By Emily Lever

Law360 (April 18, 2021, 8:02 PM EDT) -- The city of New York on April 5 committed to providing all family shelters in the five boroughs with wireless internet to allow students housed in the shelter systems access to remote education during the pandemic, following a settlement obtained by attorneys from Milbank LLP and the Legal Aid Society.

The settlement stemmed from a class action on behalf of unhoused parents of students frustrated because city-provided tablets, which connected to the internet using cellular data, were failing to access the internet and locking students out of their virtual classrooms. This was resulting in prolonged absenteeism for unhoused children, who make up a significant portion the student body in New York City public schools, where 1 in 10 students are unhoused or housing insecure, according to the nonprofit Advocates for Children of New York. 

The legal team's central argument was that the federal McKinney-Vento Act and corresponding legislation in New York state, which require unhoused children to receive free-of-charge transportation to and from school, translated into an obligation to provide internet access in a time of mass remote schooling as a basic necessity for students to receive an education.

"The issue we were suing over was inherently novel because the pandemic itself is a totally novel situation," Milbank attorney Grant Mainland noted. "Our solution was to frame the issue of Wi-Fi as an issue of simple educational access."

Students without permanent housing have the right to receive the same education as their peers. In a pandemic that makes in-person learning unsafe, that means they have a right to the internet, the team argued.

"The [McKinney-Vento] act and the NY state education law require, among other things, to provide transportation. The law also speaks in terms of 'necessaries' for education," Mainland added. "You can't go to school if you can't get to school."

The lead plaintiff was a mother of three school-aged children who lived in a shelter located in a cellular dead zone. Her children were unable to attend classes via Zoom and Google Meet because tablets provided by the Department of Education could not connect to the internet, which led to them racking up absences.

Not only can chronic absenteeism derail a child's educational progress, it can trigger inspections from child welfare social workers, which can be harrowing for low-income families.

The lead plaintiff in the case, referred to in the suit by her initials E.G., felt "the terror of having a [child services] visit because her kids couldn't get on the internet," Sue Horwitz, the supervising attorney for the Education Law Project at Legal Aid, told Law360.

Legal Aid and shelter monitor the Coalition for the Homeless have pushed the city since the beginning of the pandemic to install Wi-Fi in city shelters, and Mayor Bill de Blasio said in an October press conference that the city would finish the task by the summer of 2021. But while the city maintained it was doing all it could to provide internet access, the plaintiffs argued those efforts were inadequate and children were losing valuable hours of schooling in the meantime, saying in a Nov. 11 complaint that "an education delayed is an education denied."

In parallel with the litigation moving along, the city was installing internet throughout family shelters in the five boroughs, with 75% of the shelters wired as of April 1. That progress left the plaintiffs comfortable with reaching a settlement that requires the job to be 100% done by Aug. 31, according to Mainland. Given the progress already made, the legal team's focus with the settlement negotiations switched to creating interim measures to fix problems where technological issues persisted. 

Because parents reported that the existing tech support services the city offered tended to be a "black hole," the settlement sets tight deadlines for the Department of Education to get in touch with families who report technology issues and switch out equipment if needed. It also requires shelters to publicize the provisions of the settlement with signage and leaflets in multiple languages.

When asked about the settlement in an April 6 press conference, de Blasio said, "we have all agreed from the beginning we want every shelter to have full Wi-Fi capacity ... We just want to get this done as quickly as possible even though we understand there's some challenging logistics, we will get the job done."

The New York City Department of Homeless Services could not immediately be reached for comment Friday.

The lawsuit may have lit a fire under the city to ramp up its Wi-Fi installation timetable, but Mainland said a lawsuit should have never been needed.

"It's unfortunate that it requires litigation to get people's attention," Mainland said. "But if people decide to resolve the issue through a policy choice that makes the litigation unnecessary, that's very positive."

In the nearly four months of litigation, "We felt like every day that was passing was a day that meaningful numbers of kids were not successfully attending school in large part due to these tech issues," Mainland said.

Though the litigation moved much faster than a typical corporate class action, the Milbank team — which started with two attorneys and ramped up to seven working intensively as an evidentiary hearing drew nearer — was experienced in expedited litigation in bankruptcy and mergers and acquisitions law.

"The skills that were required to move it forward were ones that I had honed in my billable work," Mainland said. "M&A, because there are often challenges to a proposed merger that closes at a certain time, moves very, very fast."

The Milbank attorneys complemented Legal Aid's expertise in grappling with the city government over civil rights issues with the ability to bring ample resources to the case, including by requesting and reviewing hundreds of pages of documents and deposing dozens of witnesses, according to Mainland. During one particular week, the seven attorneys spent most of their time on the pro bono case instead of billable matters, Mainland said, reflecting their strong commitment to the case.

"I'm a parent of small children and I saw my six-year-old son go through the immediate shift to remote," Mainland said. "Knowing children who are already isolated in many respects did not have adequate internet access for school — that kicked me in the gut."

"This is why you become a lawyer: so you can navigate a complicated system and get concrete results," he added.

The settlement has broader implications beyond the pandemic-era virtual classroom, given that schools were already increasingly reliant on the internet, with online curricula and online homework.

The installation of wireless internet in family shelters will also mean all those shelter residents can more reliably get online to do things like apply for jobs and apartments. The next frontier, according to Horwitz, is to extend internet access to all city shelters, not just the ones with school-age children.

The settlement comes at a time of heightened interest in establishing a right to internet access. In November, the city inked a deal with Verizon to provide broadband to 500,000 households, with a priority for low-income New Yorkers and public housing residents.

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--Editing by Emily Kokoll.

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