NYC Moves to Dismiss Shelter Broadband Access Suit

On Sunday in the Southern District of New York, the City of New York and six of its agencies, along with individuals associated with those agencies filed a notice and memorandum in support of the defendants’ motion to dismiss a case alleging that the city failed to provide adequate broadband internet access to students who reside in shelters in violation of state and federal law. The motion seeks to dismiss the case for lack of subject matter jurisdiction and failure to state a claim.

As previously reported, the plaintiffs filed a class-action complaint in November and in December, Judge Alison J. Nathan issued an order denying the defendants’ request for the court to not issue a preliminary injunction based on the existing record to the plaintiffs. In the request for a preliminary injunction, the plaintiffs asked the court to require the defendants to provide adequate Wi-Fi in shelters to allow virtual learning for students during the COVID-19 pandemic.

In the instant action, the defendants stated that the court order “held that Plaintiffs had stated a claim that Defendants’ failure to provide reliable internet access to date violates New York Education Law § 3209, but did not address the sufficiency of Plaintiffs’ federal law claims,” which the defendants alleged “fail as a matter of law and, pursuant to 28 U.S.C. § 1367(c)(1) and (c)(3).” As a result, the defendants asserted that the court “should decline to exercise supplemental jurisdiction over the remaining claims, which raise novel and complicated issues of state law” because “(n)either the New York Constitution Education Article (‘Education Article’) nor New York Education Law (‘NYEL’) §3209 references WiFi or internet access.” Therefore, the defendants argue that the NYEL § 3209 claims “may have sweeping implications for local governments and school districts across New York.”

Specifically, the defendants contended that the plaintiffs’ allegation that the defendants violate the Equal Protection Clause should be dismissed because the plaintiffs’ allegation “fail(s) to establish that Defendants’ actions have created any classification” and that the defendants discriminated against any purported classes. The defendants added that while the plaintiffs aver that “homeless children are not receiving the same access to free public education as non-homeless children, they do not allege that Defendants are providing WiFi or internet access to non-homeless children or have otherwise treated homeless students differently from non-homeless students.” In particular, the defendants reiterated that the plaintiffs’ state that the defendants provided technology and services to “all students” to access remote learning “by providing cellular internet service-enabled iPads and hotline support for technical assistance.” The defendants also pointed to the fact that, as noted by the plaintiffs, they are in the process of installing Wi-Fi in shelters, “which Plaintiffs do not allege Defendants are providing to non-homeless children.” As a result, the defendants contended that “(r)ecognizing an equal protection claim under these circumstances would stretch the case law beyond recognition.” In sum, the defendants allege that the plaintiffs’ claim failed because they do not establish that the defendants “are discriminating against a suspect class or burdening a fundamental right.”

The defendants proffered that the plaintiffs’ claim that the defendants violate the McKinney-Vento Act (MVA) fail because the defendants purportedly “have no right of action to enforce the provisions of the MVA they allege Defendants violate, either directly under the statute or under Section 1983.” The defendants argued that the claims that they provided the plaintiffs “with iPads equipped with unlimited cellular data service and are in the process of installing WiFi in shelters demonstrate that Defendants are in compliance with the MVA.”

Consequently, the defendants asserted that the federal claims should be dismissed and the court should not exercise supplemental jurisdiction over the plaintiffs’ state law claims. The defendants are represented by the Corporation Counsel of the City of New York.