Proskauer recently reached a landmark agreement with the New Jersey Department of Corrections (NJDOC) and Department of Education (NJDOE) to ensure that students entitled to special education services in NJDOC custody will receive those services to which they are legally entitled under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA). This settlement is consistent with Proskauer’s long-standing commitment to provide legal services to some of the country’s most vulnerable communities.

The agreement ensures that the NJDOC will identify students entitled to special education, develop Individualized Education Programs (IEPs) to meet the specific needs of each student, and provide a minimum of four hours of instruction per day in a regular classroom setting. This classroom instruction will be provided by teachers with the appropriate training and certifications. This shift in teacher certification is a significant improvement, given that plaintiffs’ counsel’s investigation into the provision of special education services revealed that instructors often lacked the requisite training and expertise to effectively teach a specific subject (e.g., those certified in English were required by the NJDOC to teach mathematics, etc.). In fact, in a departure from the NJDOC’s past practices, classroom instruction will become the norm, and “cell study” will be limited to specific circumstances. Additionally, students confined to cell study will be provided the opportunity for in-person instruction. Equally significant is the opportunity for class members to submit a compensatory education claim and receive additional services – or up to $8,000 in funds – to be used for educational, vocational, or reentry purposes for each year that the NJDOC denied educational services to which that class member was entitled.

The NJDOC’s compliance with the requirements set forth in the settlement agreement will be monitored by an independent external monitor and the NJDOE, both of whom will conduct site visits, observe classes, interview the NJDOC staff and students, and review records. To the extent these periodic assessments reveal that the NJDOC is falling short of its obligations, the NJDOE will prepare “corrective action plans,” that set forth certain remedial measures that the NJDOC must undertake within a specified time period. From there, the NJDOE and the independent external monitor will then follow up to ensure compliance. The external monitor also will produce periodic reports to assess whether both the NJDOC and the NJDOE are substantially complying with the terms of the agreement.

The implementation of these groundbreaking procedures marks the culmination of more than four years of work, as Proskauer, along with the American Civil Liberties of Union of New Jersey (ACLU-NJ) and Disability Rights Advocates (DRA), first filed a class action complaint in 2017 alleging that the NJDOC was failing to uphold its responsibilities to provide special education and related services to students in its custody, and the NJDOE was failing to monitor the provision of education services provided by the NJDOC as required by law. Settlement negotiations lasted over three years, with the parties overcoming substantial practical difficulties arising from  the COVID-19 pandemic (among other things). Through it all,  Proskauer and co-counsel persevered to ensure that special education students in NJDOC’s custody have the best possible chance at making the most of their lives once they’re released.

A class action settlement fairness hearing is scheduled for January 26, 2022. In the meantime, Proskauer, the ACLU-NJ and DRA are in the midst of providing notice to the more than 400 class members affected by the agreement.

To learn more about the class action settlement agreement, please visit the ACLU’s webpage dedicated to this case.

Photo of Russell T. Gorkin Russell T. Gorkin

Russell T. Gorkin is an associate in the Litigation Department. Russell’s practice encompasses a broad range of complex commercial litigation matters, including product liability defense and contract disputes, across a wide variety of industries, including life sciences and pharmaceuticals, consumer goods, sports, and…

Russell T. Gorkin is an associate in the Litigation Department. Russell’s practice encompasses a broad range of complex commercial litigation matters, including product liability defense and contract disputes, across a wide variety of industries, including life sciences and pharmaceuticals, consumer goods, sports, and financial services. He has represented some of the world’s most successful and sophisticated entities and individuals in state and federal trial and appellate courts, as well as before arbitral tribunals.

Most recently, Russell helped secure a favorable settlement on behalf of an alternative investment firm alleging breach of contract and other claims against a multinational pharmaceutical company after a two-week arbitral merits hearing featuring 20 witnesses. Other notable recent or current representations include:

  • Assisting the trial team that achieved a complete defense verdict in Echeverria v. Johnson & Johnson, a product liability case arising from the plaintiff’s use of Johnson & Johnson talcum products;
  • Representing Bank of New York Mellon, Wells Fargo, and several other financial institutions in litigation arising from the Tribune Company’s Chapter 11 bankruptcy filing following a leveraged buyout the year before;
  • Representing Madonna in a dispute concerning the ownership of certain property, including a letter written by the late Tupac Shakur;
  • Representing several financial services clients in litigation arising from the Madoff Ponzi scheme; and
  • Counseling Major League Soccer with regard to various club and player governance issues.

Russell also maintains an active pro bono practice. He was awarded the firm’s Golden Gavel award in 2019 for his role in securing a settlement on behalf of deaf and hard of hearing probationers and parolees under the supervision of the Louisiana Department of Public Safety and Corrections by requiring the Department to, among other things, provide qualified, certified American Sign Language interpreters. The case was the first in the nation to assert the right to an ASL interpreter on behalf of probationers and parolees.

Prior to joining Proskauer, Russell served as a law clerk to the Honorable George B. Daniels at the U.S. District Court for the Southern District of New York and, before that, to the Honorable Robin S. Rosenbaum at the U.S. Court of Appeals for the Eleventh Circuit.

While in law school, Russell served as a Senior Editor for the Duke Journal of Constitutional Law and Public Policy, and received the Dean’s Award for Evidence. His scholarship has appeared in the Harvard Journal of Sports & Entertainment Law and the Duke Journal of Constitutional Law and Public Policy Sidebar, and has been cited in the Harvard Law Review and in an amicus curiae brief filed with the Supreme Court of the United States, among other places.

Prior to law school, Russell worked for several years as a management consultant.