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June 2, 1978

Isaac LORA, as member of a class representing all Black and Hispanic students currently assigned to Special Day Schools for Emotionally Disturbed Students in New York City, et al., Plaintiffs,

The opinion of the court was delivered by: WEINSTEIN


Plaintiffs complain that their constitutional and statutory rights are being denied by the procedures and facilities afforded by New York City for the education of children whose emotional problems result in severe acting-out and aggression in school, behavior which may produce danger to others as well as themselves. These children often have severe academic problems. They have been placed in special day schools for the education of the emotionally handicapped. The schools utilize smaller class size, specially trained teachers and support staff, and special facilities, designed to provide a "generally therapeutic" atmosphere.

 Racial composition of the pupil population in these special day schools is 68% Black; 27% Hispanic; and 5% Other, primarily White (figures as of October 31, 1977). The high percentage of "minorities" in these schools is not a recent phenomenon; rather, a disparate racial composition has remained constant for nearly 15 years. The other major services for children with emotional disturbance, "classes for emotionally handicapped" (CEH classes) have a higher proportion, 20%, of non-minority students. Still higher is the proportion of Whites in the New York City public school equivalent grades: 36% Black, 23% Hispanic and 41% "other."

 Starting from this striking racial disparity plaintiffs have added extensive evidence supporting their thesis. They contend that the special day schools are intentionally segregated "dumping grounds" for minorities forced into inadequate facilities without due process. White students with the same problems, it is maintained, are treated more favorably in other settings. Defendants and their witnesses deny any racial bias. They point with considerable pride to the advantages afforded, at substantial taxpayers' expense, in an effort to bring these problem students into the mainstream of education and society.

 Laid bare by the dispute is one of the most excruciating issues of our democratic society. Almost every American agrees that the ringing words of the Declaration of Independence, "all men are created equal," mean at least that each person shall have an equal opportunity to develop and exercise his God-given talents. But many children born into deprived social, economic and psychological backgrounds lack the equality of real opportunity they would have had were their familial circumstances more fortunate. Unfavorable environment in such cases overwhelms favorable genes. To afford equality of opportunity so far as we can, we depend primarily on education. The free public system of education is the great equalizer, conceived to allow those born into the lowliest status the opportunity of rising as far as their potential talents, drive and luck will take them. But the system is and perhaps by its nature must be inadequate to lift fully the burden of poverty, of discrimination and of ignorance that so many of our children carry.

 Depressingly revealed by the record are some of the almost insoluble problems of educating certain of the products of this background the socially and emotionally maladjusted children who present a physical danger to themselves and others, who cannot learn and who prevent others from learning in a regular school setting. Yet the evidence before us also illustrates how talented and devoted school personnel, sympathetic to this group of children and operating under federal, state and local laws and regulations, can help even those who appeared beyond redemption.

 Hope for substantial improvements lies not in the courts but in the hands of those who control society's resources and of those who are trained and dedicated to use pedagogic and therapeutic arts. Nevertheless, since the matter has been properly placed before us for adjudication, we have, under our legal system, no alternative but to address the issues in their limited legal context. The dismal facts, the ennobling aspirations, and the encouraging portents for the future have been revealed by devoted and skillful counsel for both sides.

 At the time this suit was commenced in 1975, the plaintiffs could have demonstrated a violation of their rights by clear and convincing evidence. Since then, however, partly as a result of the litigation process itself, substantial improvements have been instituted by defendants. During the course of this law suit many of those charged with supervising the evaluation, placement and education of plaintiffs testified and were forced to face up to and justify shortcomings, and to modify the system as it was. For example, one day school for girls that the Court visited did not measure up to the standards enunciated by those in charge of the program. Partly as a result of colloquy between the Court and witnesses, the school was reexamined and closed. Developments on the administrative front, to be examined in more detail Infra, have also had an ameliorating effect.

 The preponderance of evidence still indicates a degree of deprivation of certain rights of some members of the plaintiff class. Yet the momentum for changes favoring plaintiffs' rights is now so strong that it cannot be said that a claim for powerful equitable relief has been substantiated. The energies of educators and therapists are best devoted to improving the education of the youngsters who need their help, rather than in litigating details of their educational practices. The record suggests that the extensive legislative and administrative regulations recently injected into the system will in due course provide adequate protections for plaintiffs. Time is needed for the educational system to absorb and adjust to the new legal standards. The case will not be dismissed but the remedies granted will be designed to have a minimal disruptive impact on personnel striving to meet plaintiffs' needs under difficult conditions.


 A. This Case

 The original complaint in this suit was filed in June 1975. The plaintiffs alleged violations of their rights under the Fourth, Eighth, Thirteenth and Fourteenth Amendments, as well as rights guaranteed by the Civil Rights Statutes, 42 U.S.C. §§ 1981, 1983, and 2000d (1974). Subsequently, the pleadings were amended to include claims under the Education of All Handicapped Children Act (20 U.S.C. §§ 1401 Et seq. (1978)) (EHA) and the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 Et seq. (1975)).

 A motion for class certification was denied by the late Judge Bruchhausen in January of 1976. In May of that year, the Court of Appeals for the Second Circuit ruled that the denial of class certification was not appealable. A request for rehearing en banc was denied in July and a petition for certiorari to the United States Supreme Court was denied in November. Subsequently, this court granted class action certification. The class includes all minority students who have been assigned to the special day schools.

 In January of 1976 plaintiff moved for a preliminary injunction aimed at termination of all student placement in the special day schools without a due process hearing. This motion was denied in March of 1976 and that denial was affirmed by the Second Circuit.

 In January of 1977, defendants moved for partial summary judgment on plaintiffs' due process claims and certain of their factual allegations. In addition, plaintiffs moved to compel discovery with regard to expert visits to Evaluation and Placement Centers and access to 50 diagnostic and referral files of non-party children. Defendants' motion for partial summary judgment was denied in all respects, but plaintiffs' motion to compel discovery was granted with special limitations to protect the privacy of the children involved. 74 F.R.D. 565 (E.D.N.Y.1977).

 After various amended and supplemental complaints, there are now six plaintiffs representing the class composed of all Black or Hispanic students who have been assigned to the special day schools. The defendants include various officials of the New York City Board of Education, including Board members and administrators, as well as principals of some of the special day schools.

 In their pre-trial brief plaintiffs alleged that the special day school system operates as an

institutionalized method to perpetuate a system of education in New York City, whereby Black and Hispanic children are isolated into a racially segregated school system which does not provide them with a "special" education.

 Plaintiffs' pre-trial memorandum at 5.

 Plaintiffs claim, first, that the referral and assignment of students to special day schools is based upon vague and subjective criteria and that the combination of processes, practices and policies has a racially discriminatory effect on Black and Hispanic children. This, it is alleged, constitutes a violation of 42 U.S.C. § 1983 as well as section 2000d of Title VI of the Civil Rights Act of 1964, prohibiting racial discrimination under any program or activity receiving federal financial assistance. Second, plaintiffs allege that they have been denied their rights to due process, equal protection and equal educational opportunity because they have been placed in special day schools with the natural and foreseeable consequences that they will be isolated within a racially segregated system which does not provide them with suitable facilities and instruction. Third, plaintiffs charge that defendants have violated their due process rights by (1) placing students in the special day schools without giving them the opportunity for prior hearings mandated by federal and state law and regulations and (2) failure to reevaluate students already in such schools as required by state regulations, with the result that those who may be ready to return to regular schools are not able to do so. Fourth, plaintiffs invoke jurisdiction under 20 U.S.C. § 1415(e)(4) of the EHA, claiming specific violations of due process rights provided by that statute. Finally, plaintiffs claim that the special day school program affords students only inadequate educational opportunity in violation of § 791 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 Et seq.) and its accompanying regulations prohibiting discrimination against the handicapped.

 This is essentially a constitutional and not a statutory case, involving racial discrimination and denial of educational rights. Defendants' strong reliance on exhaustion cases is, therefore, inappropriate.

 After extensive discovery, trial commenced on May 2, 1977, and ended on March 21, 1978. There were 49 witnesses, approximately 3900 pages of transcript and over 230 groups of documents admitted in evidence; final briefs consisted of over 600 pages.

