legal showdown

Lawsuit targets New York City program that strands poor students without required special ed services

PHOTO: Alex Zimmerman
Public Advocate Letitia James announced a report earlier this month criticizing the city's special education voucher program.

A program that makes New York City parents responsible for finding their own special education services — but that often leaves them with no services at all — is under legal attack.

The class action lawsuit, filed Thursday in a federal district court, aims to reform the city’s process for ensuring that students with disabilities receive “related services” — which include physical therapy, certain medical services and counseling, among other therapies.

When the city’s education department is unable to offer those services itself, or through a contractor, parents are given a voucher that can be used to pay an outside provider. But that system puts the onus on families to find providers, and about half of the 9,164 vouchers issued during the 2015-16 school year went unused, according to a report issued earlier this month by the public advocate’s office.

The lawsuit centers on the Bronx, where the problem is particularly acute. In District 8, which includes Hunts Point, Throgs Neck and Soundview, 91 percent of the 129 vouchers issued last school year went unused — the highest rate anywhere in the city.

The city’s public advocate found that families face a number of barriers to using the vouchers: They often struggle to find providers in their neighborhoods, have difficulty arranging for transportation and getting reimbursed to send their children elsewhere, or simply can’t find providers who are responsive.

In part because of those challenges, an attorney who helped bring the lawsuit said the city can’t simply offer a voucher to fulfil its obligation to provide special education services.

“The DOE has to ensure that students actually get [services]” said Seth Packrone, a lawyer at Disability Rights Advocates, which contributed to the public advocate’s report. “They can’t just issue a voucher and then step away.”

The goal of the litigation is to force the education department to come up with a plan to ensure that students in the Bronx receive the services they have been guaranteed, Packrone said. It is not yet clear what that plan could entail or how it could affect other neighborhoods, which also have large numbers of unused vouchers.

The complaint says the city’s voucher program violates multiple federal laws that guarantee students with disabilities a free and appropriate public education. The plaintiffs in the case are two Bronx students and Bronx Independent Living Services, a nonprofit that works with students who have disabilities.

Education department spokeswoman Toya Holness wrote in a statement: “We are dedicated to meeting the needs of students with disabilities and in the small percentage of cases when we issue a related service authorization, we work with families to connect them with an appropriate provider in their area.”

She referred questions about the lawsuit to a law department spokesman, who said the city is reviewing the complaint.

The Right Resources

‘We didn’t have options’: A new Staten Island charter school aims to fill a gap for students with dyslexia

PHOTO: PhotoAlto/Anne-Sophie Bost

Laura Timoney knew that New York City’s first charter school designed for students with dyslexia would become a reality when she and its other founders were able to envision a full day in the life of a student.

“We named her Juanita Henderson, and still just smile whenever we think of her,” said Timoney, who works on education issues in the Staten Island borough president’s office. “She’s so excited and looking forward to coming to school, learning, looking in microscopes.”

If all goes according to plan, Bridge Preparatory Charter School will begin serving its real students on Staten Island in fall 2019. The elementary school was approved by the Board of Regents in June, and it’s set to be the first charter school in the state — and among only a few public schools nationwide — devoted to educating children with dyslexia and other language-based learning disabilities.

The goal is to provide another option for families who have long fought for more choices closer to home. Staten Island is the borough with the highest share of students with disabilities, and while district schools have been steadily adding resources to help students with literacy issues, many parents of children with dyslexia send them to private schools in Brooklyn or New Jersey.

To succeed, though, Bridge Prep will have to navigate a few considerable challenges.

A few, like finding space, are familiar to charter schools in New York City. Others, like convincing parents that their educational model will work best for their children — who may have sizable academic and emotional needs thanks to their frustrations with reading — may be more specific to Bridge Prep.   

“We’ve gotten branded as the dyslexia school,” founder Timothy Castanza said. His hope, though, is that the school will be able to attract a mix of students. “Struggling with literacy in general, something that so many students do struggle with, means that you should come to this school.”

While designing the school, Castanza traveled to Jacksonville, Florida, to visit a magnet school that almost exclusively serves students with language-based learning disabilities and to Pittsburgh to visit the Provident Charter School for Children with Dyslexia.

Bridge Prep plans to use the Orton-Gillingham instructional approach, a popular method of teaching students who have trouble with reading, spelling, and writing. Each class will be 12 to 13 students so instructors can cater to children’s individual needs, Castanza said.

Timothy Castanza, Rose Kerr and Laura Timoney celebrate the approval of Bridge Prep.

The school also plans to use the “triad method,” designed by Rose Kerr, a former Staten Island principal. Instead of students leaving their classrooms to receive extra help, additional teaching assistants and literacy coaches will rotate through the classrooms (called triads) to help students, joining the assigned general education or special education teacher and any paraprofessionals mandated for students.

The model is costly, and the five founders of Bridge Prep are continuing to search for additional outside funding — part of why the school’s planning process has taken several years. (GRASP Academy, the dyslexia-focused school in Jacksonville, spent about double what a typical elementary school in that district did in 2015, according to the Florida Times-Union, though per-student spending in Florida is generally far below that of New York.)

The overarching goal, they say, is to help students at the start of their academic careers, putting them on the right track for later success.   

Opportunity Charter School, another charter school designed to serve mostly students with disabilities in Harlem, came under fire last year for not being able to meet its academic benchmarks. But Opportunity has operated as a middle school and high school, and its students enter having to catch up. Maggie Moroff, the special education policy coordinator at Advocates for Children of New York, said Bridge Prep’s decision to open an elementary school means it might avoid some of those issues.

“It’s never too late to help a struggling reader learn to read, but it does get more difficult the longer the student is left without appropriate evidence-based interventions,” said Moroff.

