New York City is home to some of the world's worst public schools for children with special needs, places that warehouse students in chaotic and unsupportive environments. A growing number of affluent families have successfully sued the city on the grounds that these schools are so bad that taxpayers should pay to send their learning-disabled children to elite private institutions instead. It's a de facto private voucher system that is largely inaccessible to poor families.

What if the city were to provide all families with school choice, so that even disabled kids from poor homes could get an excellent education?

The status quo is the source of enormous inequities: Upper-middle-class parents are able to work the system to get the very best for their kids. But who can blame them?

Faith Retali, who asked that we use a pseudonym in this story to protect the privacy of her family, is a single mother of three boys. She lives in Bay Ridge, Brooklyn. In the third grade, her oldest son was diagnosed with dyslexia, attention deficit disorder, and severe anxiety.

"From second to third grade, he was vomiting every single morning before going to school," she says. The city recommended that she send him to a public school that specializes in serving children with disabilities. When she took a tour, she was horrified.

"You could see the students in the back of the classroom talking, disrupting," she says. "One teacher came out in the hallway and started yelling."

Although she couldn't afford the tuition, she enrolled her son in one of Brooklyn's premier private schools for children with learning disabilities. To cover the annual cost of about $45,000, she sued the city on the grounds that it had failed to provide him with an appropriate public option as required under the 1975 Individuals with Disabilities Education Act.

When her second son also turned out to have learning disabilities, Retali again sued the city to cover private school tuition. Now she's about to do it again for her youngest.

Annual city spending on private school tuition for learning disabled children was $244.1 million last school year, according to data obtained from the New York City Department of Education (NYC DOE) through a Freedom of Information Law request. That's up from $103.6 million in the 2009–2010 school year.

The city spent $55,049 on tuition for each of the 4,435 learning disabled children attending private school on the city's dime last year. That figure is likely to keep going up because settlements between parents and the NYC DOE have become more generous since Democratic Mayor Bill de Blasio took office in 2014.

David Bernstein, a publishing executive who lives on Manhattan's Upper East Side, toured some of the special education programs within the public system after his then-12-year-old daughter started experiencing crippling anxiety.

"These are places where they no longer send kids who are on an academic track," says Bernstein. "And they're no longer on a therapeutic track."

So he and his ex-wife sued. Now his daughter attends a boarding school for kids with emotional and psychological difficulties, and the city covers the entire tuition bill of $138,000 per year.

"I guarantee there are kids sitting in some of these warehouse schools who would benefit from being in the same environment my daughter is in," says Bernstein.

Though it works out well for the minority of parents able to sue, the city simply can't afford to send every learning disabled kid to private school at an average cost of $55,000 per pupil.

"It is draining hundreds of millions of dollars from classrooms that desperately need those resources," says Eric Nadelstern, who served as the second-highest ranking education official under former Mayor Michael Bloomberg, an independent whose administration fought back against families suing for private school tuition.

Though Nadelstern acknowledges that the city's special education offerings are lacking, he says that "diverting resources to a few is not a solution to the problem."

"This is not an option that parents are just happily deciding to do, they're doing it because they really feel their children need this," says attorney Alexandra Hindes, who works at the Law Offices of Neal Rosenberg, a firm that handles about 1,000 cases a year of this sort.

She says that if the system did a better job educating kids with special needs, her clients would gladly send their kids to public schools. But in the 15 years she has worked on this issue, "there haven't been significant changes that would bring parents back to the system."

Although a handful of nonprofits, such as Advocates for Children, can help needy families navigate this process pro bono, suing is out of reach for most parents without resources. "It required the ability to navigate this legal maze of stuff," says Bernstein. It cost money to hire "high-powered" lawyers and consultants. Many families don't even know such suits are an option.

The biggest obstacle is that the process often involves fronting the money for private school tuition while waiting for the lawsuits to be settled or adjudicated. Bernstein had to put up about $40,000 before the city started reimbursing him.

"It had to be borrowed and scraped together from pennies in the couch," says Bernstein. "Most people don't have the ability to raise one-tenth of that amount of money."

Suing school districts to pay for private school for learning disabled kids happens all over the country, and it's a practice that's been affirmed by U.S. Supreme Court decisions in cases originating in Burlington, Massachusetts; Florence, South Carolina; and Forest Grove, Oregon.

But it's a deeply flawed system. How can we provide poor families the same quality services without bankrupting municipalities?

One approach would be simply to give parents the money for private school without requiring that they sue. There are currently 13 states with special education voucher programs, some of which base the amount students receive on the severity of their disability.

Charter schools are another solution. While private vouchers are anathema to New York's progressive political establishment, the city has a robust charter school movement, and there's a push within that sector to better serve learning disabled students.

Democracy Prep Pathways, a charter school program in Harlem that serves 32 middle-school kids with learning disabilities, is part of that effort. The school has a 3-to-1 staff-to-student ratio and a full-time speech and language pathologist. And it serves students at a price point where the city could afford to serve many more learning disabled students—not just those lucky enough to come from families with the wherewithal to sue. Per pupil spending at Democracy Prep Pathways last year was about $33,590, compared to the $55,000 the city spends to send the average learning disabled student to a private school.

"I'm not saying there's no private institution that would be able to deliver what Pathways has delivered, but what I've seen is tremendous," says Richard Charlton, the father of a 12-year-old named Rachel whose learning disabilities stem from the fact that she was born at just 23 weeks. Charlton and his wife, Shakeria, had no idea that they could sue the city for private school tuition.

Whether it's through the real estate market or through hiring top-notch lawyers and consultants, middle-class parents have always managed to get great options for their kids. What the school choice movement is really about is extending that same privilege to everyone else.

Reason is a proud media partner of National School Choice Week, an annual event promoting parents and students' ability to have greater options in K-12 education. Go here to get more information about events and data about how increasing school choice—charters, vouchers, educational savings accounts, and more—is one of the best ways to improve education for all Americans. For a constantly updated list of stories on education, go to Reason's archive page on "school choice."

Written, produced, shot, and edited by Jim Epstein. Production assistance from Ian Keyser.

Photo of Michael Bloomberg, Credit: Bryan Smith/ZUMA Press/Newscom

Photo of Michael Bloomberg, Credit: Edward Reed/Mayoral Photography Office

"Modum," "Silence," "Curtains Are Always Drawn," by Kai Engel. Used under Creative Commons License.

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