Just reading about
what Michelle Fraser had to do to get her son Jacob the special education
services he needed and to which he was entitled under state and federal law is
exhausting. To actually do what she did is a true testament to strength, resilience,
and most of all a mother’s love for a son who is autistic, has epilepsy and is
unable to speak.
It happened year
after year after year after year after year after year after year after year
after year – every year from at least 2015 through 2023. The New York City
public school system would deny Jabob the special education he needed and
propose an alternative. Each year, Michelle Fraser would check out the school
system’s proposed alternatives. One year, she even checked herself out of a
hospital after major surgery to visit a school which, it turned out, didn’t have
what Jacob needed – and didn’t have an opening for Jacob anyway.
Each year, Fraser
would appeal to an independent hearing officer. Each year, she would win her
case. Jacob would get the education he needed to thrive. Until the next school year, when it would
start all over again.
Apparently, this
proved tiring for the school system, too.
But they had a secret weapon: The Administration for Children’s
Services, New York City’s family police agency. They allegedly filed a
blatantly false report. The allegation against the mother who fought so hard to
get her child an education: educational neglect.
But Fraser wouldn’t
back down. Even in the face of the investigation, which traumatized the entire
family, Fraser kept fighting. And now, she’s the plaintiff in a lawsuit
brought by the Family Justice Law Center and two private law firms, Orrick,
Herrington & Sutcliffe LLP, and Peter Romer-Friedman Law PLLC.
Though Fraser is
the named plaintiff, the lawsuit isn’t just about her case, because Fraser’s
family is not the only one put through this hell. The lawsuit alleges that
staff from the city’s Department of Education
are reporting
parents of students with disabilities in retaliation for their advocacy—to
intimidate or coerce “difficult” parents into dropping their concerns about
special education services or requests for placement in a different school.
Even a former ACS
attorney has said:
“If schools don’t get the parents to agree to
what’s being recommended—not all the time, but sometimes—they will call ACS to
pressure them.”
And indeed,
according to the lawsuit, in Fraser’s case,
Defendants
reported Plaintiff to the [New York State child abuse hotline], falsely and
maliciously alleging that her son had not been attending school for years.
Later, the reporter told an ACS caseworker that she had actually called the
[hotline] because the “stalemate” with Plaintiff had “been going on too long”
and her supervisor “wanted ACS involved.”
This kind of
behavior has been well documented for years in news accounts from, among
others, The 74 and The Hechinger Report. And not just in New York. The Hechinger
Report stories document cases in Illinois as well as New York. Searchlight
New Mexico documented the problem in that state. And the Boston Globe documented
how such charges were used to harass families during the COVID pandemic - but
not all families.
Many states don’t
even include “educational neglect” in the jurisdiction of their family police
agencies. And, indeed, as far back as 2009, the respected Vera Institute of
Justice said it should be drastically curbed,
if not abolished, in New York as well.
What is different
now is that, thanks to the Family Justice Law Center and its partners, families
can fight the entire regime of retaliation.
What the lawsuit
tells us about ACS
Though ACS itself
is not a defendant in the case, the lawsuit also reveals a lot about that
agency’s failure, on several fronts.
● First, ACS has
refused to seek the state legislation that could have allowed it to refuse to
be a party to DOE’s retaliation scheme. In New York, the state runs the child
abuse hotline, but localities do the investigating. That creates a huge
incentive for the state hotline to funnel b.s. reports on to the localities –
making it someone else’s problem.
One partial
solution would be to allow localities to do their own screening, something that
already happens for most cases in Pennsylvania, which has a similar system.
But ACS has refused to ask the state for permission to
do the same. Perhaps it just prefers to be able to pass
the buck and say “the state made us do it” in cases like that of the Fraser
family.
● Second, ACS is
fond of touting its version of “differential response” known as CARES. These
cases supposedly get a kinder, gentler approach. It’s not an investigation, they say, it’s
just an “assessment.”
When there’s a
full-scale investigation, caseworkers ask children about the most intimate
details of their lives, let everyone the family deals with know they’re under
investigation for child abuse and search every room in their homes.
Let’s go back to
the lawsuit Complaint to compare that to the Fraser case – which was assigned
to the CARES track.
