NYC DOE Admits Sussman was Right

Temporary court ordered “stay” stops NYC Schools from barring teachers or students from buildings for not signing in-school COVID testing consent form

UPDATE – This court ordered “stay” is no longer in place as the case has been resolved. Read about the settlement at following link:

The below comes from our attorney Michael Sussman:


To:  Petitioners in Kane v. DOE and other persons similarly-situated, their supporters and interested members of the press:

On December 15, 2020, State Supreme Court heard our application for a TRO requiring the destruction of COVID-19 testing samples after test results were obtained and disallowing any other use of peoples’ samples.  During the argument, I explained why this was needed and how privacy rights dictated this protection, whatever prior city contracts said or did not say on the subject.  When DOE’s counsel claimed that such destruction was already DOE policy and practice and the real meaning of its vendor contracts, the court intervened and directed both counsel to draft a stipulation so committing DOE in plain language.  The court also directed DOE not to exclude staff or students who failed to sign the consent form pending court approval of such a Stipulation.  I accurately conveyed this to Mr. Kane who shared it with many of you.  HOWEVER, the DOE lawyer claims that he did not hear the court’s directive and did not convey it to his client.  Indeed, on Wednesday, his client did not alter its admission policy and he angrily demanded I retract my advice that you could return to school without signing the consent form.  I refused to do so, and he then wrote the judge claiming I was misrepresenting her words.  The Judge did not hold court on Thursday as previously directed so Her Honor could obtain and review the transcript.  Friday night, I received a letter from Mr. Frank admitting his error, claiming not to have heard the court’s direction and asking the judge to vacate her order requiring the DOE to accept students and  staff without reference to whether they sign a consent form pending further order of the court and for our case to be dismissed because the DOE is doing what we are requesting, that is insuring the destruction of each sample.  I have addressed a new letter to the court and it is enclosed here for your review.  At this moment in time, the court’s directive remains in place, meaning that the DOE is required to accept students and staff whether they have signed the consent form or not.  This may or may not change, but that remains the status quo as it has been since Wednesday at 10:05 a.m. 

While I understand that some may have other issues with COVID-19 testing and with the specific testing the DOE has initiated, this lawsuit is not about those issues.  It does not preclude those issues from being raised in other litigation.   I commend you to the attached letter.

Michael Sussman

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: