Vivian seemed poised to win her case against the New York City Department of Education. In 2014, she had hired the city’s top child advocate as well as an education lawyer to fight on behalf of her five-year-old son. The question was whether the department would reimburse Vivian and her husband for their son’s private school tuition.
At the age of four, her son had been diagnosed with attention deficit hyperactivity disorder and auditory processing disorder, a kind of dyslexia for hearing. A learning specialist said he’d need a small class setting and specialized attention to well academically, but Vivian contended that neither his zoned public school on the Upper West Side of Manhattan nor other local public schools offered the appropriate services. And since federal law requires that all students with disabilities be provided a “free and appropriate” education, the family did what federal law required they do to get it: They sued the city to cover the cost of private school.
They lost. According to the city, public school would serve Vivian’s son just fine. But by the time the verdict was announced — a full 17 months after Vivian first requested a hearing with the DOE — she had paid $11,000 for a professional child advocate, legal council and a neurological assessment for her son, and a year and a half of tuition, totaling $110,000, to a private school for students with learning disabilities.
“The Board of Education’s argument is that ‘we can’t have parents who are trying to game the system [for private school tuition],’ but why would you want your child to have special needs?” says Vivian, who asked that her last name and son’s name be omitted because she does not want to anger the education department in case she sues again.
The city’s argument comes partly from the fact that it’s mostly affluent families who sue for tuition reimbursement.
Sasha Pudelski, assistant director of policy and advocacy at the School Superintendents Association in Virginia, which advocates for school districts across the country, says many parents who sue can afford to pay for private school anyway. They make “unreasonable, inappropriate requests for their children,” and siphon off millions of dollars from school districts to put toward private tuition. “The district is doing everything right, the kids are improving, they’re getting support,” says Pudelski. “But parents say it’s not enough.”
All parents want the best for their children, but that’s not what federal law guarantees. “Years ago, the courts said that an ‘appropriate’ education doesn’t mean a Cadillac but a serviceable Chevrolet,” says Perry Zirkel, professor emeritus of education and law at Lehigh University. This means that schools must address the needs of each learning disabled student, but not necessarily provide the type or quality of care that parents desire.
VVivian’s son had been in private school for a full year when he lost his case, so she was now on the hook for the previous and current year’s tuition. Luckily, she and her husband could shoulder this burden for a year, maybe two. But not much longer. “Tuition reimbursement is a sad luxury only open to parents who not only care enough to fight for their child but have resources to do so,” she says.
It’s a national problem, but nowhere is this discrepancy more glaring than in New York City, where the city’s Department of Education recently found that 40 percent of students with learning disabilities in the public school system weren’t having their needs met, and where the city’s public advocate is suing the education department for its failure to accurately track kids’ special education plans.
New York City is also where unequal access to the tuition reimbursement process is most glaring. Only two percent of the city’s students with disabilities receive tuition reimbursement, most of them affluent and white, while 80 percent of students in need of specialized learning services are Hispanic and black. The result is that thousands of minority students with learning disabilities aren’t receiving the services they are guaranteed under federal law — and which they require to thrive in school and life. When these parents do decide to sue, they often face a long, complicated and, ultimately, losing battle that costs thousands of dollars.
TThe Individuals with Disabilities Education Act (IDEA), which Congress passed in 1975, was meant to give all disabled children an equal education. According to IDEA, which applies nationally, if a disabled child’s zoned public school fails to provide an appropriate education, then the school district must find a different option. And if no appropriate public placement exists, parents can look for a private school alternative. (The U.S. Supreme Court is currently hearing a case on what constitutes an appropriate education under IDEA, but the decision isn’t expected for many months.) IDEA requires the federal government to cover 40 percent of what school districts pay to educate students with disabilities. Pudelski, of the School Superintendents Association, says that Congress doesn’t even come close. “It’s the largest unfunded mandate in education,” she says. It’s partly why 32 states don’t meet the requirements of IDEA, according to a 2014 report by the federal Department of Education.
Yet in most states relatively few parents decide to sue for tuition reimbursement — and when they do, the process is often smoother than in New York. New York City’s public school system is huge and complex and parents attempting to navigate it report significant delays and mixed messages.
“You could speak to 10 people from the DOE and get 10 different responses,” says Michelle, a New York City parent whose 11-year-old son has expressive and receptive language delays. “Whenever you deal with the DOE, it’s such a big system — you’re just a number to them.” Michelle’s son received tuition reimbursement after struggling for years in public school, but she asked to withhold her last name and her son’s name in case she sues the city again.
Petitioning for reimbursement is a complicated process that closely mirrors the judicial system.
There are lawyers, depositions, witnesses and a judge. But it’s not court. Judges are called “impartial hearing officers.” In some other states, these officers have experience with disability treatments or a background in education law. In New York City, they are often attorneys in unrelated fields who do the work part-time. Parents and advocates say this lack of experience prevents officers from making informed rulings.
“There are so many different factors,” says Maggie Moroff, special education policy coordinator with the nonprofit Advocates for Children of New York. “The student’s needs, whether the family knows their rights, which hearing officer they get. Some hearing officers will go out of their way to protect the parents’ rights at a hearing; sometimes the experience is different.”
Parents and advocates familiar with the impartial hearing system say that families should never go before an impartial hearing officer without a lawyer. The DOE does not advise parents one way or the other, though their statement that “the impartial hearing is at no cost to [the parent]” seems problematic to some.
