To Chris Schwabenbauer, getting an education for her autistic son is a matter of basic rights. So she became irate when a principal of his host school barred autistic youngsters from using the main bathrooms on days when the general school population was taking standardized tests.
"It's a civil rights issue," Schwabenauer, a PTA president, said. "I'll put up with it soon as you start hanging up the black and white signs over the water fountains again."
Now, that principal is gone, the city has said it will not tolerate such behavior, and Schwabenauer has nothing but praise for the education her 10-year-old is getting at P.S. 255, a special-education school in various school buildings around Queens.
"You can't ask for anything more," said another P.S. 255 parent, Victor Ty. "It's amazing."
The Department of Education says that improvements are taking place throughout the city's programs for students with disabilities.
But last week the state Department of Education said much more needs to be done. It found that all of the city's 33 schools districts are failing to meet the needs of special education students and that 23 of them require "immediate intervention" to address low test scores and woeful high school graduation rates. Only 37 percent of all special education high school students in New York State graduate. But in New York City the number is far worse: Less than 17 percent of special education students receive regular diplomas.
"Students with disabilities can and do succeed in many schools throughout the state," education commissioner Richard Mills said. "But in other schools, their performance is very low."
The state's report comes as the city faces a civil rights complaint charging it discriminates against special education teens and at least one major lawsuit over its special education programs.
The city's education department says it has already moved to address problems and has made progress. "We have moved aggressively to make improvements," Linda Wernikoff, the deputy superintendent for special education, told a City Council hearing last month.
NEW YORK'S PROGRAM
In its special education programs, the city is bound by a system whose broad outlines have been required by federal law since 1975. Before then "many students with disabilities were being excluded from school or were not being educated well," an article in Education Week observed on the 30th anniversary of the Education Act for All Handicapped Children.
The revised law and all the litigation over it, augmented by state action, have produced a system that requires the school system to provide one-to-one services, therapies and even private schools. What the law does not do is require the federal government to pay for all this.
The discrepancy has irritated some local officials. In 2002, then Chancellor Harold Levy charged that affluent parents manipulated the system, getting the public to pay for costly private educations for their children. This, he said, drains "resources that are critically needed for the system," he said. "You cannot give one kid the Cadillac and the others the back of the bus."
The city will spend about $1.7 billion on special ed instruction this year, and about $3 billion on all special ed services. That works out to about 20 percent of the budget going to 13 percent of the kids, according to WNYC's Beth Fertig.
New York's approximately 150,000 special education students run the gamut from those with a mild learning disability to students with two or more serious disorders. But most special education students do not "have educational deficits. Their deficits are emotional and behavioral," Thomas Hehir, a professor of education at Harvard who conducted a review of city special ed programs, has said.
In the state as a whole (based on 2003 figures), by far the largest group of special education students - more than 40 percent of the total -- have learning disabilities, such as dyslexia, with the next largest number classified as having "speech and language impairments."
Faced with such a range of problems, the city offers a variety of programs. Some children attend a regular classroom but get additional help - sessions with an occupational therapist, for example. Others go to special schools within the public school system, including those in District 75, a division for students with severe disabilities or multiple problems that covers the entire city. A smaller number attend private schools at public expense.
IMPROVING THE SYSTEM
In general, the city says it tries, wherever possible, to place special education students with general education students, a movement known as inclusion. "The kids that we see in inclusive settings are outperforming kids in more restrictive environments," the new number-two person in the department, Andres Alonso, who taught special ed classes in Newark, has said.
As part of the move toward inclusion, the city has created collaborative team teaching classes, which have a mix of special and general education students and two teachers, one of who is trained in special ed.
But this "collaborative team teaching" is not a panacea, said Kim Sweet, associate general counsel at New York Lawyers for the Public Interest, who works on special ed issues. Some classes "get rave reviews," she said, but success depends on how well the two teachers work together and the mix of children in the classroom.
