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Special Ed: Kids Go In, But They Don’t Come Out
A wrongheaded federal mandate and an all-embracing consent decree have created a costly, Kafkaesque system.
Summer 1996

In a special-education classroom in Queens sits a 12-year-old we'll call Michael. Today, as so often, he has arrived at school unkempt and overtired, his homework undone. His 28-year-old mother—unmarried, with three younger children, and looking for a job—says she doesn't have time to check on him, and he is "slow-minded" anyway. But he is not "slow-minded"; nor, though special education is a program for the handicapped, is he in a wheelchair, deaf, or blind. Of average intelligence but performing poorly in school, Michael, like over 60 percent of his special-ed peers, is said to be "learning disabled."

If school spending were education, Michael's future would look bright. According to a 1994 study by Coopers & Lybrand, special ed in New York City has a budget of $2.03 billion. (The Board of Education admits to a budget of $1.6 billion, more than the entire Philadelphia school system costs.) These billions, almost 25 percent of the Board of Education budget, if Coopers & Lybrand is right, pay for only 135,000 students, 13 percent of New York's total. Though we often hear that the per-capita cost of the city's public schools approaches $8,000, this is an average cost of all students. But full-time special-ed students like Michael receive $23,598, according to the Coopers & Lybrand study, and part-time special-ed pupils—those in speech therapy, say, or enriched reading classes—get $10,207. This leaves a more slender $5,149 per capita for kids in regular education. According to special-ed folklore, the regular education system resembles a parking lot full of 1968 cars, while special ed is like a handful of shiny new Cadillacs.

If we really had a Cadillac system, we might grumble about the price but point with pride at what we were giving children like Michael. Instead, his future looks grim: $2.03 billion buys not a Cadillac but a lemon—a dysfunctional system, maintained by employees so anxious and ingrown they might have been imagined by Oliver Stone. Fearful of retaliation from peers and superiors, few teachers, evaluators, or principals will allow their names, schools, even their districts, to appear in print. It speaks volumes about special ed in New York City that so many of the people willing to be quoted by name in the following pages are lawyers.

It speaks volumes, too, that a system that has made a fetish out of testing, counting, and record keeping ignores the most important tests and statistics of them all: the ordinary measures of whether children are learning anything. As a 1994 city comptroller's report notes, there is no way to evaluate student progress; the Board of Education keeps no summary record of the standardized math and reading tests of special-education pupils. The evidence we have on the system's educational success or failure is truly alarming. Two-thirds of special-ed students officially exiting in 1995 dropped out instead of graduated. Of the remaining third, only a little over half—a slim 1,438—graduated with a Regents or local diploma. The rest received an IEP diploma, by all accounts a completely worthless document.

If special ed were helping students transfer back into the regular classroom, the statistics wouldn't seem so dismal. But no: only 5 percent of special-ed kids are ever "decertified" into general education. As one supervisor put it, "It's like a Roach Motel: kids go in, but they never come out." One Harlem principal finds the system so hopeless that she tries to prevent any of her students from being "referred" to special ed. She's right to stop the process before it begins; evaluators deem eligible over 85 percent of kids referred. And woe to the kids who end up in separate special-ed schools, among the most violent in a violence-plagued system. No wonder many kids don't even go to school. Teachers in District 75, the citywide district for the severely disabled, speak of rampant absenteeism; Comptroller Alan G. Hevesi's report found one random student absent for the entire 1993 school year, and no one could say what had happened to him.

But if special ed seems indifferent to whether its pupils learn anything, even to whether they show up, what does it care about? It cares about complying with the labyrinthine bureaucratic requirements of a mammoth federal mandate and a 17-year-old consent decree. And it cares about providing employment for members of the United Federation of Teachers. As so many teachers, evaluators, and even some administrators repeat: "This system is not about kids. It's about jobs and numbers."

It takes a Gothic hierarchy of administrators and professionals—what one veteran describes as an inverted pyramid with kids oppressed at the bottom—to accomplish these goals. Below the central Board of Education's bureaucrats, who collect numbers and oversee parts of the system, are two separate lines of command. First, administrators and principals in the ordinary schools, as well as in the city's separate special-ed district, supervise special-ed teachers like any other teachers. But then a second, quasi-independent line of command peculiar to special ed has its own 32 district offices, called the Committees on Special Education (or CSEs), which control evaluation and placement. Each CSE has teams based in almost every school, made up of a psychologist, a social worker, and an educational evaluator. After this team tests a child and recommends putting him in special ed, the CSE performs a review, in which another team of different psychologists, social workers, and educational evaluators—all full-time Board of Ed employees who have never met the child and will never meet him—review the first team's results and recommendations. A placement officer, who, by many accounts, has never visited any of the programs to which the child might be sent, oversees the ensuing recommendations for placement. Two more layers of supervisors oversee all these functionaries.