 Since the inception of the suit before us, there has been considerable development on the administrative front bearing directly on the education of handicapped children in New York City, including those referred for special day school placement. The following brief summary illustrates the degree of administrative regulation of special education in the City.

 B. Administrative

 1. State Riley Reid Orders

 A series of orders issued by the New York State Commissioner of Education had its genesis in a federal court proceeding brought in 1971 on behalf of a class composed of all handicapped children in New York City. It was alleged that in violation of state statutory rights these children were not receiving appropriate educational services. Specifically, plaintiffs charged that they had not been examined sufficiently to ascertain the nature and severity of their handicaps, had not had the benefit of recommendations for appropriate educational placement, and had been placed on waiting lists for screening and subsequent placement without being provided adequate home instruction during the waiting period. The district court denied a motion for an injunction compelling the Board of Education to provide adequate and appropriate educational opportunities and granted defendants' cross-motion to dismiss. See Riley Reid et al. v. Board of Education of the City of New York, 71 C 1380 (S.D.N.Y.1971). On appeal, the Second Circuit held that the district court had properly abstained from deciding the constitutional claims prior to a decision by New York State authorities, but that jurisdiction should have been retained pending such a determination. 453 F.2d 238 (2d Cir. 1971).

 Petitioners then instituted proceedings before the State Commissioner of Education. In response an order was entered in November 1973. N.Y.Comm.Ed.Dec. No. 8742 (1973). The Commissioner found that although the named petitioners were receiving adequate educational opportunity, there were many children in the New York City school system whose educational needs were not being met. The controlling statute, former section 4404 of the New York Education Law, required special classes for handicapped children. It read:

The board of education of each school district in which there are ten or more handicapped children who can be grouped homogeneously in the same classroom for instructional purposes shall establish such special classes as may be necessary to provide instruction adapted to the mental attainments of such children from their fifth birthday until the end of the school year during which they attain their twenty-first birthday, or shall contract with the board of education of another school district, a board of cooperative educational services or a vocational education and extension board for the education of such children, under regulations to be established by the commissioner of education.

 See N.Y.Comm.Ed.Dec. No. 8742 at 119 (1973).

 The Commissioner noted the following deficiencies in the school system affecting handicapped children:

1. Undue delays in examinations and diagnostic procedures.
2. Failure to examine and diagnose handicaps.
3. Failure to place handicapped children in suitable programs.
4. Failure to provide available space and facilities for programs.
8. Incomplete or conflicting census data on the number of handicapped children residing in New York City.
9. Inadequate means of informing parents of the processes related to special education services, and inadequate plans for parent involvement in effective planning and decision-making regarding their children.
10. Suspensions of handicapped children from classes without adequate notice or provision for alternate educational services.

 Id. at 120.

 To correct these abuses it was ordered, among other things, that all students diagnosed as handicapped be placed immediately in appropriate public school classes or in private schools at public expense; that a plan be submitted to eliminate waiting lists for diagnosis and placement; that a plan be submitted for regionalization of the evaluation of handicapped youngsters; that a study of these students' needs and a plan to meet them be submitted; and, finally, that a plan be provided for notification to all parents and interested persons, in a language understood by them, of services available for handicapped pupils in the City school system. Id. at 121-22.

 Since 1973 the Commissioner has retained jurisdiction, policing the school system's handling of educational services for the handicapped and measuring its adequacy by applicable state statutes and regulations. In September 1977 additional relief was afforded. N.Y.Comm.Ed.Dec. No. 9499 (1977). In effect, the use of private facilities was required where there were delays in assigning handicapped pupils to special public facilities:

IT IS ORDERED that within thirty days after diagnosis or thirty days after the date of this order, whichever date shall later occur, respondents place in suitable programs those students diagnosed as having a handicapping condition; and upon failure to effect such placement, bear the expense of any private placement in a school, approved by the State Education Department for the purpose of contracting with school districts pursuant to the provisions of section 200.9 of the Regulations of the Commissioner, which offers an appropriate program for a child so diagnosed, at the option of the parent or guardian of such student; and
IT IS FURTHER ORDERED that pending my further order, respondents not transfer any handicapped child who is currently attending a private school under contract with the board of education to a program operated by respondents, unless the committee on the handicapped finds that the current placement is no longer appropriate; and
IT IS FURTHER ORDERED, that respondents submit by November 1 of each year a list of students receiving home instruction or exempted from instruction, and the reasons for such home instruction or exemption; and
IT IS FURTHER ORDERED that respondents submit a detailed plan, by January 2, 1978, setting forth respondents' proposed course of action to effectively eliminate delays and waiting lists in the diagnosis and placement of children with handicapping conditions, and that the respondents include in such plan specific procedures and techniques for handling fluctuations in referrals; and
IT IS FURTHER ORDERED that respondents submit by January 2, 1978 a comprehensive plan to meet the needs of all handicapped students on the secondary level; and
IT IS FURTHER ORDERED that respondents submit a report by January 2, 1978 of the means used, with sample copies of printed materials, to disseminate information concerning available services to all interested persons and to notify persons in parental relationship to handicapped children as to services available for such children; and
IT IS FURTHER ORDERED that jurisdiction be retained pending my further order.

 N.Y.Comm.Ed.Dec. No. 9499 at 11-13 (1977). Cf. 8 N.Y.C.R.R. § 200.5(c)(d) (1977).

 In October of 1977 a supplementary order required that all students diagnosed as handicapped and awaiting placement since September 2, 1977 be placed in suitable programs. N.Y.Comm.Ed.Dec. No. 9526 (1977). Failing such placement the City was required to bear the expense of appropriate private school placement. New York City is in the process of complying with these mandates. As will be noted in section III(C)(3), Infra, the expansion of the number of Evaluation Units, the shift of responsibility for placement from the Evaluation Units to the Committees on the Handicapped, the coordination of the Units and the Committees, and other changes have been made in part in an effort to comply with these orders.

 2. Federal

 In October 1977, the Office of Civil Rights of the Department of Health, Education and Welfare addressed a letter of findings to Dr. Irving Anker as Chancellor of the New York City Board of Education. It concerned the qualifications of personnel, the maintenance of facilities, the administration of discipline, and the availability of academic opportunities for students in the school system generally. These findings had been made in response to inquiries received by H.E.W. about the City school system from a variety of sources. The letter, originally issued in January 1977 and then revised by H.E.W., represented the findings of an eight month review of the system. It charged extensive illegal discrimination.

 With regard to the areas at issue in the present suit, the Office of Civil Rights found possible violations of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) prohibiting discrimination on the basis of handicap, as well as of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d Et seq.) prohibiting racial discrimination. Specifically, the Board of Education was criticized for an alleged failure to provide appropriate educational services to handicapped children in four respects: first, the excessive waiting lists for diagnosis reevaluation, and placement; second, a policy of dismissing, in certain instances, special education students earlier than the normal 3:00 hour, thus failing to provide these children with the full school day afforded other pupils; third, inadequate and improper evaluation and placement of handicapped students, due to subjective, non-validated standards, resulting in disparities existing in the special day schools; and, fourth, a lack of consistent mainstreaming or placement of students to the greatest degree possible in an educational environment with non-handicapped students.

 The Board of Education was given 45 days to respond to this warning by developing plans to bring the schools into compliance with the Rehabilitation Act and Title VI. In January of this year the Board offered a lengthy series of documents describing the various programs offered and recent changes which had been made in evaluation and placement of all handicapped children, including those referred for special day school education. The information closely parallels the evidence outlined in sections III C 3, D, E and G, Infra.

 Later that month H.E.W. replied declaring the Board's response inadequate to forestall findings of violations stemming from waiting lists and shortened school days. On the other points more specific information was requested. In March of this year, an administrative enforcement action was instituted by H.E.W. The parties are currently seeking to resolve their disagreements. See Letter of Agreement Between: The Board of Education of the City of New York and the Office for Civil Rights, United States Department of Health, Education and Welfare (June 23, 1978) (tentative agreement encompassing Board of Education commitments to resolve problems in special education provisions including those for the handicapped).


