Opinion

Lora v. Board of Ed. of City of New York

456 F. Supp. 1211
1978 U.S. Dist. LEXIS 17417

Court: District Court, E.D. New York
Filed: Jun 2, 1978
Status: Published
Author: Weinstein
On the bench: Weinstein
Cited by: 35 cases
Authority: More cited than 97.5%

Vacated by Isaac Lora v. Board of Education of the City of New York, 623 F.2d 248 (1980)

New York City bars school attorneys from participating in administrative hearings if parents are not represented by counsel

How later courts described this case

New York City bars school attorneys from participating in administrative hearings if parents are not represented by counsel
clear national commitment to meet each child's special needs in a complete and integrated way
inadequate educational services in special day schools for emotionally disturbed children violation of § 504
noting ameliorative action voluntarily taken during pendency of suit

Written by the judges who cited it.

The opinion

Page

I. Introduction 1213

II. Procedural History 1215

A. This Case 1215

B. Administrative 1216

State-Riley Reid

Orders 1216

2. Federal 1218

III. Facts 1219

A. History of Special Day Schools 1219

B. Special Day Schools Today . 1221

C. Statutory and Organizational Framework 1224

1. Federal 1224

a. Education of All Handicapped Children Act 1224

b. Rehabilitation Act of 1973 1228

2. New York State 1230

3. New York City 1230

D. Diagnostic and Placement Procedures 1234

1. Generally 1234

2. Social Worker 1236

3. Educational Evaluation 1236

4. Psychologist - 1237

5. Psychiatrist 1237

6. Neurological Evaluation 1238

7. Case Conference 1238

8. COH Review 1239

9. Due Process Hearing 1241

10. Appeals 1241

11. Reexaminations 1242

E. Changes in Placement; Decertification 1242

F. Criticism of Procedures and Programs 1243

1. Lack of Unbiased Tests 1243

2. Lack of Regular Classroom Observation 1244

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III. Facts — Continued

F. Criticism of Procedures and Programs — Continued Page

3. Lack of Fixed Criteria for Placement 1245

4. Excessive Class Size 1247

5. Lack of Adequate Support Services 1248

6. Lack of Curriculum Extra-curricular Activities and Special Programs 1249

7. Lack of Use by Minorities of Private Institutions to the

Same Extent as the Middle Class 1252

G. Explanations for Discrepancy In Percentage of Minority Students 1256

H. Mainstreaming 1264

1. Theory 1264

2. Alleged Lack of Consistent Use 1270

I. Supplementation of Record by Judicial Views 1271

IV. Law 1274

A. Right to Treatment 1274

1. Theory 1274

2. Students in Special Day Schools 1275

a. Due Process 1275

b. Equal Protection 1275

c. Statutory Rights 1277

B. Right to Due Process In Procedures 1278

C. Discrimination in Referral of Students to Predominantly White Private Facilities 1280

V. Application of Law to Facts 1285

A. Evaluation Process as Violation of Right to Treatment and Due Process 1285

1. Right to Treatment 1285

2. Due Process 1287

B. Special Day Schools as Violation of Right to Treatment 1290

C. Statutory Violations 1291

1. EHA; Rehabilitation Act of 1973; New York State Education Law 1291

2. Title VI 1292

D. Use of Private Facilities at Government Expense by Disproportionate Percentage of Middle Class 1292

VI. Defense of Lack of Funds 1292

VII. Conclusion 1293

Appendices

A. Glossary of Abbreviations 1295

B. Additional Relevant Federal Statutes and Regulations [omitted]

C. Additional Relevant State Statutes and Regulations [omitted]

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

I. INTRODUCTION

Plaintiffs complain that their constitutional and statutory rights are being denied by the procedures and facilities afforded by New York City for the education of children whose emotional problems result in severe acting-out and aggression in school, behavior which may produce danger to others as well as themselves. These children

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often have severe academic problems. They have been placed in special day schools for the education of the emotionally handicapped. The schools utilize smaller class size, specially trained teachers and support staff, and special facilities, designed to provide a “generally therapeutic” atmosphere.

Racial composition of the pupil population in these special day schools is 68% Black; 27% Hispanic; and 5% other, primarily White (figures as of October 31, 1977). The high percentage of “minorities” in these schools is not a recent phenomenon; rather, a disparate racial composition has remained constant for nearly 15 years. The other major services for children with emotional disturbance, “classes for emotionally handicapped” (CEH classes) have a higher proportion, 20%, of non-minority students. Still higher is the proportion of Whites in the New York City public school equivalent grades: 36% Black, 23% Hispanic and 41% “other.”

Starting from this striking racial disparity plaintiffs have added extensive evidence supporting their thesis. They contend that the special day schools are intentionally segregated “dumping grounds” for minorities forced into inadequate facilities without due process. White students with the same problems, it is maintained, are treated more favorably in other settings. Defendants and their witnesses deny any racial bias. They point with considerable pride to the advantages afforded, at substantial taxpayers’ expense, in an effort to bring these problem students into the mainstream of education and society.

Laid bare by the dispute is one of the most excruciating issues of our democratic society. Almost every American agrees that the ringing words of the Declaration of Independence, “all men are created equal,” mean at least that each person shall have an equal opportunity to develop and exercise his God-given talents. But many children born into deprived social, economic and psychological backgrounds lack the equality of real opportunity they would have had were their familial circumstances more fortunate. Unfavorable environment in such cases overwhelms favorable genes. To afford equality of opportunity so far as we can, we depend primarily on education. The free public system of education is the great equalizer, conceived to allow those born into the lowliest status the opportunity of rising as far as their potential talents, drive and luck will take them. But the system is — and perhaps by its nature must be — inadequate to lift fully the burden of poverty, of discrimination and of ignorance that so many of our children carry.

Depressingly revealed by the record are some of the almost insoluble problems of educating certain of the products of this background — the socially and emotionally maladjusted children who present a physical danger to 'themselves and others, who cannot learn and who prevent others from learning in a regular school setting. Yet the evidence before us also illustrates how talented and devoted school personnel, sympathetic to this group of children and operating under federal, state and local laws and regulations, can help even those who appeared beyond redemption.

Hope for substantial improvements lies not in the courts but in the hands of those who control society’s resources and of those who are trained and dedicated to use pedagogic and therapeutic arts. Nevertheless, since the matter has been properly placed before us for adjudication, we have, under our legal system, no alternative but to address the issues in their limited legal context. The dismal facts, the enobling aspirations, and the encouraging portents for the future have been revealed by devoted and skillful counsel for both sides.

At the time this suit was commenced in 1975, the plaintiffs could have demonstrated a violation of their rights by clear and convincing evidence. Since then, however, partly as a result of the litigation process itself, substantial improvements have been instituted by defendants. During the

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course of this law suit many of those charged with supervising the evaluation, placement and education of plaintiffs testified and were forced to face up to and justify shortcomings, and to modify the system as it was. For example, one day school for girls that the Court visited did not measure up to the standards enunciated by those in charge of the program. Partly as a result of colloquy between the Court and witnesses, the school was reexamined and closed. Developments on the administrative front, to be examined in more detail

infra,

have also had an ameliorating effect.

The preponderance of evidence still indicates a degree of deprivation of certain rights of some members of the plaintiff class. Yet the momentum for changes favoring plaintiffs’ rights is now so strong that it cannot be said that a claim for powerful equitable relief has been substantiated. The energies of educators and therapists are best devoted to improving the education of the youngsters who need their help, rather than in litigating details of their educational practices. The record suggests that the extensive legislative and administrative regulations recently injected into the system will in due course provide adequate protections for plaintiffs. Time is needed for the educational system to absorb and adjust to the new legal standards. The case will not be dismissed but the remedies granted will be designed to have a minimal disruptive impact on personnel striving to meet plaintiffs’ needs under difficult conditions.

II. PROCEDURAL HISTORY

This Case

The original complaint in this suit was filed in June 1975. The plaintiffs alleged violations of their rights under the Fourth, Eighth, Thirteenth and Fourteenth Amendments, as well as rights guaranteed by the Civil Rights Statutes, 42 U.S.C. §§ 1981 , 1983, and 2000d (1974). Subsequently, the pleadings were amended to include claims under the Education of All Handicapped Children Act ( 20 U.S.C. §§ 1401

et seq.

(1978)) (EHA) and the Rehabilitation Act of 1973 ( 29 U.S.C. §§ 701

et seq.

(1975)).

A motion for class certification was denied by the late Judge Bruchhausen in January of 1976. In May of that year, the Court of Appeals for the Second Circuit ruled that the denial of class certification was not appealable. A request for rehearing en banc was denied in July and a petition for certiorari to the United States Supreme Court was denied in November. Subsequently, this court granted class action certification. The class includes all minority students who have been assigned to the special day schools.

In January of 1976 plaintiff moved for a preliminary injunction aimed at termination of all student placement in the special day schools without a due process hearing. This motion was denied in March of 1976 and that denial was affirmed by the Second Circuit.

In January of 1977, defendants moved for partial summary judgment on plaintiffs’ due process claims and certain of their factual allegations. In addition, plaintiffs moved to compel discovery with regard to expert visits to Evaluation and Placement Centers and access to 50 diagnostic and referral files of non-party children. Defendants’ motion for partial summary judgment was denied in all respects, but plaintiffs’ motion to compel discovery was granted with special limitations to protect the privacy of the children involved. 74 F.R.D. 565 (E.D.N.Y.1977).

After various amended and supplemental complaints, there are now six plaintiffs representing the class composed of all Black or Hispanic students who have been assigned to the special day schools. The defendants include various officials of the New York City Board of Education, including Board members and administrators, as well as principals of some of the special day schools.

In their pre-trial brief plaintiffs alleged that the special day school system operates as an

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institutionalized method to perpetuate a system of education in New York City, whereby Black and Hispanic children are isolated into a racially segregated school system which does not provide them with . a “special” education.

Plaintiffs’ pre-trial memorandum at 5.

Plaintiffs claim, first, that the referral and assignment of students to special day schools is based upon vague and subjective criteria and that the combination of processes, practices and policies has a racially discriminatory effect on Black and Hispanic children. This, it is alleged, constitutes a violation of 42 U.S.C. § 1983 as well as section 2000d of Title VI of the Civil Rights Act of 1964, prohibiting racial discrimination under any program or activity receiving federal financial assistance. Second, plaintiffs allege that they have been denied their rights to due process, equal protection and equal educational opportunity because they have been placed in special day schools with the natural and foreseeable consequences that they will be isolated within a'racially segregated system which does not provide them with suitable facilities and instruction. Third, plaintiffs charge that defendants have violated their due process rights by (1) placing students in the special day schools without giving them the opportunity for prior hearings mandated by federal and state law and regulations and (2) failure to reevaluate students already in such schools as required by state regulations, with the result that those who may be ready to return to regular schools are not able to do so. Fourth, plaintiffs invoke jurisdiction under ■ 20 U.S.C. § 1415 (e)(4) of the EHA, claiming specific violations of due process rights provided by that statute. Finally, plaintiffs claim that the special day school program affords students only inadequate educational opportunity in- violation of § 791 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 701

et seq.)

and its accompanying regulations prohibiting discrimination against the handicapped.

This is essentially a constitutional and not a statutory case, involving racial discrimination and denial of educational rights. Defendants’ strong reliance on exhaustion cases is, therefore, inappropriate.

After extensive discovery, trial commenced on May 2, 1977, and ended on March 21, 1978. There were 49 witnesses, approximately 3900 pages of transcript and over 230 groups of documents admitted in evidence; final briefs consisted of over 600 pages.

Since the inception of the suit before us, there has been considerable development on the administrative front bearing directly on tbe education of handicapped children in New York City, including those referred for special day school placement. The following brief summary illustrates the degree of administrative regulation of special education in the City.

Administrative

1. State

Riley Reid

Orders

A series of orders issued by the New York State Commissioner of Education had its genesis in a federal court proceeding brought in 1971 on behalf of a class composed of all handicapped children in New York City. It was alleged that in violation of state statutory rights these children were not receiving appropriate educational services. Specifically, plaintiffs charged that they had not been examined sufficiently to ascertain the nature and severity of their handicaps, had not had the benefit of recommendations for appropriate educational placement, and had been placed on waiting lists for screening and subsequent placement without being provided adequate home instruction during the waiting period. The district court denied a motion for an injunction compelling the Board of Education to provide adequate and appropriate educational opportunities and granted defendants’ cross-motion to dismiss.

See Riley Reid et a1. v. Board of Education of the City of New 'York,

71 C 1380 (S.D.N.Y. 1971). On appeal, the Second Circuit held that the district court had properly abstained from deciding the constitutional claims prior to a decision by New York State authorities, but that jurisdiction should have been retained pending such a determination. 453 F.2d 238 (2d Cir. 1971).

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Petitioners then instituted proceedings before the State Commissioner of Education. In response an order was entered in November 1973. N.Y.Comm.Ed.Dec. No. 8742 (1973). The Commissioner found that although the named petitioners were receiving adequate educational opportunity, there were many children in the New York City school system whose educational needs were not being met. The controlling statute, former section 4404 of the New York Education Law, required special classes for handicapped children. It read:

The board of education of each school district in which there are ten or more handicapped children who can be grouped homogeneously in the same classroom for instructional purposes shall establish such special classes as may be necessary to provide instruction adapted to the mental attainments of such children from their fifth birthday until the end of the school year during which they attain their twenty-first birthday, or shall contract with the board of education of another school district, a board of cooperative educational services or a vocational education and extension board for the education of such children, under regulations to be established by the commissioner of education.

See

N.Y.Comm.Ed.Dec. No. 8742 at 119 (1973).

The Commissioner noted the following deficiencies in the school system affecting handicapped children:

1. Undue delays in examinations and diagnostic procedures.

2. Failure to examine and diagnose handicaps.

3. Failure to place handicapped children in suitable programs.

4. Failure to provide available space and facilities for programs.

8. Incomplete or conflicting census data on the number of handicapped children residing in New York City.

9. Inadequate means of informing parents of the processes related to special education services, and inadequate plans for parent involvement in effective planning and decision-making regarding their children.

10. Suspensions of handicapped children from classes without adequate notice or provision for alternate educational services.

Id.

at 120.