Not one of these "ivory tower" people, as one principal calls them, has anything remotely to do with actually teaching children. Imagine a gaudy multimillion-dollar customs house with thousands of officials examining and filling out paperwork on newcomers while thousands of police stand around watching them all—at the border of an impoverished country with no roads or laws.

If there are many special-ed professionals in New York City who—under the most difficult conditions and often with the most violent and hopelessly neglected children—do their jobs well, it is despite, rather than because of, this unbalanced system, which pays so much more attention to managing evaluation than education. No one, for example, seems even to try to manage the system's staff of paraprofessionals (called paras) who assist teachers and work closely with pupils. Teachers and principals describe some paras who wouldn't last two hours working at McDonald's. They often arrive cracking gum, the men in gym shorts and T-shirts, the women in tiny skirts and blouses with eye-popping cleavage. One teacher found his scantily dressed female para sitting with her legs up on the desk in front of a room full of emotionally disturbed adolescent boys. "A lot are mean and aggressive. You're actually afraid of them," sighed one principal of a Brooklyn special-ed school. Though Neill Rosenfeld, a spokesman for the United Federation of Teachers, says paras are much easier to get rid of than teachers, principals don't seem to think so, and some report allowing incompetent paras to wander the halls for occasional "crisis management" rather than trying to dismiss them. Aside from chronic lateness or absences, there is no formal procedure for evaluating them. When they are accused of some gross misbehavior, like striking a child, they are often simply transferred to another school.

Special ed's management doesn't always succeed in preventing mismanagement of other kinds. Another 1994 comptroller's report estimated that the board overspent by as much as $49.3 million over five years on busing for special-ed preschoolers because administrators did not use competitive bidding in awarding the contracts. The city's busing costs exceeded the median in 16 other jurisdictions by 560 percent. A 1994 Village Voice article tells a story of patronage and student neglect at P.S. 106 in District 75 that rivals the most corrupt Bronx district. Several sources close to the school assert that things have only gotten worse since then. "When auditors are coming, it's like a stage set," according to one source. "Lesson plans are put on the door, and extra teachers are told to disappear." Quips another: "We call it [principal] Vita Bogart's employment agency."

Many others have figured out how to turn this baseness into gold. Poorer parents often use the special-ed classification as a proof of their child's eligibility for Supplemental Security Income—$493 a month. (Every Committee on Special Education office has an administrator charged with explaining the ins and outs of SSI.) Judy Alexander, assistant principal of P.S. 141, finds that parents often won't put their kids in less restrictive settings for fear of losing their payments. "The only thing it seems to be getting their kids is a pair of hundred-dollar sneakers," she adds.

Private academies for the learning disabled and schools for the autistic in New York City are filled with students whose savvy, middle-class parents have figured out how to get a private education at public expense. They hire lawyers to argue that the public school system has no appropriate placement for their child or, failing that, that the city has made some technical error in the paperwork, which it almost inevitably has. A determined parent can often win a voucher worth upwards of $20,000 a year.

A Brooklyn mother, for example, wanted to get her autistic child placed in a gold-plated private school, not the Queens public school where he'd been placed. She hired private experts, who found that the law requires that students in the same class have no more than a three-year difference in age—and that the public-school classroom included a child three years and one month older than her son. The city agreed to the private placement. "That child's one month gave us $35,000," the mother says, referring to a year's tuition, which includes after-school programs, summer school, and day trips during Easter and Christmas vacations.

The private agencies profit, too. The law entitles special-education kids to services starting at age three—not in first grade, like other kids. Private agencies, in the enviable position of a doctor who owns a fancy clinic, evaluate potential special-ed preschool students, and then, in 75 to 80 percent of cases, according to a 1994 comptroller's report, they refer them to their own schools, usually of the more expensive, full-time variety. "There are a tremendous number of preschoolers with mild disabilities, such as speech problems, in programs costing over $20,000 a year," says Noreen Connell of the Education Priorities Panel, a Board of Ed watchdog group. "Some centers—they are all privately run—even recruit parents." As a result, New York City has more than twice as many preschoolers in full-time special-ed programs as, for example, California and Texas.

The story of how we have arrived at this point is rich with all the elements of New York City government that make Kafka seem like an optimist: a giant unfunded federal mandate; a bloated bureaucracy; fiscal crises; powerful, myopic interest groups; encyclopedic regulations; a growing underclass and immigrant population; and last, but not least, a consent decree—in fact, the mother of all consent decrees.