 Changing conditions of the special day schools and the involved procedures for referring students to them necessitate a synopsis of the evidence before us. We begin with a brief review of the history of the special day schools, followed by an overview of the schools at present. Next is an outline of the federal, state and local regulatory schemes developed to afford full educational opportunity for handicapped children. This is followed by a more detailed look at the procedure in New York City for referral to the special day schools, including a summary of problems with that procedure and with the special day schools themselves. We then consider the causes of behavioral and emotional problems suffered by the students referred to the special day schools, and, finally, review of the concept of "mainstreaming".

 A. History of Special Day Schools In New York City

 New York City has had limited school programs for the handicapped for at least seventy years. See D. Ravitch, The Great School Wars, New York City, 1805-1973, 190 (1974). By 1934 the Board of Education considered special education to be one of the most innovative and progressive aspects of the school system. Special schools, special classes and homebound instruction programs were established to meet the needs of mentally, physically and "morally" handicapped children. These programs included ungraded classes for the retarded, special schools and classes for the physically handicapped, and special "schools of opportunity for behavior problem boys who are unable to make a suitable adjustment in the traditional school." B. R. Gifford, "Legal Issues in the Classification of Handicapped Children in New York City," 8 (mimeo. 1977) (citations omitted). In the 1930's, Associate Superintendent of Schools Margaret McCoovey stated that special education was established "to give to every child an equal chance with his brother, and a chance to become a self-sustaining member of society." Id. at 9.

 The immediate antecedents of New York City's special day schools were the "600" schools. These schools were established in 1946 for the "education of children so severely emotionally disturbed or socially maladjusted as to make continuance in a regular school hazardous to their own safety and welfare and to the safety and welfare of the other pupils." The children referred to these schools were characterized as "defiant, disruptive, disrespectful and hostile to all authority." Report to the Superintendent of Schools, Board of Education of New York City, "600 Schools Yesterday, Today & Tomorrow," 1 (mimeo. 1965).

 The spur for the establishment of the "600" schools was the need to cope with aggravated gang-delinquency problems of the mid-1940's. The underlying purpose of the schools was to

provide a therapeutic educational program, non-punitive in approach, in which the antisocial, hostile and disruptive behavior would be molded and redirected through positive, constructive approaches toward more wholesome, socially useful and socially acceptable patterns of conduct.

 Id. at 2. The schools were seen as

rehabilitative centers where, through the joint efforts of clinical guidance and educational teams, these deviant children would receive new opportunities to participate in carefully planned activities and experiences that would lead to the kind of self-realization and achievements and insights necessary for one to become a personally and socially competent, productive citizen of our American democracy.


 Despite this admirable theory, the special day schools have been the subject of considerable criticism. In the 1950's and early 1960's a number of studies and reports recommended improvements and changes in the program. See Report to the Superintendent of Schools, Board of Education of New York City, "600 Schools Yesterday, Today & Tomorrow," 2-3 (mimeo. 1965).

 Some of the resulting recommendations were implemented. Others were postponed because of fiscal constraints. The conclusion of much of the extensive literature was that the schools were not fulfilling their obligation to provide a meaningful educational opportunity for the pupils assigned to them.

 In 1966, in line with a suggestion made in a 1964-65 report, the name of the schools was changed from "600" to Special Day Schools for Socially Maladjusted and Emotionally Disturbed Children (SMED schools). This modification was prompted by a desire to avert the stigma associated with assignment to "600" schools. Now that the term SMED has likewise been abandoned (see section III C 3, Infra ), the schools are referred to as Special Day Schools or Special Day Schools for Emotionally Handicapped Children. Unfortunately, however, the brand "600" is still commonly used, even by teachers. See, e.g., "U.S. Judge Visits "600' Schools, Finds Things Bad, and Good Too," New York Times, May 11, 1977, p. B3, col. 2. Much of the stigma remains. E. g. Testimony of Dr. Rachel Lauer, transcript at 1145; testimony of Dr. Kenneth B. Clark, transcript at 1624-25; testimony of Dr. Florence Halpern, transcript at 3097-98; deposition of Dr. Bernard Robert Grifford at 11.

 Criticism of the schools came to a head in 1965 when a group of parents and educators, led by the Reverend Milton A. Galamison, boycotted the special day schools in an effort to point up serious problems with the program. Populated overwhelmingly by minority students at that time as today, the schools were attacked as segregated. In addition, it was charged that they offered no useful academic curriculum and that the criteria employed in placing students in the schools were arbitrary. This lay group action did not bring any major improvement to the special day schools.

 From the mid-1960's on the schools have been criticized along several basic lines. First, the inadequacies of the programs provided in the schools, including insufficient support staff, physical plants and materials for instruction, have been noted repeatedly. Second, the referral process, which until recently did not require any clinical certification of students, has been attacked as inadequate and prone to misclassification. Third, failure to return children to regular schools, to the "mainstream," wherever possible, has been decried. Finally, because of the segregated state of the schools, it has been charged that they are a device for disposing of problem children with whom largely White middle class teachers are unable or unwilling to cope. J. D. Goldman, "Special Day Schools for Socially Maladjusted and Emotionally Disturbed Children, N.Y.C." (mimeo. 1973); A. Budnick and J. Andreacchi, "Day Schools for Disturbed Boys," in P. Berkowitz and E. Rothman, Public Education for Disturbed Children in New York City (1967); B. Mackler, "A Report on the "600' Schools: Dilemmas, Problems and Solutions" (mimeo. 1966); Report to the Superintendent of Schools, Board of Education of New York City, "600 Schools Yesterday, Today & Tomorrow" (mimeo. 1965).

 B. Special Day Schools Today

 Perceptions of those responsible for the program are quite different from those of its critics. The present special day schools have been described by proponents in the following favorable terms:

The Special Schools program is designed to provide a planned educational program with a concentration of supportive services for emotionally disturbed and socially maladjusted pre-adolescents and adolescents whose behavior patterns necessitate their placement in Special Schools. These behavioral patterns may range from the reactive to the psychotic. The programs are "tailored" to meet the educational, emotional, social and physical needs of the students. . . .
In addition to specially planned curriculum offerings, which include remediation in reading and mathematics, the programs include the supportive services of guidance and clinical personnel. . . . The aim of the Day Schools is to return pupils to the mainstream as quickly as is practicable or to provide guidance and terminal educational training whose rehabilitative value will make itself evident in preparing the adolescent for wholesome living, law-abiding citizenship and job adjustment. . . .

 Bureau for Socially Maladjusted and Emotionally Disturbed Children, N.Y.C. Board of Education, "An Overview of Programs," 1, 5 (1977).

 In New York City there are nine day schools for grades 5-8 and three for grades 9-12. P 8M, one of the high schools, is divided into two separate facilities, one for boys and one for girls; there is one principal for the two parts of the school. The schools, with numbers of registered students and ethnic breakdown as of October 1977 are as follows:


 Since there are well over a million pupils in New York City's public schools, the day school population represents about two-tenths of one percent of the total.

 Students generally attend day schools located away from their neighborhoods, sometimes in another borough. For the first 12 years of the program, all the schools were for boys. Livingston School for Girls (P 8M) was opened in 1958. Vanderbilt (PS 141K), a second girls' school, was established in 1973 in Brooklyn but was closed in the fall of 1977, because of the gross inadequacy of its physical plant.

 Children referred to the special day schools today have a history of aggression and disruption in their regular schools. Many suffer from an inability to suppress the desire for immediate gratification of their needs. Testimony of Dolores Goidel, transcript at 1941, 1962-63.

The child does not exhibit what is considered socially accepted behavior in a school. In other words, if I as a teacher, were to tell a child, to sit down and if he responded by uttering expletives, that is to be expected in the school. If the child responded by picking up a chair and throwing it at a teacher, that would be maladaptive and he would be better served in a special day school; (these are) management problems not so much . . . learning problems.

 Testimony of Helen Gritz, transcript at 2166-67.

 In a sense, these children who lash out in their frustration may be easier to socialize than those who react to their almost overwhelming personal problems by quietly withdrawing. Nevertheless, the behavior of children who act out physically causes their own learning to be thwarted and, given large classes and often over-burdened teachers, creates grave difficulties for other children in the regular school system.

 The purpose of the special day schools is not to offer academic programs which vary substantially from what the child would have available to him in the regular school. Rather, the schools are designed to change the method of learning, to focus on the individual needs of each child, to avoid unnecessary discipline and punishment, and to attempt to develop understanding and rapport between the students and staff. Small classes and Bureau of Child Guidance (BCG) and other support personnel are part of the program. The ideal is, in short, the creation of a total therapeutic environment in which the entire structure of the school is geared toward serving and helping each child.

