New York City’s Education Department is systematically failing to provide equal access to education for students with disabilities who are chronically absent due to “school avoidance,” according to a class action lawsuit filed Tuesday by the Legal Aid Society.
Four students involved in the lawsuit stopped regularly attending school because of their social or emotional disabilities, such as severe anxiety or depression, and the lawsuit alleges that the nation’s largest school system has no policy or procedures in place to ensure that these students are receiving the “free appropriate public education” they are entitled to under the law.
New York City schools do not have a systemwide policy to evaluate students who are experiencing school avoidance and get them back in school, according to the suit. The system also lacks a process to track and identify chronically absent students who are struggling with school avoidance, according to the complaint. (Pillsbury Winthrop Shaw Pittman joined Legal Aid on the case.)
Instead, schools often either ignore the situation, convince parents to home-school their child, or suggest parents apply for home instruction, which provides a limited number of weekly instructional hours for children who can’t attend school due to physical or psychiatric disorders, the lawsuit states. Schools also often involve child protective services, the lawsuit notes.
The suit demands the Education Department immediately develop a comprehensive plan and implement a process to identify, evaluate, and establish programming to help students suffering from school avoidance, as required by federal and state law.
“We need some consistency around what schools are supposed to do,” said Susan Horwitz, supervising attorney of the Legal Aid Society’s Education Law Project, emphasizing that schools should not wait until a student is absent for more than 10 consecutive days, as chancellor’s regulations require, to investigate what’s happening.
“Every school knows who’s not coming,” and they know which of their students have accommodations for disabilities, Horwitz said. “There’s got to be some prevention … before it’s really kind of too late to come up with an effective, fast solution.”
Education Department officials said that school-based mental health teams look at behaviors and whether mental health issues are contributing to absences. Additionally, teams crafting individualized education programs, or IEPs, or 504 plans outlining mandated accommodations for students with disabilities can include services to address why students are refusing to attend school.
“We know that this is an issue among our most vulnerable students, including students with IEPs, and as such, we provide instructional supports, paraprofessional services, and mental health services based on students’ individual needs,” said Education Department spokesperson Chyann Tul in a statement.
Data gaps makes it difficult to address school avoidance
The lack of official city guidance, as Chalkbeat previously reported, leads to an uneven response across the city’s 1,600 schools, ranging from little to no involvement from school administrators to deeper partnerships with families. And it has often fallen to families to navigate an inadequate mental health system instead of getting school-based support they’re entitled to.
Ultimately, it means that many students with disabilities are missing critical instructional time as well as services and accommodations they would be receiving in school, such as counseling or occupational therapy, the lawsuit said.
Students with disabilities struggle disproportionately with chronic absenteeism, which is defined as missing 10% of the school year, or roughly 18 days per year. About 46% of the city’s 200,000 students with disabilities were chronically absent in the 2022-23 school year. In District 75, which serves students with significant disabilities who cannot be accommodated in neighborhood schools, nearly 60% were chronically absent. That compared to a citywide average of 36%.
The Education Department, however, does not have granular data on how many of these students are chronically absent because of school avoidance. (Busing-related issues are also a driver of chronic absenteeism for students with disabilities.) When a student is absent from school for 10 consecutive days, the school is supposed to ascertain the reasons through parent outreach, and if they can’t obtain the reason, they are supposed to conduct what’s called a “407 investigation.” These investigations, however, do not even include a process to identify students specifically struggling with school avoidance, the lawsuit states.
“If one thing that comes out of this is that we finally know how many kids it’s affecting, that will be 10 steps ahead of where we are now,” Horwitz said. “Because then we can be more specific about how to address it.”
The Education Department instructs schools to consider conducting a “functional behavior assessment” to assess “any behavior with an impact on learning, including but not limited to: elopement [leaving class or school] . . . and school avoidance,” the lawsuit stated, but said that schools rarely conduct such evaluations for students experiencing school avoidance.
Education Department officials said additional evaluation might be warranted for students who are school avoidant to determine whether new supports might help get a student to return to school.
But no one conducted any functional behavior assessments or provided effective strategies for M.T., a 15-year-old ninth grader on the autism spectrum, who is part of the lawsuit.
M.T., who has a tendency to elope, struggled with attendance at her Queens middle school. (All of the plaintiffs used initials to protect privacy.) Though New York City schools have recommended a residential special education school paid for by the state, in two years, they have not been able to secure her a spot. Now at the Queens Transition Center, a District 75 school, M.T. began avoiding taking the bus to school in October 2023, so her parents began driving her, sometimes waiting with her for two hours trying unsuccessfully to coax her to go into the building.
Schools should be coming to student’s homes to conduct functional behavior assessments, Horwitz said.
“It’s getting at why this is happening and how do we fix it,” she said. “It’s not that complicated. What is complicated is what happens to kids and families when kids aren’t going to school, whether it’s ACS involvement or parents having to quit their jobs and then the cascade of horrible things that happen when people can’t afford to pay their rent in this city.”
Amy Zimmer is the bureau chief for Chalkbeat New York. Contact Amy at azimmer@chalkbeat.org.