The story begins auspiciously enough in 1975 with the passage of the bighearted federal Education for All Handicapped Children Act, now revised as the Individuals with Disabilities Education Act (IDEA). Lawmakers wished to remedy two historical injustices. First, the public schools were failing to serve many of the country's 8 million handicapped children, 1 million of whom, according to the bill, were entirely deprived of public education. Second, the problem of "inappropriate" referrals: a disproportionate number of minority children, labeled "educable mentally retarded," or EMR, were languishing in segregated classrooms, objects of student ridicule and teacher indifference.

The act envisioned more, much more, than installing ramps and updating testing procedures. Its breadth must have struck terror in the hearts of school administrators. It called not only for "specially designed instruction" for each child but also for "related services designed to meet [his] unique needs," including transportation, physical therapy, occupational therapy, speech therapy, psychological counseling, social work services, even "therapeutic recreation services." To address the problem of inappropriate placements, lawmakers required "a full and individual evaluation" from a multi-disciplinary team, with tests given in the child's native language and, to avoid cultural bias, with no single procedure serving as the sole criterion for placement. Each child was then to receive an Individualized Education Plan, or IEP, which had to specify short-term and long-term goals, recommend special equipment like walkers or amplifying devices, and describe required services and the estimated time they'd be needed. The IEP would be reviewed and revised annually, and parents would have grievance procedures to challenge it. Furthermore, the law required educators to place handicapped students in regular classrooms when possible, or in "the least restrictive environment."

Though for handicapped children the law was undoubtedly long overdue, for New York City—then entering a period of unprecedented financial crisis—the timing was a disaster. Workers in all agencies were bracing for sweeping layoffs. The banks were refusing to loan the city any more money. Though the Education for All Handicapped Children Act called for the federal government to appropriate 40 percent of the costs, Washington's contribution has never exceeded 12 percent and usually has been closer to today's 7 percent. None of this mattered. The law was clear: the Board of Education must design a vast new program for which it was neither funded, staffed, nor equipped.

Over the next few years, the lumbering board experimented with small pilot projects, conducted studies, and quibbled over lines of command. It accomplished what you might expect, given the lack of money, the enormity of the task, and its own intransigence: very little.

By 1979 over 14,000 handicapped kids were awaiting evaluation and placement. Their frustrated parents now had a strong case with a federal law clearly stating their rights. That year, advocacy groups brought three separate suits on behalf of handicapped children before a single federal judge, Eugene H. Nickerson of the Eastern District, who subsumed them under one title, Jose P. v. Ambach. The three cases accurately accused the board of noncompliance with just about every major aspect of the federal bill: it was not evaluating children in a timely manner or in native languages; it was not working up suitable IEPs; it was not removing architectural barriers for wheelchair-bound students; it was failing to place children promptly and in least restrictive environments; it was remiss in offering related services.

In response, the board, under the guidance of a new director of special education, Jerry Gross, finally developed what seemed a farsighted plan, which remains the centerpiece of New York City's special-ed system today. The plan was to place in each neighborhood school a School-Based Support Team (or SBST), composed of a psychologist, a social worker, and an educational evaluator, to assess and place children. Special ed was to become more school- and child-friendly; there were to be "resource rooms" for extra help for the mildly disabled, who could then remain in regular classrooms, the "least restrictive environment." But the plan had a central flaw: it focused enormous resources on evaluation and placement rather than instruction, an imbalance that has plagued the system ever since.

At the time, though, the plaintiffs, troubled by the long lists of students waiting to be assessed and placed, enthusiastically made it law in the form of a consent decree that added several provisions: first, that the city agree to specific timelines and resources, and second, that the board provide to the plaintiff lawyers detailed monthly "Jose P." reports on the numbers of students evaluated and placed, the number of staff hired and needed, the number of services to bilingual students, and so on. It may seem odd that the city would commit, as plaintiff lawyer Michael Rebell wrote, "under pain of contempt, to specific timelines for implementing an entirely new system that had never been shown to be workable in any large school system, let alone in the complex New York City system." But commit it did. A costly, untried administrative structure, a 17-month deadline for its implementation, and an ongoing supervisory role for the plaintiffs were codified into law.

One reason the Board of Ed agreed to sign the consent decree was this: a $92 million school budget deficit had just been announced, and the board needed all the leverage it could get to extract more funds from the city. "The board saw this as a cash cow," believes Jeffrey Glen, corporation counsel on the case in the mid-eighties. Agrees David Bloomfield, an educational consultant who has sat on both sides of the litigation: "The board was going to be in an irresistible position, where they would actually be ordered to spend more money, to hire more staff." The special-ed budget swelled more than threefold in the first seven years of the case, from around $300 million in 1979 to over $900 million in 1986.

