Testimony Before the New York City Council Education Committee on Special Education Reforms

INTRODUCTION
The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across New York state and nearly 50,000 members and supporters. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. Securing students’ rights is a core component of our mission, and through our Youth and Students’ Rights program the NYCLU advocates for an equitable system of public education that meets all students’ needs and their constitutional right to an education.

The NYCLU supports the Department of Education’s (DOE) goal to bring the city into compliance with federal laws regarding the education of students with disabilities (SWD) and to ensure the best possible education for these students. The reforms are based around the following five principles:

• Except for those with the most serious needs, most SWD should receive an appropriate education in neighborhood schools;
• Educational goals for SWD, like all other students, should be based on state learning standards;
• All schools should have the resources and flexibility to meet the needs of SWD;
• Parents of SWD need to be treated as key partners in the students’ education;
• Schools should be held accountable for achieving these goals.

These goals support federal law requirements, for example, the requirement that SWD be educated in the Least Restrictive Environment (LRE), meaning they are provided maximum access to general education classes and peers while still accommodating their disability. The DOE was admittedly out of compliance with federal law on this and other requirements. Only 27 percent of students with disabilities graduated from high school on time in 2011, and only 12 percent with a Regents diploma – the only credential now recognized by the New York State Regents as criteria for high school graduation. This graduation rate is far below the on-time graduation rate of 60.9 percent for non-disabled students.

Along with other advocates, we are concerned about the practical effects of implementing the reform, including the negative incentives created by the DOE’s rating of schools and principals. As with other areas of education policy, rating or ranking schools and educators based on flat measurements encourages shortcuts. In this case, the DOE “scores” principals on the number of students who are in LRE, which can encourage schools to mainstream students inappropriately3 or, worse, alter students’ individualized education plans to meet available resources.

On the opposite end of the spectrum, we have heard from families, teachers, and principals that not every school can offer required services for students, with the result that students may be sent to alternative settings. In November 2012, we learned that referrals to District 75 increased since the reform began. As D75 is intended for students who cannot be mainstreamed, this is the opposite of a Least Restrictive placement. As with previous reforms, we fear that school psychologists may face pressure to re-evaluate students or delay evaluations until appropriate resources are in place.

The effects of misplacement can be obvious (students do not receive the appropriate education and cannot meet their academic goals) or more nuanced (students who are not properly evaluated and provided with services may be at higher risk of getting suspended or arrested).

But both outcomes increase the risk of pushout for students who most need to be connected to school.

SCHOOL DISCIPLINE AND SWD
The reforms have had no positive effect on the suspension rate of students with disabilities. While the overall suspension rate has decreased over the last school year,7 still one- third of all suspended students are students with a disability; this has been the case since 2000. Black students with disabilities, who represent only six percent of total student enrollment, serve 13 percent of suspensions. These students are disproportionately excluded from school despite federal laws explicitly designed to guard against this very circumstance.

Worse, special education reforms may have indirectly contributed to an increased reliance on emergency psychiatric referrals to respond to misbehavior by SWD. The NYCLU has received calls from families whose children experienced an emergency removal, via ambulance, to a hospital psychiatric ward. An article in the New York Times last year profiled a student who was removed from school and sent to the ER several times in a single school year because his school, which was part of the early phase of the reform, ran out of money in its budget to provide him with appropriate services. Schools must be given appropriate resources to meet students’ needs locally and, ideally, before emergency levels are reached.

RECOMMENDATIONS
Next week, the NYCLU is issuing a follow-up report to our 2011 report on the school-to- prison pipeline, Education Interrupted. We will provide copies of the report to all members of the Council Education Committee in early November with our full set of recommendations on this, and other education civil liberties issues.

In the meantime, we have four recommendations for the City to better meet the needs of students with disabilities.

1. The next mayor should convene a task force with key city agencies, including the DOE and NYPD, advocates, mental health professionals, students and parents to implement thoughtful measures together that keep students safely in school and learning. The goals of this exercise should be to reduce the incidence of suspensions, law enforcement interventions, and emergency calls for SWD and all students.
2. The DOE must reform the Discipline Code to remove zero tolerance discipline, and engage in widespread training initiatives to correct the toxic culture years of zero tolerance has created. The culture of zero tolerance in New York City puts special education students at a steep disadvantage; combined with insufficient support services, zero tolerance discipline virtually guarantees that special education students will spend more time out of the classroom than their general education peers. As long as zero tolerance persists in schools, these reforms do little to improve students’ access to a quality education and many students with disabilities will continue to suffer.
3. The DOE must make more robust efforts to inform parents and students of their rights, and to scrupulously honor due process and special-education protections. We are pleased to see some special education protections added to the Discipline Code and we urge the DOE to continue to publish language regarding students’ rights in the Discipline Code. In addition, we call on the DOE to conduct audits of special education and discipline hearings to ensure due process guarantees are actually being met.
4. The DOE must create a simpler and more meaningful way for parents to communicate with the DOE about their child’s school placement. The current system of calling 311 is ineffective and leaves thousands of parents without access to important information.
5. School staff must be trained to better identify and refer students with unmet mental health needs to special education and other services. Because students are best served in their community setting, schools should hire more mental health professionals, instead of making referrals to hospitals via EMS transport. Increasing access to “mobile mental health teams,” (mental-health professionals who serve a group of schools in a particular community) is a first step towards filling this critical gap in services in city schools.

For more information, or to set up a meeting, please contact Advocacy Director Johanna Miller at (212) 607-3352 or jmiller@nyclu.org.