To correct these abuses it was ordered, among other things, that all students diagnosed as handicapped be placed immediately in appropriate public school classes or in private schools at public expense; that a plan be submitted to eliminate waiting lists for diagnosis and placement; that a plan be submitted for regionalization of the evaluation of handicapped youngsters; that a study of these students’ needs and a plan to meet them be submitted; and, finally, that a plan be provided for notification to all parents and interested persons, in a language understood by them, of services available for handicapped pupils in the City school system.

Id.

at 121-22.

Since 1973 the Commissioner has retained jurisdiction, policing the school system’s handling of educational services for the handicapped and measuring its adequacy by applicable state statutes and regulations. In September 1977 additional relief was afforded. N.Y.Comm.Ed.Dec. No. 9499 (1977). In effect, the use of private facilities was required where there were delays in assigning handicapped pupils to special public facilities:

IT IS ORDERED that within thirty days after diagnosis or thirty days after the date of this order, whichever date shall later occur, respondents place in suitable programs those students diagnosed as having a handicapping condition; and upon failure to effect such placement, bear the expense of any private placement in a school, approved by the State Education Department for the purpose of contracting with school districts pursuant to the provisions of section 200.9 of the Regulations of the Commissioner, which offers an appropriate program for a child so diagnosed, at the option of the parent or guardian of such student; and

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IT IS FURTHER ORDERED that pending my further order, respondents not transfer any handicapped child who is currently attending a private school under contract with the board of education to a program operated by respondents, unless the committee on the handicapped finds that the current placement is no longer appropriate; and

IT IS FURTHER ORDERED, that respondents submit by November 1 of each year a list of students receiving home instruction or exempted from instruction, and the reasons for such home instruction or exemption; and

IT IS FURTHER ORDERED that respondents submit a detailed plan, by January 2, 1978, setting forth respondents’ proposed course of action to effectively eliminate delays and waiting lists in the diagnosis and placement of children with handicapping conditions, and that the respondents include in such plan specific procedures and techniques for handling fluctuations in referrals; and

IT IS FURTHER ORDERED that respondents submit by January 2, 1978 a comprehensive plan to meet the needs of all handicapped students on the secondary level; and

IT IS FURTHER ORDERED that respondents submit a report by January 2, 1978 of the means used, with sample copies of printed materials, to disseminate information concerning available services to all interested persons and to notify persons in parental relationship to handicapped children as to services available for such children; and

IT IS FURTHER ORDERED that jurisdiction be retained pending my further order.

N.Y.Comm.Ed.Dec. No.. 9499 at 11-13 (1977).

Cf.

8 N.Y.C.R.R. § 200.5(c)(d) (1977).

In October of 1977 a supplementary order required that all students diagnosed as handicapped and awaiting placement since September 2, 1977 be placed in suitable programs. N.Y.Comm.Ed.Dec. No. 9526 (1977). Failing such placement the City was required to bear the expense of appropriate private school placement. New York City is in the process of complying with these mandates. As will be noted in section 111(C)(3),

infra,

the expansion of the number of Evaluation Units, the shift of responsibility for placement from the Evaluation Units to the Committees on the Handicapped, the coordination of the Units and the Committees, and other changes have been made in part in an effort to comply with these orders.

Federal

In October 1977, the Office of Civil Rights of the Department of Health, Education and Welfare addressed a letter of findings to Dr. Irving Anker as Chancellor of the New York City Board of Education. It concerned the qualifications of personnel, the maintenance of facilities, the administration of discipline, and the availability of academic opportunities for students in the school system generally. These findings had been made in response to inquiries received by H.E.W. about the City school system from a variety of sources. The letter, originally issued in January 1977 and then revised by H.E.W., represented the findings of an eight month review of the system. It charged extensive illegal discrimination.

With regard to the areas at issue in the present suit, the Office of Civil Rights found possible violations of Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 794 ) prohibiting discrimination on the basis of handicap, as well as of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d

et seq.)

prohibiting racial discrimination. Specifically, the Board of Education was criticized for an alleged failure to provide appropriate educational services to handicapped children in four respects: first, the excessive waiting lists for diagnosis reevaluation, and placement; second, a policy of dismissing, in certain instances, special education students earlier than the normal 3:00 hour, thus failing to provide these children with the full school day afforded other pupils; third, inadequate and improper evalu

*1219

ation and placement of handicapped students, due to subjective, non-validated standards, resulting in disparities existing in the special day schools; and, fourth, a lack of consistent mainstreaming or placement of students to the greatest degree possible in an educational environment with non-handicapped students.

The Board of Education was given 45 days to respond to this warning by developing plans to bring the schools into compliance with the Rehabilitation Act and Title VI. In January of this year the Board offered a lengthy series of documents describing the various programs offered and recent changes which had been made in evaluation and placement of all handicapped children, including those referred for special day school education. The information closely parallels the evidence outlined in sections III C 3, D, E and G,

infra.

Later that month H.E.W. replied declaring the Board’s response inadequate to forestall findings of violations stemming from waiting lists and shortened school days. On the other points more specific information was requested. In March of this year, an administrative enforcement action was instituted by H.E.W. The parties are currently seeking to resolve their disagreements.

See

Letter of Agreement Between: The Board of Education of the City of New York and the Office for Civil Rights, United States Department of Health, Education and Welfare (June 23, 1978) (tentative agreement encompassing Board of Education commitments to resolve problems in special education provisions including those for the handicapped).

III. FACTS

Changing conditions of the special day schools and the involved procedures for referring students to them necessitate a synopsis of the evidence before us. We begin with a brief review of the history of the special day schools, followed by an overview of the schools at present. Next is an outline of the federal, state and local regulatory schemes developed to afford full educational opportunity for handicapped children. This is followed by a more detailed look at the procedure in New York City for referral to the special day schools, including a summary of problems with that procedure and with the special day schools themselves. We then consider the causes of behavioral and emotional problems suffered by the students referred to the special day schools, and, finally, review of the concept of “mainstreaming”.

History of Special Day Schools In New York City

New York City has had limited school programs for the handicapped for at least seventy years.

See

D. Ravitch,

The Great School Wars, New York City, 1805-1973,

190 (1974). By 1934 the Board of Education considered special education to be one of the most innovative and progressive aspects of the school system. Special schools, special classes and homebound instruction programs were established to meet the needs of mentally, physically and “morally” handicapped children. These programs included ungraded classes for the retarded, special schools and classes for the physically handicapped, and special “schools of opportunity for behavior problem boys who are unable to make a suitable adjustment in the traditional school.” B. R. Gifford, “Legal Issues in the Classification of Handicapped Children in New York City,” 8 (mimeo. 1977) (citations omitted). In the 1930’s, Associate Superintendent of Schools Margaret McCoovey stated that special education was established “to give to every child an equal chance with his brother, and a chance to become a self-sustaining member of society.”

Id.

at 9.

The immediate antecedents of New York City’s special day schools were the “600” schools. These schools were established in 1946 for the “education of children so severely emotionally disturbed or socially maladjusted as to make continuance in a regular school hazardous to their own safety and welfare and to the safety and welfare of the other pupils.” The children referred to these schools were characterized as “defiant, disruptive, disrespectful and

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hostile to all authority.” Report to the Superintendent of Schools, Board of Education of New York City, “600 Schools Yesterday, Today & Tomorrow,” 1 (mimeo. 1965).

The spur for the establishment of the “600” schools was the need to cope with aggravated gang-delinquency problems of the mid-1940’s. The underlying purpose of the schools was to

provide a therapeutic educational program, non-punitive in approach, in which the antisocial, hostile and disruptive behavior would be molded and redirected through positive, constructive approaches toward more wholesome, socially useful and socially acceptable patterns of conduct.

Id.

at 2. The schools were seen as

rehabilitative centers where, through the joint efforts of clinical guidance and educational teams, these deviant children would receive new opportunities to participate in carefully planned activities and experiences that would lead to the kind of self-realization and achievements and insights necessary for one to become a personally and socially competent, productive citizen of our American democracy-

Ibid.

Despite this admirable theory, the special day schools have been the subject of considerable criticism. In the 1950’s and early 1960’s a number of studies and reports recommended, improvements and changes in the program.

See

Report to the Superintendent of Schools, Board of Education of New York City, “600 Schools Yesterday, Today & Tomorrow,” 2-3 (mimeo. 1965).

Some of the resulting recommendations were implemented. Others were postponed because of fiscal constraints. The conclusion of much of the extensive literature was that the schools were not fulfilling their obligation to provide a meaningful educational opportunity for the pupils assigned to them.

In 1966, in line with a suggestion made in a 1964r-65 report, the name of the schools was changed from “600” to Special Day Schools for Socially Maladjusted and Emotionally Disturbed Children (SMED schools). This modification was prompted by a desire to avert the stigma associated with assignment to “600” schools. Now that the term SMED has likewise been abandoned (see section III C 3,

infra),

the schools are referred to as Special Day Schools or Special Day Schools for Emotionally Handicapped Children. Unfortunately, however, the brand “600” is still commonly used, even by teachers.

See, e. g.,

“U.S. Judge Visits ‘600’ Schools, Finds Things Bad, and Good Too,” New York Times, May 11,1977, p. B3, col. 2. Much of the stigma remains.

E. g.

Testimony of Dr. Rachel Lauer, transcript at 1145; testimony of Dr. Kenneth B. Clark, transcript at 1624 — 25; testimony of Dr. Florence Halpern, transcript at 3097 — 98; deposition of Dr. Bernard Robert Grifford at 11.

Criticism of the schools came to a head in 1965 when a group of parents and educators, led by the Reverend Milton A. Galamison, boycotted the special day schools in an effort to point up serious problems with the program. Populated overwhelmingly by minority students at that time as today, the schools were attacked as segregated. In addition, it was charged that they offered no useful academic curriculum and that the criteria employed in placing students in the schools were arbitrary. This lay grpup action did not bring any major improvement to the special day schools.

From the mid-1960’s on the schools have been criticized along several basic lines. First, the inadequacies of the programs provided in the schools, including insufficient support staff, physical plants and materials for instruction, have been noted repeatedly. Second, the referral process, which until recently did not require any clinical certification of students, has been attacked as inadequate and prone to misclassification. Third, failure to return children to regular schools, to the “mainstream,” wherever possible, has been decried. Finally, because of the segregated state of the schools, it has been charged that they are a device for disposing of problem children with whom largely White middle class teachers are unable or unwilling to cope. J. D. Goldman,

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“Special Day Schools for Socially Maladjusted and Emotionally Disturbed Children, N.Y.C.” (mimeo. 1973); A. Budnick and J. Andreacchi, “Day Schools for Disturbed Boys,” in P. Berkowitz and E. Rothman,

Public Education for Disturbed Children in New York City

(1967); B. Mackler, “A Report on the ‘600’ Schools: Dilemmas, Problems and Solutions” (mimeo. 1966); Report to the Superintendent of Schools, Board of Education of New York City, “600 Schools Yesterday, Today & Tomorrow” (mimeo. 1965).

Special Day Schools Today

Perceptions of those responsible for the program are quite different from those of its critics. The present special day schools have been described by proponents in the following favorable terms:

The Special Schools program is designed to provide a planned educational program with a concentration of supportive services for emotionally disturbed and socially maladjusted pre-adolescents and adolescents whose behavior patterns necessitate their placement in Special Schools. These behavioral patterns may range from the reactive to the psychotic. The programs are “tailored” to meet the educational, emotional, social and physical needs of the students. .

In addition to specially planned curriculum offerings, which include remediation in reading and mathematics, the programs include the supportive services of guidance and clinical personnel. . The aim of the Day Schools is to return pupils to the mainstream as quickly as is practicable or to provide guidance and terminal educational training whose rehabilitative value will make itself evident in preparing the adolescent for wholesome living, law-abiding citizenship and job adjustment. .

Bureau for Socially Maladjusted and Emotionally Disturbed Children, N.Y.C. Board of Education, “An Overview of Programs,” 1, 5 (1977).

In New York City there are nine day schools for grades 5-8 and three for grades 9-12. P 8M, one of the high schools, is divided into two separate facilities, one for boys and one for girls; there is one principal for the two parts of the school. The schools, with numbers of registered students and ethnic breakdown as of October 1977 are as follows:

Total No. of Am. Other Span.

Intermediate Schools Pupils Ind. BL Asian P.R. Surn’d Other

P. 75Q (Queens) 79 49 20 10

P. 23Q (Queens) 199 142 35 19

P. 9Q (Queens) 102 71 17 14

P. 369K (Brooklyn) 131 113 16 1

P. 370K (Brooklyn) 151 105 24 21

P. 371K (Brooklyn) 128 61 55 10

P. 36K (Brooklyn) 85 48 30 7

P. 12X (Bronx) 76 49 24 3

P. 169M (Manhattan) 106 67 36 2

High Schools

P. 8M (Manhattan) 320 201 110 5

P. 58M (Manhattan) 329 242 81 6

P. 85K (Brooklyn) 388 283 101 _4

Totals 2194 1431 549 102 11

Since there are well over a million pupils in New York City’s public schools, the day school population represents about two-tenths of one percent of the total.

Students generally attend day schools located away from their neighborhoods, sometimes in another borough. For the first 12 years of the program, all the schools

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were for boys. Livingston School for Girls (P 8M) was opened in 1958. Vanderbilt (PS 141K), a second girls’ school, was established in* 1973 in Brooklyn but was closed in the fall of 1977, because of the gross inadequacy of its physical plant.

Children referred to the special day schools today have a history of aggression and disruption in their regular schools. Many suffer from an inability to suppress the desire for immediate gratification of their needs. Testimony of Dolores Goidel, transcript at 1941, 1962-63.

The child does not exhibit what is considered socially accepted behavior in a school. In other words, if I as a teacher, were to tell a child, to sit down and if he responded by uttering expletives, that is to be expected in the school. If the child responded by picking up a chair and throwing it at a teacher, that would be maladaptive and he would be better served in a special day school; [these are] management problems not so much . learning problems.

Testimony of Helen Gritz, transcript at 2166-67.

In a sense, these children who lash out in their frustration may be easier to socialize than those who react to their almost overwhelming personal problems by quietly withdrawing. Nevertheless, the behavior of children who act out physically causes their own learning to be thwarted and, given large classes and often over-burdened teachers, creates grave difficulties for other children in the regular school system.

The purpose of the special day schools is not to offer academic programs which vary substantially from what the child would have available to him in the regular school. Rather, the schools are designed to change the method of learning, to focus on the individual needs of each child, to avoid unnecessary discipline and punishment, and to attempt to develop understanding and rapport between the students and staff. Small classes and Bureau of Child Guidance (BCG) and other support personnel are part of the program. The ideal is, in short, the creation of a total therapeutic environment in which the entire structure of the school is geared toward serving and helping each child.