Still, it was a devil's bargain. In effect, the city was legally required to "hire" for an indefinite period of time the plaintiff lawyers, Chip Grey of the Brooklyn Legal Services Corporation B; Michael Rebell, representing United Cerebal Palsy; Roger Maldonado, who originally worked with Grey but today represents the Puerto Rican Legal Defense Fund; and over time a series of representatives from Advocates for Children. To this day, 17 years later, they remain on the city payroll as what might be called the Board of Special Education, with the power not only to redesign a total system but to micromanage it.

As the federal law exploded into the thousands of complicated details inherent in its mandates, this group began meeting weekly and sometimes twice weekly with administrators from the board and lawyers from the city, as well as representatives of Advocates for Children and the Public Education Association, whom the court had granted amicus status on behalf of the plaintiffs. They visited schools and hired consultants. They devised computerized data systems and school loan forgiveness plans for recruiting bilingual staff; they proposed a relocation office for new out-of-town employees; they asked for the newest figures on the number of staff hired, of children placed, of emergency lights for the deaf installed, of toilets made accessible to wheelchairs. And they reprimanded the board: why weren't the numbers better? Why was it taking so long?

During the 17-year (and still counting) life of this permanent shadow board, the players have often worked cooperatively; even so, their meetings have tended to resemble the Queen of Hearts episode in Alice in Wonderland. While the administrators and lawyers from the board and the city have come and gone as a result of periodic purges or career moves, the plaintiff lawyers became the viceroys of the Jose P. colony. Dennis deLeon, now president of the Latino Commission on AIDS but a corporation counsel from 1982 to 1988 who spent most of his time on the case during the last three years of his tenure, recalls that it was "like being in the second reel of a five-reel movie. The other players all knew each other." Another attorney recollects that the magistrate given oversight of the case by Judge Nickerson was known simply to bang his gavel and ask: "Mr. Rebell, what do you want me to do now?"

A new corporation counsel would turn to a veteran plaintiff lawyer for an explanation of "the history of a particular issue which the plaintiff attorney no doubt embroidered to his advantage," says David Bloomfield. "A regular type of discussion might begin when the plaintiffs got word that a special-ed class was meeting in a closet. The plaintiffs would demand a survey of the number of classes meeting in closets. The board would argue, `We don't have to do that.' The plaintiffs would say, `You have to. We'll go to the judge.' Then they have to get special-ed kids out of the closet, even if it means putting general-ed kids there instead."

This approach might strike some outsiders as worthy of satire; for those on the inside, it is merely situation normal. Most insiders see Jose P. as a permanent fact of New York City government, like the fire department. "Years ago people were always asking when the court was going to disengage and bow out," muses Mike Rebell, who was once appointed special master to bring a similar consent decree in Boston to an end and instead stayed on the job for five years. "I got very involved in thinking about that. My thinking has evolved a bit since then. The more I realize how the politics of city education work, the more I realize that some of these complex issues dealing with civil rights may need an ongoing neutral presence like the court's."

Rebell will almost surely get his way. After all, the Individuals with Disabilities Education Act, like so many federal mandates, may in its broad outline have the force of absolute moral clarity, but in its particulars it has the fuel to launch a thousand litigations. Full compliance with every last letter of IDEA and its giant progeny, Jose P., is possible only in heaven, far beyond New York City's earthbound Board of Education.

The other reason for the status quo, and by no means the least powerful, is the United Federation of Teachers, whose membership rolls Jose P. boosted hugely, partly because state law requires ratios as low as six students to one teacher in some special-ed classes. The number of special-ed teachers swelled from a little over 5,000 in 1978 to 9,447 in 1982, a time of intense budgetary pressure, and it swelled further through the mid- and late eighties. The number of paraprofessionals—also members—grew apace. In addition, one special-ed administrator explains, special ed employs "3,000 UFT members known as psychologists, social workers, and ed evaluators. There is nothing comparable in general education. If we get rid of them, the union loses all those members." Between Jose P. stipulations and collective bargaining, the system is tied with a double knot.

The UFT has given special-ed members good reason for loyalty. Evaluators have had almost no productivity requirements, though the most recent contract suggests, but does not require, productivity goals. By all accounts, these functionaries regularly do fewer than two evaluations a week. No wonder: as cases backlog, they do their assessments on overtime. The slower they work, the more they earn.

