Travis came to live at his ninth home the day before he started kindergarten. When his new foster parents, Elizabeth and Dan, enrolled Travis at their neighborhood public school, in a rapidly gentrifying neighborhood in Brooklyn, they learned that Travis was eligible for special-education services. (Some names in this story have been changed.) Several languages had been spoken in Travis’s past homes, which had included foster-care placements and homeless shelters, and he had not begun speaking until he was three and a half. A neuropsychiatric evaluation of Travis, conducted when he was four, estimated that he had a grasp of twenty words; it also noted that he still wore pull-up diapers and “tends to speak very loudly to his peers.”
Elizabeth noticed a line in Travis’s paperwork that read “Disability Classification,” and, next to it, the initials “E.D.” The school’s principal told her that they stood for “emotional disturbance.” Elizabeth and Dan, who later adopted Travis and his infant brother, Kieran, did not yet know that Travis had suffered abuse and neglect in previous homes. Nor did they know that Travis had been kicked out of two preschools for violent behavior. But, Elizabeth told me, “it was almost immediately apparent that he had aggressive and violent coping skills. That was how he interacted with the world, because that was how the world had interacted with him.”
That fall, when Elizabeth visited Travis’s kindergarten classroom for her first parent-teacher conference, one of the teachers gestured toward a comfy reading nook, piled with pillows. “See that calm-down corner? We built that for Travis,” the teacher said. Elizabeth, who is a stay-at-home mother, began receiving frequent calls about Travis acting out at school: tantrums, hitting other children, throwing books. A behavioral paraprofessional was assigned to Travis, but the incidents persisted. “We started getting calls like, ‘There’s a field trip coming up, and it would probably be best if Travis stayed home.’ Or, ‘Could he not come into school tomorrow? It would just be easier,’ ” Elizabeth said.
The educators at Travis’s school, Elizabeth said, “were pulling for us and really trying to come up with the best solutions. And yet Travis was, like, ‘Wait a second. I just got new parents yesterday. I’m in a brand-new home. I’m in this huge new school setting. What the fuck?! I’m not doing anything you tell me.’ ” Elizabeth went on, “His brain was not in a place to learn. His brain had other priorities: Am I safe? Where do I live today? Am I going to have the same parents when I get home?”
Five decades ago, the Individuals with Disabilities Education Act (I.D.E.A.) established that children who are categorized as disabled have the constitutional right to a “free appropriate public education.” I.D.E.A. entitles students to an Individualized Education Plan, or I.E.P., a legal document that is intended to guarantee additional supports to meet their academic needs; these might include smaller class sizes or speech, occupational, or physical therapy. I.E.P.s are agreed to each year, and they are often the products of protracted, even contentious negotiation between parents and school staff.
Travis’s previous foster family had approved a kindergarten I.E.P. for him at a different school; the family was allegedly abusive and later ceded custody of him. The plan mandated a class of no more than twelve students, but, at Travis’s new school, he was in a cohort of about twenty. At the meeting to determine Travis’s I.E.P. for first grade, he was turned down for occupational therapy. A school staff member also proposed reducing the number of his speech-language therapy sessions. In light of his disastrous kindergarten experience, Elizabeth was bewildered: “I thought, What is this kid’s education going to look like?”
In June of that year, a school social worker pulled Elizabeth aside. “She said”—Elizabeth lowered her voice to a whisper—“ ‘You know, you can do this thing where you sue the city. You can sue the D.O.E.’ ”—the Department of Education, now known as N.Y.C. Public Schools—“ ‘and get them to pay for a better school.’ I’m, like, ‘What? Why didn’t anyone tell me this?’ And she said, ‘Just try to find out about it.’ I’m, like, ‘Can you tell me about it?’ She said, ‘No, no, I’ve said enough.’ ”
In 1983, a couple in South Carolina requested that their daughter’s middle school evaluate her for learning disabilities. The school responded that the child, Shannon Carter, was merely lazy and indifferent, perhaps rather slow, and that it was up to her parents to motivate her to work harder. Two years later, Shannon, by then sixteen and in high school, was still struggling to read and had become severely depressed. A school psychologist finally determined that Shannon had dyslexia and A.D.H.D. Soon after, Shannon’s parents enrolled her in a private special-education school that their district had not approved, and sued for reimbursement of the tuition. In 1993, the Supreme Court unanimously ruled in favor of the Carter family, agreeing that the district had failed to fulfill Shannon’s right to a free appropriate public education.