Also significant, according to defense witnesses, is the informal atmosphere of the day schools. All the principals who testified emphasized that they maintain an open-door policy, so that students have easy access to them should complaints and problems or the desire to share some experience arise. From the initial tour taken by each child and parent of the school, usually accompanied by the principal, or guidance counselor, efforts are made to achieve a congenial relationship between the pupil and all levels of the staff.

Almost all students in the special day schools are eligible for free lunch and breakfast on the ground of economic need. Eating together contributes to the “family” atmosphere described in the testimony. As one principal explained:

And what the school tries to do is be more than just a place of academic' learning. Because that’s only a very small part of it. We become and try to become — and it works both ways, between faculty and students — the family and the caring person which these children are looking for, and which they do not have. So what we develop is a school community. A community in the (sense of the word that everybody cares for everybody else and everybody knows everybody else. And it is a family feeling. And as a slip of the tongue, very often we have teachers or students say, “I’m going home.” Home meaning school. Our students come in under great stress. A parent dies in the morning and the student comes to school. There is a murder the night before and the student is there. There are no clothes and the student comes in to be fed and clothed. It’s home. And that is the essential of what makes the school a meaningful place for these students. And the academic learning is a part. It’s one part of the total.

Testimony of Dr. Esther Rothman, tram script at 2924 — 25.

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Several witnesses described this atmosphere in terms of providing milieu therapy. The testimony of a psychiatric social worker serving at two of the special schools is illustrative:

Q. Would you define the term milieu therapy?

A. I would feel that milieu therapy is any area of intervention in a patient or student’s life which contributes to the therapeutic growth and healing of the patient. It could be through electives in a school program, it could improve parental groups meetings, PTA’s, teacher conferences; it could be through subjects chosen — any milieu which is therapeutic surrounding the initial aim of being in school — if we are talking about school— which is to educate.

Q. So, would it not be correct to state in any special ed environment where there is an effort made to change educational or other forms of behavior that as to any one of these environments one of the efforts would be to develop a milieu in which therapy takes place?

A. That would be a goal that would be desirable. .

I think population numbers are important too. The special students have small classes and small school populations which gives a much different milieu to the therapeutic process because it is a smaller school with small population.

Testimony of Dr. Dorothy Kobak, transcript at 3335-37. Individual therapy for every child is not believed to be critical in providing a proper environment according to defense witnesses.

Virtually all of defendants’ witnesses testified that in New York City the day schools are essential, that to eliminate them would be a disservice, not only to the children involved, but also to the community as a whole. Dr. Rothman testified:

Q. What do you think might happen were there no day school program for the students who were currently going to your facility?

A. I think most of these kids would be in the streets. I think they would be heavily involved in crime and drugs. I think we would be putting them on the garbage heap.

Q. Do you see the need for a day school program of the type being operated by the Board of Education in the future?

A. I certainly feel that we will always need hospitals no matter how healthy a community we are. And I certainly feel we will always be — we certainly need now special schools for those students who are extremely aggressive, who cannot be functioning in a regular school setting. .

Transcript at 2972-73.

New York City is not the only major urban school system which employs special schools as part of an educational program for emotionally handicapped children. In September, 1977 the New York City Board of Education conducted a survey of twenty-one school systems, requesting information on the use, if any, of a special school or center for such pupils. Of thirteen respondents, nine reported public special day schools for the emotionally disturbed and one contracted with private schools to provide this service to the public school population as needed. Plaintiffs’ research on somewhat comparable school systems indicate that at least four major cities use resource rooms and special classes, but no special day schools, in handling the education of emotionally disturbed and socially maladjusted youngsters. These differences among school systems arise in part from considerable ideological disagreement among educators on the best way to deal with these problems. The peculiar nature of a given school system and the nature of the community from which it draws students are other factors weighed in choosing a particular special education framework.

Plaintiffs, however, charge that the day schools, at least as presently operated in New York City, are serving little if any constructive purpose. One of plaintiff’s expert witnesses, Dr. Kenneth B. Clark, observed:

*1224

. [Tjhere is no indication that if these were seriously . . . emotionally disturbed children what is happening in the school is related to their emotional disturbance in any positive way.

Now, the realistic answer to that criticism could be it would be too expensive to really have a serious program in special day schools for emotionally disturbed children that require special programs. If that is true, that it is too expensive, that very statement is an admission of a kind of a fraud. A sort of a hoax. You have SMED schools that are really places to put these children, but not really places to help them. And that is my judgment, and I think that we shouldn’t permit this. .

I sincerely believe that if these schools were really doing a solid professional job of helping disturbed children you would / not have this racial imbalance. . If these schools really were helping human beings and helping children, they would not be predominantly Black and Hispanic.

Transcript at 1706-07

Statutory and Organizational Framework

Critical to an understanding of the present system are the federal and state statutes and regulations. They are relatively new. Their design is to ensure adequate educational opportunities for all handicapped children and to avoid discrimination in the guise of special educational placement. This is an area of rapid development and change. New York’s system, described below, is in a state of flux as it moves towards compliance with federal and state mandated requirements — many adopted since this suit was commenced in 1975.

Federal

Education of All Handicapped Children Act

The primary federal statute, the Education of All Handicapped Children Act, 20 U.S.C. §§ 1401

et seq.

(1978) (EHA), represents the most recent statement of a strong federal policy favoring full education of all handicapped children. Congress first considered special problems involved in educating the handicapped in 1966 when it added Title VI to the Elementary and Secondary Education Act. P.L. 89-750. Title VI established the Bureau of Education for the Handicapped to function largely as a research center. In 1970, Congress repealed Title VI and created the Education of the Handicapped Act, P.L. 91-230, giving the Bureau of Education for the Handicapped power to disburse grants for studying and improving educational services for the handicapped. This funding was extended by Congress in 1973.

In 1974, Congress amended the Education of the Handicapped Act. P.L. 93-380. This represented a major change in direction. The federal government moved beyond the role of catalyst for state activities and increased its involvement in the control and funding of education for the handicapped. P.L. 93-380 set forth detailed due process procedures required for the placement and evaluation of handicapped children and required states to create programs to identify, locate, and evaluate handicapped children. In addition, the new provisions required states receiving federal funds to maintain a policy of educating all handicapped children.

Passage of P.L. 94 — 142 (EHA) in 1975 was meant to bring to fruition the plans and goals of the states required by P.L. 93-380. The report of the Senate Labor and Public Welfare Committee stated that EHA was designed to “carry these planning provisions into actual delivery of services.” S.Rep.No.94-168, 94th Cong., 1st Sess. at 2; U.S.Code Cong. & Admin.News, p. 1427, (1975). Congress found that existing provisions had not had sufficient impact:

. [of] the more than eight million children (between birth and twenty-one years of age) with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving appropriate education. 1.75 million handicapped children are re

*1225

ceiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education.

S.Rep.No.94-168, 94th Cong., 1st Sess., at 8; U.S.Code Cong. & Admin.News, p. 1432 (1975). Of the 1,310,000 emotionally disturbed children needing attention, over 1,000,000 or 82%, were unserved by special education.

The final cost of such neglect is far greater than the expense of providing an adequate remedy. The burden is borne ultimately by the children, their families, their communities and society as a whole.

The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society.

There is no pride in being forced to receive economic assistance. Not only does this have negative effects upon the handicapped person, but it has far-reaching effects for such person’s family. . . .

This nation has long embraced a philosophy that the right to a free appropriate public education is basic to equal opportunity and is vital to secure the future and the prosperity of our people. It is contradictory to that philosophy when that right is not assured equally to all groups of people within the Nation. Certainly the failure to provide a right to education to handicapped children cannot be allowed to continue.

Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe that their children will not be able to lead meaningful lives. However, over the past few years, parents of handicapped children have begun to recognize that their children are being denied services which are guaranteed under the Constitution. It should not, however, be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy. . . . The Congress must take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity. It can no longer be the policy of the Government to merely establish an unenforceable goal requiring all children to be in school. [It is necessary to take . steps] to ensure that the rights of children and their families are protected.

S.Rep.No.94-168, 94 Cong., 1st Sess., at 9; U.S.Code Cong. & Admin.News, p. 1433 (1975).

The aim of the statute resulting from this concern was:

to assure that all handicapped children have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.

20 U.S.C.S. § 1401 at 442 (1976).

For the first time, the exact nature of necessary services were defined; the terms “adequate” and “free appropriate public education” were given precise content, setting a standard which must be attained.

The statute provides that:

(16) The term “special education” means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.

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(17) The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical seryices shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children.

(18) The term “free appropriate public education” means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. § 1401 (16)(17)(18). This terminology represents a clear national commitment to meet each handicapped child’s special needs in as integrated and complete a way as possible.

“Handicapped children” are defined in the Act as those who are:

mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped,

seriously emotionally disturbed,

orthopedically impaired, or other health impaired children, or children with specific learning disabilities, who by reason thereof require special education and related services.

20 U.S.C. § 1401 (1) (emphasis added). The federal regulations define “seriously emotionally disturbed” as follows:

(i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree which adversely affects educational performance:

(A) An inability to learn which cannot be explained by intellectual, sensory or health factors:

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(D) A general pervasive mood of unhappiness or depression; or

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) The term includes children who are schizophrenic or autistic. The term does not include children who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed.

42 Fed.Reg. No. 163, 42478 § 121a.5(8) (1977).

To assist the states in educating the handicapped, fiscal grants are made to them. The money helps initiate, expand and improve programs and projects designed to provide full educational opportunities to all handicapped children at the pre-school, elementary and secondary school levels. 20 U.S.C. § 1411 (a). Grant eligibility standards require the states to establish “a policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412 (1).

See also

42 Fed. Reg. No. 163, 42497 § 121a.552 (1977).

The detailed requirements set out in this federal statute take precedence over any local custom or statute.

See, e. g. Stuart v. Nappi,

443 F.Supp. 1235 (D.Conn.1978).

Rehabilitation Act of 1973

The salient features of the EHA are echoed in regulations promulgated by the Department of Health, Education and Welfare in conjunction with section 794 of the Rehabilitation Act of 1973. 29 U.S.C. §§ 701

et seq.

(1975). Section 794 prohibits any discrimination against handicapped individuals:

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any programs or activity receiving Federal financial assistance.

As originally promulgated, the Act focused primarily on assuring handicapped individuals vocational opportunities. But in order to assure nondiscrimination, steps must be taken prior to the actual hiring stage. Thus, in 1974, Congress amended the Act, broadening the definition of “handicapped” to extend beyond the employment context. The Senate report on the bill which contained these amendments acknowledged the importance of special emphasis on education of the handicapped:

It was clearly the intent of the Congress in adopting section 503 (affirmative action) and section 504 (nondiscrimination) that the term “handicapped individual” in those sections was not to be narrowly limited to employment (in the case of section 504), nor to the individual’s potential beriefit from vocational rehabilitation services under titles I and III (in the case of both sections 503 and 504) of the Act.

Section 504 was enacted to prevent discrimination against all handicapped individuals, regardless of their need for, or ability to benefit from vocational rehabilitation services, in relation to Federal assistance in employment, housing, transportation,

education,

health services, or any other Federally-aided programs. Examples of handicapped individuals who may suffer discrimination in the receipt of Federally-assisted services but who

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may have been unintentionally excluded from the protection of section 504 by the references to enhanced employability are as follows:

physically or mentally handicapped children who may be denied admission to Federally-supported school systems on the basis of their

handicap; handicapped persons who may be denied admission to Federally-assisted nursing homes on the basis of their handicap; those persons whose handicap is so severe that employment is not feasible but who may be denied the benefits of a wide range of Federal programs; and those persons whose vocational rehabilitation is complete but who may nevertheless be discriminated against in certain Federally-assisted activities.

S.Rep.No.93 — 1297, 93d Cong., 2nd Sess.; U. S.Code Cong. & Admin.News, pp. 6388-89 (1974) (emphasis added).

For the purposes of subchapters IV and V, which involve areas not necessarily employment related, the Act now covers “handicapped individuals”, defined as:

. any person who (A) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment.

29 U.S.C. § 706 (6). H.E.W. has noted that:

With this amended definition, it became clear that [the Act] was intended to forbid discrimination against all handicapped individuals, regardless of their need for or ability to benefit from vocational rehabilitation services.

H.E.W. Regulations, “Supplementary Information,” 42 Fed.Reg. No. 86, 22676 (1977).

See

42 Fed.Reg. No. 86, 22678-79 § 84.4 (1977).

Regulations promulgated under this section require, among other things, that every handicapped individual be provided with an appropriate education by recipients of federal funds. An “appropriate education” is the “provision of regular or special education and related aids and services that . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons . ” Schooling must, in addition, meet requirements closely paralleling those of the EHA. Section 84.34 of the Regulations provides that a recipient of federal funds should provide for education for a handicapped individual in the least restrictive setting possible,

i. e.,

afford education, where feasible, with persons who are not handicapped. Section 84.35, dealing with evaluation and placement, requires that testing be administered by adequately trained personnel and that tests with more than a single intelligence quotient be used. In making placement decisions no one criterion or single individual’s opinion is to be decisive. Section 84.36 requires recipients of federal funds to establish and implement procedural safeguards including “notice, an opportunity for the parents or guardians of the person to examine relevant records, an impartial hearing with opportunity for participation by the persons’s parents or guardian, representation by counsel, and a review procedure.” 42 Fed.Reg. No. 86, 22682-83 (1977).

These requirements reflect the same philosophy and concerns manifested in the EHA. This identity of purpose is specifically recognized in section 84.36 of the regulations providing that “[compliance with the procedural safeguards of section 615 of the Education of the Handicapped is one means of meeting this requirement [of due process guarantees].” 42 Fed.Reg. No. 86, 22683 (1977).

The significance of the Rehabilitation Act regulations is 'that they make the requirements of specially tailored programs, nondiscriminatory evaluation and placement, and due process applicable to an institution receiving any federal funds. New York City schools receive substantial amounts of federal funds.

Recent cases have found violations of the Rehabilitation Act where a) a mentally retarded patient received less than adequate treatment in a state institution

(Halderman v. Pennhurst State School and Hospital,

446 F.Supp. 1295, 1323-24 (E.D.Pa.1978); and

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b) a mildly handicapped child was excluded from the regular classroom without a bona fide educational reason

(Hairston v. Drosick,

428 F.Supp. 180, 184 (S.D.W.Va.1976)).

New York State

Article 89 of the New York Education Law (McKinney 1978) deals with the education of children with handicapping conditions.

