My name is Michael Mulgrew, and I’m the President of the United Federation of Teachers (UFT). On behalf of the more than 190,000 UFT members, I would like to thank Chairperson Rita Joseph and all the members of the New York City Council’s Committee on Education for holding this important hearing on meeting the needs of all students with disabilities in New York City schools. Having been a teacher of many students with Individualized Education Plans (IEPs), I understand the value in providing individualized attention and services to our students with special needs. These are some of our students who are most affected by the pandemic and, as educators, we have a legal obligation to ensure that students with disabilities continue to receive a free appropriate public education (FAPE).

Unfortunately, the city Department of Education (DOE) has now been out of compliance with federal and state requirements for educating these students for more than 15 years. Some progress has been made on their Special Education Compliance Assurance Plan (CAP), which was developed by the state in May 2019 in response to the city’s prior history of failure to effectively serve students with disabilities across the district. While these improvements have been highlighted in the annual data reports on Special Education that the DOE is required to provide to the City Council, we continue to hear from parents and educators that our students and their families are still struggling to get access to the services that they need and are entitled to receive.

One key factor in this failure to serve our students’ needs is a lack of adequate school funding. We continue to advocate for reforming, or perhaps scrapping, the current Fair Student Funding (FSF) formula, which does not provide our school communities with adequate funding for special needs students, and as a result fuels draconian budget decisions. As we called for in our testimony in May, the DOE should immediately revise the Fair Student Funding formula to increase the current per-student weights for students in need of academic interventions, students with disabilities and English language learners, and to provide additional funding to schools that have large concentrations of high-need students and therefore require additional funding to provided mandated services.

In addition, the current funding weights for self-contained classes compared with Integrated Co-Teaching (ICT) classes in the Fair Student Funding lead principals to avoid creating self-contained classes even when students really need the more intensive support and when their IEPs call for a self-contained classroom. These weights drive placement decisions by incentivizing ICT classrooms due to their much higher weighting and the flexibility to use 40% of the FSF funds allocated to them elsewhere. In middle and high schools, there are also staffing issues because teachers must be certified in both content areas and special education.

In the long term, a commitment to examining the costs and benefits of the per-student funding model and other aspects of the Fair Student Funding formula is urgently needed. We feel it is particularly urgent that school funding be sufficient to hire the number of teachers required to provide students with disabilities and English language learners with their legally mandated instruction and classes. That’s true regardless of the total number of students expected to be enrolled who require a particular setting within a school or grade of a school — every student needs and deserves their mandated services. Given the challenges faced by schools with the highest concentrations of high-need students, we believe that pupil-based weighted funding may not be the best or most equitable manner for addressing these students’ needs.

In the meantime, however, the district must move more quickly toward complying with the protections for students with disabilities that are already in place. In their Compliance Assurance Plan document released in May 2019, the New York State Department of Education found that “NYCDOE has multiple outstanding findings of noncompliance involving the requirements to ensure proper procedural safeguards to students and parents, and the provision of programs and services to preschool and school-age students with disabilities” and warned that the DOE’s response to these violations over the past thirteen years had “not resulted in the systemic change necessary to sustain compliance and/or scale-up effective approaches to ensuring compliant policies, procedures, and/or practices in the identified areas.” Specifically, the state found that despite the legal requirement to do so, NYC DOE:

• “Fails to provide a free appropriate public education (FAPE) to students with disabilities, aged 3 through 5,”
• “Fails to provide a free appropriate public education to students with disabilities, aged 5 through 21,” and,
• “Fails to provide parents access to adequate due process after a complaint has been filed, fails to provide access to due process data, fails to ensure access to mediation, and fails to provide prior written notice.”

The DOE responded with a timeline and action steps with a goal of “working toward full compliance in every area,” but parents, educators and students have continued to come to the UFT and to other advocates with concerns that real improvements are still not happening and that it is difficult to get information about the changes being made.