Plaintiff
received a call from her daughter, who was upset and said there was a strange
man walking around outside their home.
Plaintiff then
discovered she had a voicemail from an ACS caseworker, Nikunj Patel. He was
investigating a report that her son had not been attending school.
Plaintiff
immediately returned home with her son. Mr. Patel was still outside the house. Mr.
Patel demanded to see every room in the house, including private outdoor areas
where Plaintiff’s son liked to spend time as well as the bedrooms of both of
Plaintiff’s children. He also said he needed to see the children’s medical
records.
The
caseworker’s visit was very upsetting for Plaintiff’s son and caused him to cry
in distress and retreat outside while the caseworker was in the home.
Although this
baseless ACS report concerned only Plaintiff’s son, the caseworker also
interrogated her daughter, a competitive student athlete, with invasive
questions about her family home, whether she felt undue parental pressure to
engage in sports, and whether her mother ever yelled at her.
After the visit,
Plaintiff called the head of her daughter’s school, officials at the YMCA that
hosts her son’s school program, and her children’s doctors to alert them that
ACS may be contacting them, after the caseworker told her that he would be
calling people who regularly interacted with the children. She felt embarrassed
to have to tell people that she was being investigated for child neglect, and
she experienced constant anxiety while the investigation remained pending.
After a
comprehensive investigation that included the home search and conversations
with the children’s schools, doctors, and father, ACS found that no child abuse
or neglect had taken place and raised no concerns about the children’s welfare.
ACS closed the investigation. [Emphasis added.]
Fraser’s daughter told the Daily News
how it had all affected her:
“I walked into
school I think days later,” said Mia. “All I could think to myself was, I don’t
want this to become a public thing. I don’t want my friends to know. I don’t
want my teachers to know.”
Years later,
Mia, now 16, is more open about the experience — but she still thinks about the
trauma that it caused.
“I did mention
it in one of my college essays,” she added. “One of my drafts was about the
incident, and how all I could think about in the entirety of the situation was,
what’s going to happen to my brother?”
But hey, at least
it was just an assessment and not an investigation, right?
Still, the
“assessment” did lead to one useful bit of information. Again, from the lawsuit
complaint:
During an
initial call, the ACS caseworker asked the psychologist the reason for not
reporting Plaintiff’s son’s absence from school until June 2023, if he had not
been in school since 2016.
The caseworker
documented the psychologist’s response: that Plaintiff “has taken legal action
against DOE, she has constantly requested Re-evaluations, and Impartial
hearing” and that Plaintiff has a legal background and “is very by the book,
and strict in her speaking.”
Another failure
for the “training” panacea
No matter how much
harm family police do to families, no matter how egregious their behavior, they
will insist everything can be fixed with “more training.” They’ve been saying
that for decades, and during that time, the child welfare surveillance state
has grown to its current massive proportions.
Yet both ACS and
DOE insist that the harm done to the Fraser family and so many others can be
fixed with more training. Let’s return to the lawsuit complaint to see how
that’s working out:
Defendant DOE
has acknowledged that educators have been overreporting to the [child abuse
hotline]. Since the report against Plaintiff, DOE has begun work with ACS to
develop a training module indicating that reports to ACS in retaliation for
advocacy are unlawful and encouraging staff to check their biases and connect
families with services. …
OK, let’s just stop
there. DOE says its employees need special training to know it’s against the
law (not to mention morally wrong) to call in a child abuse report as an act of
retaliation? Really?
The training
material also informs DOE employees that “Just because you disagree with a
parent’s decisions or actions does not mean a child is being abused or
maltreated.” And the new material reminds employees that there is an actual DOE
regulation prohibiting retaliation.
However, as the
Complaint points out
There is no
evidence to indicate that the updated guidance and trainings have resulted in a
decrease in retaliatory reports from educators against parents who advocate for
services. Indeed, upon information and belief, some DOE employees have
continued to retaliate against parents who advocate for their children with
disabilities even after DOE began training staff in fall 2023 that “a call to
the SCR is an option of last resort.”
No, training isn’t
going to do the job. But a hefty damage award in this lawsuit might.