Along with inclusion, the city cites a number of other recent improvements in special education:
--Training more teachers to use the Wilson reading program for students with dyslexia.
--Improving data systems so that principals, teachers and others can easily determine whether students are getting the services they need.
--Providing better methods, including on-line data systems, of evaluating and placing students.
--Changing the evaluation system.
A DELICATE BALANCE
Disputes over what the city should do for a child often come to a head during the student's evaluation. The stakes are high. The city wants to keep costs down. And while it seeks to put disabled children in with the general population, it has to make sure that doing so will not jeopardize the special ed students or their classmates.
Parents of the special education students, on the other hand, believe the education plan could determine their child's ability to be educated, live independently and earn a living - and they want the best for their child.
Take the case of Scott Greenspan, a New York lawyer with a 9-year-old son who is autistic, non-verbal and has a condition called pica in which he puts objects in his mouth.
The city did not provide a paraprofessional to follow the boy around all day, his father said, something that was essential to ensure he could attend school and not "swallow razor blades." And it failed to arrange sensible transportation for him.
"My son deserves an education and transportation to school as much as someone who does not have autism," Greenspan told the City Council, but "the Department of Education has thrown roadblock after roadblock in our son's education."
Amid such volatile and emotional concerns, key issues emerge.
The Evaluation Process
If a child is thought to have a disability, the education department has 60 days to come up with a program of study and services for the student - known as an Individual Education Plan. After the city agrees to the plan, the city has 60 days plan to arrange to implement it.
So, even if the city adheres to the law, a student can spend a third to a half of the school year waiting for services. And it does not always meet those deadlines.
A study conducted by the office of Public Advocate Betsy Gotbaum in 2004, found that more than 80 percent of psychologists and administrators said that their schools had a backlog of students needing re-evaluations, partly because of a bureaucratic reorganization.
But last year, according to deputy schools superintendent Wernikoff, more than 87 percent of the evaluations conducted were done within the required time. In 81 percent of the cases, the city met the deadline for delivering services.
"Time frames are important," Wernikoff told City Council. "But most crucial, she said, is the "need to make appropriate education decisions about kids."
A bill now in City Council would require the Department of Education to keep more detailed records and to report on whether it is meeting its deadlines. The education department argues that the law is unnecessary and would duplicate records already being maintained. And the department's general counsel says the bill might be illegal because it would conflict with existing state law.
The Appeals Process
If parents disagree with the plan for their child, they can request a hearing and go to court. In the first years after Joel Klein became chancellor, the number of special ed cases that led to a legal hearing rose by 13 percent, according to the Hehir report.
The current administration "is fighting at hearings in a way that doesn't promote the best interest of the child," said Sweet. The department may well think that it can win and then save money on providing services. But, she said, "It's the sort of money saving approach that leaves kids out in the dark."
For many parents, particularly those with limited incomes and education or who do not speak English, navigating this system poses a daunting challenge. "You have a lot of red tape," said Ty, and many parents, such as immigrants "don't know how to do it."
Recent actions have made the situation harder.
Last year the U.S. Supreme Court ruled that parents who object to a school district's plan for their child must bear the burden of proving why the plan is not appropriate.
Another change, some special ed advocates say, originates at Tweed courthouse. In the past, a child would continue to get existing services while parents appealed any reduction in them. But for the past year, the Department of Education has immediately switched to the reduced services, without waiting for the outcome of the case, according to attorney Gary Mayerson.
Representing several families of disabled children, Mayerson has filed a class action suit protesting this and arguing that the city's action violates federal law.
Rather than looking out for the best interests of the children, he said, the city "is seeking to cuts costs on the backs of these kids."
The city is scheduled to respond to the complaint in early October.
Of the students evaluated as needing special education, a disproportionate number are black and Latino. While about a third of city public school students are black, more than half of the students classified as emotionally disturbed and more than 40 percent of those labeled mentally retarded are black.