Similarly, the improvements to providing special education direct services and related services required by students’ IEPs that were promised in the district’s response to the CAP have not happened quickly enough to meet the urgent needs of our students. This urgency was only increased with the impact of the pandemic in New York City, as we and others have heard consistently throughout the past few years that many special education students were struggling to receive their mandated services, and that the Special Education Recovery services promised for students in the past school year were inadequate to meet students’ increased needs. Specifically, we have heard there is a lack of oversight of administrators who are tasked with programming special education teachers and ensuring that students receive services. In some especially concerning examples, we have been told that administrators have directed members to change students’ IEPs to suit their budget and to “phase out” the self-contained classes that are called for in students’ IEPs.

Another current and very timely issue is the DOEs failure to address how special education “fits” in the new reading and dyslexia initiative. Currently, special education receives many of the struggling readers as students with learning disabilities or speech and language disabilities. How will the evaluation process change? Is the DOE moving to a response to intervention model for identifying students with learning disabilities? What will be the role of our school psychologists in determining if a student has dyslexia? (To date, the only sure way to get dyslexia in an IEP has been to produce an expensive ($3,000-$5,000) neuropsychological evaluation. Where do current IEP Intervention teachers fit in this scheme? How will the DOE change the current mindset of school administrators and staff that screening students at risk for dyslexia equals a special education referral? We have for months pressed the DOE’s Office of Special Education to meet with us about these issues. It would be very helpful for the Council to press the DOE on these immediate and important issues.

We also urge the Council to hold the District accountable for providing special education services to some of our city’s most vulnerable students − the very young children who are part of our pre-K programs; the students who attend our alternative education programs, such as transfer schools in District 79; and the students with the most intense special education needs who are part of District 75. With regard to preschool, the foundational problem dates back to the DeBlasio administration, since Pre-K for All shamefully never included students with disabilities. We are hearing from schools and educators that the current problems with special education for pre-K students lie in staffing and compensation issues (especially in nonpublic schools), and while the DOE has been increasing the number of public school preschool classes and placements, it is happening too slowly.

Similarly unacceptable practices around the failure to provide effective special education services in District 75 were recently reported on in the Daily News, leading Mayor Adams to state that the high-need students served in that district “have been betrayed for years in education and we have normalized that betrayal.” The lack of effective busing and transportation services for our special education students has been a particular area of concern for many years, especially for our District 75 students who require special transportation assistance and accommodations. As you may remember, the DOE promised and promised to get busing in place for special education recovery, but never did so.

This was nothing short of tragic for District 75 students, many of whom could not benefit from remote instruction and/or related services. In community schools and high schools, students received what the school was able to put together rather than services to match what were often very deep needs. The DOE should have offered families compensatory services developed at annual reviews or sooner as soon as students returned to school. Extensive federal guidance told them this was their responsibility. So did we. They resisted. Now, after the Los Angeles Unified School District was called out by the U.S. Department of Education’s Office for Civil Rights for its very similar response, the city DOE has seen the light and is implementing compensatory services this year. A federal lawsuit on the issue filed by Advocates for Children was dismissed at the district court level, but is on appeal and has garnered quite a number of amicus support briefs. We urge the council to hold the DOE accountable for its continued failure to provide services in this area.

Finally, the shift toward the use of new OATH (Office of Administrative Trials and Hearings) officers as full-time special education hearing officers in December 2021 was one we had pushed for in order to help address the significant backlog in special education case hearings that existed in prior years. We have heard this has resulted in significant improvement in the number of unheard cases. However, we believe greater transparency around this process and an assurance that the backlog will not recur are both important.

In conclusion, we call for greater oversight by the DOE to ensure full compliance with our students’ special education mandates, as well as the full funding necessary for schools to carry out this compliance and an intense push for the recruitment and hiring of additional special education teachers and other support staff. We urge the Council to require the DOE to immediately make these goals a greater priority. We also urge the Council to demand transparency and accountability from the DOE in publicly reporting on its progress toward meeting the requirements of the CAP and moving forward with urgency and efficiency to finally provide our city’s students with disabilities with the education they deserve.

Our students with disabilities are among those who are the most vulnerable and the most affected by our current public health crisis. As educators, we take very seriously the legal mandate we uphold to provide our students with disabilities with a free appropriate public education. This is why I am here today to ask for your support, as our allies in government, in addressing the issues I mentioned. Working together, I know we can make this challenging time easier for our students, their families and our educators. We owe that to them.