Statistically Significant Bias
We recently had a case regarding a student who withdrew from a NEST program in order to attend a private special education school. For those who don't know, NEST is a specialized program within the Department of Education (DOE) that is specifically intended for children on the Autism spectrum. The classes are all integrated co-teaching classes, and the teachers ostensibly undergo some proprietary professional development. NEST has long been considered the Cadillac of public programs for children with Autism.
When I began practicing, the conventional wisdom was that you simply couldn’t beat a NEST recommendation. Attorneys routinely advised parents that, if their kids were being considered by NEST, their best chance for tuition reimbursement would come from being rejected; once you were accepted to NEST, you pretty much had to go.
Over the years, however, NEST's reputation has been somewhat tarnished. We've received more and more inquiries from families who, after having attended NEST, have grown disaffected and decided to withdraw. Strikingly, many of these families are not merely concerned about their child’s progress but have affirmative complaints about the professionalism of NEST staff. In one instance, a child was allegedly physically injured by a paraprofessional.
The case that we're discussing today involves a student who had attended NEST for two years and was allowed to be severely bullied — to the extent that the mother was receiving phone calls from the nurse's office on a weekly basis because her son was claiming that he was too sick to remain at school. In reality, he was afraid of the bullying that he was receiving at the hands of other students who did things like pour water on his head, step on his fingers, and generally abuse him without repercussions. The parent repeatedly raised these issues with school staff and personnel, and they failed to intervene.
At the hearing, the DOE, in a very unusual show of force, produced no fewer than four witnesses, the most that we have encountered in years. These witnesses had quite obviously colluded to get their stories straight and unanimously denied that the student was bullied. Why? Because it’s only “bullying” when the victim is repeatedly picked on by the same bully each time. In contrast, our client was — according to them — being tormented by a rotating cast of characters; as such, it didn’t count. They even went so far as to blame our client, claiming that he brought it on himself through his poor social pragmatics and lack of body awareness!
The DOE’s witnesses even refused to answer legitimate questions following up on issues they had discussed at length on direct examination. They had been happy to talk about these issues in depth with their friendly DOE attorney, but when we sought to cross-examine them on the matters, they pled ignorance. The student's counselor even went so far as to say that the student's peer relationships were outside the scope of her work.
Inexplicably, the hearing officer bent over backward to accommodate the DOE's incredibly unprofessional and hostile hearing representative.
Despite the clear lack of witness credibility, the hearing officer ruled that all of the witnesses were credible: the DOE witnesses, as well as the parent witnesses, whose testimony quite thoroughly contradicted that of the DOE's witnesses.
We are taking a lengthy appeal on the issue. As we have examined in the past, studies have shown that the State Review Office has a statistically significant bias in favor of school districts. While this is an egregious case, the State Review Office's generous dealings with the DOE's representative — even granting unjustified extensions over our objections — have been a considerable indicator of their leanings. Nevertheless, we are very confident that this case will be resolved in our favor — we may have to take it to federal court, but we intend to win it.
As a new parent, this story was particularly disturbing. This kid is on the spectrum, which means he has difficulty interacting with his peers. Instead of saying, "Well, that's part of his Autism," the DOE’s witnesses — people who choose to work at a program designed for children with Autism — essentially stood alongside his bullies and called him a weirdo. They split hairs about this bullying, defining it as repeated targeting by a specific group of people where there is an imbalance of power present.
Say what you will about the kid’s classmates, but as for these NEST staffers? Their failure to act and intervene fits that definition precisely.
Watch this space for information on this appeal, or contact us for more details.
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY, 11201
Marc@GottliebFirm.com
(646) 820-8506