 Also significant, according to defense witnesses, is the informal atmosphere of the day schools. All the principals who testified emphasized that they maintain an open-door policy, so that students have easy access to them should complaints and problems or the desire to share some experience arise. From the initial tour taken by each child and parent of the school, usually accompanied by the principal or guidance counselor, efforts are made to achieve a congenial relationship between the pupil and all levels of the staff.

 Almost all students in the special day schools are eligible for free lunch and breakfast on the ground of economic need. Eating together contributes to the "family" atmosphere described in the testimony. As one principal explained:

And what the school tries to do is be more than just a place of academic learning. Because that's only a very small part of it. We become and try to become and it works both ways, between faculty and students the family and the caring person which these children are looking for, and which they do not have. So what we develop is a school community. A community in the sense of the word that everybody cares for everybody else and everybody knows everybody else. And it is a family feeling. And as a slip of the tongue, very often we have teachers or students say, "I'm going home."
Home meaning school. Our students come in under great stress. A parent dies in the morning and the student comes to school. There is a murder the night before and the student is there. There are no clothes and the student comes in to be fed and clothed. It's home. And that is the essential of what makes the school a meaningful place for these students. And the academic learning is a part. It's one part of the total.

 Testimony of Dr. Esther Rothman, transcript at 2924-25.

 Several witnesses described this atmosphere in terms of providing milieu therapy. The testimony of a psychiatric social worker serving at two of the special schools is illustrative:

Q. Would you define the term milieu therapy?
A. I would feel that milieu therapy is any area of intervention in a patient or student's life which contributes to the therapeutic growth and healing of the patient. It could be through electives in a school program, it could improve parental groups meetings, PTA's, teacher conferences; it could be through subjects chosen any milieu which is therapeutic surrounding the initial aim of being in school if we are talking about school which is to educate.
Q. So, would it not be correct to state in any special ed environment where there is an effort made to change educational or other forms of behavior that as to any one of these environments one of the efforts would be to develop a milieu in which therapy takes place?
A. That would be a goal that would be desirable. . . .
I think population numbers are important too. The special students have small classes and small school populations which gives a much different milieu to the therapeutic process because it is a smaller school with small population.

  Testimony of Dr. Dorothy Kobak, transcript at 3335-37. Individual therapy for every child is not believed to be critical in providing a proper environment according to defense witnesses.

  Virtually all of defendants' witnesses testified that in New York City the day schools are essential, that to eliminate them would be a disservice, not only to the children involved, but also to the community as a whole. Dr. Rothman testified:

Q. What do you think might happen were there no day school program for the students who were currently going to your facility?
A. I think most of these kids would be in the streets. I think they would be heavily involved in crime and drugs. I think we would be putting them on the garbage heap.
Q. Do you see the need for a day school program of the type being operated by the Board of Education in the future?
A. I certainly feel that we will always need hospitals no matter how healthy a community we are. And I certainly feel we will always be we certainly need now special schools for those students who are extremely aggressive, who cannot be functioning in a regular school setting. . . .

  Transcript at 2972-73.

  New York City is not the only major urban school system which employs special schools as part of an educational program for emotionally handicapped children. In September, 1977 the New York City Board of Education conducted a survey of twenty-one school systems, requesting information on the use, if any, of a special school or center for such pupils. Of thirteen respondents, nine reported public special day schools for the emotionally disturbed and one contracted with private schools to provide this service to the public school population as needed. Plaintiffs' research on somewhat comparable school systems indicate that at least four major cities use resource rooms and special classes, but no special day schools, in handling the education of emotionally disturbed and socially maladjusted youngsters. These differences among school systems arise in part from considerable ideological disagreement among educators on the best way to deal with these problems. The peculiar nature of a given school system and the nature of the community from which it draws students are other factors weighed in choosing a particular special education framework.

  Plaintiffs, however, charge that the day schools, at least as presently operated in New York City, are serving little if any constructive purpose. One of plaintiff's expert witnesses, Dr. Kenneth B. Clark, observed:

. . . (T)here is no indication that if these were seriously . . . emotionally disturbed children what is happening in the school is related to their emotional disturbance in any positive way.
Now, the realistic answer to that criticism could be it would be too expensive to really have a serious program in special day schools for emotionally disturbed children that require special programs. If that is true, that it is too expensive, that very statement is an admission of a kind of a fraud. A sort of a hoax. You have SMED schools that are really places to put these children, but not really places to help them. And that is my judgment, and I think that we shouldn't permit this. . . .
I sincerely believe that if these schools were really doing a solid professional job of helping disturbed children you would not have this racial imbalance. . . . If these schools really were helping human beings and helping children, they would not be predominantly Black and Hispanic.

  Transcript at 1706-07

  C. Statutory and Organizational Framework

  Critical to an understanding of the present system are the federal and state statutes and regulations. They are relatively new. Their design is to ensure adequate educational opportunities for all handicapped children and to avoid discrimination in the guise of special educational placement. This is an area of rapid development and change. New York's system, described below, is in a state of flux as it moves towards compliance with federal and state mandated requirements many adopted since this suit was commenced in 1975.

  1. Federal

  a. Education of All Handicapped Children Act

  The primary federal statute, the Education of All Handicapped Children Act, 20 U.S.C. §§ 1401 Et seq. (1978) (EHA), represents the most recent statement of a strong federal policy favoring full education of all handicapped children. Congress first considered special problems involved in educating the handicapped in 1966 when it added Title VI to the Elementary and Secondary Education Act. P.L. 89-750. Title VI established the Bureau of Education for the Handicapped to function largely as a research center. In 1970, Congress repealed Title VI and created the Education of the Handicapped Act, P.L. 91-230, giving the Bureau of Education for the Handicapped power to disburse grants for studying and improving educational services for the handicapped. This funding was extended by Congress in 1973.

  In 1974, Congress amended the Education of the Handicapped Act. P.L. 93-380. This represented a major change in direction. The federal government moved beyond the role of catalyst for state activities and increased its involvement in the control and funding of education for the handicapped. P.L. 93-380 set forth detailed due process procedures required for the placement and evaluation of handicapped children and required states to create programs to identify, locate, and evaluate handicapped children. In addition, the new provisions required states receiving federal funds to maintain a policy of educating all handicapped children.

  Passage of P.L. 94-142 (EHA) in 1975 was meant to bring to fruition the plans and goals of the states required by P.L. 93-380. The report of the Senate Labor and Public Welfare Committee stated that EHA was designed to "carry these planning provisions into actual delivery of services." S.Rep.No.94-168, 94th Cong., 1st Sess. at 2; U.S.Code Cong. & Admin.News, p. 1427, (1975). Congress found that existing provisions had not had sufficient impact:

. . . (of) the more than eight million children (between birth and twenty-one years of age) with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving appropriate education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education.

  S.Rep.No.94-168, 94th Cong., 1st Sess., at 8; U.S.Code Cong. & Admin.News, p. 1432 (1975). Of the 1,310,000 emotionally disturbed children needing attention, over 1,000,000 or 82%, were unserved by special education.

  The final cost of such neglect is far greater than the expense of providing an adequate remedy. The burden is borne ultimately by the children, their families, their communities and society as a whole.

The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society.
There is no pride in being forced to receive economic assistance. Not only does this have negative effects upon the handicapped person, but it has far-reaching effects for such person's family. . . .
This nation has long embraced a philosophy that the right to a free appropriate public education is basic to equal opportunity and is vital to secure the future and the prosperity of our people. It is contradictory to that philosophy when that right is not assured equally to all groups of people within the Nation. Certainly the failure to provide a right to education to handicapped children cannot be allowed to continue.
Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe that their children will not be able to lead meaningful lives. However, over the past few years, parents of handicapped children have begun to recognize that their children are being denied services which are guaranteed under the Constitution. It should not, however, be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy. . . . The Congress must take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity. It can no longer be the policy of the Government to merely establish an unenforceable goal requiring all children to be in school. (It is necessary to take . . . steps) to ensure that the rights of children and their families are protected.