Moroff says the DOE’s litigation guide is “long and arduous and complicated, and there are important timelines, which pose significant stumbling blocks for families.” In all cases, parents must demonstrate that the public school’s approach or capacity is inadequate. That’s an incredibly difficult task for most parents, let alone for a single or low-income parent. It requires a comprehensive knowledge of what the public school offers, which environment or learning approach would better suit the child and testimony from teachers and learning specialists.
Bweela Steptoe, a designer and single mother of twins in Bedford Stuyvesant, Brooklyn, kept her daughters in what she considered to be an inadequate public school for years because she didn’t have the money to sue the DOE or pay for private school. Steptoe recalls how frustrating this was. The girls, Asha and Ayanna, began to have comprehension problems with reading and math in the first grade. Instead of recognizing that the sisters might have learning disabilities and having them tested — for which the school district is required to pay — administrators wanted to hold them back. Steptoe bristled at the suggestion. “I was like, ‘Hey, there’s something wrong,’ and [the school was] like, ‘No, not really.’”
She recalls a teacher saying the girls would “grow out of” their cognitive problems — that they’d be able to figure things out by themselves. “That’s like giving them the keys to the car and telling them to drive,” Steptoe says.
Eventually, Steptoe took her daughters to a local nonprofit called The Jewish Board, where they were tested for learning delays. Steptoe was given a payment plan for the $1,600 fee. The Jewish Board then helped Steptoe work with the Department of Education to get her daughters an Individualized Education Program — the list of free, specialized services that public schools must provide to disabled students. By the fourth grade, the girls were being tutored both before and after school, had an extra teacher working with them in the classroom and were constantly pulled out of classes for occupational therapy.
“They were improving,” Steptoe says, “but it still wasn’t enough for them to completely graduate.” Worse, her daughters hated going to school each day. They felt ostracized; they couldn’t keep up.
Until this point, Steptoe says she did everything she could to “make public school work.” She knew tuition reimbursement was a long shot, and she couldn’t afford a lawyer, let alone a private school deposit, should the girls lose their suit. Then, the education department assigned Steptoe’s daughters to The Boys and Girls School in Brooklyn — which the state classified as a “failing” school. Steptoe was outraged. “My daughters have learning issues. Why would you offer me a school that’s failing anyway? It’s like you’re setting them up to fail,” Steptoe says. Enough was enough.
The Jewish Board connected Steptoe with The Advocates for Children of New York, which educates parents of students with disabilities about their rights, works to improve disability services in public schools and, in some cases, provides legal counsel for families earning less than 250 times the federal poverty rate. Steptoe qualified, and an Advocates lawyer petitioned the education department to cover the twins’ private-school tuition. They won. The girls started at Bay Ridge Prep in the 6th grade, and thrived.
But the case was far from over. Before 2014, parents whose kids received tuition reimbursement from the city once were required to petition the city again each year. Some years, the city would grant the reimbursement; other years, they’d reject the claim. The family would have to sue again. Steptoe says she sued the DOE for tuition three times between 2008 and 2015 in order to keep her daughters at Bay Ridge Prep. Without the Advocates’ lawyer to do the legal work for her, she says her daughters never would have graduated from high school.
This past fall, both started college, Ayanna at the Savannah School of Art and Design in Georgia, Asha at Johnson & Wales University in Rhode Island.
TToday, the process is somewhat better for parents. In 2014, Mayor Bill de Blasio said the city’s Department of Education would no longer require parents to re-litigate settled or decided cases every year. The department continues to offer students public school placements, but if their education needs haven’t changed, the city will often settle cases much more quickly — and without requiring parents to start the impartial hearing process. The impact has been significant. The number of students who had their private school tuition reimbursed by the city increased by 42 percent between 2011 and 2015 and almost 49 percent more cases were settled without a trial. Between these same years, the city increased reimbursement spending by 23 percent.
This may be good for parents, but even parent advocates worry that the result will harm students in the long run.
“The DOE has probably figured out it’s cheaper to pay for tuition reimbursement than to pay to truly educate these kids [in public school],” says Joseph Fine, who represents parents in hearings against the city.
In a statement the DOE said, “we are dedicated to ensuring that students with disabilities have access to educational opportunities that will allow them to be successful. The vast majority of students with disabilities are appropriately served by our public schools.”
But parents and advocates maintain that public schools continue to come up short, despite their best efforts. Part of the trouble is that schools frequently train their teachers in specific educational approaches. “We believe that students are as varied as the interventions [used to help them], so if a zoned school has embraced one type of intervention and that doesn’t work for the student, they’re stuck,” Moroff says. “There’s a large number of kids with a wide range of special needs that aren’t being met in the public schools.”
So until the city has the capacity to meet these varying needs — and until the federal government fulfills its funding obligation — how can a more diverse spectrum of students have access to private school reimbursement? Professor Zirkel says closing the inequality gap requires more educational and legal services for poor parents. Right now, he says, only a “token number” of organizations like the Advocates for Children exist. He also says New York could take inspiration from a state like Wyoming, which fully funds special education by diverting taxes earned from mining and related industries to the educational system. New York doesn’t have the same natural resources, says Zirkel, but perhaps other things could be taxed. Finally, the city could better train its impartial hearing officers or prioritize hires who better understand the nuances of special education.
For now, parents who pursue tuition reimbursement for the first time face a high barrier to entry. Because Vivian had the financial resources that Bweela Steptoe did not, she was able to take action immediately after her case was rejected. She hired a new lawyer to take on the DOE and settled with the city for full private school tuition for the 2015–2016 school year. The settlement offer came just before Thanksgiving, 2015 — a full seven months after Vivian had paid her son’s tuition. And the actual DOE check? “We didn’t get it until right before school started the following year — in August of 2016,” she says.