See generally

V. Garfinkle, “Recent Developments in the Law on the Education of Handicapped Children in New York State” (unpub. paper for Columbia Law School Seminar on file in this case) (1978). New York’s laws have been recently amended to reflect federal requirements and the concern that previous laws had provided “an inequitable and often ineffective system of meeting the basic educational needs of many of our children.” Governor Carey’s message approving 1976 amendments, McKinney’s 1976 Session Laws of New York, 2448-49 (1976).

State law defines the “handicapped child” as:

a person under the age of twenty-one who is entitled to attend public schools pursuant to section thirty-two hundred of this chapter and who, because of mental, physical

or emotional reasons

can receive appropriate educational opportunities from special services and programs .

N.Y.Educ.Law § 4401(1) (McKinney 1978) (emphasis added).

The clear purpose of Article 89 is to assure that all handicapped children, including those suffering from problems faced by plaintiffs in this suit, be treated similarly for purposes of free education. In

Matter of Jessup,

85 Misc.2d 575 , 379 N.Y.S.2d 626 (Family Court, City of New York 1975), New York City was directed to pay school tuition costs for the petitioner’s emotionally disturbed son pursuant to the New York State Family Court Act. The court noted that the State Education Law was amended in 1967 to eliminate the distinction between physical and other handicaps and to make explicit that children handicapped for “emotional reasons” were to be included. “The purpose was to provide a simple definition which [was] intended to cover all handicaps, whether physical, mental or emotional.”

Id.

379 N.Y.S.2d at 630 (citations omitted).

The board of education or trustee of each school district is required by statute to furnish “suitable educational opportunities for handicapped children” through special services or programs to be determined by the “need of the individual child.” N.Y. Educ.Law § 4402 2.a. (McKinney 1978).

Responsibility for identification and servicing of handicapped children is entrusted to a Committee on the Handicapped (COH) consisting of clinical staff educators and the parent of a handicapped person in each local district. N.Y.Educ.Law § 4402 l.b.(3) (McKinney 1978). It evaluates each handicapped child annually and recommends an appropriate educational program. 8 N.Y.C. R.R. § 200.3(b)(5) (1977). Also considered by the COH are claims that a modification or change in identification, evaluation, educational placement or provisions of free appropriate public education is not acceptable to the parent or guardian of a pupil. 8 N.Y.C.R.R. § 200.3(b)(4) (1977).

In order to facilitate prompt attention to the needs of all handicapped children the regulations • require determination of a child’s eligibility for a special educational program within 60 days. 8 N.Y.C.R.R. § 200.5(d) (1977). Detailed procedures are set out in the statute, and regulations for. challenges to placement. N.Y.Educ.Law § 4404 (McKinney 1978). They include appeals from the COH decision to an impartial hearing officer, review by the state Commissioner of Education, and appeal to the courts.

Ibid.

Similar protections are afforded for changes in placement. 8 N.Y.C. R.R. § 200.5 (1977).

New York City

Under New York City’s partially decentralized school system primary responsibility for all pre-school, elementary and middle school programs for “normal” children— those who can be effectively educated solely in regular classes — is lodged in local community school districts. N.Y.Educ.Law

*1231

§ 2590-e (McKinney 1978). High school programs for such pupils are the responsibility of the central City Board of Education. N.Y.Educ.Law § 2590-h (McKinney 1978).

Programs for handicapped children, regardless of age, are administered by the New York City Board of Education through the centralized Division for Special Education and Pupil Personnel Services (DSEPPS). . N.Y.Educ.Law § 2590-h (McKinney 1978). Through six bureaus DSEPPS currently organizes and administers 31 discrete instructional programs for the handicapped on the basis of categories defined by the nature and severity of the handicapping condition.

The only exception to this organizational framework is in the Bronx where recently there has been established a pilot program for regional administration of special education services. Regionalizátion presents a departure from the bureau-based approach of dividing children into specific handicapping categories. The goal of this experiment is to provide an amalgamation of services to deal with multiple handicaps. According to John Reehel, recently appointed Director of Special Education, Regional Administrator for Bronx County, the hope is to increase the effectiveness of services for children with multiple, overlapping handicaps, and to facilitate administrative efficiency in the consolidation of transportation, supplies and supervision. Transcript at 462. The Bronx project involves approximately 9,000 children in classes affording a range of services including hospital schools for pregnant teenagers, multiple handicap centers, itinerant services, BCG clinical services and evaluation units. The process of evaluation and placement for emotionally disturbed children described below has not, however, been materially altered in the Bronx.

The special day schools with which this suit is concerned are under the control of the Bureau for the Education of the Emotionally Handicapped (BEEH). This represents a recent change in terminology. Before the summer of 1977, BEEH was known as the Bureau for Education of Socially Maladjusted and Emotionally Disturbed Children (SMED Bureau). Similarly, the day schools were known as SMED schools (a change from the term “600” schools, which as indicated in Part III A,

supra,

had developed a bad connotation); these schools now are merely referred to as special day schools. Nomenclature changes reflect an effort to avoid strict categories, as well as the stigmatization of exceptional children. This is representative of a nation-wide trend away from narrow categorization of children according to perceived deficiencies.

The least restrictive programs for emotionally handicapped children are resource rooms in the regular school. The spectrum then ranges through special classes in the regular school to the special day schools, juvenile centers for children held pending adjudication of their cases by the Family Court, detention centers for children who are awaiting disposition of other courts or are on parole, and residential institutions.

The resource rooms and special classes treat children whose problems most closely resemble those of the special day school population. The resource room program is designed “to serve children who cannot function productively in their right classes for a continuous school day.” N.Y.C. Board of Education, “Resources in Special Education and Pupil Personnel Services in New York City Public Schools,” 27 (1974). These are pupils who become frustrated at the regimentation and discipline in most large classes. Some have periodic blow-ups; others need more time or different teaching methods to learn essential skills, are too easily distracted by the group, or have fallen so far behind in academic achievement that they have lost contact with their class and abandoned all effort. The resource room program is administered by a special education teacher who, aided by a para-professional, serves the children for limited periods during the school day, in cooperation with the regular class teacher.

The special classes for the emotionally handicapped (CEH classes) are of two types. “A Centers” serve children found by autho-'

*1232

rized clinicians to have profound emotional handicaps. They are established on elementary, junior high and secondary school levels. The children exhibit such characteristics as thinking disorders, bizarre behavior and severe emotional crises. “B Centers” serve children who have been clinically diagnosed as having a moderate degree of emotional handicap, preventing them from functioning up to their potential in regular classes in the public elementary, junior high or secondary schools.

Students in both “A” and “B” program have average or above average intellectual capacity, no major neurological defect, and the ability to profit from group experiences without damage to themselves or others. N.Y.C. Board of Education, Division of Special Education and Pupil Personnel Services, Bureau for Socially Maladjusted and Emotionally Disturbed Children “An Overview of Programs,” 2-3 (1977). Although in theory the special classes are a less restrictive environment than special schools with self-contained facilities, various witnesses testified that they are not really “more mainstreamed” than a special school.

E. g.,

testimony of Dr. Dorothy Kobak, transcript at 3340 — 41; testimony of Dr. A. Tannenbaum, transcript at 3618. Distinctions between students referred to CEH (B) classes and those in the special day school will be explored in section III F 3,

infra.

In carrying out its function the BEEH utilizes the services of DSEPPS’s Bureau of Child Guidance (BCG). This is the mental health service agency for the New York City public school system. The BCG is composed of licensed school psychiatrists, school social workers, school psychologists, and school mental health workers. They provide a range of services including (1) individual, group, family and educational therapy; (2) consultation services to guidance counselors, administrators, teachers and other school personnel concerning individual troubled children, mental health issues in the classroom, school management and adaptation of the curriculum and teaching methods to the special needs of referred children; and (3) coordination of activities with community-based mental health, and

social service programs for troubled children.

BCG professional teams are used by regular and special day schools. Effective October 1977 each school district was to be assigned, as a minimal team, a BCG program supervisor, two social workers, and two psychologists. Priorities with regard to allotment of BCG services within a district are developed by the BCG program supervisors along with the community school board superintendent.

Prior to September 1976, primary responsibility for the identification, psycho-diagnostic evaluation and educational placement of emotionally handicapped children rested with the BCG. In September 1976 referral procedures were altered and the screening and placement functions lodged in DSEPPS’s Office of Evaluation. It maintains evaluation units (EUs) staffed by learning disability specialists, speech and language therapists, psychologists, social workers, psychiatrists, pediatric neurologists, guidance counselors and paraprofessionals. The EUs continue to utilize the services of BCG personnel to augment their own staff in the evaluation process.

The EUs were formerly known as evaluation and placement units. At present, as required by recent modifications in the state law discussed in section III C 2,

supra,

and Appendix C, the district COH is responsible for placement; hence the change in name from evaluation and placement unit to EU.

There are now twenty-six EUs. Eighteen serve districts with populations of between 24,000 and 40,000 children. Each is staffed by a unit coordinator who is an administrator and usually has a license in special education, psychology, social work or guidance; three psychologists; three social workers; five special education teachers trained in educational evaluation; and support and clerical staff. There are, in addition, eight modified units, serving smaller districts with pupil populations of below 24,000. Each of these smaller units operates with a staff of two social workers, two

*1233

psychologists, and four educational evaluators along with support and clerical help. There are thirteen psychiatrists whose services are spread among all the units.

The EUs evaluate children referred to them primarily by the students’ regular schools. The professionals at the center assess the need for, and type of special education appropriate in a given case. According to the testimony of Elaine Thompson, assistant to the director of the EUs, the units have a psycho-educational, as opposed to a purely clinical, orientation. The intent of the shift of responsibility for evaluation and for placement recommendations from BCG staff to the EUs was to focus less on the clinical defect of the child and more on his educational style and his learning strengths and weaknesses. Transcript at 1745-55. The EU, therefore, includes an educator and social worker as well as “the more old-fashioned clinical medical team.” Transcript at 1755.

EUs use a variety of techniques to avoid cultural and racial bias:

The Evaluation Unit uses a pluralistic model of education and assessment in its diagnoses and placement recommendations. This is done by not limiting oneself to test data alone in the decision process. Information obtained from the parent is included. Comparisons are made between the child being evaluated and the other children in the family, using Social Maturity Scales. Activities of daily living are included in these scales in addition to social maturity. The Evaluation Unit’s decision-making process likewise reaches out into the classroom. In essence, the evaluation process is one of broad scope encompassing numerous parameters. This model is in accord with the generally accepted educational philosophy as is evidenced by the following statement from a special report issued by the Center for Advanced Study in Education: The Graduate School and University Center of the University of New York (New York Regional Resource Center):

A pluralistic model of education and assessment has been offered as an alternative to current practices. . This model recognizes the cultural diversity within our population, so that children are assessed within the context of their own culture. The norms of that sub-culture would be considered before inferring the child’s “deviance” i. e. sub-normality . . . Information concerning the socio-cultural background of a pupil, daily behavioral observations, and an evaluation of the child’s “adaptive behavior” in the non-school environment, would be used as evidence of the child’s coping abilities and competence. . Under a pluralistic model of education the tests as well as the criterion measures which they are designed to predict would be re-evaluated and expanded to encompass a multi-dimensional view of intelligence. The failure of the schools to educate children from different cultural backgrounds has not been recognized as a failure of our school system but has been attributed to the inherent deficiencies of non-dominant cultural groups. In the present social context of the U. S. the great power of the middle class has rendered differences into deficits because middle class behavior is the yardstick of success.

N.Y.C. Board of Education, “Response to Inquiry of H.E.W. Office of Civil Rights,” Issue V p. 4 (mimeo. 1977) (citations omitted).

As a result of another recent structural change, each of the City’s 32 school districts now maintains a COH composed of a school psychologist, a teacher or administrator of special education, a school physician and a parent of a handicapped child residing in the school district.

See

N.Y.Educ.Law § 4402 (McKinney 1978).

The COHs are responsible for seeing that pupils are diagnosed and provided with a program appropriate for their needs. They are also supposed to conduct an annual review of students in special education programs and to assure that triennial reevaluation of these students takes place as required by the federal regulations promulgated under the EHA.

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Some of these structural changes were mandated not only by state and federal statutes and regulations but also by order of the New York State Commissioner of Education in

In The Matter of Riley Reid,

N.Y.Com.Ed.Dec. No. 8742 (1973); No. 9526 (1977). As noted in section II B 1,

supra,

the Commissioner found that handicapped children were receiving inadequate services in New York City, caused by, among other factors, excessively long waiting lists of pupils for evaluation for special education services. He ordered that these “unserved” children be attended to quickly. They have, therefore, been given priority for service from the EUs. According to established goals, the full size units are to complete 80 evaluations per month and the smaller units, 60 per month. A portion of these will be the triennial reevaluations of students already in special education programs.

Whether the EUs have been able to comply with the Commissioner’s orders is unclear from the evidence presented. One EU supervisor testified that students could be on waiting lists for as long as five months. Testimony of Dr. Gerald David, transcript at 2095. Another witness testified that the average waiting list was at least two to three months. Testimony of Margaret Whelan, transcript at 3521. However, in answer to H.E.W. charges that excessive waiting lists constituted inadequate educational service for handicapped students, the Board of Education has explained that the concept of waiting lists is misleading, since the same students are not always on the lists. Moreover, there is apparently in effect a DSEPPS plan designed to reduce waiting time per child and to attend to all children “at the earliest practicable time.” In addition to expansion of EUs and the shift in responsibility for placement from the EUs to the COH, the plan places EUs and COHs in common facilities. This enables them to share resources and administrative time. Furthermore, it calls for collection of statistics on the number of children evaluated, placed and awaiting diagnosis, and implementation of resource rooms so that moderately handicapped children can remain in the mainstream with supportive service and need not be referred for evaluation in the first place. N.Y.C. Board of Education, “Response to Inquiry of H.E.W. Office of Civil Rights,” Issue Y pp. 5-7 (mimeo. 1977). Nevertheless, criticism of the backlog in EU work continues despite substantial efforts to increase their size, number and efficiency.

See

Touche Ross & Co., Report, “Business Review of Division of Special Education and Pupil Placement Service,” 3-7 (1978).

