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New York City “regularly fails” to provide special education services to students with disabilities, leading to chronic absences, according to a class-action lawsuit filed Tuesday by the Legal Aid Society.
The suit seeks to confront a pervasive problem in the city’s school system, the nation’s largest. Tens of thousands of children may struggle to attend class because of anxiety, clinical depression and other emotional disabilities, the suit says. These students have the right — enshrined in federal law — to have their needs accommodated by their public schools.
But the city’s Education Department “has a pattern and practice” of falling short in providing evaluations, support services and robust plans to help these children attend class, according to the complaint. This failure results in a “systematic, wholesale denial of access to education,” the suit argues.
H.B., a 16-year-old sophomore who is identified by his initials in the lawsuit to protect his privacy, says his anxiety makes it feel like he is watching his classes on “a really old TV” with the signal going in and out.
When he was in sixth grade, his mother sought a special education plan — a legal document that outlines the support services and other accommodations to which a student is entitled. But it took almost the entire school year for him to receive one, the suit says.
In the meantime, administrators at his middle school told him that if he needed to leave class to collect himself, he could sit with the guidance counselor. The counselor later reported his mother to child services for neglect, in a case that was eventually dismissed.
Today, H.B. attends school remotely. But a requirement to keep his camera on all day triggers his anxiety, and he misses many hours of class time.
“It feels like there’s nothing there for people like me and for people in the same situations as me,” H.B. said.
Student absenteeism spiked in New York and other cities during the pandemic. And it has remained stubbornly high, becoming a top factor hampering the nation’s recovery from learning loss. Chronic absence is defined as missing at least 10 percent of the academic year.
Students on special education plans miss school more often than their classmates. About 46 percent of New York City students with disabilities were chronically absent during the 2022-23 school year, the most recent period for which complete data is available, compared with 31 percent of their general education peers.
And in a set of several dozen schools across the city that educate children with the most advanced disabilities, known as District 75, more than six in 10 students were marked absent for at least 18 days over the course of the year.
Missing class that frequently can quickly spiral into other problems. Students who are chronically absent in early grades are less likely to become proficient readers on time, and those who miss high school classes are often at a much higher risk for dropping out before graduation.
Still, high-profile litigation over student absenteeism has been rare. The lawsuit filed on Tuesday argues that absenteeism for some children with disabilities is directly linked to failures in the public school system.
“It’s wildly inconsistent what schools will do,” said Susan Horwitz, the supervising attorney of the Education Law Project at the Legal Aid Society, adding that well-off families might seek private help such as therapy and diagnostic evaluations to get their children back into school.
“What about the poor kids?” she asked. “It’s fundamentally an equity, a poverty, a race, a civil rights issue.”
Any student with a disability is supposed to receive a specialized learning plan from the Department of Education that is designed to accommodate their needs. The department also provides a range of other services for students who need them, such as behavioral support, additional technology and testing accommodations, according to its website.
A spokeswoman for the department, Chyann Tull, said in a statement in response to the claims made in the lawsuit that the school system was “committed to reducing barriers to student attendance in any and all forms.”
She added: “This includes prioritizing providing students with disabilities with supports and programming in their neighborhood schools.”
The department also said that it had expanded its Nest and Horizon programs, which are designed to help autistic students develop social and academic skills and which have high attendance rates.
Children can be chronically absent for a range of reasons.
Some skip school for family trips, or to manage family responsibilities. Others are part of what the lawsuit calls a “growing number of students whose disabilities create so much fear of approaching, entering and remaining in school” that they avoid their classes.
When confronted with the problems, though, some schools simply tell families to opt for home-schooling until their children are “better,” the suit says. In other cases, the district simply “ignores the situation,” or refers parents to child welfare investigators, which lawyers say “can exacerbate the issues that led to the absences in the first place.”
Jeffrey Metzler, a partner at the law firm Pillsbury Winthrop Shaw Pittman, which joined the case with Legal Aid, said that if children could not read because of disabilities, it would never be viewed as appropriate for their schools to say, “Well, that’s too hard of a problem to figure out.”
Yet, when students’ emotional disabilities hinder their attendance, too many schools ultimately tell families, “We really don’t have anything else to offer.”
Mr. Metzler said the school system needed to establish a standard procedure for evaluating children’s issues and helping them return. “It’s not a problem that can’t be solved,” he said.
For now, some students are still waiting for help.
M.T., a 15-year-old student who began ninth grade this fall, has “high-functioning” autism and previously attended a school in District 75, her mother said. As she was preparing for M.T. to start high school, she knew her daughter would need more help.
So she requested behavioral therapy from the district, and asked for help placing M.T. in a residential high school program that would provide more intensive treatment.
But the therapy was never provided, she said. And M.T. received denials from 30 residential schools, some as far away as Texas. During that time, her daughter had outbursts at school and was embarrassed to return.
Her mother enrolled her in the city’s virtual schooling program. But she said that M.T. misses her friends and other benefits of the in-person experience, such as the art classes she loved. She said that the family had done its best to work with the Education Department, but had not heard from officials about other potential help since the rejections.
“It’s not fair to her,” M.T.’s mother said.
H.B.’s sights are set on turning 17, after which he can qualify for his high school equivalency diploma and drop out, leaving the New York City school system behind him.
The lawsuit won’t change the experience he has had at school, he said, but it may be able to improve things for others.
“It’s OK for me to want people to pave the roads, because them being bumpy doesn’t make you a better person, right?” he said. “It just makes you afraid of the roads.”
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