MY THOUGHTS ON THE ARTICLE 78 DECISION

Some of you may know this “Article 78” case as the “Agudah vs NYSED” case. It's completely understandable that many of you are curious about the recent Article 78 Petition Decision and what it means for private school students with Individualized Education Services Programs (IESPs). I've heard some worries swirling around, even from legal professionals, suggesting that students with IESPs might lose access to services. But let me assure you, I wholeheartedly disagree with these "doomsday" predictions. In fact, I believe they're not only inaccurate but also unnecessarily alarming, confusing, and potentially damaging. 

What This Decision Really Means for IESPs

To help clear up any confusion, let's look at the facts. The Article 78 Petition actually sought two distinct things:

  • A preliminary injunction to challenge an emergency regulation: The good news here is that the court didn't even need to address this because the regulation in question had already expired on its own. NYSED simply chose not to renew it, making that part of the petition moot. As the Decision clearly states: "Here the parties agree that the challenged regulation has expired by its own terms. Because the rights of the parties will not be affected by a determination of the motion for a preliminary injunction, the motion is denied as moot."

  • A permanent injunction to prevent similar rules in the future: The court did not grant this request. Crucially, the Decision didn't say anything at all about students with IESPs being unable to file due process complaints. The court simply didn't address that issue, and that should be assuring for IESP students and their families. It means there's no rule suggesting that IESP students are prevented from filing due process complaints.

While there were some discussions about potentially consulting with the ERES unit first for funding services, there's currently no regulation that requires this step.

Your Right to Due Process Remains Strong

The State Review Office, which handles appeals from Impartial Hearing Office Decisions, has been crystal clear on this: students with IESPs absolutely have the right to file due process complaints based on Education Law Sections 3602-c and 4404. This means that, regardless of the outcome of the Article 78 Petition, your right to file a due process complaint remains firmly in place.

In my view, this Decision strengthens the rights of students with IESPs, rather than diminishing them. The court could have easily stated that students seeking relief for implementation failure have no right to due process. This is yet another positive outcome.

Looking Ahead to the 2025-2026 School Year

I've been in touch with numerous hearing officers, and I've shared my perspective that this Decision provides no basis to dismiss current or future cases. I haven't yet heard of a single instance where an IHO has cited this Decision as a reason for dismissal, which suggests that Impartial Hearing Officers (IHOs) agree that they still have jurisdiction over IESP implementation failure cases. In all the hearings our office participated in on Monday, July 14th, this decision was not raised by either the District or any IHOs. 

So, what does all of this mean for the upcoming 2025-2026 school year?

As of today, there's no regulation that threatens your access to due process complaints, and IHOs continue to affirm their jurisdiction. It's also highly unlikely that NYSED would try to introduce a new regulation on an emergency basis, especially after their last attempt resulted in a swift Temporary Restraining Order (TRO). While they could be working on something new, there's no indication of it right now, and it was not mentioned at the July Board of Regents meeting. Even if they do propose a new regulation, it would likely take months to be adopted due to a required 60-day notice and comment period and additional time after that to review any comments submitted.  And honestly, I suspect such a move would trigger another round of lawsuits and another TRO.

A Positive Outlook for IESP Students

In short, I truly believe the current landscape for students with IESPs is a good one. The DOE is continuing with their efforts at improving availability of services by raising the rates of providers. Admittedly, the DOE’s efforts have a long way to go, but there's no regulation denying Parents’ rights to file due process complaints, and there's no sign that NYSED is even trying to create one. In fact, I believe IESP students are even safer now because of this decision. While the Article 78 Petition was pending, there was always the possibility that the court could issue a ruling that would limit access to due process complaints on a moment's notice. That's no longer the case. Of course, the legal landscape could change if a new regulation is adopted, but for now, the results of the Article 78 Petition are positive.

Regards,

Philippe Gerschel Esq.

July 14, 2025