Diagnostic and Placement Procedures

Generally

Procedures for identifying emotionally disabled students are initiated when a teacher, counselor, or BCG case worker at a regular school finds that a pupil manifests bizarre, maladaptive, disruptive or aggressive behavior. A standard referral form is used to request evaluation for possible placement in a discrete special education program. The form requires a description of the problem and evidence that substantial attempts have been made to resolve it without special services. A DSEPPS directive requires that before a referral for possible special education takes place the regular schools are to exhaust every resource, including class transfer, BCG services, community agency referral and parental involvement, in an effort to keep the child in the mainstream. Memorandum To: Community School Board Chairpersons, Community School District Superintendents, All Principals, DSEPPS Bureau Directors/Program Coordinators, Assistant Directors, Supervisors, Chairpersons of the Committee on the Handicapped, Department of Health Personnel, Principals/Administrators of Non-Public Schools; From Helen M. Feulner, Executive Director, DSEPPS, II 2.1, (Oct. 7, 1977). Any; referral must be approved and signed by the principal of the regular school. There is, in addition, a requirement that parents consent, in writing, to any referral for evaluation. Testimony of Delia Duggan, transcript at 3431.

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Referral may also come from parents or from outside agencies which have seen the child privately. Most of the referrals, however, come from the regular public schools. Testimony of Dr. Gerald David, transcript at 2016. The City has recently instituted a federally sponsored “Child Find Project’-’ to help identify children who need special education services. Information is disseminated through newspapers and advertisements in order to encourage parents to come to the City Board of Education and determine whether their child needs help. This procedure encourages referrals from sources which would not normally come to an evaluation unit, agency or hospital. In its first year of operation the project has reportedly found and referred 900 children. Transcript at 1805-06.

The COH logs all referrals, reviews the form and any accompanying reports made by outside agencies or individual profession-' ais, and then sends them to an EU. The New York. State Commissioner of Education requires every evaluation for placement in a special education setting to be accompanied by a diagnostic work-up composed of reports by a social worker, psychologist or psychiatrist, and educator. 8 N.Y. C.R.R. § 200.3 (d) (1977).

If all of the required components have been provided by outside professionals, are sufficiently current (three years or less from date of referral), and a professional recommendation for placement has been made, the file need not be forwarded to an EU. Rather, the case will be reviewed directly by the COH as if the full EU workup had been completed. There are no specific standards given to outside specialists for use in their recommendations, but agencies which recommend placement are ordinarily provided with information about available Board of Education programs. It is assumed, according to defense witnesses, that private professional reports are sufficiently standardized in format and approach so that they need not be duplicated by the EU team.

E. g.,

testimony of Joyce Coppin, transcript at 2536-38.

Middle class parents are more apt to take advantage of these outside evaluations than are others. This follows in part from their ability to afford private consultations and from greater familiarity with, and initiative in using, community resources outside the school system.

Present procedures for initiating evaluation are relatively new. They are designed to guard against prejudgment of a child by teachers and other personnel insufficiently trained in special education and to forestall any tendency to use referral to a special school or class as an escape by teachers who find it too difficult to deal with behavioral deviance or disruption. Thus the referral forms do not distinguish between special education programs.

According to the testimony of Helen Gritz, coordinator of the Bronx Regional Office for Special Education, some old forms which called for teacher recommendations for placement in a special day school prior to any evaluation, are still in use. The policy of the EUs is to ignore such prejudgment. Transcript at 2163-64. Moreover, several of the EU coordinators testified that should an inordinate number of referrals come from a particular school, the personnel responsible would be contacted in an attempt to determine whether sufficient efforts are being made to solve problems within the framework of the regular school.

See, e. g.,

testimony of Dr. Gerald David, transcript at 2083, 2108-09; testimony of Dolores Goidel, transcript at 1974-75. In sum, there is an effort to guard against excessive and improper referral for possible special education placement.

Once the EU has received a referral, its coordinator reviews the referral form, along with any documents containing outside work-ups, in order to determine which members of the evaluation team must see the child. Written notice is then sent to the parents so that examinations and interviews for a period of two days or more can be scheduled. Each child does not necessarily see every member of the team. This depends on the extent and currency of the data in the file.

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Accompanying the notice sent by the EU to the parents is a Parental Consent and Waiver of Confidentiality Form. .It explains that information about the child’s condition will be discussed by professionals in the course of the evaluation process and it apprises the parents of the opportunity to meet with the COH to discuss recommendations and to present additional information. The child’s parent or guardian must consent by signing the form before any evaluation takes place.

If the parent, for whatever reason, does not sign the consent for evaluation the child must remain in the regular school or wherever else he might be at the time. In extreme eases, where it becomes obvious that the parent is ignoring the child’s welfare, an EU member may institute proceedings before the Bureau of Child Welfare with a view to court proceedings charging neglect. Testimony of Delia Duggan, transcript at 3429-30.

Cf.

8 N.Y.C.R.R. § 200.-5(a)(2)(i)(ii)(iii) (1977).

The requirement of written notice to parents prior to referral and evaluation represents another recent change. Before July 1976, although some schools may have had a policy of requiring parental consent prior to any referral for evaluation' (transcript at 1848 — 49), there was no requirement of written notice and consent at this stage. The new form is executed in compliance with state laws promulgated to conform to the EHA. Testimony of Elaine Thompson, transcript at 1849.

A directive issued by DSEPPS, effective October 1977, requires that parents be advised by school personnel and chairpersons of the COHs and EUs of procedural due process rights with regard to placement of students in special education programs, the parents’ right to withdraw their child from an evaluation process at any time, and that information received prior to and subsequent to a referral will be shared with the professional responsible. Although, as noted above, the EU does send the parents a waiver form containing some of this information, there was, before the trial was concluded, no single, relatively simple written document issued to parents at this stage by either the EU, the referring school, or the COH, which explained the entire process, including a discussion of due process rights and exactly how to obtain a hearing or to appeal.

But see

reference to a subsequent change in section VII, Conclusion,

infra;

section III D 8,

infra.

Once the child and parents arrive at an evaluation center they are seen by members of the evaluation team. The process is best described by ^considering the functions of each of these professionals.

Social Worker

The social worker serves a variety of functions in the evaluation process. First, she meets with the parent at the initial EU session. She checks the basic data already in the file and attempts to establish rapport with the parent. It is the social worker who is primarily responsible for explaining the due process rights of parent and child. The parent is given a booklet, prepared by the State Education Department, entitled “Your Child’s Right To An Education — A Guide For Parents of Handicapped Children In New York State.” One of its purposes is to describe methods of challenging any determination on special education placement. The social worker is also instructed to describe to the parents the evaluation process and to determine whether special education placement would be acceptable to them.

A brief history is obtained. It includes an educational background of the child and his developmental background and family circumstances. The social worker will try to discover any immediate influences on the child that may influence his reactions, such as whether there have been any recent traumatic experiences, and whether he had an adequate night’s sleep before coming to the center. Finally, following the case conference, at which a placement decision is made it is the social worker who again contacts the parents to discuss the findings.

Educational Evaluator

The educational evaluator assesses the child’s learning strengths and weaknesses in

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an attempt to discover his mode of learning. He tries to pinpoint the cause of the youngster’s difficulties and discern how he can best be taught.

The evaluation always includes an “individual” session during which examination of visual, auditory, motor and academic areas is conducted. Most of the educational evaluators have backgrounds in learning disabilities or in speech and language pathology. Achievement tests, distinct from those given in regular schools, as well as learning disability tests are administered. If the child has speech and language disabilities, language developmental and speech articulation tests may be included. Supplementing these formal tests are tasks which the educational evaluator will ask the child to perform and informal observations of the child’s reactions to the process itself. The individual session normally lasts two to three hours.

Usually, there is also a “group aspect” of the evaluation, during which approximately eight children of the same age are brought together in what is known as the diagnostic classroom. The purpose of this session is to observe how the child interacts with his peers and how he relates to authority in a group situation. Here, too, the children will be given various tasks to perform. The amount of time spent by the child in the diagnostic classroom may vary according to the individual child as well as the adequacy of staffing of the particular EU. It usually runs about a day and a half.

Not all children receive the complete educational evaluation. This may result from a failure to keep appointments, especially where the necessity to come back to the center over a period of several days poses difficulties for the parent. Testimony of Elaine Thompson, transcript at 1768. Moreover, according to the testimony of one EU coordinator, staffing shortages prevent the Units from placing every child in a diagnostic classroom. Consequently, this part of the evaluation takes place only in cases where observation of the child in a group is believed to be useful. This would include cases where the referral report stressed problems in the child’s ability to get along with adults or peers. Testimony of Dr. Gerald David, transcript at 2021. Another witness testified that, although the diagnostic classroom is useful for relatively young, elementary age pupils, it does not work well with adolescents, and is therefore intentionally left out of the evaluation of ■older children. Testimony of Helen Gritz, transcript at 2161.

Psychologist

An essential part of the diagnostic workup of every student is the psychological study. This report contains several elements. First is an intellectual evaluation designed to measure the child’s ability to function intellectually in comparison with other children. Testimony of Dr. Gerald David, transcript at 2021 — 23. In making this determination the psychologist administers an I.Q. test, the results of which become one part of the data on the child’s intellectual ability. The psychologist also attempts to describe such matters ás how a child thinks, weaknesses and strengths in abstract conceptualization, and the degree of difficulty with- arithmetic problems. There is a non-verbal scale used in intelligence testing; included are both construction of a puzzle or block design and the Bender Gestalt test, to measure motor functioning and help detect neurological impairment. In addition, an emotional evaluation is made. The psychologist may elect to measure this aspect of the child’s personality through a variety of devices, including figure drawings with stories, an apperception test, the Rorschach test and projective tests. Data also is sought on the child’s functioning in social settings. Finally, the psychologist will make observations about how the child functioned at the testing, the relationship established with the child, and other matters deemed significant.

Psychiatrist

The psychiatrist consulted in the evaluation conducts a brief screening of the child to determine , if there is any necessity for further psychiatric diagnostic and therapeu

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tic work. If more extensive psychiatric help is considered necessary, the child will be referred to an outside agency or hospital.

The stated policy of DSEPPS is to have every child who may be recommended for special education placement seen by a psychiatrist. Testimony of Dr. Joel Rosenshein, transcript at 211. In practice this plan is not followed, primarily because of a. shortage of qualified consultants. Usually an attempt is made to have every child obtain some kind of psychiatric review, even if this is done by referral to an outside source. There is, however, no federal or state provision mandating psychiatric review prior to placement in any special education program.

, Professional opinions differ on the importance of psychiatric information in the diagnostic process. According to Dr. Gerald David, a psychologist now serving as head of one of the EUs, the child will be seen by a psychiatrist only “where we suspect that there might be a serious emotional problem, where we have certain questions that we would like the psychiatrist to answer for us. [Where] the psychological and projective material seems to be rather clear, we will not necessarily request a psychiatric.” Transcript at 2027. Dr. David felt that, despite the shortage of psychiatrists, the system .does permit adequate evaluation. In contrast, another defense witness, Helen Gritz, presently director of The Bronx Regional Office of Special Education, formerly an EU coordinator and educational evaluator, testified that she deemed a psychiatric interview essential in every diagnosis. In her opinion, a decision on special education placement based on the emotional status of a child can be made only by a psychiatrist. Testimony of Helen Gritz, transcript at 2176, 2179-80.

Neurological Evaluation

The child may be referred for neurological screening if seizure activity is discerned or if there are neurological symptoms of a severe kind which have not been diagnosed. If necessary, the child will be referred to a hospital for further neurological work. Every member of the evaluation staff is instructed to look for “soft signs” of neurological impairment, including hyperactivity, short attention span, clumsy movements, and difficulty with fine motor control and coordination. Testimony of Elaine Thompson, transcript at 1770 — 71; testimony of Helen Gritz, transcript at 2156.

Case Conference

At the end of the evaluation sessions there is a case conference at which all of the members of the team review the information in the file and attempt to reach a mutual decision on classification and recom-. mended program placement. Sometimes an outside psychologist or medical doctor will attend the conference along with members of the EU staff. A representative of the referring school or agency may also be present to ask questions and raise issues with the conference members. The conference technique is used in the hope of eliminating individual bias.

If a consensus cannot be reached in a given case it may be held over for further evaluation. In some cases indecision will lead to the use of “pre-placement classes.” These are diagnostic classrooms used primarily for children of elementary school ■age. They are located at about 30 sites close to the EUs. The children are sent to these classes for a period of anywhere from six weeks to six months for remedial help and behavioral observations designed to determine whether a child requires any of the special education programs.

Approximately 10% of the new referrals will be sent back by the EUs to the COHs with a recommendation that the child should remain in the mainstream, perhaps with ancillary treatment by an outside agency or remedial work available in the school itself. Testimony of Elaine Thompson, transcript at 1804-05;

ef.

testimony of Dr. Gerald David, transcript at 2083, (3% of referrals are recommended for return to the mainstream).

When the EU finishes its work it sends a letter with its recommendations to the parent. Accompanying this letter is a com

*1239

píete statement of procedural due process rights. Included is: notice that the parent is entitled to a description and explanation of recommended placement, information on tests used in evaluation, an independent evaluation by outside professionals, and a description of rights to a hearing and appeal should a decision adverse to the parent be rendered at the hearing. Parents are also informed that they may keep their child in his current placement until all due process proceedings are completed. All of this presumably reinforces the explanation of due process rights given the parents by the social worker at the initial EU interview. Testimony of Delia Duggan, transcript at 3388-89.

COH Review

Following the recommendation of placement by the EU, a copy of all the information used in making the diagnostic decision is sent to the appropriate COH. The recommendation is then reviewed and evaluated, together with any other pertinent data, by a subcommittee of the. district COH. The psychologist member of the COH, usually the same individual who examined the child at the EU, acts as liaison between the EU team and the COH.

Prior to its review, the COH notifies the parent of the EU recommendation. This notice is sent to the parent in the form of an “Option Letter.” It informs the parents of the recommended placement and presents them with two options — (1) agreement or (2) request for immediate review of the placement decision.

Up until very recently, the Option Letter contained little more than a description of the two options; it did not explain all the steps which might have been taken to challenge the placement decision. One of plaintiffs’ witnesses noted that only the sophisticated parent would be likely to challenge the EU determination by checking Option Two:

Well, I think that the — most of the parents that I have seen at the COH . are people who are very unsophisticated about the system, who are weighed down with real life problems . . . people with very little income, very upset about their children’s problems. Often there are two or three children in a family with problems. I think . . . they are not assertive parents and I think that a parent would have to be rather assertive to take advantage of option 2 unless there were something very, very obviously wrong.