  S.Rep.No.94-168, 94 Cong., 1st Sess., at 9; U.S.Code Cong. & Admin.News, p. 1433 (1975).

  The aim of the statute resulting from this concern was:

to assure that all handicapped children have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.

  20 U.S.C.S. § 1401 at 442 (1976).

  For the first time, the exact nature of necessary services were defined; the terms "adequate" and "free appropriate public education" were given precise content, setting a standard which must be attained.

  The statute provides that:

(16) The term "special education" means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.
(17) The term "related services" means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children.
(18) The term "free appropriate public education" means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

  20 U.S.C. § 1401(16)(17)(18). This terminology represents a clear national commitment to meet each handicapped child's special needs in as integrated and complete a way as possible.

  "Handicapped children" are defined in the Act as those who are:

. . . mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, Seriously emotionally disturbed, orthopedically impaired, or other health impaired children, or children with specific learning disabilities, who by reason thereof require special education and related services.

  20 U.S.C. § 1401(1) (emphasis added). The federal regulations define "seriously emotionally disturbed" as follows:

(i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree which adversely affects educational performance:
(A) An inability to learn which cannot be explained by intellectual, sensory or health factors:
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) The term includes children who are schizophrenic or autistic. The term does not include children who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed.

  42 Fed.Reg. No. 163, 42478 § 121a.5(8) (1977).

  To assist the states in educating the handicapped, fiscal grants are made to them. The money helps initiate, expand and improve programs and projects designed to provide full educational opportunities to all handicapped children at the pre-school, elementary and secondary school levels. 20 U.S.C. § 1411(a). Grant eligibility standards require the states to establish "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). See also 20 U.S.C. § 1414(a); 42 Fed.Reg. No. 163, 42479 § 121.a(b) 7-8 (1977).

  Each state must develop a plan to assure that:

(A) there is established (i) a goal of providing full educational opportunity to all handicapped children, (ii) a detailed timetable for accomplishing such a goal, and (iii) a description of the kind and number of facilities, personnel, and services necessary throughout the State to meet such a goal;
(B) a free appropriate public education will be available for all handicapped children . . . .
(C) all children residing in the State who are handicapped, regardless of the severity of their handicap, and who are in need of special education and related services are identified, located, and evaluated, and that a practical method is developed and implemented to determine which children are currently receiving needed special education and related services and which children are not currently receiving needed special education and related services;

  20 U.S.C. § 1412. Moreover, the state must assure each parent and child adequate due process protections and each child's progress is to be periodically evaluated. 20 U.S.C. §§ 1412(2)(4)(5); 1414(a)(5). These features are discussed in more detail Infra.

  Of central concern to the legislature were practices and procedures which might result in misclassification of children or be discriminatory. Specifically, Congress aimed to ameliorate the following evils:

(1) the misuse of appropriate identification and classification data within the educational process itself; (2) discriminatory treatment as the result of the identification of a handicapping condition; and (3) misuse of identification procedures or methods which results in erroneous classification of a child as having a handicapping condition.

  S.Rep.No.94-168, 94 Cong., 1st Sess., at 26-27; U.S.Code Cong. & Admin.News, pp. 1450-51 (1975).

  To avoid such dangers and believing that constitutional rights to notice and hearing, as well as to equal educational opportunity, were at stake (See S.Rep.No.94-168, 94 Cong., 1st Sess., at 6; U.S.Code Cong. & Admin.News, p. 1430 (1975)) Congress provided for extensive due process guarantees whenever a change in educational placement is proposed, requested or refused. The input of parent and child in the classification decision is essential under the statute. An opportunity to challenge any placement decision is a necessary check against the possibility of abusive classification and inappropriate educational services.

  Pursuant to 20 U.S.C. § 1415(e) any party may appeal a decision concerning a child's placement or education to a United States District Court after exhaustion of the state administrative procedures without regard to the amount in controversy. The district court is entitled to hear additional evidence and review the record below, providing a De novo hearing to the parties. The court's decision is to be based upon a preponderance of the evidence and the court may grant such relief as it determines appropriate. See also § 1412(5).

  Aware that constant monitoring and reevaluation of pupils placed in special education programs is a necessary complement to these procedural safeguards, Congress created the "Individualized Education Program" (IEP), defined as:

(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

  20 U.S.C. § 1401(19).

  The IEP is designed to afford instruction to fit a child's unique needs. Any state applying for funds must

provide for procedures for evaluation at least annually of the effectiveness of programs in meeting the educational needs of handicapped children (including valuation of individualized education programs), in accordance with such criteria that the Commissioner shall prescribe pursuant to Section 1417 of this title . . .

  20 U.S.C. § 1413(a)(11). See 42 Fed.Reg. No. 163, 42490-91 §§ 121a.340-345 (1977). Reevaluation was viewed as "an extension of the procedural protections guaranteed . . . to parents of handicapped children . . ." S.Rep.No.94-168, 94 Cong., 1st Sess., at 11; U.S.Code Cong. & Admin.News, p. 1435 (1975). In addition, the regulations provide that a clinical reevaluation of every child in a special education program be made at least once every three years.

  Of further concern to Congress were the inadequate standards and materials used in the process of evaluating students for special education programs:

The Committee is alarmed about the abuses which occur in the testing and evaluation of children, and is concerned that expertise in the proper use of testing and evaluation procedures falls far short of the prolific use and development of testing and evaluation tools. The usefulness and mechanistic ease of testing should not become so paramount in the educational process that the negative effects of such testing are overlooked.

  S.Rep.No.94-168, 94 Cong., 1st Sess., at 29; U.S.Code Cong. & Admin.News, p. 1453 (1975).

  Finally, drawing upon contemporary sociological and educational thought, Congress wrote into the law a preference in favor of "mainstreaming", a concept discussed at greater length in section III(H), Infra. In order to be eligible for federal funding, a state, in addition to fulfilling the requirements already described, must have established

procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily . . . .

  20 U.S.C. § 1412(5)(B). See also 42 Fed.Reg. No. 163, 42497 § 121a.552 (1977).

  The detailed requirements set out in this federal statute take precedence over any local custom or statute. See, e.g. Stuart v. Nappi, 443 F. Supp. 1235 (D.Conn.1978).

  b. Rehabilitation Act of 1973

  The salient features of the EHA are echoed in regulations promulgated by the Department of Health, Education and Welfare in conjunction with section 794 of the Rehabilitation Act of 1973. 29 U.S.C. §§ 701 Et seq. (1975). Section 794 prohibits any discrimination against handicapped individuals:

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any programs or activity receiving Federal financial assistance.

  As originally promulgated, the Act focused primarily on assuring handicapped individuals vocational opportunities. But in order to assure nondiscrimination, steps must be taken prior to the actual hiring stage. Thus, in 1974, Congress amended the Act, broadening the definition of "handicapped" to extend beyond the employment context. The Senate report on the bill which contained these amendments acknowledged the importance of special emphasis on education of the handicapped:

It was clearly the intent of the Congress in adopting section 503 (affirmative action) and section 504 (nondiscrimination) that the term "handicapped individual" in those sections was not to be narrowly limited to employment (in the case of section 504), nor to the individual's potential benefit from vocational rehabilitation services under titles I and III (in the case of both sections 503 and 504) of the Act. . . .
Section 504 was enacted to prevent discrimination against all handicapped individuals, regardless of their need for, or ability to benefit from vocational rehabilitation services, in relation to Federal assistance in employment, housing, transportation, Education, health services, or any other Federally-aided programs. Examples of handicapped individuals who may suffer discrimination in the receipt of Federally-assisted services but who may have been unintentionally excluded from the protection of section 504 by the references to enhanced employability . . . are as follows: Physically or mentally handicapped children who may be denied admission to Federally-supported school systems on the basis of their handicap ; handicapped persons who may be denied admission to Federally-assisted nursing homes on the basis of their handicap; those persons whose handicap is so severe that employment is not feasible but who may be denied the benefits of a wide range of Federal programs; and those persons whose vocational rehabilitation is complete but who may nevertheless be discriminated against in certain Federally-assisted activities.

  S.Rep.No.93-1297, 93d Cong., 2nd Sess.; U.S.Code Cong. & Admin.News, pp. 6388-89 (1974) (emphasis added).

