Full opinion text
Page I. Introduction 1213 II. Procedural History 1215 A. This Case 1215 B. Administrative 1216 1. State-Riley Reid Orders 1216 2. Federal 1218 III. Facts 1219 A. History of Special Day Schools 1219 B. Special Day Schools Today . 1221 C. Statutory and Organizational Framework 1224 1. Federal 1224 a. Education of All Handicapped Children Act 1224 b. Rehabilitation Act of 1973 1228 2. New York State 1230 3. New York City 1230 D. Diagnostic and Placement Procedures 1234 1. Generally 1234 2. Social Worker 1236 3. Educational Evaluation 1236 4. Psychologist - 1237 5. Psychiatrist 1237 6. Neurological Evaluation 1238 7. Case Conference 1238 8. COH Review 1239 9. Due Process Hearing 1241 10. Appeals 1241 11. Reexaminations 1242 E. Changes in Placement; Decertification 1242 F. Criticism of Procedures and Programs 1243 1. Lack of Unbiased Tests 1243 2. Lack of Regular Classroom Observation 1244 III. Facts — Continued F. Criticism of Procedures and Programs — Continued Page 3. Lack of Fixed Criteria for Placement 1245 4. Excessive Class Size 1247 5. Lack of Adequate Support Services 1248 6. Lack of Curriculum Extra-curricular Activities and Special Programs 1249 7. Lack of Use by Minorities of Private Institutions to the Same Extent as the Middle Class 1252 G. Explanations for Discrepancy In Percentage of Minority Students 1256 H. Mainstreaming 1264 1. Theory 1264 2. Alleged Lack of Consistent Use 1270 I. Supplementation of Record by Judicial Views 1271 IV. Law 1274 A. Right to Treatment 1274 1. Theory 1274 2. Students in Special Day Schools 1275 a. Due Process 1275 b. Equal Protection 1275 c. Statutory Rights 1277 B. Right to Due Process In Procedures 1278 C. Discrimination in Referral of Students to Predominantly White Private Facilities 1280 V. Application of Law to Facts 1285 A. Evaluation Process as Violation of Right to Treatment and Due Process 1285 1. Right to Treatment 1285 2. Due Process 1287 B. Special Day Schools as Violation of Right to Treatment 1290 C. Statutory Violations 1291 1. EHA; Rehabilitation Act of 1973; New York State Education Law 1291 2. Title VI 1292 D. Use of Private Facilities at Government Expense by Disproportionate Percentage of Middle Class 1292 VI. Defense of Lack of Funds 1292 VII. Conclusion 1293 Appendices A. Glossary of Abbreviations 1295 B. Additional Relevant Federal Statutes and Regulations [omitted] C. Additional Relevant State Statutes and Regulations [omitted] MEMORANDUM AND ORDER WEINSTEIN, District Judge. I. INTRODUCTION 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 enobling 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. II. PROCEDURAL HISTORY 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 tbe 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 i 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 a1. 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 111(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). III. FACTS 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- Ibid. 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 1964r-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 grpup 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: Total No. of Am. Other Span. Intermediate Schools Pupils Ind. BL Asian P.R. Surn’d Other P. 75Q (Queens) 79 49 20 10 P. 23Q (Queens) 199 142 35 19 P. 9Q (Queens) 102 71 17 14 P. 369K (Brooklyn) 131 113 16 1 P. 370K (Brooklyn) 151 105 24 21 P. 371K (Brooklyn) 128 61 55 10 P. 36K (Brooklyn) 85 48 30 7 P. 12X (Bronx) 76 49 24 3 P. 169M (Manhattan) 106 67 36 2 High Schools P. 8M (Manhattan) 320 201 110 5 P. 58M (Manhattan) 329 242 81 6 P. 85K (Brooklyn) 388 283 101 _4 Totals 2194 1431 549 102 11 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, tram script 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: . [Tjhere 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 seryices 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)(ll). 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 beriefit 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 discriminat