New York City is failing because of students with disabilities who avoid school, the lawsuit says

The New York City Department of Education systematically fails to provide equal access to education for students with disabilities who are chronically absent from school due to “avoidance,” according to a class action lawsuit filed Tuesday by the Legal Aid Society.

Four students involved in the lawsuit have been denied regular school attendance because of their social or emotional disabilities, such as: B. severe anxiety or depression, discontinued. The lawsuit alleges that the nation's largest school system has no policies or procedures in place to ensure that these students attend the “free appropriate public education” to which they are legally entitled.

New York City schools do not have a system-wide policy to evaluate students who experience school avoidance and return them to school, the lawsuit says. According to the complaint, the system also lacks a process for tracking and identifying chronically absent students who struggle with school avoidance. (Pillsbury Winthrop Shaw Pittman joined legal assistance in this case.)

Instead, schools often ignore the situation, convincing parents to homeschool their child or suggesting parents apply for home schooling, which provides a limited number of weekly lessons for children who cannot attend school due to physical or psychological disorders. the lawsuit says. The lawsuit says schools also often use child protective services.

The lawsuit demands that the Department of Education immediately develop a comprehensive plan and establish a process to identify, evaluate and establish programs to help students suffering from school avoidance, as required by federal and state law.

“We need some consistency about what schools should do,” said Susan Horwitz, senior attorney at the Legal Aid Society's Education Law Project, emphasizing that schools shouldn't wait until a student is absent for more than 10 consecutive days, like the Chancellor's regulation requires it to investigate what is happening.

“Every school knows who isn’t coming,” and they know which of their students have handicap-accessible facilities, Horwitz said. “There needs to be some prevention… before it’s really too late to find an effective and quick solution.”

Education Department officials said school mental health teams are examining behaviors and whether mental health issues are contributing to absenteeism. Additionally, teams that create individualized education programs (IEPs) or 504 plans that outline required accommodations for students with disabilities may include services that address the reasons why students refuse to attend school.

“We know this is an issue among our most vulnerable students, including students with IEPs, and so we provide instructional supports, paraprofessional services and mental health services based on students' individual needs,” said Chyann Tul, spokesperson for the Ministry of Education a statement.

Data gaps make it difficult to combat school avoidance

The lack of official city leadership, as Chalkbeat previously reported, is leading to an uneven response across the city's 1,600 schools, ranging from little or no involvement from school administrators to deeper partnerships with families. And it's often up to families to navigate an inadequate mental health system rather than receiving the educational support they're entitled to.

Ultimately, this means many students with disabilities are missing out on important instructional time as well as services and accommodations they would receive in school, such as counseling or occupational therapy, the lawsuit says.

Students with disabilities disproportionately struggle with chronic absenteeism, which is defined as missing 10% of the school year, or about 18 days per year. About 46% of the city's 200,000 students with disabilities were chronically absent during 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. In comparison, the citywide average is 36%.

However, the Ministry of Education does not have detailed data on how many of these students are chronically absent due to school avoidance. (Bus problems are also a cause of chronic absenteeism among students with disabilities.) If a student is absent from school for ten consecutive days, the school is supposed to determine the reasons by contacting parents. For this reason, they are supposed to conduct what is called a “407 investigation.” . However, these investigations do not even include a process for identifying students who are specifically struggling with school avoidance, the lawsuit says.

“When we finally know how many children are affected by this, we will be ten steps ahead of where we are now,” said Horwitz. “Because then we can say more specifically how we will deal with it.”

The Department of Education directs schools to consider conducting a “functional behavioral assessment” to “evaluate any behavior that impacts learning, including, but not limited to: elopement (leaving class or school).” . and school avoidance,” the lawsuit says, but says schools rarely conduct such assessments for students experiencing school avoidance.

Education Department officials said that for students who are avoiding school, additional assessment may be needed to determine whether new supports could help get a student back to school.

However, no one has conducted functional behavioral assessments or provided effective strategies for MT, a 15-year-old ninth grader on the autism spectrum who is part of the lawsuit.

MT, who has a tendency to elope, had trouble attending her middle school in Queens. (All plaintiffs used initials to protect their privacy.) Although schools in New York City had recommended a state-funded residential special school, they were unable to secure a place for it within two years. At Queens Transition Center, a school in District 75, MT has avoided taking the bus to school since October 2023. So her parents began driving her, sometimes waiting with her for two hours and trying unsuccessfully to persuade her to enter the building.

Horwitz said schools should come to students' homes to conduct a functional behavior assessment.

“It’s about why this is happening and how we can fix it,” she said. “It's not that complicated. Complicated is what happens to children and families when children are out of school, whether it's ACS involvement or parents having to quit their jobs, and then the cascade of terrible things that happen when people can't afford it “To pay their rent in this city.”

Amy Zimmer is the office manager of Chalkbeat New York. Contact Amy at [email protected].