  For the purposes of subchapters IV and V, which involve areas not necessarily employment related, the Act now covers "handicapped individuals", defined as:

. . . any person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment.

  29 U.S.C. § 706(6). H.E.W. has noted that:

With this amended definition, it became clear that (the Act) was intended to forbid discrimination against all handicapped individuals, regardless of their need for or ability to benefit from vocational rehabilitation services.

  H.E.W. Regulations, "Supplementary Information," 42 Fed.Reg. No. 86, 22676 (1977). See 42 Fed.Reg. No. 86, 22678-79 § 84.4 (1977).

  Regulations promulgated under this section require, among other things, that every handicapped individual be provided with an appropriate education by recipients of federal funds. An "appropriate education" is the "provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons . . ." Schooling must, in addition, meet requirements closely paralleling those of the EHA. Section 84.34 of the Regulations provides that a recipient of federal funds should provide for education for a handicapped individual in the least restrictive setting possible, I. e., afford education, where feasible, with persons who are not handicapped. Section 84.35, dealing with evaluation and placement, requires that testing be administered by adequately trained personnel and that tests with more than a single intelligence quotient be used. In making placement decisions no one criterion or single individual's opinion is to be decisive. Section 84.36 requires recipients of federal funds to establish and implement procedural safeguards including "notice, an opportunity for the parents or guardians of the person to examine relevant records, an impartial hearing with opportunity for participation by the persons's parents or guardian, representation by counsel, and a review procedure." 42 Fed.Reg. No. 86, 22682-83 (1977).

  These requirements reflect the same philosophy and concerns manifested in the EHA. This identity of purpose is specifically recognized in section 84.36 of the regulations providing that "compliance with the procedural safeguards of section 615 of the Education of the Handicapped is one means of meeting this requirement (of due process guarantees)." 42 Fed.Reg. No. 86, 22683 (1977).

  The significance of the Rehabilitation Act regulations is that they make the requirements of specially tailored programs, non-discriminatory evaluation and placement, and due process applicable to an institution receiving any federal funds. New York City schools receive substantial amounts of federal funds.

  Recent cases have found violations of the Rehabilitation Act where a) a mentally retarded patient received less than adequate treatment in a state institution (Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295, 1323-24 (E.D.Pa.1978); and b) a mildly handicapped child was excluded from the regular classroom without a bona fide educational reason (Hairston v. Drosick, 423 F. Supp. 180, 184 (S.D.W.Va.1976)).

  2. New York State

  Article 89 of the New York Education Law (McKinney 1978) deals with the education of children with handicapping conditions. See generally V. Garfinkle, "Recent Developments in the Law on the Education of Handicapped Children in New York State" (unpub. paper for Columbia Law School Seminar on file in this case) (1978). New York's laws have been recently amended to reflect federal requirements and the concern that previous laws had provided "an inequitable and often ineffective system of meeting the basic educational needs of many of our children." Governor Carey's message approving 1976 amendments, McKinney's 1976 Session Laws of New York, 2448-49 (1976).

  State law defines the "handicapped child" as:

a person under the age of twenty-one who is entitled to attend public schools pursuant to section thirty-two hundred of this chapter and who, because of mental, physical Or emotional reasons can receive appropriate educational opportunities from special services and programs . . . .

  N.Y.Educ.Law § 4401(1) (McKinney 1978) (emphasis added).

  The clear purpose of Article 89 is to assure that all handicapped children, including those suffering from problems faced by plaintiffs in this suit, be treated similarly for purposes of free education. In Matter of Jessup, 85 Misc.2d 575, 379 N.Y.S.2d 626 (Family Court, City of New York 1975), New York City was directed to pay school tuition costs for the petitioner's emotionally disturbed son pursuant to the New York State Family Court Act. The court noted that the State Education Law was amended in 1967 to eliminate the distinction between physical and other handicaps and to make explicit that children handicapped for "emotional reasons" were to be included. "The purpose was to provide a simple definition which (was) intended to cover all handicaps, whether physical, mental or emotional." Id. 379 N.Y.S.2d at 630 (citations omitted).

  The board of education or trustee of each school district is required by statute to furnish "suitable educational opportunities for handicapped children" through special services or programs to be determined by the "need of the individual child." N.Y.Educ.Law § 4402 2.a. (McKinney 1978).

  Responsibility for identification and servicing of handicapped children is entrusted to a Committee on the Handicapped (COH) consisting of clinical staff educators and the parent of a handicapped person in each local district. N.Y.Educ.Law § 4402 1.b.(3) (McKinney 1978). It evaluates each handicapped child annually and recommends an appropriate educational program. 8 N.Y.C.R.R. § 200.3(b)(5) (1977). Also considered by the COH are claims that a modification or change in identification, evaluation, educational placement or provisions of free appropriate public education is not acceptable to the parent or guardian of a pupil. 8 N.Y.C.R.R. § 200.3(b)(4) (1977).

  In order to facilitate prompt attention to the needs of all handicapped children the regulations require determination of a child's eligibility for a special educational program within 60 days. 8 N.Y.C.R.R. § 200.5(d) (1977). Detailed procedures are set out in the statute and regulations for challenges to placement. N.Y.Educ.Law § 4404 (McKinney 1978). They include appeals from the COH decision to an impartial hearing officer, review by the state Commissioner of Education, and appeal to the courts. Ibid. Similar protections are afforded for changes in placement. 8 N.Y.C.R.R. § 200.5 (1977).

  3. New York City

  Under New York City's partially decentralized school system primary responsibility for all pre-school, elementary and middle school programs for "normal" children those who can be effectively educated solely in regular classes is lodged in local community school districts. N.Y.Educ.Law § 2590-e (McKinney 1978). High school programs for such pupils are the responsibility of the central City Board of Education. N.Y.Educ.Law § 2590-h (McKinney 1978).

  Programs for handicapped children, regardless of age, are administered by the New York City Board of Education through the centralized Division for Special Education and Pupil Personnel Services (DSEPPS). N.Y.Educ.Law § 2590-h (McKinney 1978). Through six bureaus DSEPPS currently organizes and administers 31 discrete instructional programs for the handicapped on the basis of categories defined by the nature and severity of the handicapping condition.

  The only exception to this organizational framework is in the Bronx where recently there has been established a pilot program for regional administration of special education services. Regionalization presents a departure from the bureau-based approach of dividing children into specific handicapping categories. The goal of this experiment is to provide an amalgamation of services to deal with multiple handicaps. According to John Reehel, recently appointed Director of Special Education, Regional Administrator for Bronx County, the hope is to increase the effectiveness of services for children with multiple, overlapping handicaps, and to facilitate administrative efficiency in the consolidation of transportation, supplies and supervision. Transcript at 462. The Bronx project involves approximately 9,000 children in classes affording a range of services including hospital schools for pregnant teenagers, multiple handicap centers, itinerant services, BCG clinical services and evaluation units. The process of evaluation and placement for emotionally disturbed children described below has not, however, been materially altered in the Bronx.

  The special day schools with which this suit is concerned are under the control of the Bureau for the Education of the Emotionally Handicapped (BEEH). This represents a recent change in terminology. Before the summer of 1977, BEEH was known as the Bureau for Education of Socially Maladjusted and Emotionally Disturbed Children (SMED Bureau). Similarly, the day schools were known as SMED schools (a change from the term "600" schools, which as indicated in Part III A, Supra, had developed a bad connotation); these schools now are merely referred to as special day schools. Nomenclature changes reflect an effort to avoid strict categories, as well as the stigmatization of exceptional children. This is representative of a nation-wide trend away from narrow categorization of children according to perceived deficiencies.

  The least restrictive programs for emotionally handicapped children are resource rooms in the regular school. The spectrum then ranges through special classes in the regular school to the special day schools, juvenile centers for children held pending adjudication of their cases by the Family Court, detention centers for children who are awaiting disposition of other courts or are on parole, and residential institutions.

  The resource rooms and special classes treat children whose problems most closely resemble those of the special day school population. The resource room program is designed "to serve children who cannot function productively in their right classes for a continuous school day." N.Y.C. Board of Education, "Resources in Special Education and Pupil Personnel Services in New York City Public Schools," 27 (1974). These are pupils who become frustrated at the regimentation and discipline in most large classes. Some have periodic blow-ups; others need more time or different teaching methods to learn essential skills, are too easily distracted by the group, or have fallen so far behind in academic achievement that they have lost contact with their class and abandoned all effort. The resource room program is administered by a special education teacher who, aided by a para-professional, serves the children for limited periods during the school day, in cooperation with the regular class teacher.

