“Educational neglect”: When education bureaucrats and the family police team up to traumatize a family

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.