New York Parents File Class Action under NCLB for Failure to Provide Transfers and Tutoring

On January 27, 2003, parents filed a class action law suit against the New York City and Albany school districts alleging that the districts violated provisions in the No Child Left Behind Act (NCLB) that allow parents of children in failing schools to transfer to non-failing schools or to obtain tutoring services for their children. (For a summary and analysis of NCLB, visit ACCESS's NCLB pages). The suit, which is being billed as the "first parent law suit in the nation under the No Child Left Behind Act," was filed by three parents in state court on behalf of almost 300,000 students who attend schools in the districts that have been identified as needing improvement or correctional action under the Act.

In the complaint, plaintiffs allege that the districts improperly rejected transfer requests by parents with children in failing schools; have faulty processes to accommodate transfers; failed to provide timely information to numerous parents on their right to transfer their children; and failed to notify parents of their right to tutoring services. According to plaintiffs, the vast majority of the 282,000 children in the New York City school district who attend failing schools received little or no notice of their rights under the Act. The district maintains that it is in compliance with NCLB and indicates that it received only 3,670 requests for transfers, of which 1,507 were granted.

The complaint asserts that private plaintiffs can enforce NCLB's provisions on transfers and supplemental services under Section 1983. The plaintiffs also claim that the districts' failure to provide these services to children attending failing schools violates the Education Clause of the New York State Constitution.

In a decision and order filed June 27, 2003, a federal district court dismissed the case, Association of Community Organizations for Reform Now v. New York City Dep't of Education, 2003 U.S. Dist. LEXIS 10929 (June 27, 2003), on the grounds that Congress did not intend for individual plaintiffs to be able to sue to enforce the transfer and tutoring provisions and that therefore the case could not go forward.

Prepared February 4, 2003, Modified September 9, 2003