Parents compose an equally powerful interest group. "Parents of the most disabled children are the most committed to the status quo," says Noreen Connell of Education Priorities. "They are the most easily mobilized. They're fearful of losing funds." Chester Finn of the Hudson Institute believes that although IDEA, the largest unfunded mandate related to education, is pending reauthorization, Congress shies from it "as if it were radioactive. The political terror of attacking this program is more acute than with any other education area I've seen in my life. No congressman wants his office surrounded by screaming parents and their kids in wheelchairs." Even now, the self-proclaimed smaller-government Congress is adding pages of new requirements and specifications to the bill at the bidding of the disability community, which, according to Jeff Simering, legislative director of the Council of Great City Schools, will inevitably lead to more bureaucratic retraining, workshops, memos—and lawsuits.

The actual Jose P. was a deaf child (he is now in his thirties) who was forced to sit helplessly in the back of a regular classroom. In all likelihood his schoolboy fate would be much kinder today. Everyone—plaintiffs, advocates, and board representatives—agrees that the gap between the federal mandate and actual conditions in the schools has narrowed sharply, substantially improving the lives of some children. Many schools are now wheelchair-accessible, waiting lists for evaluation and placement have shrunk, and many more children are getting services.

But if Jose P. produced some good, the litigation itself has become part of the disease it set out to cure. It has prevented flexible management and reinforced the Board of Ed's rigid top-down chain of command, which embitters teachers and administrators and benumbs the entire special-ed system.

In fact, the most Kafkaesque bureaucrat couldn't have done a better job of designing a remote, paranoid, and number-crazed system than the Jose P. lawyers in collaboration with Board of Ed administrators. Take the special-ed division of the Office of Monitoring and School Improvement. A 1988 Jose P. agreement requires 58 full-time, trained special-education professionals to see to "systematic compliance" with specified numbers of copying machines and telephones for School-Based Support Teams, the amount of money for their supplies, the square footage of their workspace. Regional monitors from this office (not to be confused with state and federal monitors) fan out to individual schools to collect data on the number of evaluations completed and pending, the number of bilingual students placed, a breakdown of students by language, and on and on. Lacking educational expertise, judges take numbers as the critical measure of success. But most of the data come straight out of the IEPs, which many teachers and evaluators deem useless pieces of paper. An IEP's purpose, one teacher says, is to "give life to administrators. Teachers never use it." It's easy to see why. An IEP might well supply a child who cannot read with a precise but utterly fantastic plan for science and social studies. Psychologists include in the plan such wishful goals as "child will refrain from interrupting others on four out of five occasions." A new Board of Ed computer program has recently automated this process, spitting out absurdities like "Student will use a prism to calculate the refraction of light," or "Student will demonstrate an understanding of line . . . by comparing the lines in a photograph of a Frank Lloyd Wright house, a Marion Sampler painting, and a Picasso line drawing."

Such a system, almost extraterrestrial in its arbitrariness, has transformed even workers dedicated to helping children into impotent bean counters. "Originally, supervisors were advocates for children," says Jill Levy, executive vice president of the Council of Supervisors and Administrators. "Now the system has made accountability and compliance our job. Teachers should teach, and supervisors should supervise. They should not be clerks." Says John Alisse, an evaluator from District 25, "I've watched a lot of special-ed people sink into despair. They're sick of being spat at by the board, and they know they're not helping many people. It's like battle fatigue in Vietnam."

Yet the confusion between numbers and success persists. Michael Rebell points to the reduction in the backlog of reports on the required three-year retesting of special-ed children as one indication of the court's success. But those actually working directly with children will tell you of the frequent absurdity of this required series of tests. Ellen McHugh of Parent-to-Parent New York State, a support group for parents of disabled children, gives a perfect example: "My kid is deaf. He has almost always been deaf. Unless there is a miracle of God, he will remain deaf. Every three years he has to go back for a complete battery with a psychologist, a social worker, an ed evaluator. After they do their tests, they come to me and say, `He's deaf.'" This triennial profundity comes at the cost of about $2,500.

To add to the absurdity, few teachers seem to find even the initial evaluations of the School-Based Support Team especially helpful. "When we look at their results, the teacher and I often feel the team had seen an entirely different child," says one Brooklyn principal. "We never get any insights. It would make much more sense to have the teacher or group of teachers who know the child best, and maybe a psychologist with a battery of tests" evaluate the student." One teacher explained that one of the tricks in teaching emotionally unstable students like hers is preparing them for the changes they have trouble coping with. "I'll announce, `We're going to begin math in ten minutes.' When these kids are interviewed by strangers, they clam up. They can't give an accurate reading."