Testimony of Margaret Whelan, transcript at 3520.

Effective April 17, 1978, DSEPPS issued a revised Option Letter. The present letter differs from the earlier one in that it includes the address and telephone number of the COH which the parent can contact with any questions. In addition, the COHs and EUs are now required to attach to the Option Letter a list of due process procedures explaining the evaluation and placement process, the role of the COH, and the steps which must be taken to challenge its determination. Also attached is a partial listing of agencies which parents can contact should they desire an independent evaluation.

Choice of Option One indicates parental agreement with the classification and recommendation for placement. If this is checked, a COH review of the file will take place, but it may not occur until within 45 school days

after

the child has been placed in the special education school or class. Placement will not, however, become final until approved by the COH. Should the Committee determine that the EU diagnosis was incomplete or its recommendation for placement inválid, the child could be taken out of the program and placed in another one recommended by the COH.

If parents disagree with the EU recommendation and do not want the child moved until the COH has met and reviewed the information, they may check Option Two. In this case the COH must meet within ten days. If the COH, after completing its review, concurs with the EU recommendation, the parents will be informed of their right to pursue an impartial due process hearing.

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Parents are invited to attend the COH meeting regardless of whether Option One or Two is checked. Efforts are made to encourage this participation. Testimony of Joyce Coppin, transcript at 2523. At the meeting the due process rights of parents and child are again explained; the parents are given another copy of the booklet “Your Child’s Right to an Education” as well as a written list of steps to follow should they desire to appeal the final COH determination.

The Court observed COH review of three cases, each reflecting the practical operation of the system providing a fair and sympathetic hearing to parents. It may be of significance that in each of the cases observed — selected before it was known that the Court would visit — the parents were highly articulate and well-informed members of the middle class.

In the first case the child Was a 19-year old girl of superior intellect, highly motivated by middle class standards. Severe emotional problems and possible neurological difficulty had resulted in the termination of her formal education at the ninth grade level. The last three and one-half years of her life had been spent in mental hospitals. Various clinical reports indicated that the child was ready for full schooling at a residential institution where psychiatric care would be available. The purpose of the meeting was to consider the parents’ request for public reimbursement of tuition at such a facility. The parents, obviously well-informed and concerned about their daughter’s welfare, had canvassed all the better private and public institutions. Finally, after their daughter had been denied admission at five New York State facilities, they had arranged for her acceptance at a well thought of but extremely expensive institution in Pennsylvania. It was agreed that this private institution was the one to which the child would be sent at public expense. When the question of cost was raised in conference it was apparent that the parent members of the board, deeply empathetic, fully supported any expenditure necessary to help the child and relieve the parents of their heavy financial burdens. (A $250,000 medical policy had just about been exhausted by the costs of private psychiatric care.)

This general pattern was reflected in the second case, involving a child with a serious speech defect. Both parents were fully employed; the father had three years of college and the mother two years. They, too, had canvassed all available institutions, both private and public, and concluded that placement in a special program at a public school was best for the child. The mother was-present at the meeting to make certain that the board would recognize her right to change placement should the program fail to operate in accordance with her expectations. It was obvious from the discussion that she had, in her words, “continually nagged” all those involved and that she would not accept a “run around”; if satisfactory arrangements were not made, she would “take it up with our lawyer”. She was advised that she could request a reevaluation at any time. It was clear from the discussion that no request of hers would be ignored by the chairperson or anybody else in the system with whom she had contact.

In the third instance, a young middle class teenager with emotional problems had been recommended by the EU for placement in a CEH .(B) class. The mother had observed the class and felt that the “program was not as wonderful as it sounds”. She complained about the lack of clinical help in the class and insisted that her son be kept in the regular school. She presented a letter from a private therapist who had been working with the child and the family, indicating his recommendation that the child not be taken out of his regular class. The therapist was known to the psychologist and it was obvious that his recommendation would override that of the EU.

In all these cases the aggressive and knowledgeable assertion of rights by members of the middle class proved effective in gaining the assistance and sympathy of the COH. The system works extremely well for those who can use it.

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Due Process Hearing

Assuming that Option Two is chosen and that the COH concurs with the EU recommendation, the parents can file a written request with the Impartial Due Process Office indicating disagreement and the desire to be afforded a hearing. State regulations require a request for a hearing within ten days after receipt of notice of placement; this requirement is included in the COH’s notice to the parents. 8 N.Y.C.R.R. § 200.-5(c) (1977). If the request for a hearing is not timely, it will be denied.

Where timely request is made, the parent is notified of the date of the hearing and given additional information to prepare for it, including: copies of documents, subpoenas for witnesses if necessary, notification to the hearing office indicating representation by an attorney, and requests for an interpreter. As of April 1978, parents will be sent a list of free or low-cost legal services which may be available to represent children at the impartial hearing. According to the testimony of Grace Cavanagh, Chief Administrator for the Hearing Office, the parent will already have been advised by the COH of the right to examine and to duplicate all materials used by the COH and EU in making recommendations. Transcript at 2202. The COH and DSEPPS staff will also be notified of the hearing.

Present at the hearing are the impartial hearing officer, the chairperson of the COH, a supervisor knowledgeable about the program that is being recommended for the child, any witness requested or subpoenaed by the parents, the parents, and the parents’ attorney if they are represented. The parents decide if the child should .attend. 8 N.Y.C.R.R. § 200.5(c)(9) (1977). If the parents have no attorney, the Board of Education will not have legal counsel representing the DSEPPS staff.

All but two of the hearing officers are attorneys. These non-lawyers are trained in special education. Before they participate in a hearing, the officers observe other, more experienced hearing officers and become conversant with the applicable state and federal laws and regulations on education of the handicapped. They are also given the opportunity to read about and observe the various educational programs.

The hearing commences with the introduction of the case by the hearing officer. He explains that the burden of proof is on the Board of Education to show that the suggested program is one suited to the child’s needs. The Board is then given the opportunity to present its case. The parent is allowed to cross-examine any of the Board’s witnesses.

Transcripts of the hearing are made available to the parents or their attorneys. The impartial hearing officer is required to render a decision and mail a copy of that decision to the parents and the Board of Education not later than 45 calendar days after the receipt by the Board of Education of a request for a hearing. The hearing officer’s decision is final. Thé notice of the decision includes information on the right to appeal the decision to the Commissioner of Education. 8 N.Y.C.R.R. § 200.5(c)(10) (1977). According to testimony of Grace Cavanagh, information on the right to appeal is given at the beginning of the hearings as well. Transcript at 2207.

This procedure is relatively new. Prior to November 1977 the hearing officer’s decision was not final. He would make a recommendation to the Board of Education. Parents would receive a copy of the recommendation and be given five days to file an objection. The matter would then go to the Board of Education along with the transcript of the hearings and any evidence which had been presented. The Board would render a final decision at one of its public meetings.

10.

Appeals

The hearing officer’s decision is appealable to the New York State Commissioner of Education. He may review and modify any determination. The Commissioner’s final determination or order is subject to judicial review in an Article 78 proceeding. N.Y. Educ.Law § 4404 (McKinney 1978).

For those with the skill, initiative and tenacity to enforce their rights, these due

*1242

process procedures, culminating in an appeal to the State courts, afford impressive protections. The testimony indicates, however, that it is primarily the White middle class that has the capacity to take full advantage of these rights to keep its children out of special day schools. Thus, proportionately more minority than majority group children are screened into special day schools.

11.

Reexaminations

As noted in sections 111(C)(1) and (2),

supra,

federal and state laws mandate that each child in a special education program be reexamined at least once every three years by a clinical team. This requirement is designed to insure that the youngster is being maintained in the most appropriate and least restricted environment suitable to meet his current needs.

The reexamination process includes the gathering of information about the child’s functioning in a given program. The school provides the EU staff with the child’s record and any other available material. The parent is seen again by the social worker; the child is given a psychological work-up; and an attempt is made to have a psychiatric and educational evaluation. Optimally, the child is to be given a full work-up. It is the responsibility of the COH to assure that every child has this triennial reevaluation.

In addition to the triennial clinical evaluation, an annual review of each child’s progress is required in conjunction with updating of the IEP.

See

sections 111(C)(1) and (2),

supra.

The EU initially fills out one portion of the plan, which is then updated every three months during the school year. At least once a year the parents are invited to participate with the teacher in revising and rewriting the IEP. The COH receives the completed IEP annually and uses it in its review of the appropriateness of a given placement.

Changes in Placement; Decertification

In principle, any change in placement from one special education program to another is treated as a new referral. Before any transfer is made, the child is supposed to be given a full diagnostic work-up (although some parts may be left out if sufficiently. fresh data is already available). The COH must also review any new EU determination. One of defendants’ witnesses indicated that, although it is preferred procedure to see a child prior to any change in placement, she was aware of no written regulations requiring this procedure. Testimony of Dolores Goidel, transcript at 1987. Another witness, a school psychologist, noted that children referred from a CEH “B” class to her day school need not, as far she she knew, go through the EU program. Testimony of Dr. Dorothy Arnsten, transcript at 2884 — 85.

As is true of initial placement, there are no written criteria to be considered prior to a change from one program to another. There are merely descriptions of each of the programs. A perceived lack of adjustment to one program may suggest referral to another thought better suited to the child’s needs. Testimony of Joyce Coppin, transcript at 2574-75; testimony of Dr. Gerald David, transcript at 2099.

Decertification — the return of a child to the mainstream from a special education setting — occurs when special day school teachers or BCG personnel perceive that a child has been “rehabilitated”. The judgment is based on findings of social, emotional and academic growth. A report of the child’s development, along with the entire file — including the . initial evaluation and records of the special day school experience — is then referred to the COH. The COH determines whether any EU review is necessary.

It is unclear whether EU review is mandated in every case prior to decertification. There was testimony suggesting that the COH may proceed with mainstreaming in the absence of a new EU report. Testimony of Dr. Gerald David, transcript at 2102-03; testimony of Dr. Julian Schtierman, transcript at 2815. It appears that some

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times neither COH approval nor an EU review is obtained. One witness testified that the EU staff often receives the teachers’ reports, talks to the parent and child, and refers the child for decertification without testing. Formal testing is dispensed with to circumvent EU waiting lists and facilitate movement into the mainstream. Testimony of Dolores Goidel, transcript at 1987-88. Other witnesses disputed this. For instance, Joyce Coppin, Assistant to the Director of DSEPPS, testified that decertification represents a formal change in placement and must, in every instance, be accompanied by a-full EU study and COH approval. Transcript at 2577-78. Another witness observed that to her knowledge an evaluation was always done in such a case. Testimony of Dr. Dorothy Kobak, transcript at 3318.

As in the case of changed placement or initial entry into a given program, there are no written criteria for decertification. Testimony of Dr. Martin Groveman, transcript at 2327; testimony of Dr. Julian Schtierman, transcript at 2814-15.

Plaintiffs’ Criticism of Procedure

Lack of Unbiased Tests

In making their evaluations, both the educational evaluator and the psychologist rely on standardized written tests, along with informal observations and oral tests. Plaintiffs point to socio-economic and cultural bias in ability and I.Q. tests and criticize what they perceive to be excessive reliance on such tests.

E. g.

Clark, Phipps, Clark & Harris, Report,

“Lora v. Board of Education,”

13-15 (mimeo. 1977); testimony of Martin Gerry, transcript at 126-130.

Cf.

D. L. Kirp, P. J. Kuriloff and W. G. Buss, “Legal Mandates and Organizational Change,” in II N. Hobbs, Issues in the Classification of Children, 363 (1975) (Black and Mexican American children heavily overrepresented as students in classes for the educatable mentally retarded, allegedly due to the use of culturally based, English Language I.Q. tests).

Defendants’ answer to this criticism runs along two basic lines. First, several witnesses testified that when considering a child, all diagnostic staff are instructed to factor in the possibility that poor performance may be traceable to background and cultural gaps.

E. g.,

testimony of Dolores Goidel, transcript at 1937-38; testimony of Dr. Gerald David, transcript at 2028 — 29. Second, it is claimed that inasmuch as the test results constitute only a portion of the total evaluation process, cultural or socioeconomic bias is not a serious danger. Testimony of Helen Gritz, transcript at 2160.

Some difference seems to exist among the EUs with regard to the extent of reliance on standardized tests. As a minimum every child must be given an I.Q. test since placement in a program for emotional disturbance requires an I.Q. of at least 75. Special Circular No. 35, To: Community School Board Chairmen, All Superintendents, Executive Directors, Directors, Heads of Bureaus and Principals of All Day Schools, From: Office of the Chancellor, Board of Education of the City of New York (mimeo. 1975). Beyond this, the amount of standardized testing which takes place varies. Helen Gritz testified, for example, that in her opinion standardized tests are biased for every potential special education child and she directs them to be used at a minimum. She did admit, however, that she knew of colleagues in other boroughs who rely on them more heavily than she feels is appropriate. Transcript at 2160-61; 2179-80.

This Court’s limited observation of EU conferences suggests that at least some EUs are wary of standardized tests. For example, the Court noted that low test scores of children with Spanish and Italian backgrounds were discounted because of language problems and nervousness. The educational evaluators and psychologist relied upon their own experience and contact with one such child in concluding that he was substantially brighter than the objective test scores would indicate. The clinicians seemed cognizant of the limitations of their clinical tools and the need to take into account “socio-cultural pluralism”.

Cf.

J. R. Mercer,

Labeling the Mentally Retarded,

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Clinical and Social System Perspectives on Mental Retardation,

271 (1973); N. Hobbs,

The Futures of Children,

6-8 (1975).

Lack of Regular Classroom Observation

In every case, following the series of EU sessions, a report form is sent to the referring school requesting additional information from the principal or guidance counsel- or and the child’s teacher. Only in rare instances, however, will evaluation include direct observation of the child in his regular class by a member of the EU diagnostic team. Several of plaintiffs’ witnesses cited this, along with what they perceived as insufficient efforts at assuring that the regular school made serious attempts to accommodate the child in the mainstream, as serious deficiencies in the process.

E. g.

testimony of Dr. Rachel Lauer, transcript at 1124-25; 1128-29; testimony of Dr. Kenneth Clark, transcript at 1653-59; testimony of Margaret Whelan, transcript at 3550-51.

