically, Judge Friedman held:

"The Arc, as an organization, does not need to exhaust the IDEA’s administrative remedies because any attempt to do so would be futile and inadequate. See supra at 7-8. The Arc is seeking systemic relief for its members by requesting that the District revise its policies, practices, and procedures to ensure that transportation will be provided in accordance with all students’ IEPs. Complaint ¶ 264. Multiple parents have filed due process complaints on behalf of their children and were not provided with the requested systemic relief, even those who received individualized relief. Pl. Opp. at 7. Given the repeated denials of systemic relief to remedy the transportation issues, The Arc’s attempt to request systemic relief through the administrative process is likely futile because “the agency will almost certainly deny any relief.” Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d at 107. Furthermore, the administrative remedy is almost certainly inadequate to address The Arc’s systemic relief requests. The Arc is requesting systemic change to ensure that students receive a FAPE, but the administrative remedies provided by the IDEA only address individual relief, which is “not sufficient to right the wrong” of systemic issues. Randolph Sheppard Vendors of Am. v. Weinberger, 795 F.2d at 107. The hearing officers do not have the “power to fashion relief that is proportional” to The Arc’s claimed injury of repeated harms to students with disabilities due to systemic failures. A.U. v. District of Columbia, 2020 WL 4754619, at *7 (internal quotation omitted). That the administrative hearing officers lack jurisdiction over The Arc’s claims is further reason why exhaustion would be both futile and
inadequate. . . .

". . . [T]he Supreme Court has emphasized the importance of the IDEA as a separate means for seeking relief, one that does not limit the availability of remedies under other statutes. See Fry v. Napoleon Cmty. Sch., 580 U.S. at 160-61 (the ADA and Rehabilitation Act are “separate vehicles no less integral than the IDEA for ensuring the rights of handicapped children” (quotations omitted)); Luna Perez v. Sturgis Public Schools, 598 U.S. at 146 (reiterating that the IDEA does not restrict “the ability of individuals to seek remedies under the ADA.”).

"The language of the ADA and Section 504 require that a plaintiff prove discrimination “by reason” of their disability, 29 U.S.C. § 794(a); 42 U.S.C. § 12132, nothing more. “It is . . . hard to square a standard requiring bad faith or gross misjudgment, in all cases involving students’ educational rights, with statutory protection that reaches even the unintentional denial of services.” Knox Cnty. v. M.Q., 62 F.4th 978, 1002 (6th Cir. 2023). The Court is persuaded by plaintiffs’ and the United States’ arguments against adopting the bad faith or gross misjudgment standard as inimical to the purpose and structure of the ADA and Section 504 of the Rehabilitation Act, as well as their relation to the IDEA. The Court thus will not dismiss plaintiffs’ claims on the grounds that plaintiffs have not satisfied the bad faith or gross misjudgment standard. "

Complaint Allegations

The complaint filed alleges the following:

"Every day, the District of Columbia and its Office of the State Superintendent of Education (“OSSE”) inexcusably fail to meet their basic obligation to ensure students with disabilities have safe, reliable, and appropriate transportation to and from school. . .

"OSSE is failing to implement students’ special education transportation as mandated by their IEPs to such an extent that it is depriving them of a FAPE, denying them equal opportunity to participate in and benefit from their education, and unnecessarily segregating them. . .

The District is failing to transport students with disabilities to school on time every morning. Buses regularly arrive hours late to pick up students or never arrive at all, often with no notice to families. This leaves students hopelessly waiting for the bus to arrive with no way of knowing if or when they will make it to school on any given day. When the buses eventually arrive and transport the students to school, the students are tardy and miss critical specialized instruction and related services. And, when the District fails to provide a bus at all, students are forced to miss days or weeks of school. . . .