It’s hard to know exactly how many students in Staten Island or New York City have dyslexia. The city’s annual special education report in 2016-17 said about 77,000 students have a learning disability. Of all students with disabilities enrolled in the city’s district schools, nearly 130,000 were receiving all of their recommended services, while almost 50,000 were denied some of the services that they were legally entitled to.

In 2016, the city announced it would increasing the number of reading coaches in each school through a new Universal Literacy Program. That may be helping, Moroff said, but some students still find themselves without needed support.

“If kids didn’t have private attorneys, then what they ended up doing was just struggling in school and not getting the support they needed, falling farther and farther behind and getting a hodgepodge of services,” said Moroff.

Ayelet Schwartz, a Staten Island mother whose daughter has dyslexia, saw that firsthand.

Despite having a diagnosis of her daughter’s condition, Schwartz said the teachers at her local district school didn’t take her seriously. So Schwartz sued the Department of Education to reimburse her for the cost of sending her daughter to a private school for students with language-based learning difficulties, two hours away.

“I’ve heard kids say, ‘I’m so stupid, why can’t I read? I’m so mad at my brain!’” said Schwartz, whose daughter is now middle-school aged. “My daughter didn’t want to go to dance anymore, didn’t want to go to school. She would cry, throw her books, say ‘I’m an idiot,’ things like that. So it took a lot of work to undo all of that.”

Having a local school with experience helping students like her daughter like Bridge Prep would have saved her family from years of struggling, she said. “We didn’t have options,” said Schwartz. “If this school works, I’m all for it, because we need options here on Staten Island.”

model of inclusion

New York City is placing students with disabilities in mainstream classes. But do they actually feel included?

PHOTO: Alan Petersime

Terell Richards languished at the public middle school in Queens for students with severe disabilities that he attended a few years ago.

It wasn’t just that he found the work so easy he sometimes fell asleep in the back of the classroom, his sister, Kya, said. It was also that he felt so out of place he would sometimes dissolve into tears.

“Just crying and saying how much he just felt like he was in the wrong place and completely lost,” said Kya, who helped her brother, now 19 years old, switch to a private school for students with special needs.

Now, New York City — and districts across the country — have started sending more students like Terell into classrooms alongside their non-disabled peers. But while some research has shown students with disabilities can perform better in mixed-ability settings, a crucial concern has been whether the new environment makes students with disabilities actually feel less isolated and out-of-place.

A new first-of-its-kind study based on surveys of more than 250,000 New York City middle-school students between 2007 and 2012 tries to answer that question.

The study comes with some important caveats: The surveys are conducted annually by the education department, meaning they weren’t written by the study’s authors nor did they oversee how they were administered. Also, the survey period ended just as the city was beginning its major push to move most students with disabilities out of separate classrooms.

It finds that middle-school students with disabilities tend to feel welcomed in schools with non-disabled peers, though their experiences vary by their type of disability. But, more surprisingly, special-needs students in separate classes don’t feel more excluded.

The study, which was funded by the Spencer Foundation, is set to appear in the peer-reviewed journal, Educational Researcher. Here are three big takeaways:

Students with disabilities generally feel included in mainstream schools.

The study tracks whether students feel included at over 500 traditional schools by looking at how students with disabilities and their non-disabled peers responded to five questions from the city’s annual survey: whether students feel welcome at school, whether students with disabilities are included in school activities, if teachers know students’ names, whether students are bullied, and whether they see harassment.

Generally, students with disabilities reported slightly higher levels of inclusion in school activities than non-disabled students, and feel only marginally less welcomed — though they also reported slightly higher levels of bullying and harassment.

About 60 percent of students with special needs either agreed or strongly agreed that students with disabilities are included in all school activities, about two percentage points higher than non-disabled students. A slightly smaller share of special needs students felt welcomed at school compared to students without disabilities — though 92 percent said they felt welcomed. (The patterns are relatively consistent even when controlling for differences in student characteristics like gender, race, or socioeconomic status.)

Advocates said they were both surprised and encouraged by those findings.

“We do worry that in the hands of an unskilled teacher that kids will not necessarily feel welcomed and they’ll still be separated out and made to feel different” said Maggie Moroff, a disability policy expert at Advocates for Children. “It’s pretty exciting to me to see that’s not necessarily true.”

Feelings of inclusion vary widely by disability type.

Although students with disabilities generally reported feeling about as included and welcomed as their peers, there are significant differences based on the type of disability a student has.

Those who were classified as having an “emotional disturbance” — often students who have significant behavioral problems — felt among the least included. They were about 4 percentage points less likely to report feeling welcome or included, compared to non-disabled students, and were also more likely to report harassment than students in any other disability category.

“The emotional disturbance kids are the ones who stand out in their classrooms,” said Leanna Stiefel, the study’s lead author and an economics professor at New York University, adding that they may feel less included because their disabilities are more difficult to hide.

But students with “low-incidence” disabilities such as multiple handicaps, autism, or intellectual disabilities reported more positive feelings than any other group. They were about 10 percentage points more likely than non-disabled peers to report that their schools include students with disabilities, and were slightly more likely to report feeling welcomed.

Students who are segregated based on ability don’t necessarily feel excluded.

Surprisingly, it made little difference whether students with disabilities were in “self-contained” classes — essentially classes comprised only of students with disabilities — or were in classrooms that included non-disabled peers: Both groups reported similar feelings of inclusion. (The findings don’t include students in District 75, a separate set of schools that are even less inclusive, since the schools themselves are only for students with disabilities.)

Moroff, the special education advocate, said the finding surprised her and noted it could reflect that students in more segregated settings aren’t necessarily aware of more inclusive models.

“It’s very possible there that there’s a level of interaction they’re not having,” Moroff said, “that they don’t even expect to be taking place.”