Prior to the development of the EUs, evaluation of the child was conducted by BCG staff primarily in the regular school. Recommendations were based on data derived from observation over a period of days or possibly weeks, direct talks with the regular school teachers and principal, and inspections of records. Testimony of Dr. Rachel Lauer, transcript at 1121.

The replacement of the BCG staff by the EUs was designed to prevent extensive involvement of the regular school in ultimate decisions on special education placement and to avoid the possibility of racial or cultural bias at that primary level.

See

testimony of Dr. Helen Feulner, transcript at 958. However, certain of plaintiffs’ witnesses testified that (1) the lack of contact with the referring school may well encourage referrals to the EU before intensive efforts have been made within the regular schools themselves and (2) the off-site diagnosis is skewed against the child. In other words, there is more of a chance that the child, diagnosed apart from his normal school environment, will be termed handicapped. According to Dr. Lauer:

Most of us are well aware that the children’s learning problems, children’s emotional and behavior problems are a product, not only of differences or deviations in the structure of a child, but also a product of a) what the school is doing to them and b) what the school is not doing for them. ... If the diagnosis of handicap includes only an examination of the deviation of the <?hild and includes no examination of the adaptive power or the adaptive processes of the school, the entire burden of the handicap is placed upon the child. The diagnosis of handicap is very likely to be made simply because it is very easy to find something wrong with nearly everybody.

Transcript at 1128-29. Moreover, the point was made that children are likely to be uncomfortable and anxious in the unfamiliar EU environment. This may also influence test results.

Defendants have several answers to these objections. First, on-site evaluation at the referring school will, in some instances, take'place. Members of the EU staff may visit the referring' school and observe the child in his regular class if they feel, because they find no evidence of behavioral problems, that there is a possibility of discrimination in the referral, a failure on the part of the referring school to attempt to change classes, or excessive\ strictness of. behavioral standards in the regular school.

See

testimony of Dolores Goidel, transcript at 1974-77. Limited staff prevents more extensive use of this technique. Every file is, however, as indicated

supra,

accompanied by a report form filled out by the referring school.

Second, defendants’ witnesses argued that, despite the comfort of a familiar setting, on-site evaluation does not necessarily yield a fair picture of the child, because he often acts to fill a role he has developed in the context of that class. Testimony of Helen Gritz, transcript at 2154. Another witness testified that normally an EU is able to gain sufficient information about the source of the behavioral problem with

*1245

out observation of the child in the regular class. Testimony of Dr. Gerald David, transcript at 2110.

During the course of the EU conferences observed by the Court extensive notes from classroom teachers and guidance counsellors at the referring school were considered. There were also penetrating evaluations of the child’s reactions during a period of a day or more in a diagnostic classroom.

Lack of Fixed Criteria for Placement

The testimony indicates that professionals in the City’s system see a variety of distinctions in children’s behavior and problems which will determine what placement is appropriate. They assert that it is impossible to reduce a combination of professional judgments, of necessity subjective to some degree, to precise criteria. Plaintiffs, on the other hand, charge that the lack of criteria constitutes a serious deficiency in the evaluation process.

In a pamphlet describing the range of services available for children with emotional handicaps, students in the special day schools are described as “in the great majority of the acting-out type, whose primary behavior disorder has manifested itself in repeated disruptive and aggressive behavior, extensive in scope and serious in nature.” Bureau for Socially Maladjusted and Emotionally Disturbed Children, “An Overview of Programs,” 5 (1977). There is not, however, any single document containing objective criteria to be used in referring a child for placement in a special day school. Special Circular No. 35 issued by the Board of Education in 1975, although obsolete in part, includes only a listing of criteria to be used in the clinical determination of eligibility for all programs for the emotionally handicapped. The requisite criteria are:

a) Intelligence level which is above that provided for by the Bureau for Children with Retarded Mental Development.

b) History of repeated maladaptive, disruptive or aggressive behavior, extensive in scope and serious in nature.

c) Chronic inability of the student to respond positively to intensive efforts by the school to help him cope within the normal school setting.

Special Circular No. 35, To: Community School Board Chairmen, All Superintendents, Executive Directors, Directors, Heads of Bureaus, and Principals of All Day Schools, From: Office of the Chancellor, Board of Education of the City of New York 1 (mimeo. 1975).

These criteria, which apply to CEH classes as well as to the special day schools, superseded those outlined in an earlier document, Special Circular No. 47. In the earlier circular, the criteria were essentially the same except that “[a] history of truancy, if coupled with aggressive and disruptive behavior” was also to be considered. Special Circular No. 47, To: Community School Board Chairmen, All Superintendents, Executive Directors, Directors, Heads of Bureaus and Principals of All Day Schools, From: Office of the Deputy Chancellor, Board of Education of the City of New York 1 (mimeo. 1972). While witnesses for the defense have testified that truancy is often a problem with many of the children ultimately referred to special day schools, theoretically the current policy is not to consider truancy as a factor in the diagnosis of social maladjustment and emotional disturbance. Testimony of Dr. Martin Groveman, transcript at 2223-24.

These written criteria present only rough guidelines. Testimony of witnesses involved in the evaluation and placement process indicates that there are many more less easily articulated factors taken into account in evaluation and recommendation for placement. In the course of the trial criteria listed in Special Circular No. 35 were termed “vague”, “insufficient” and “incomplete”. Testimony of Dr. Gerald David, transcript at 2117; testimony of Helen Gritz, transcript at 2174. It appears, therefore, that the document is in no way central to the evaluation process.

There are, in addition to the special day schools, classes for the emotionally handi

*1246

capped of two types: (1) CEH (A) classes, designed to serve children whose handicapping condition is manifested in thinking v disorders; and (2) CEH (B) classes, designed for children with moderate, as opposed to severe, emotional handicaps. The behavior of those in the (A) classes may be termed bizarre in that it reflects a lack of touch with reality, caused by severe emotional crises. Many of these children may be schizophrenic, autistic, or psychotic. Testimony of Dolores Goidel, transcript at 1940 — 41. The CEH (B) children, on the other hand, have difficulty handling themselves in the regular learning situation and in relating to peers and authority figures. Their problems are closest to those of the pupils referred to special day schools.

See

discussion in section III C 3,

supra.

The way that placement choices are made was illustrated in the course of testimony describing the difference between the CEH (B) and the special day school child. Apparently, the CEH (B) student is one who poses no danger to himself or others; he causes less disruption than the more aggressive, disruptive child who will be referred to the more confined setting of a special day school. One witness summarized the difference as follows:

If there is repeated severe disruptive behavior, aggressive and hostile, physically toward peers and/or towards teachers . [i]f this behavior is very severe or occurs over a long period of time without intervention of any kind being at all successful in modifying it, then that child might well be suited for a special day school where he would get a total structured environment. If a child does have some emotional problems, some behavioral problems but can be contained in a special education class with a lower register of children, some individualized work in reading and math with the special teacher and will more or less be able to fit into the class and function in the . regular school relatively appropriately, then the child would be referred to a CEH (B) class.

Testimony of Elaine Thompson, transcript at 1835-36. In technical jargon, the special day school child has more “ego-strength” than one in a CEH (B) class. Testimony of Dr. Gerald David, transcript at 2136-37.

Defendants’ witnesses denied the validity of charges made in the course of questioning that the lack of clear criteria and the existence of waiting lists for CEH classes produces pressure to place more children than appropriate in the special day schools. One witness did suggest that if a child were at home on a waiting list for a CEH class, and special day school placement was found clinically appropriate — that is, at least “some of the child’s needs could be serviced adequately” — a child might be placed in a special day school. If a CEH class were then to become available the child would be switched out of the school unless it was felt that he was functioning optimally. Such a change would be made sooner if a review revealed that the child was having problems in the special day school. Testimony of Dr. Gerald David, transcript at 2061.

Plaintiffs’ and defendants’ witnesses are not far apart on what they believe to be theoretically proper criteria. The following colloquy between plaintiffs’ expert witness, Dr. Kenneth B. Clark, and the Court is significant:

THE COURT: . . . are there any objective criteria [for placement in special day schools]?

THE WITNESS: Yes.

THE COURT: What are they?

THE WITNESS: The criteria are . . . the behavioral history. There is evidence that there is something about behavior that persists in the face of various attempts to modify it. Evidence that it is really persistently nonadaptive behavior or self-destructive behavior over which the individual has no control.

I guess in terms of the clinical factor for the child himself, the noncontrollability of the behavior and the danger, of the behavior towards self or towards others, and evidence that usually — the usual methods of containing that behavior don’t work.

THE COURT: And persistence in a variety of settings?

*1247

THE WITNESS: Right.

THE COURT: You see now, you’re stating in slightly different words, but essentially what the experts in charge of this system said. What they have said to me is that . . . you have to ultimately get down to the judgment of good clinical people . . . [They] get together after they [test] and go into all the educational and other history and [sit] together in good faith and [use] their best joint judgment.

Transcript at 1703-04.

The problems of classification have just begun to receive national sustained attention. As Elliot L. Richardson, then Secretary of H.E.W., noted in calling for a systematic review:

The inappropriate labeling of children has serious consequences for the child. Although experts in the various disciplines concerned with exceptional children have undertaken useful studies on appropriate diagnostic procedures and practices, there is lacking sufficient dissemination of their findings to professionals and the public and nationwide standardization of appropriate diagnostic procedures.

I B. Hobbs, Issues in the Classification of Children vii (1975). While the Project on the Classification of Exceptional Children, sponsored by ten federal agencies, may have resulted in substantial movement towards consensus, it is too early to expect professional agreement on standardization in the field.

See id.

vols. I and II; Report of the Project on Classification of Exceptional Children, The Future of Children, Categories, Labels, and Their Consequences (1975). Courts are not in a position to lead the most advanced of the educators, clinicians and theoreticians in enforcing non-existent standards.

Excessive Class Size

Enrollment in each of the special day schools covering the intermediate grades is approximately 100 to 150 children; in the high schools the average enrollment is about 225. (Figures as of March 1978.) This is a small fraction of the size of the regular schools. Recently, moreover, enrollment in the intermediate schools has been dropping. This may be explained, at least in part, by the trend towards placing children in the least restrictive environment possible. Testimony of Dr. Helen Feulner, transcript at 866-68. For example, Dr. Martin Groveman, principal of P.S. 36, Nathaniel Green School for Boys, testified that in May of 1976 he had 131 students on his register. At the time of his testimony (December 1977) there were only 87 enrolled in that school. Transcript at 2238.

As of March 1978, the average student-teacher ratio in the special day schools was approximately 13:1. One of the things which many of defendants’ witnesses regard as a virtue of the special day schools is their small class size, which facilitates a degree of individual attention unavailable in the regular public schools in New York City.

The State Commissioner of Education establishes ten as the maximum class size for severely emotionally disturbed children. 8 N.Y.C.R.R. § 200.4(b)(2)(ii) (1977). Children in the special day schools are classified as severely emotionally disturbed for purposes of state law. Testimony suggested that at least in some of the schools this policy is technically violated. For example, Marjorie Louer, principal of Sterling High School in Brooklyn, testified that class size in her school ranges from between twelve to fifteen students, although it is sometimes as low as ten. Fluctuating rates of attendance account for the disparity. Transcript at 2454. Another principal, Alexander Walker of P.S. 58M, Manhattan High School, testified that the average class size was about fifteen, although if one factors in' rates of non-attendance the day to day average was probably about ten students per class. Transcript at 2734.

Most of the classes the Court observed in the four schools it visited were quite small. Whether because of truancy or other reasons, there were many classes where teachers were dealing with one to five students at a time. During its visit to Sterling High School, the Court observed some large classes, as for example, the music classes, where a large band was practising and

*1248

some small groups of about five students working on academic subjects. Excessive class size does not appear to be a serious problem.

Lack of Adequate Support Services

Each school offers some support services. The testimony reveals, however, that the amount varies erratically from school to school.

Virtually every witness involved directly with the schools admitted that the BCG support staff was, if not inadequate, at least in substantial need of supplementation.

E. g.,

Testimony of Marjorie Louer, transcript at 2481; testimony of Dr. Esther Rothman, transcript at 2988; testimony of Dr. Florence Halpern, transcript at 3095— 96. Although the witnesses involved iii the evaluation and placement process stated emphatically that referral to a special day school is undertaken with the expectation that each student will benefit from professional therapy in that setting (e.

testimony of Dolores Goidel, transcript at 1979-80; testimony of Helen Gritz, transcript at 2171), the evidence seems clear that there is insufficient clinical staff available to carry out individual therapy at an optimal level. A substantial amount of group therapy, is however, afforded.

All schools are supposed to have a full-time guidance counselor aided by a BCG psychologist and social worker, each of whom is to be available approximately two to two-and-a-half days per week. The schools are also to have access to a psychiatrist on call at least once a week. The evidence suggests that even this minimal level of therapeutic staff is not always available.

A few examples of deficiencies are worth noting. Two students, each of whom was attending a special day school at the time of his testimony, stated that they had had no contact with any member of a BCG team. Testimony of Alfred Avant, who had attended the special day school approximately two-and-a-half years, transcript at 1061-62; testimony of Mark Birt, who had been in special day schools about three years, transcript at 2431-32. One witness, the principal of P 58M, stated that he has the lowest amount of support staff services of the day schools — a psychologist one day a week, a social worker two'days a week, one guidance counselor and one crisis teacher. His school, with a register of 329 students, is the second largest of the special day schools. Two other principals testified that they have essentially no psychiatric aid at all. Testimony of Dr. Martin Groveman, transcript at 2296-97; testimony of Marjorie Louer, transcript at 2353.

On the other hand, in P 12X, with a register of approximately 90 pupils, BCG staff includes a psychologist five days a week, a social worker five days a week, a psychiatrist one morning a week, one full-time guidance counselor and a speech therapist one day a week. The psychologist at that school testified that each student receives some therapy. Testimony of Dr. Dorothy Arnsten, transcript at 2844. She also noted that to have a register of 388 students and support services including a social worker two days a week and a psychologist two days a week (precisely the situation at P 85K) would not provide delivery of adequate clinical services. Transcript at 2878-79.

Dr. Howard Weiner, the psychiatrist at P 12X, testified that psychiatric time is necessary for each of the special day schools. He reviews personally the EU work-ups of each child referred to P 12X and feels that this, along with ongoing psychiatric attention, is an essential part of a special day school program. Transcript at 2375 — 76. He noted that to offer adequate service in a school of 150 students there should be a psychologist and social worker, each available full-time, and a psychiatrist at least one to two half days per week. Transcript at 2385.