"The District is also failing to transport students with disabilities home from school in a safe, reliable, and appropriate manner. OSSE regularly strands students at school, leaving the students’ families and teachers responsible for transporting them home. OSSE picks up some students before the end of the school day, requiring them to miss instructional time in order to get a ride home. Other students spend extensive time on the bus and arrive home hours past their scheduled drop off time every day. Due to OSSE’s failures, students are often confined to school buses for hours, where they are unable to access food, medication, or toilets. As a result, medically fragile students return home dehydrated, agitated, and soaked in urine. . . .

"OSSE also fails to ensure that transportation is safe for the students it serves. It regularly fails to provide accommodations, specialized equipment, and necessary personnel. Students who require supports or accommodations on the bus, such as wheelchair accessibility, safety equipment, nurses, or dedicated aides, are often unable to ride the bus because of OSSE’s inability to provide these supports or accommodations."

In addition, the complaint points out a history of similar behavior:

"Snapshots of OSSE's publicly reported data demonstrate the breadth of the problem. In just the first five months of the current 2023-2024 school year, there were over 1,000 delays and cancellations. From January 30, 2023 – March 15, 2023, there were more than 1,500 route delays and cancellations. In the week just before the filing of this Complaint, there were over 100 routes delayed. Each disrupted route means children with disabilities miss out on instructional time, therapies they need, and socialization with peers.

"The District has been here before. Until 2012, the District was under a court order and intense court supervision in Petties v. District of Columbia, No. 95-CV-0148 (PLF) (D.D.C. May 5, 2010), a case alleging the same transportation failures Plaintiffs experience today. When the District was released from court supervision in 2012, it boasted a student on-time arrival rate of over 94%; it maintained sufficient staffing to meet the student population is serves; and it was using state-of-the-art technology and best practices to run its system. OSSE is failing to meet all of those same metrics today, just twelve years later.

D.C.'s OSSE is not Alone

The allegations against the district focus on transportation to and from school. However, transportation occurs at other times and comes with requirements that go beyond simply driving a student to and from school. The state complaint against Chesterfield County Public Schools (Virginia) and the Office for Civil Rights complaint against Fairfax County Public Schools (FCPS), which are shared below, provide additional examples of transportation-related allegations of noncompliance and how students are negatively impacted by the alleged noncompliance.

Chesterfield County Public Schools

January 23, 2025, Virginia Department of Education (VDOE) issued a notice of complaint (NOC) announcing its investigation into Chesterfield County Public Schools (CCPS) for systemic noncompliance. Transportation is the main focus. According to VDOE's NOC, the complainant alleged the following:

“The Transportation Division of Chesterfield County Public Schools admits that it does not carry IEPs/504s on Buses/Transportation for Special Education Students. All Special Education Service Providers must have access to IEPs at all times in order to follow IEPs/504s (IEP = FAPE + ADA). Not only will Bus/Transportation Drivers/Aides NOT have available instructions in the event of behavioral considerations, and how to follow IEPs for any support/interventions, it is critical that ALL providers of services have access to any 504 portions of IEPs AND the proper tools/equipment to assist in the event of such possibilities as, but not limited to, seizures, anaphylactic reactions and any and all medical interventions....”

Fairfax County Public Schools, Virginia

Office for Civil Rights Complaint No. 11-20-1029 focuses on FCPS' denial of transportation to students who have accommodations for extended testing. On PSAT testing days FCPS provided transportation home for students who didn't have extended testing. However, students with accommodations for extended testing were required to find their own way home. After OCR submitted its notification/data request letter to FCPS, senior central office employees admitted in an email that the noncompliance did occur. The employees inadvertently cc'd a parent on the emails. Their admission of guilt was forwarded to OCR. However, FCPS' Dawn Schaefer later stated in correspondence to VDOE that FCPS denied the allegations in its response to OCR.

Although the complaint was filed in 2018, it wasn't opened until 2021. It remains open today, even though the emails in which FCPS admitted knowledge of noncompliance were forwarded to OCR. Although the complaint focuses on one school in the division, the practice occurred throughout the division. Additional reading: Fairfax County Public Schools Provided False Information to Office for Civil Rights.