This may be the result of poor schooling early on, according to Beth Harry, a University of Miami professor who has studied bias in special education. "You can say a kid came to school with disabilities possibly at age 5 or 6, but it's very hard to tease out the role of the school in making those issues better or worse," she told WNYC.
For whatever reason, not every child in special education gets the services that he or she needs. Sometimes an appropriate therapist or teacher cannot be found; sometimes there is a space shortage. Ty and Schwabenbauer say that about 16 Queens youngsters who need a program such as P.S. 255 could not be placed in one. They remain at home, getting an hour or so of instruction a day.
Parents worry the city is cutting back - or at least not keeping up with the growing needs for some services, particularly those for autistic children. As in the nation, the autistic population in New York has been growing steadily in recent years.
As a result, at P.S. 255, some classes have increased from six to seven students. While seven may seem small, parents say the additional child could create problems. For example, said Schwabenbauer, every youngster is supposed to get some one-on-one instruction. With the additional child, she wonders, "where does that time fit in?â€¦ I think teachers are going to burn out."
But others see progress. "I do believe there has been improvement," Leah Steinberg, a special education issues expert for Agudath Israel, said at the hearing. "Many more children are being taken care ofâ€¦ and there is a willingness to work together."
Places in High Schools
But many special ed students have not been able to take advantage of small, specialized high schools, the centerpiece of the city's effort to boost high school performance. A lot of them have been off limits to special ed students, as well as to some kids who do not speak English.
By one count, only 8 percent of students in the new small high schools need special education services, compared to 12 percent of the high school population as a whole and almost 20 percent at some of the city's large high schools. Some allege that the city wants to keep problematic students out of the small schools to boost overall test scores and graduation rates at them.
But the city says the restriction is temporary. The schools are so small when they start they cannot accommodate these teenagers, the department has said, but by their third or fourth years, will be open to all. "As we create more and more of these services, you're going to have more special ed students in them," Michael Best, the department's general counsel, has said.
David Bloomfield, a member of the Citywide Council on High Schools and a professor of educational policy at Brooklyn College, has filed a civil rights complaint against the city on this issue, which the U.S. Department of Education is now reviewing, Bloomfield said.
If the department "was making statements it could not provide services to people of color," people would be up in arms, " Ellen McHugh of Parent to Parent, an advocacy group for parents of special education students, told City Council.
Students classified as needing special education do not do nearly as well as their counterparts on tests. In 2005, only about a fifth of special ed students were proficient in reading, according to test scores. By eighth grade, less than one in 20 - not even 5 percent - of special ed kids were proficient. The Mayor's Management Report released last month said that almost 38 percent of students in special education who scored below standards in reading moved up a level in 2005, but it did not say what percentage of students still did not meet those standards.
And there are the low graduation rates cited in the state report. Hehir thinks the schools could do far better. "If [students] receive what they need and the school accommodates their disabilities and gives them access to challenging curricula, these kids should be able to get diplomas," he said to a WNYC reporter.
In the school years between 1996-97 and 2003-04, 96 percent of the students having an "emotional disturbance," did not graduate. Neither did 89 percent of those with a "speech impairment," according to "Leaving Empty Handed," a report by Advocates for Children.
The Mayor's Management Report charts a steady increase in the number of special ed students graduating and a decline in the number dropping out. The numbers are improving, Elisa Hyman of Advocates for Children agrees, but not nearly as much as the report says.
In its report, the state sets out a number of things it thinks the city should do to improve education for special needs students. It calls for using successful teaching methods in more schools, providing mentors and other help to teachers, improving communication with parents, and offering job-training programs that could encourage more kids to stay in school. And it says the city should let more teens with disabilities attend small high schools.
The city thinks it is already on the right track. But the battle over special ed goes back decades and seems likely to continue.
"It was hard to get kids the services they needed before Michael Bloomberg came into office," said lawyer Kim Sweet, "and it's hard to get kids the services they need now that the mayor is in office."