In one classroom of children supposedly among the most disturbed, I watched in surprise as a six-year-old concentrated on his workbook for 45 minutes and then read a Dr. Seuss story out loud. I asked his teacher, one of the system's rare gems, what his evaluation had said. After admitting she had never looked at it, she took out his file and read out a few phrases about "low average intelligence" and "poor impulse control." She shrugged: "This child had never been taught to sit still and take directions before he came to my class. How could he take an IQ test?" Some evaluators well know that their job is often useless. One describes a speech case referred by a teacher: "We go through hours of testing, and then we come back and tell the teacher what she already told us."

The underlying problem is this: both the federal law and the apparatus dedicated to its enforcement rest on a largely worthless scientific model. The federal law asserts that such great progress in "diagnostic and instructional procedures and methods" has taken place that, given enough money, all handicapped children can be educated effectively. Like a team of doctors, experts are supposed to "diagnose" a child's malady and then recommend the proper course of treatment.

This is not at all how it works in reality. In a 1994 study for the New York State Education Department, NYU professors Jay Gottlieb and Mark Alter found that the criteria for referrals and placement in New York City schools were far from uniform. The same was true of the frequency or duration of services given. The initial "diagnosis" might be scientifically accurate for deaf or wheelchair-bound children, but for the majority of children now referred to special ed, it is unpredictable, even capricious. A child might be called learning disabled in one school, emotionally disturbed in another, or not be referred at all in a third. Evaluators often talk about their job as an art, and perhaps there's some truth to that. But a larger question remains that goes to the heart of the problem: even if they produce the Mona Lisa of all evaluations, how will it improve a child's education? Realistically, there are a limited number of ways to individualize teaching. Moreover, a classroom is not a therapist's office.

And finally, notwithstanding the optimism of the federal law, "science" has little help to give to most of these children. Ex-corporation counsel Jeffrey Glen puts the problem this way: "The law is based on three assumptions," he says. "First, if you put a team of experts together to examine a child, they can evaluate a problem with accuracy. Second, they can then devise an effective program, and third, they can carry out the program. The first assumption is wrong, and it follows that the second and third are undoable. Experts can suggest ways to ameliorate a kid's life. They can give a teacher some assistance. Any more grandiose premise is pure arrogance."

No matter. The law not only sets in stone the fluid theories of social science; it insists on a vast superstructure of administrators to oversee their precise and timely execution.

Nowhere is the inadequacy of the medical model more pronounced than in the classification "learning disabled" (LD). It's small wonder that learning disabilities, only recently discovered at the time of the federal bill and hardly the primary concern of either Congress or advocates then, now account for over 60 percent of the New York City special-education population. The definition is so vague and expansive that it is like a standing invitation to any poorly performing child. State regulations, following federal guidelines, define it as "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, write, spell or do mathematical calculations." As if this weren't vague enough, the state makes it possible to label LD just about any child who is failing. The regulations continue: "A child who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement on an individual basis shall be deemed to have a learning disability."

Thousands of children have flooded in through the gate left gaping by these guidelines. The 50 percent figure is difficult to ratify and rarely considered anyway. What usually happens is the scenario described by one social worker in a Queens district: "A teacher refers a kid. The kid is doing badly. We feel sorry for him; we like the mother who wants help, so we call him LD and give him services."

In New York City, LD—and, to a lesser extent, ED, or emotionally disturbed—have become the terms of choice for underclass kids, like Michael, whom the system simply doesn't know how to educate. (In addition to the 60 percent of special-ed pupils labeled learning disabled, about 15 percent are described as emotionally disturbed, both rates considerably higher than in other cities.) Kids labeled learning disabled, researchers have found, are overwhelmingly minority, poor achievers, and often behaviorally disruptive. Many have moved and changed schools often; many are chronically late for school. All this suggests chaotic home lives that clash with the ordered processes of learning. Though both state and federal law clearly specify that the category "learning disabled" should "not include children who have learning problems which are primarily the result of environmental, cultural or economic disadvantage," those are precisely the children who are included.

The irony couldn't be more painful. Remember that the federal law was in part intended to address a problem brought to light by the civil rights movement—the consignment of black children labeled educable mentally retarded, or EMR, to segregated classes. About a decade before the law was passed, physicians began to hypothesize a neurological cause for many cases of poor school performance—an underlying ailment that advocates for such children, largely white parents who bristled at more stigmatizing labels, called learning disabilities. At first, the majority of children given the new label were white. But as the seventies wore on, and as the number of black children labeled EMR dropped dramatically in response to accusations of bias and lawsuits, the number of LD kids correspondingly rose. In other words, whereas before the federal law, educable mentally retarded black children withered away in segregated EMR classrooms, now they languish in segregated special-ed classrooms. While the labels have changed, the underlying reality has not.

