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Judge: Children Must Fail
Jay P. Greene
Courts have done a lot of crazy things, but recently a federal judge in Manhattan came up with what just might be the nuttiest idea yet: mandatory failure for disabled children. Even if it's clear in advance that public schools can't meet a child's special needs, he says they still don't have to put him in a better-equipped private school until they've tried to teach him themselves and failed.
Under federal law, the city must give every disabled child a free and adequate education. But it doesn't say that every child has to be taught in a public school; if a child's needs can't be met by public schools, the city can pay his tuition at a private school.
Like all public school systems, the city would prefer to use these private placements only as a last resort. But sometimes the mismatch between the child's needs and the school's facilities is so obvious that sending him straight to private school is the only reasonable option. After all, how can you teach, say, a blind child or an autistic child if you don't have the necessary staff and facilities?
Judge George Daniels ruled that you don't know until you try. Courts can't say that a public school isn't able to teach a disabled child based on "mere speculation," he says. The school must actually enroll that child and fail to teach him.
Just under 1,000 New York City children will lose their private placements. Imagine it: blind children in classrooms that don't have Braille materials; autistic children in schools that don't have staff trained to deal with them; teachers going through the motions with children in situations where they knowthey can't succeed. Next, Judge Daniels will be ruling that until you've jumped off a building, you don't know if you can fly.
Any parent knows how precious every year of learning is to a child. And disabled children are even less able than regular ones to sacrifice a year of school. So why does the judge find it plausible that federal law might allow the city to follow such an outrageous policy?
It's simple. For years, public schools have trumped up a false story about the huge financial burden of special education. They want more taxpayer money, so they claim that disabled children are draining vast sums from school budgets.
One of their favorite tactics is to complain about how they're saddled with the crushing expense of private placements. Usually they'll suggest that affluent parents with slick lawyers are extracting these placements just because they want to send their children to private school without paying for it. Swallowing this story, judges naturally want to find ways to curb the practice.
But disabled children in private placement can't possibly be the huge burden they're usually made out to be. They represent only abouttwo tenths of 1% of both the city's total enrollment and its total school spending. And only half of that money goes to children who weren't enrolled in public schools before getting private placement.
It gets better. The average cost of private placement is about $14,400 per child. That may sound like a lot, but in the New York City school system, it just isn't. The city spends about $12,000 on each regular, non-disabled child, and an average of about $25,000 on each disabled child. So the system may actually save money with private placements.
The broader story about schools being burdened by special education is a myth, too. Most disabled students have relatively mild diagnoses: Half are learning disabled, and another 19% have speech and language disorders. The number of children who genuinely cost a lot of extra money to serve is very small.
As for those parents with the slick lawyers, while ifs easy to find a few horror stories where courts have ordered super-expensive services, that's pretty rare. Schools, not parents, win most of the special-education court battles. After all, the city has whole teams of lawyers who do nothing all day but work on school disability cases.
Let's hope Judge Daniels is overturned. There's no reason to trap children in public schools that can't serve them just to prove the point that the public schools can't sent them. What's really draining money from school budgets isn't private disability placements, it's the malfunctions in the public system itself.
Jay P. Greene is a senior fellow at the
Manhattan Institute for Policy Research.
©2005 The New York Sun
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