The social worker who buttonholed Elizabeth about “suing” the D.O.E. was suggesting that she bring a “Carter case,” as these disputes are now known. A Carter case is launched when parents of a student with an I.E.P. file a due-process complaint under I.D.E.A., asking their district to pay for their child to attend a specialized private school. These schools, which serve children with learning, developmental, and social-emotional disabilities, typically charge between seventy and a hundred and fifty thousand dollars per year.
New York City’s public-school system has roughly a million students; about a hundred and eighty-one thousand of them have I.E.P.s, and there are thousands of Carter cases pending at any time. (Disclosure: I have two children enrolled in public school in Brooklyn, one of whom has an I.E.P.) Because federal law requires that I.E.P.s be reviewed annually, families typically must file due-process complaints for tuition reimbursement every school year, which puts additional strain on the system. If, say, a mother prevails in arguing that her autistic first grader is appropriately placed at a private elementary school, she may still have to retain an attorney, front tuition fees, and await an impartial hearing for second, third, fourth, and fifth grade.
Lately, the number of New York City’s Carter cases has soared. Last fiscal year, the D.O.E. spent nine hundred and eighteen million dollars related to due-process claims, which, in inflation-adjusted dollars, was more than double what it spent in 2015 and more than four times what it spent in 2010. (Roughly one in every forty dollars that the D.O.E. spends is related to due-process claims.) The increase was driven by the coronavirus pandemic and the prolonged school shutdowns that followed—many special-education students regressed while in isolation and could not meaningfully access support services through a Zoom screen. Meanwhile, the crisis of COVID-19-driven teacher burnout, which caused high rates of turnover and attrition, hit the special-education field hardest. And many kids struggled with anxiety, depression, and body dysmorphia after COVID hit. “Parents can’t believe that their bright, social, high-performing high schooler is no longer going to school, they’re having suicidal ideation, they have no friends,” Michelle Siegel, a special-education attorney in New York City, told me. Some of these students may need therapeutic residential placements, Siegel said, which the D.O.E. may also be obligated to reimburse.
Last August, David Banks, the N.Y.C. Public Schools chancellor under Mayor Eric Adams, railed against Carter cases at a meeting of his parental advisory council. “All this money that is meant for the kids in our public schools are going to private schools,” Banks said. “Folks have figured out how to game this system.” Special-education advocates were startled that the head of the nation’s largest public-school system would portray due process as a form of light embezzlement. “Most of my clients come to me as a last resort,” Jennifer Ratcliff, a special-education attorney in New York City, told me. “They feel forced into this situation, they are very stressed, and they desperately don’t want to be doing this.”
When Travis was about to start first grade, Elizabeth enrolled him in a fledgling micro-school for children with behavioral challenges stemming from autism, A.D.H.D., and trauma. The school’s founder, eager to reach a critical mass of students, offered Elizabeth and Dan a deep discount on tuition, but Elizabeth still had to liquidate her 401(k) to afford it. (Dan, who works in compliance at a financial firm, had to take money out of his plan as well.) The school was a ragtag, fly-by-night operation; more than once, various educators suggested that Elizabeth try homeschooling Travis. But she had baby Kieran at home with her during the day, and she didn’t think she could manage caring for him amid Travis’s “loud and scary outbursts,” she said. By second grade, Travis had moved to a breakaway special-needs micro-school, and Elizabeth had hired a lawyer to bring her first due-process claim.
After parents begin litigating for a private-school placement, the costs can pile up quickly. They may have to put up their attorneys’ fees and at least part of their child’s tuition as they wait for their case to be resolved through settlement or an impartial hearing, which can take many months to convene. If the decision is favorable, the family will likely wait several more months—or a year, or more—before they start to receive reimbursement. (The D.O.E. disputed this timeline.) Two decades ago, a class-action lawsuit, known as L.V. v. New York City Department of Education, was filed by parents who faced long delays after impartial-hearing orders determined that the D.O.E. owed them money or services; the suit is still ongoing. (There are a total of five lawsuits pending, either as class actions or seeking class-action status, that allege failures in how the city upholds special-education law, one of which, Jose P. v. Mills, dates back more than four decades.)