Some argue that this is evidence of continuing bias, that teachers and principals are "dumping" minority kids they don't like and can't handle. While teachers and principals often do deal with hard-to-discipline kids by sending them to special ed, the reality is more complicated than that. They see all the mandated state and federal money as at least a promise of help for an increasingly neglected and damaged population of kids entangled, as assistant principal Judy Alexander puts it, inside "a Gordian knot of social and emotional problems." NYU researchers Jay Gottlieb and Mark Alter found in their interviews with principals, teachers, and evaluators "a consistent portrait of a general population of schoolchildren in far greater need than was the case even a few years ago. Students are described as lower-functioning academically and more psychologically impaired now than several years ago."

Many of these kids are referred to special education, where teachers hope that small class size will improve their chances. This is not what usually happens. Instead, teachers find themselves having to "focus on interpersonal behavior rather than academic performance." And the situation appears to be getting even worse. Gottlieb told me: "Severely inappropriate behavior we used to see in older elementary-school kids, we now see in kindergarteners."

I spoke with many teachers and evaluators who confirm this bleak picture. They describe children who have received few of the basics of socialization necessary for functioning in a classroom—or a society. Some teachers spoke of needing to instruct their students how to say please, to sit in a chair, or to eat Jell-O with a spoon instead of their fists. The Harlem principal who tries to avoid referring her students to special ed believes that many of her children are more in need of attentive families than psychologists and social workers: "I'm telling parents that very strenuous parenting will help their child. Otherwise, you can conduct business as usual, put your child in special ed, and collect $493 a month."

Even teachers in hospital psychiatric programs, once the place of last resort for schizophrenic children, now see students whose deficits are more cultural than organic. (In the tautological language of evaluation, their official diagnosis is "conduct disordered.") One veteran teacher says that years ago her unit was populated by very sick children for whom there was medical treatment. But in the late sixties she began seeing "unraised children" who know little but how to "dance, fight, and simulate sex. These are kids who need routines, need to learn the days of the week. When they're asked to do something they don't want, they throw chairs. Raising reading grades is from another planet."

While surely we must do something for these children, a system that medicalizes what is at heart a cultural problem and that swallows up such pupils and spits them out unsocialized and unskilled is not that something. The great failing of special ed is not only that it costs so much, not only that it wastes so much money on useless evaluation and paperwork, but most of all that it does almost no noticeable good for perhaps half the pupils it serves, hasn't any idea how to do them good, and is forbidden by law to include them in the first place.

Hence, the obvious first step in attacking the special-ed fortress is to follow the law: to get children whom the system was never meant to serve out of special education. The Individuals with Disabilities Act was very specific in precluding children whose learning problems were "primarily the result of . . . cultural or economic disadvantage," as is the case with most special-ed pupils now classified as learning disabled. Indeed, a serious reading of the state law's definition of learning disability as a 50 percent discrepancy between aptitude and performance might well cut the ranks of the learning disabled by more than three quarters, thus cutting the total number of special-ed pupils almost in half. True, the definition may still be problematic (there are many reasons for so large a discrepancy that may have nothing to do with a neurological flaw), but obeying the law would be better than the open-door policy we have now—provided evaluators don't simply recertify many of these children as emotionally disturbed.

Of course, this reform does not begin to answer the looming question of how to teach what one sympathetic and innovative principal refers to as "wild-child kids." While this question goes beyond the issue of reforming special ed, suffice it to say that the most promising approaches don't seem to be the currently fashionable idea of "inclusion" of such children in regular classrooms, with specialists and paraprofessionals to help with the added demands, or even with "individualized instructional strategies" to cope with the different levels of ability and "learning styles" in the inclusion classroom. Some of these children, rather than benefiting from inclusion in regular classrooms, disrupt them, to the detriment of other pupils, as experience has so often shown.

More promising approaches come from those who recognize that kids living such disordered lives outside school don't need individualized pedagogy but rather clear, predictable classroom structure and discipline from an early age, most likely to be found in special classes. Some evaluators and teachers have argued that vocational programs would help many of these children. Many LD kids, whose deep cognitive and emotional deficits make it difficult for them to function in an academic classroom, they say, are competent and enthusiastic when working with their hands.

Other needed special-education reforms will require not following laws but changing them—an exceedingly difficult task, given the powerful interest groups protecting the status quo. But without simplifying mandates so that energy can flow into the classroom rather than into evaluation, special ed will remain an expensive jobs program doomed to pedagogical failure even for those children it really should serve.