As of March 1978, five of the schools were listed as having “crisis teachers.” They act in cases where a child has a sudden emotional flare-up and is not able to get himself to return to the classroom. Many of the students in the special day schools operate on what, in Freudian terms, is apparently known as the “primary process.” That is, they cannot delay gratification and any experience that may cause anger or frustration triggers an almost im

*1249

mediate impulsive reaction. The crisis teacher is there to deal with the child in this state and determine when it will be best for him to return to class. Where there is no crisis teacher, this function is assumed by other available staff. Thé hope is that these problems can be worked out within the program’s framework, rarely necessitating punishment such as suspension (often a step taken in the regular school), that might drive the child even further away from the educational process.

In P 36K the crisis teacher doubles as a guidance counselor. Dr. Martin Groveman, principal of that school, testified that the crisis teacher had been the school’s licensed guidance counselor until budgetary slashes caused him to lose the official guidance line. According to Dr. Groveman, the teacher continues to perform all of the functions of a guidance counselor, including orienting the child and parent when the student enters the school, helping to plan the student’s individual program, and providing ongoing counseling and “crisis intervention.” Transcript at 2230-33.

Five of the schools (as of March 1978) have attendance teachers, at least part-time. These individuals follow up on absenteeism by attempting to contact the parents, to find out about problems at home which may generate truancy, and to motivate better attendance. Although truancy is no longer a criterion used in referral to a special day school, it is clear that many of the day school students do have poor attendance records. Several principals who testified noted improvements in attendance by students in their schools. Current research seems to suggest that ignoring truancy tends to make the truant feel that no one in the school really cares and that he is not being missed, thus reinforcing a drift out of the school’s orbit, often resulting in dropping out completely. Testimony of Susannah Doyle, transcript at 3648. In the special day schools the administration and staff really do care; this is communicated to the student.

However, even as to truancy, attention is spotty. As of March 1978, P 169M, P 36K, P 23Q, P 75Q, P 9Q, P 58M, P 8M (for girls) and P 85K have no attendance teacher. P 369K has one three days a week; P 8M (for boys), P 371K, P 370K, P 12X each have one.

Fiscal cutbacks have affected the availability of school doctors and nurses in the special day schools. One defense witness testified that while visiting several of the schools she recalled being shown rooms, formerly used by medical staff, which were closed in their absence. This witness, a psychologist, noted that the restoration of such services is of major importance for students in the special day schools: “. . . if a kid has a toothache he won’t learn and if he’s malnourished he isn’t going to learn.” Testimony of Dr. Florence Halpern, transcript at 3118.

Another witness, a school psychologist at P 12X, noted that the school used to have a doctor, dentist and nurse, but that presently none are available, despite the fact that in the 1976-77 Annual Report for that school, the lack of these professionals was listed as one of several “unmet needs.” Testimony of Dr. Dorothy Arnsten, transcript at 2894. Still another witness, a guidance counselor at P 58M, noted that to his knowledge there is a school nurse in attendance every other week, but that he would “love a full-time nurse in the school.” Testimony of Dr. Julian Schtierman, transcript at 2773.

These clinical inadequacies are serious since the special day schools purport to provide a therapeutic environment and treatment. The claims of inadequacy must be judged in practical as well as legal terms.

See

section IV A,

infra.

Defendants pointed out that the cuts in support services have been far greater in the regular public schools of the city. Given the city’s fiscal constraints, they claim an inability to do more for the special day schools.

See

Part VI,

infra.

Lack of Curriculum, Extra-curricular Activities and Special Programs

While facilities vary widely from school to school, each one maintains at least some form of academic program emphasizing reading and mathematics. There are additional offerings in social studies, science and hygiene.

*1250

The handling of curriculum varies from school to school. Some principals have instituted unorthodox patterns in an effort to accommodate the peculiar needs of their student populations. For instance, Dr. Martin Groveman, principal of PS 36K, an intermediate school with pupils ranging in age from approximately ten to fifteen, runs an ungraded program. Although all the students fall within a grade range of five through eight, they are not necessarily grouped in classes corresponding to these ages and grades. Rather, placement is dictated by the child’s individual needs. Factors such as the student’s and teacher’s personalities are considered. Often the aim is to neutralize students’ acting out by putting aggressive children together and protecting the less aggressive from the others. Testimony of Dr. Martin Groveman, transcript at 2241 — 42.

Marjorie Louer, principal of PS 371, allows the students to work out their own choice of curriculum, beyond basic prerequisites, in an effort to generate interest and participation. Transcript at 2361-63.

In P 8M, Dr. Esther Rothman’s school, there is also freedom to work out individual courses of study, but in an even more unorthodox fashion. When questioned about the organization of curriculum in her school, Dr. Rothman testified:

. there are no schedules and no 45 minute periods. The teachers are in their room, it is like a schmorgasbord, the cafeteria here, I am to teach this, and the students come in and decide where it is they are going to go. After they have planned it they can go from one room to another, one student can decide to spend two hours in the gym and then can go to reading for a half hour and go somewhere else for English, and the students move in and out of the classrooms as they have planned their day in the morning, which makes teaching extremely individualized and very difficult.

Q. What is your approximate teacher-student ratio at any given time?

A. It can range from one to one, because at that time the teacher is working alone with a child, to ten in a room and above tensj would say is too high, we can’t do it because you cannot give that intense individual instruction.

Q. Why is it that type of individualized program that you offered to your students?

A. Because again it is a matter of finding first what they can learn, getting self-esteem through learning, finding a relationship with the teacher through a subject matter, and most importantly because it is a decision they have made to learn for the first time. Many of the students feel they can really work, they choose, they have power over what it is they decide to learn, so even if the student, you know, goofs off and decides to roam the halls, which certainly happens, or decides to do anything else, the answer then is — and they will come in screaming, you know, you make me sick, I’m not going to do this, well, the answer is who made you do it, you made the decision, not to go to class. We work with every behavioral decision that a student makes because a part of their problem is that not understanding and not realizing that everything that they do is really something they have decided to do and that nobody can make them do anything, and that is what we work with.

Q. Did I understand your testimony correctly to be that the key'element to insure academic success among your students is to make sure that they feel good about themselves and that they do succeed at their academic work and that they are listened to and that there is a voice to listen to their feelings.

A. Yes, that is . . . [the] key.

Transcript at 2956-58.

English and mathematics are core areas requiring great attention. Many of the children referred to the schools are seriously deficient in these basic skills due to poor attendance and lack of attention and motivation in the regular schools.

See, e. g.,

“Anker Acts to Raise Diploma Standards,” N.Y. Times March 22, 1978, p. 1, col. 2 (citing dissatisfaction with lack of graduates’ competence in reading and mathematics by colleges and business).

*1251

To help ameliorate these problems, all schools are supposed to have some form of remedial reading laboratory staffed by special reading teachers and some special mathematics laboratories. The programs, however, have been the victims of fiscal constraint. Testimony of defendants’ witnesses indicates that at present the facilities are inadequate to meet the needs of all students.

For example, Ms. Louer’s, Dr. Grove-man’s and Dr. Walker’s schools have recently lost their mathematics laboratories because of monetary cutbacks. This leaves only three schools with functioning mathematics laboratories. Similarly, Ms. Louer testified that she can no longer operate the reading laboratory at her school as often as would be desirable because of cutbacks in the remedial reading staff. Transcript at 2471.

None of the principals were willing to state that these shortages made their programs ineffective or totally jeopardized a therapeutic atmosphere. They did admit, however, that the loss of these special services makes it more difficult to maintain effective programs for every child.

Each school offers some non-academic programs. These include: music and art, shop and home economics, animal care, auto shop, typing, and a multi-media program. As of March 1978, four schools have a fine arts program and eight have instrumental music. The shop offerings vary. Ten schools have woodworking; five ceramics, two metal work, seven general crafts and one upholstery making. In home economics one school offers a program in dressmaking, one in baking, one in sewing, one in beauty culture and one in home maintenance.

Some schools have special programs involving out of school experience. In P 8M there is a work-study program and driver’s education; P 36K offers a swimming program at a neighborhood pool. These programs are aimed at increasing motivation by integrating learning with practical and appealing activities. Students may be rewarded for particularly good behavior or attendance by the opportunity to participate in one of the special programs.

The evidence suggests, however, that the existence of a program on paper does not necessarily reflect the day-to-day functioning of the school. Here the vicious cycle of-crime that impoverishes so many aspects of city life has an impact. Dr. Groveman, principal of P 36K, for example, testified that because of a break-in resulting in the theft of many instruments, his instrumental music program has been discontinued. The instruments have not. been replaced although the break-in occurred two to three years prior to his testimony. Other break-ins have resulted in the loss of typewriters and shop equipment in his school. Transcript at 2316-17. In one school for girls the Court observed typewriters and sewing equipment, locked up so that students could not practice at will, all because of frequent break-ins and thievery.

Dr. Alexander Walker, principal of P 58M, testified that in his 1976-77 Annual Report submitted to the Board of Education last year, he expressed a need for several staff positions, including an employment counselor to help the students find part-time jobs which Dr. Walker sees as a necessary part of their development. He also needs a general mechanics teacher and a photography and a communications laboratory teacher. Each of these individuals are needed to conduct a special activity but none of the positions have been filled. Transcript at 2713-21. Dr. Dorothy Arnsten, psychologist at P 12X, testified that the ceramic and metal shops at that school are not functioning at present because of inadequate staff. Transcript at 2895.

Each school offers some kind of physical education program and has an interior play area. However, four of the schools, P 36K, P 369K, P 9Q and P 8M (girls), are not equipped with bona fide gymnasiums. P 370K has no physical education teacher. The importance of physical activity as part of a total therapeutic environment for these children is recognized. Testimony of Dr. Florence Halpern, Transcript at 3118 — 19.

See also In the matter of the Appeal of Louise M.,

N.Y.Comm.Ed.Dec. No. 9468,

*1252

(1977) (“it is clear that the education of the handicapped child encompasses more than core curriculum instruction”),

cited in

V. Garfinkle, “Recent Developments in the Law on the Education of Handicapped Children in New York State,” 22 (1978) (unpub.).

The lack of staff and facilities in these schools is disturbing. Fiscal constraints are relied upon as the main justification.

Lack of Use of Private Institutions by Minorities to the Same Extent as the Middle Class

The evidence reveals that self-selective factors account, at least in part, for the racial disparity in the special day schools. In particular, middle class parents are more likely than others to have the wherewithal to contest placement in a special day school. Their reasons for doing so sometimes include a reluctance to place their children in a school populated overwhelmingly by poor minority students. The result may be that the child remains in the regular school. Alternatively, the parents may place their children in private schools. To the extent that tuition is paid by the parents, this phenomenon is an unavoidable result of their constitutional right to select a school for their children.

Substantial testimony was developed, however, indicating that the middle class is able to manipulate the system to provide public funding for this escape from public schools. Since the White middle class is proportionately greater than the Black or Hispanic middle class, this results in a greater concentration of minorities in the special day schools. A good illustration of the way in which this self-selection takes place was provided by a lay member of a COH. Ms. Margaret Whelan, herself the parent of a learning disabled child, testified that most often it is the White middle class parents who select Option Two of the Option Letter and object to recommended special education placement. If they then can prove successfully that alternative placement is better for the child, funding will be provided:

I remember several cases where there was a misdiagnosis by the evaluation unit and the parents brought in private diagnosis which refuted that diagnosis.

Q. Let me ask a question on that. Do you find that white parents more readily go out and obtain private diagnosis, to back up their . . . argument that contracting out is appropriate?

A. I find middle income parents, yes.

Q. Those are more whites than Blacks?

A. Yes.

Q. Do you find that the appeals are predominantly white or middle class?

A. Yes, generally.

Q. Do you believe that’s also based upon the white parents’ or middle income parents’ ability to manipulate the system?

A. I think so.

Transcript at 3542-43, 44.

Ms. Whelan stated that White parents may also place their children in private schools while an evaluation is proceeding and then argue, in an attempt to secure reimbursement rather than public special school placement, that the child’s education should not be disrupted. Transcript at 3543.

Similarly, White middle class students may find themselves treated privately because their parents are more likely than others to understand that, according to the Commissioner of Education’s mandate in the latest

Riley Reid

order (section II B 1,

supra),

if a child is not evaluated and placed within 60 days he is eligible for private placement at Board of Education expense. Ms. Whelan testified that parents who are sufficiently informed can take advantage of the two to three month backlogs at most EUs to effect private placement of their youngsters. These parents, most often White and middle class, use the 60 day rule to avoid placing their children in largely minority special schools:

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[D]o you find that white parents or middle class, who are more white I assume, more readily take advantage of the 60 day rule?

A. Oh, absolutely.

Q. More than the minority parents?

A. I don’t think the minority parents are aware of it.

Q. Why do you think they’re not aware of it?

A. I think perhaps they’re less aware of the whole process. Because of the problems with their lives.

Q. Do they have more difficulty in dealing with the — let’s say educational bureaucracy?

A. I think they, definitely do.

Yes, parents who understand the law know that if a child is not placed within 60 days, that they can use that as a basis for asking for funding for private — special private school, and quite often when we have been approached by parents for that type of funding, they have used that flaw in the process.

Transcript at 3541-42, 3521-22.

There is, moreover, little financial disincentive to placement of children in a private school. A report issued in 1978 by the Officer of the Comptroller of the City of New York established that the effect of the New York State system of fiscal grants to the City is to favor education of the handicapped in private schools because a far greater proportion of aid is furnished by the state for the privately educated handicapped child than for the publicly educated handicapped child.

See

Report, Comptroller of the City of New York,

Policy Analysis of the Cost and Financing of Special Education to Handicapped Children in New York City

(mimeo. 1978). Even though the educational cost per handicapped child may be greater in private than in public schools, the City apparently saves funds by having handicapped children transferred from public to private schools. Thus, although the state system itself is not intended to favor White, middle class children, the program of state grants may encourage transfer of non-minorities out of the public system.

The Court took cognizance of the dangers involved in this tendency. It requested counsel for the defendants to bring the Court’s concern with this possible misuse of public funds to the attention of the appropriate city, state and federal authorities. In response to this request defense counsel wrote to the New York Regional Director of the Office of Civil Rights of H.E.W. and to the New York State

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