  The special classes for the emotionally handicapped (CEH classes) are of two types. "A Centers" serve children found by authorized clinicians to have profound emotional handicaps. They are established on elementary, junior high and secondary school levels. The children exhibit such characteristics as thinking disorders, bizarre behavior and severe emotional crises. "B Centers" serve children who have been clinically diagnosed as having a moderate degree of emotional handicap, preventing them from functioning up to their potential in regular classes in the public elementary, junior high or secondary schools.

  Students in both "A" and "B" program have average or above average intellectual capacity, no major neurological defect, and the ability to profit from group experiences without damage to themselves or others. N.Y.C. Board of Education, Division of Special Education and Pupil Personnel Services, Bureau for Socially Maladjusted and Emotionally Disturbed Children "An Overview of Programs," 2-3 (1977). Although in theory the special classes are a less restrictive environment than special schools with self-contained facilities, various witnesses testified that they are not really "more mainstreamed" than a special school. E. g., testimony of Dr. Dorothy Kobak, transcript at 3340-41; testimony of Dr. A. Tannenbaum, transcript at 3618. Distinctions between students referred to CEH (B) classes and those in the special day school will be explored in section III F 3, Infra.

  In carrying out its function the BEEH utilizes the services of DSEPPS's Bureau of Child Guidance (BCG). This is the mental health service agency for the New York City public school system. The BCG is composed of licensed school psychiatrists, school social workers, school psychologists, and school mental health workers. They provide a range of services including (1) individual, group, family and educational therapy; (2) consultation services to guidance counselors, administrators, teachers and other school personnel concerning individual troubled children, mental health issues in the classroom, school management and adaptation of the curriculum and teaching methods to the special needs of referred children; and (3) coordination of activities with community-based mental health and social service programs for troubled children.

  BCG professional teams are used by regular and special day schools. Effective October 1977 each school district was to be assigned, as a minimal team, a BCG program supervisor, two social workers, and two psychologists. Priorities with regard to allotment of BCG services within a district are developed by the BCG program supervisors along with the community school board superintendent.

  Prior to September 1976, primary responsibility for the identification, psycho-diagnostic evaluation and educational placement of emotionally handicapped children rested with the BCG. In September 1976 referral procedures were altered and the screening and placement functions lodged in DSEPPS's Office of Evaluation. It maintains evaluation units (EUs) staffed by learning disability specialists, speech and language therapists, psychologists, social workers, psychiatrists, pediatric neurologists, guidance counselors and paraprofessionals. The EUs continue to utilize the services of BCG personnel to augment their own staff in the evaluation process.

  The EUs were formerly known as evaluation and placement units. At present, as required by recent modifications in the state law discussed in section III C 2, Supra, and Appendix C, the district COH is responsible for placement; hence the change in name from evaluation and placement unit to EU.

  There are now twenty-six EUs. Eighteen serve districts with populations of between 24,000 and 40,000 children. Each is staffed by a unit coordinator who is an administrator and usually has a license in special education, psychology, social work or guidance; three psychologists; three social workers; five special education teachers trained in educational evaluation; and support and clerical staff. There are, in addition, eight modified units, serving smaller districts with pupil populations of below 24,000. Each of these smaller units operates with a staff of two social workers, two psychologists, and four educational evaluators along with support and clerical help. There are thirteen psychiatrists whose services are spread among all the units.

  The EUs evaluate children referred to them primarily by the students' regular schools. The professionals at the center assess the need for, and type of special education appropriate in a given case. According to the testimony of Elaine Thompson, assistant to the director of the EUs, the units have a psycho-educational, as opposed to a purely clinical, orientation. The intent of the shift of responsibility for evaluation and for placement recommendations from BCG staff to the EUs was to focus less on the clinical defect of the child and more on his educational style and his learning strengths and weaknesses. Transcript at 1745-55. The EU, therefore, includes an educator and social worker as well as "the more old-fashioned clinical medical team." Transcript at 1755.

  EUs use a variety of techniques to avoid cultural and racial bias:

The Evaluation Unit uses a pluralistic model of education and assessment in its diagnoses and placement recommendations. This is done by not limiting oneself to test data alone in the decision process. Information obtained from the parent is included. Comparisons are made between the child being evaluated and the other children in the family, using Social Maturity Scales. Activities of daily living are included in these scales in addition to social maturity. The Evaluation Unit's decision-making process likewise reaches out into the classroom. In essence, the evaluation process is one of broad scope encompassing numerous parameters. This model is in accord with the generally accepted educational philosophy as is evidenced by the following statement from a special report issued by the Center for Advanced Study in Education: The Graduate School and University Center of the University of New York (New York Regional Resource Center):
A pluralistic model of education and assessment has been offered as an alternative to current practices. . . . This model recognizes the cultural diversity within our population, so that children are assessed within the context of their own culture. The norms of that sub-culture would be considered before inferring the child's "deviance" i. e. sub-normality . . . Information concerning the socio-cultural background of a pupil, daily behavioral observations, and an evaluation of the child's "adaptive behavior" in the non-school environment, would be used as evidence of the child's coping abilities and competence. . . .
Under a pluralistic model of education the tests as well as the criterion measures which they are designed to predict would be re-evaluated and expanded to encompass a multi-dimensional view of intelligence. The failure of the schools to educate children from different cultural backgrounds has not been recognized as a failure of our school system but has been attributed to the inherent deficiencies of non-dominant cultural groups. In the present social context of the U. S. the great power of the middle class has rendered differences into deficits because middle class behavior is the yardstick of success.

  N.Y.C. Board of Education, "Response to Inquiry of H.E.W. Office of Civil Rights," Issue V p. 4 (mimeo. 1977) (citations omitted).

  As a result of another recent structural change, each of the City's 32 school districts now maintains a COH composed of a school psychologist, a teacher or administrator of special education, a school physician and a parent of a handicapped child residing in the school district. See N.Y.Educ.Law § 4402 (McKinney 1978).

  The COHs are responsible for seeing that pupils are diagnosed and provided with a program appropriate for their needs. They are also supposed to conduct an annual review of students in special education programs and to assure that triennial reevaluation of these students takes place as required by the federal regulations promulgated under the EHA.

  Some of these structural changes were mandated not only by state and federal statutes and regulations but also by order of the New York State Commissioner of Education in In The Matter of Riley Reid, N.Y.Com.Ed.Dec. No. 8742 (1973); No. 9526 (1977). As noted in section II B 1, Supra, the Commissioner found that handicapped children were receiving inadequate services in New York City, caused by, among other factors, excessively long waiting lists of pupils for evaluation for special education services. He ordered that these "unserved" children be attended to quickly. They have, therefore, been given priority for service from the EUs. According to established goals, the full size units are to complete 80 evaluations per month and the smaller units, 60 per month. A portion of these will be the triennial reevaluations of students already in special education programs.

  Whether the EUs have been able to comply with the Commissioner's orders is unclear from the evidence presented. One EU supervisor testified that students could be on waiting lists for as long as five months. Testimony of Dr. Gerald David, transcript at 2095. Another witness testified that the average waiting list was at least two to three months. Testimony of Margaret Whelan, transcript at 3521. However, in answer to H.E.W. charges that excessive waiting lists constituted inadequate educational service for handicapped students, the Board of Education has explained that the concept of waiting lists is misleading, since the same students are not always on the lists. Moreover, there is apparently in effect a DSEPPS plan designed to reduce waiting time per child and to attend to all children "at the earliest practicable time." In addition to expansion of EUs and the shift in responsibility for placement from the EUs to the COH, the plan places EUs and COHs in common facilities. This enables them to share resources and administrative time. Furthermore, it calls for collection of statistics on the number of children evaluated, placed and awaiting diagnosis, and implementation of resource rooms so that moderately handicapped children can remain in the mainstream with supportive service and need not be referred for evaluation in the first place. N.Y.C. Board of Education, "Response to Inquiry of H.E.W. Office of Civil Rights," Issue V pp. 5-7 (mimeo. 1977). Nevertheless, criticism of the backlog in EU work continues despite substantial efforts to increase their size, number and efficiency. See Touche Ross & Co., Report, "Business Review of Division of Special Education and Pupil Placement Service," 3-7 (1978).

