Attending school still out of reach for many NYC students with disabilities

Jennifer Choi, a special education advocate and a mother of students with disabilities, sat in front of the New York City Council’s Committee on Education just over two years ago to discuss an issue close to her heart — chronic absenteeism.

Chronic absenteeism is defined as missing 10% or more of school days in an academic year, which is typically around 18 days. Students with disabilities in NYC have consistently higher rates of chronic absenteeism than their peers without disabilities. However, as Choi pointed out in her 2022 testimony to NYC Council, the school district does not provide any guidance for addressing chronic absenteeism among these students.

“We need that guidance so that the school disability support teams know what to do,” Choi said. “In some cases for these children, like my own child, they can no longer attend public school and require expensive therapeutic settings after months or years of failure and trauma. I know we can do better. Please help our students with disabilities.”

Two years after this emotional appeal, Choi says “nothing’s been done” to provide guidance or help students with disabilities, who make up 23% of the New York City Public School’s over 900,000 students, make it back into the classroom.

A class action lawsuit alleging a “systematic failure to provide equal access to education for students with disabilities who are chronically absent” was filed in October by the Legal Aid Society and Pillsbury Law against New York City Public Schools, or NYCPS, and its now-former chancellor, David C. Banks.

The lawsuit pushes NYCPS to create a policy or program to identify students with disabilities that cause or contribute to chronic absenteeism and provide them with the services they are entitled to according to the Individuals with Disabilities Education Act. IDEA, first enacted in 1975, says that a “free appropriate public education” should be available to children with disabilities.

“Our position in the lawsuit, which we believe, is that the reason why these students aren’t about getting the services to which they’re entitled is because NYCPS just hasn’t set up a program to do it,” said Susan Horwitz, supervising attorney of the Education Law Project at The Legal Aid Society and lecturer at Columbia Law School.

Having an established program to address chronic absenteeism means that students with disabilities would be able to get accommodations to help with this issue, like home instruction or allowing a child to slowly increase time spent at school, listed on their Individualized Education Program, or IEP.

IEPs outline a school system’s plan for a child with a disability’s unique curriculum that will provide them with the free, appropriate education required by IDEA legislation. These plans are legal documents meant to ensure that appropriate accommodations will be provided, but they are not always followed.

Lloyd Donders, a special education lawyer practicing in New York City, said he frequently meets parents whose children have missed months of services, like speech and language pathology, because the school cannot find a service provider.

The accommodations listed in a student’s IEP are often based on disabilities identified through evaluations provided by the school district. Donders also says these IEPs are frequently flawed or fail to address pivotal health or behavioral concerns, like learning disabilities and developmental disorders, which could play a role in a student’s chronic absenteeism.

A representative said in a statement that NYCPS is “committed to reducing barriers to attendance and prioritizes providing support and resources to students who exhibit behaviors that indicate potential school refusal.” However, many students with unmet needs are forced to look to alternative sources for help.

When the needs of students with disabilities are not being met, families have a few options.

Families can sue the school district in a due process case — a lawsuit accusing a person or institution of not following guidelines, like those set out in an IEP. Donders said because of New York’s “very unique” legislative landscape, these cases are relatively routine and not difficult to win, like they are in other states.

For parents not at a stage where they need to pursue legal action, many seek help from local professional advocates that walk parents through the complicated process of getting accommodations for their children and educate them about their childrens’ right to a free and appropriate education.

Several local advocacy groups also offer free resources for parents who want to learn more about the services available to their children, according to Fiona Sifontes, the CEO of NY Advocates 4 Kids. Choi, who is a special education advocate at Student Support Services, encourages parents to be curious and ask questions.

But local advocates say there are more families in need than they can help — in part because of the large number of people seeking guidance about chronic absenteeism.

The lawyers leading the class action lawsuit hope that, by pushing NYCPS to create guidelines, fewer parents will be forced to seek outside help and ultimately sue for the support their children need.

“It’s not an obligation for parents to sue to get these services,” said Jeff Metzler, a litigation partner at Pillsbury Law. “It’s an obligation on the school districts to provide services.”

Horwitz and Metzler hope this class action suit will provide better options for parents in this situation, particularly those who do not have the means to sue for the services to which their child is entitled.

“We believe that there are so many kids who are struggling with this, that it would be futile for every one of them to try to do a due process hearing,” said Horwitz. “But to me, the main issue is there’s no remedy to ask for.”