Schools in Handcuffs
How courts (mis)rule N.Y.C.
March 14, 2003

by Ross Sandler & David Schoembrod

WE expect Mayor Bloomberg to deal with the city's multibillion-budget deficit, but the mayors hands are tied by court orders that create sacred cows that he can't touch. How can voters evaluate his performance if courts direct city programs without oversight or accountability?

New York City's budget is riddled with judicially created sacred cows. The largest one mandates the operation of special education--and the $2.7 billion-a-year special-ed budget dwarfs that of every other city department except police and social services.

In 1979, the Board of Education consented to a court order controlling special education. Now, 24-years, three mayors, and nine chancellors later, the special-ed budget is still protected by judicial fiat.

Court orders work magic at budget time. The mayor can cut the number of police on the beat because there are no court orders requiring a set number of patrolmen. But, thanks to court orders, he can't cut the number of special-ed personnel without the court's permission.

Budget officials have a phrase for these sacred cows: "judicially mandated expenditures." These are no more essential than other city programs: The difference is that a judge's order has transformed a desirable city program into an untouchable judicial fiefdom.

In 1979, in a federal lawsuit called "Jose P.," plaintiffs complained that the Board of Ed wasn’t moving fast enough in evaluating and placing children in special education. The complaint was valid—so, to avoid litigation, the board proposed a new evaluation procedure, employing teams of three professionals to evaluate each child.

That proposal exceeded legal requirements, which called for only a single professional to do the job. But in December ‘79, this experimental program was incorporated into the Jose P. court order.

In 1987, after eight years of experience with the program, the Board of Ed asked if it could eliminate one of the members of the evaluation team, the social worker. Studies had shown that the social worker added the least to the evaluations and that the three-person arrangement delayed placement of children.

The social workers' union objected; so did some plaintiffs' attorneys. The judge decided the social workers had to stay because the 1979 decree called for them. Today, according to the city's Independent Budget Office, the city still employs 561 social workers to do evaluations at a cost of over $27 million.

In 1994, faced with another budget crisis, the Board of Ed sought relief from the court's order that it employ 73 professionals to monitor special education at an estimated cost of $3.6 million a year. The board wanted to reduce the number of monitors and have them monitor general education as well. Plaintiffs’ attorneys said "no," and again the court agreed. A consent order, the judge wrote, was like a contract, and could not be changed regardless of budget constraints.

The city's new Department of Education, facing an even worst budget crunch, is still trying to reduce the number of monitors.

This formulaic adherence to rigid procedures and outdated agreements shows how poorly courts are equipped to run dynamic policy programs. The Jose P order hamstrings the city from finding smarter and more cost effective ways of running a multibillion-dollar program with 35,000 employees.

That's only the tip of the iceberg:

The 1974 Aspira case on bilingual education was originally brought on behalf of Spanish speaking students. Today the consent decree from that case controls the education of 140,000 students—including those whose language is Russian, Chinese, Haitian-Creole and Urdu. The 29-year-old order compels continuation of bilingual-ed programs and pushes the city to have expensive programs where it might otherwise not have them.

The 1982 consent order from the Boe case controls the suspension of students from public high schools. The combined effect of state regulations and Boe is to impose the equivalent of an expensive formal trial whenever the city seeks to suspend a child from high school.

The 1996 Handberry order compels the city to provide education services, including special education, for youths between the ages of 16 and 21 years of age without a diploma who are incarcerated at Rikers Island.

The 1999 Morales consent decree compels city officials to ferret out sales of non-nutritious food like candy and soda during the school day.

These orders often require the city to deliver more services than are mandated by statute, and always tell the city how to deliver the services. Their multitude of detailed specifications prevents city managers from finding creative ways to deliver the same or better services for less.

And the only way out of this bind is to get permission for modifications from plaintiffs’ attorneys and judges—who often impose yet more budgetary and regulatory burdens on city programs as a quid pro quo.

In the case of special education, 24 years of court intervention is enough. The city has shown a more than good-faith effort to comply with the decree, and remains committed to the needs of special education students. This should be sufficient to terminate court supervision.

Extras like the hiring of social workers and monitors should compete in the regular budget process against other city needs, like general education, health care, AIDS services, police protection and fire protection. Some extras may be retained, others altered, still others eliminated altogether.

But in the process the city will have retaken control of its education budget, eliminated a sacred cow, and gained mayoral control of education.

Tomorrow: How to end dysfunctional consent decrees.

Ross Sandler and David Schoenbrod are professors at New York Law School and authors of "Democracy by Decree: What Happens When Courts Run Government" (Yale U. Press).

©2003 New York Post