  D. Diagnostic and Placement Procedures

  1. Generally

  Procedures for identifying emotionally disabled students are initiated when a teacher, counselor, or BCG case worker at a regular school finds that a pupil manifests bizarre, maladaptive, disruptive or aggressive behavior. A standard referral form is used to request evaluation for possible placement in a discrete special education program. The form requires a description of the problem and evidence that substantial attempts have been made to resolve it without special services. A DSEPPS directive requires that before a referral for possible special education takes place the regular schools are to exhaust every resource, including class transfer, BCG services, community agency referral and parental involvement, in an effort to keep the child in the mainstream. Memorandum To: Community School Board Chairpersons, Community School District Superintendents, All Principals, DSEPPS Bureau Directors/Program Coordinators, Assistant Directors, Supervisors, Chairpersons of the Committee on the Handicapped, Department of Health Personnel, Principals/Administrators of Non-Public Schools; From Helen M. Feulner, Executive Director, DSEPPS, II 2.1, (Oct. 7, 1977). Any referral must be approved and signed by the principal of the regular school. There is, in addition, a requirement that parents consent, in writing, to any referral for evaluation. Testimony of Delia Duggan, transcript at 3431.

  Referral may also come from parents or from outside agencies which have seen the child privately. Most of the referrals, however, come from the regular public schools. Testimony of Dr. Gerald David, transcript at 2016. The City has recently instituted a federally sponsored "Child Find Project" to help identify children who need special education services. Information is disseminated through newspapers and advertisements in order to encourage parents to come to the City Board of Education and determine whether their child needs help. This procedure encourages referrals from sources which would not normally come to an evaluation unit, agency or hospital. In its first year of operation the project has reportedly found and referred 900 children. Transcript at 1805-06.

  The COH logs all referrals, reviews the form and any accompanying reports made by outside agencies or individual professionals, and then sends them to an EU. The New York State Commissioner of Education requires every evaluation for placement in a special education setting to be accompanied by a diagnostic work-up composed of reports by a social worker, psychologist or psychiatrist, and educator. 8 N.Y.C.R.R. § 200.3(d) (1977).

  If all of the required components have been provided by outside professionals, are sufficiently current (three years or less from date of referral), and a professional recommendation for placement has been made, the file need not be forwarded to an EU. Rather, the case will be reviewed directly by the COH as if the full EU work-up had been completed. There are no specific standards given to outside specialists for use in their recommendations, but agencies which recommend placement are ordinarily provided with information about available Board of Education programs. It is assumed, according to defense witnesses, that private professional reports are sufficiently standardized in format and approach so that they need not be duplicated by the EU team. E. g., testimony of Joyce Coppin, transcript at 2536-38.

  Middle class parents are more apt to take advantage of these outside evaluations than are others. This follows in part from their ability to afford private consultations and from greater familiarity with, and initiative in using, community resources outside the school system.

  Present procedures for initiating evaluation are relatively new. They are designed to guard against prejudgment of a child by teachers and other personnel insufficiently trained in special education and to forestall any tendency to use referral to a special school or class as an escape by teachers who find it too difficult to deal with behavioral deviance or disruption. Thus the referral forms do not distinguish between special education programs.

  According to the testimony of Helen Gritz, coordinator of the Bronx Regional Office for Special Education, some old forms which called for teacher recommendations for placement in a special day school prior to any evaluation, are still in use. The policy of the EUs is to ignore such prejudgment. Transcript at 2163-64. Moreover, several of the EU coordinators testified that should an inordinate number of referrals come from a particular school, the personnel responsible would be contacted in an attempt to determine whether sufficient efforts are being made to solve problems within the framework of the regular school. See, e.g., testimony of Dr. Gerald David, transcript at 2083, 2108-09; testimony of Dolores Goidel, transcript at 1974-75. In sum, there is an effort to guard against excessive and improper referral for possible special education placement.

  Once the EU has received a referral, its coordinator reviews the referral form, along with any documents containing outside work-ups, in order to determine which members of the evaluation team must see the child. Written notice is then sent to the parents so that examinations and interviews for a period of two days or more can be scheduled. Each child does not necessarily see every member of the team. This depends on the extent and currency of the data in the file.

  Accompanying the notice sent by the EU to the parents is a Parental Consent and Waiver of Confidentiality Form. It explains that information about the child's condition will be discussed by professionals in the course of the evaluation process and it apprises the parents of the opportunity to meet with the COH to discuss recommendations and to present additional information. The child's parent or guardian must consent by signing the form before any evaluation takes place.

  If the parent, for whatever reason, does not sign the consent for evaluation the child must remain in the regular school or wherever else he might be at the time. In extreme cases, where it becomes obvious that the parent is ignoring the child's welfare, an EU member may institute proceedings before the Bureau of Child Welfare with a view to court proceedings charging neglect. Testimony of Delia Duggan, transcript at 3429-30. Cf. 8 N.Y.C.R.R. § 200.5(a)(2)(i)(ii) (iii) (1977).

  The requirement of written notice to parents prior to referral and evaluation represents another recent change. Before July 1976, although some schools may have had a policy of requiring parental consent prior to any referral for evaluation (transcript at 1848-49), there was no requirement of written notice and consent at this stage. The new form is executed in compliance with state laws promulgated to conform to the EHA. Testimony of Elaine Thompson, transcript at 1849.

  A directive issued by DSEPPS, effective October 1977, requires that parents be advised by school personnel and chairpersons of the COHs and EUs of procedural due process rights with regard to placement of students in special education programs, the parents' right to withdraw their child from an evaluation process at any time, and that information received prior to and subsequent to a referral will be shared with the professional responsible. Although, as noted above, the EU does send the parents a waiver form containing some of this information, there was, before the trial was concluded, no single, relatively simple written document issued to parents at this stage by either the EU, the referring school, or the COH, which explained the entire process, including a discussion of due process rights and exactly how to obtain a hearing or to appeal. But see reference to a subsequent change in section VII, Conclusion, Infra ; section III D 8, Infra.

  Once the child and parents arrive at an evaluation center they are seen by members of the evaluation team. The process is best described by considering the functions of each of these professionals.

  2. Social Worker

  The social worker serves a variety of functions in the evaluation process. First, she meets with the parent at the initial EU session. She checks the basic data already in the file and attempts to establish rapport with the parent. It is the social worker who is primarily responsible for explaining the due process rights of parent and child. The parent is given a booklet, prepared by the State Education Department, entitled "Your Child's Right To An Education A Guide For Parents of Handicapped Children In New York State." One of its purposes is to describe methods of challenging any determination on special education placement. The social worker is also instructed to describe to the parents the evaluation process and to determine whether special education placement would be acceptable to them.

  A brief history is obtained. It includes an educational background of the child and his developmental background and family circumstances. The social worker will try to discover any immediate influences on the child that may influence his reactions, such as whether there have been any recent traumatic experiences, and whether he had an adequate night's sleep before coming to the center. Finally, following the case conference, at which a placement decision is made it is the social worker who again contacts the parents to discuss the findings.

  3. Educational Evaluator

  The educational evaluator assesses the child's learning strengths and weaknesses in an attempt to discover his mode of learning. He tries to pinpoint the cause of the youngster's difficulties and discern how he can best be taught.

  The evaluation always includes an "individual" session during which examination of visual, auditory, motor and academic areas is conducted. Most of the educational evaluators have backgrounds in learning disabilities or in speech and language pathology. Achievement tests, distinct from those given in regular schools, as well as learning disability tests are administered. If the child has speech and language disabilities, language developmental and speech articulation tests may be included. Supplementing these formal tests are tasks which the educational evaluator will ask the child to perform and informal observations of the child's reactions to the process itself. The individual session normally lasts two to three hours.

  Usually, there is also a "group aspect" of the evaluation, during which approximately eight children of the same age are brought together in what is known as the diagnostic classroom. The purpose of this session is to observe how the child interacts with his peers and how he relates to authority in a group situation. Here, too, the children will be given various tasks to perform. The amount of time spent by the child in the diagnostic classroom may vary according to ...

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