Think of special education as a set of nesting boxes placed inside one another, each with its own requirements. In order to let more light into the innermost box, the classroom, we need two major reforms in the outside box, the Individuals with Disabilities Act. First, Congress must simplify the Individualized Education Plan. A specialized curriculum for each special-education student in every subject is pure utopian fantasy. Teachers may need an opportunity to assess a student's progress periodically—perhaps with a counselor or reading specialist—and then to decide what comes next; they do not need a pseudo-technical annual document that sits in a filing cabinet.

Second, Congress needs to temper the law's emphasis on parents' rights and on elaborate procedures—for referral, for parental appeals, for evaluations—to assure them. These requirements have turned special ed into an adversarial system dependent on a large staff to keep up with cover-your-rear paperwork. Even after taking all the requisite precautions, the Board of Education often loses seemingly spurious cases: over whether it must provide a laptop computer for a child who writes slowly, say, or busing service for a private-school child to get to resource-room tutoring. In place of a quasi-juridical proceeding, complete with lawyers, the Pioneer Institute, a Boston think tank, has recommended a simpler appeals process before a committee of parents, educators, and administrators for those parents who believe the school system is failing to serve their children properly.

Inside the federal box are the state regulations. New York State has already taken important steps to ease the mandate for a psychologist for each evaluation. While psychologists are clearly essential for diagnosing a learning disability or emotional disturbance, they are unnecessary in many other cases. Even for a child with emotional problems, an elaborate workup is of limited usefulness to his classroom teacher or, for that matter, to his counselor, who might see him a mere 40 minutes a week in a group. The state's reform efforts will meet fierce resistance from the UFT.

Inside the box of state regulations are those specific to New York City, especially Jose P.'s stipulations of an independent three-person team to do evaluations. Outside of New York City, social workers rarely participate in assessments, and few experts have even heard of the team's third member, the "educational evaluator," a special-ed teacher whose only other required credential is the completion of a Board of Ed training course. A better, more flexible system would allow assessment by a single professional in the area of the suspected disability, along with the teachers who know the child best. It would also permit the "informal assessment," which (before it was repudiated in the early eighties in Jose P. negotiations) allowed experts to suggest short-term interventions like family counseling or tutoring without setting cumbersome legalistic machinery in motion.

Two problems that bedevil New York's public school system as a whole loom particularly large in special ed. First is the UFT's resistance to greater accountability for its members. Rather than transferring incompetent paraprofessionals to the hallway or to other schools, the board must be able to fire them. Second, an influx of immigrant students, many of them illiterate in their own languages, is currently swamping the schools. (See box, page 34.) At this point, there is nowhere for them to go but to scattershot, poorly run English as a Second Language courses and, when that fails, to special education. Die-hard advocates of bilingual education stand in the way of instituting the adequate ESL programs these pupils need to have a chance of succeeding.

Of course, none of these recommendations addresses the most difficult question of all, one never openly discussed: how do we balance our social obligations to the disabled with economic reality? Without ever acknowledging it, by passing the Individuals with Disabilities Education Act, Congress transformed the very meaning of education to include social work, psychotherapy, custodial care, and even medical services. Special-ed children receive many benefits denied to most children, from home pickups to therapies of various sorts, and sometimes even their own private paraprofessionals. Unlike general-ed kids, whose government-financed education begins at age 5 and usually ends by 18, federal law mandates education for special-ed children from 3 to 21. In 1994, advocates filed the case of Raye M.—which Mark Alter calls "Son of Jose P."—against the state on behalf of preschoolers not receiving mandated services in a timely manner. The case is ongoing.

The money for these entitlements has to come from somewhere, a fact our mandate-driven system, proficient with numbers but dismal at math, ignores. The nation's shared commitment to help the vulnerable may well have ballooned to the point where it is harming the healthy. A recent city comptroller's report found that the per-capita annual spending for high school special-ed students increased 19 percent between 1990 and 1995, while general-education students saw a decrease of 12 percent. And all this imposes costs on the entire city, too. "The mayor says we're part of the cause of the city's fiscal crisis," says plaintiff attorney Mike Rebell. "I take that as a compliment. We've established these kids as a priority."

But surely the courts are not in a position to determine priorities. Is it more important to repair a leaking roof or to install a wheelchair ramp? To hire another classroom teacher or a Russian-speaking psychologist? These questions deserve democratic debate, not mandates from on high. As things stand now, Leonard Hellenbrand, former budget director of the Board of Education, was quoted as saying, "Kids who don't have court orders in their hands are dead meat." He's right; but still, it's well to remember the pedagogic limits of the law. Court orders may make sure that kids like Michael are put in special education; they say almost nothing about how to educate him.

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