“The D.O.E. had no system—and still has no effective system—for implementing the orders,” Rebecca Shore, the director of litigation for Advocates for Children of New York, which is serving as co-counsel for the parents in the lawsuit, told me. A D.O.E. spokesperson said, in an e-mail, “We recognize the difficulties that can be created for families when it takes a long time for payments to be processed, and anticipate making significant improvements in turnaround time in the coming year.”
Elizabeth and Dan have prevailed in all of their due-process claims on behalf of Travis, who is now in sixth grade at a specialized private school. Despite their legal successes, the family has not been fully reimbursed for the boy’s tuition for three years, and they only recouped their tuition for the 2018-2019 school year in January. Currently, they pay five thousand dollars per month toward tuition. Elizabeth received an inheritance from her late father, which has helped cover this cost; she and Dan use credit cards to pay out of pocket for therapies for Travis and for Kieran, who is now six years old and diagnosed with autism. During the past five years, the family has fronted more than a hundred and seventeen thousand dollars for tuition, therapy sessions, and therapeutic summer camps for which the D.O.E. has not yet reimbursed them. (They are also out twenty-four thousand dollars in legal fees.) “We could have invested that money instead of letting the D.O.E. borrow it,” Elizabeth told me.
In the bizarro world of the D.O.E.’s due-process system, Elizabeth’s family is among the lucky ones. A stroke of good fortune came in the form of the social worker who gave Elizabeth furtive hints about her legal options—an act that may have borne some professional risk, several educators told me. “I would know in my heart that a kid needed more services, but it was really frowned upon to say so,” Sharon Wagner, a retired special-education teacher, told me. Wagner would encourage parents of these children to write letters to the school, and coached them on what language to use. “I’d catch them at dismissal and say, ‘Listen, don’t tell anybody I told you this, but . . .’ ”
Elizabeth was also lucky in that she had an inheritance to hand over, she and her husband had two 401(k)s to raid, and they are college-educated and speak English as a first language. Recently, the nonprofit news organization the City found that, throughout the five boroughs, the heaviest concentration of due-process settlements is in District Three, on the predominantly white and wealthy Upper West Side, where, in 2021, the D.O.E. settled nearly fifteen Carter cases per every thousand enrolled students. During the same time period, the agency settled 0.2 cases per thousand kids in District Twelve, in the South Bronx, where twenty-four per cent of students are Black and seventy per cent are Hispanic, and 0.5 cases per thousand in the Brownsville neighborhood of Brooklyn, which includes the school with the lowest reported community income in the city. (The D.O.E. acknowledged inequities in the system but said that these ratios did not portray them accurately.)
In December, Chancellor Banks announced that, as part of N.Y.C. Public Schools’ efforts “to make dramatic improvements to completely reimagine special education,” the agency would bolster its offerings for children with autism, sensory-processing challenges, and social-emotional disabilities, focussing first on under-resourced neighborhoods. In one pilot program, called Path, which launched in kindergartens in the Bronx, East Harlem, Far Rockaway, and Flatbush this year, children with I.E.P.s related to emotional disabilities learn alongside typically developing peers in a smaller-than-average classroom setting, overseen by two teachers, with support from a social worker and an occupational therapist.
When I recently visited a Path classroom, at P.S. 42 Claremont, in the Bronx, I kept thinking of how Elizabeth had described Travis’s kindergarten year, and how that year might have unfolded differently here. It looked like any other contemporary early-education classroom: clusters of tiny desks, a big interactive whiteboard, walls papered with brightly colored letters and numbers and animals. A closer inspection revealed the emphasis on social-emotional learning. One patch of classroom space was inspired by the children’s book “Have You Filled a Bucket Today?,” which encourages kids to track their acts of kindness. A sign asked “What Zone Am I In?” (Green was “ready to learn”; red was “out of control.”) Another prompt read “This Is How I Can Calm Down”; suggestions included breathing exercises and hugging a stuffed animal. The kids with I.E.P.s had personalized, cheerfully decorated binders kept up to date with the day’s lessons and worksheets; if a child started to feel overwhelmed in class, they could retire to a quiet corner with their binder. Zoë Wollheim Stampfel, one of the Path teachers at P.S. 42, told me, “It’s always in a spot where they can take it, or if they’re going to another classroom, it can act like a transitional object—‘This is something that is mine and that I have control over.’ ”