A group of parents are arguing that the New York City public schools are failing to provide adequate education and resources for their children with disabilities who are experiencing “school avoidance” in a federal class action filed this week.
The lawsuit, filed Tuesday in the U.S. District Court for the Southern District of New York against the New York City district, alleges that schools are not properly identifying and supporting students who are school-avoidant due to social or emotional disabilities, like severe anxiety and depression. School avoidance, also known as school refusal, means students have severe discomfort or fear about attending school or remaining there for a complete day of classes.
The filing comes as, nationally, schools are grappling with a wave of chronic absenteeism, made worse by the COVID-19 pandemic. Mental health challenges have soared for adolescents, more of whom report feelings of sadness and hopelessness. Though schools have increased mental health services in recent years, they’ve faced headwinds of shortages of mental health professionals and inconsistent funding. Meanwhile, special education has likewise been hard-hit with staffing shortages and retention woes.
Lawyers believe this could be the first class action on school avoidance.
In New York City, the lawyers representing the families argue that chronic absenteeism has increased in the nation’s largest district by nearly 10 percentage points since before the pandemic, to 31.7 percent of students missing 10 percent or more of school for both excused and unexcused reasons during the 2023 school year. It was higher for students with disabilities—where nearly half (46 percent) were chronically absent in 2023. One reason for the high absenteeism rate is school avoidance.
“It is fundamentally an equity access issue,” said Jeffrey Metzler, a partner at Pillsbury Winthrop Shaw Pittman, one of the firms representing the plaintiffs. “There’s reports all the time about the rise in mental health concerns with adolescents. Schools need to adapt to that rise and provide access to students.”
In a statement, a New York City district spokesperson said the school system is committed to reducing barriers for attendance and providing resources to students experiencing school refusal. They have invested in school-based attendance teams and professional development for staff.
“We know that this is an issue among our most vulnerable students, including students with [individualized education programs], and as such, we provide instructional supports, paraprofessional services, and mental health services based on students’ individual needs,” the spokesperson said.
School avoidance causes ‘cascading effect’ for families
The complaint calls on the city’s schools to implement a process that identifies, evaluates, and establishes a program to assist students with school avoidance. Though the district identifies students who are chronically absent and investigates to see if it is a matter of neglect, the lawyers maintain that the system doesn’t adequately address other cases of chronic absence outside of neglect.
The lawyers are hoping the case will force the city’s schools to adopt a systemic solution: making sure the administration is tracking chronically absent students—particularly those with known disabilities and those who have, or are in the process of getting evaluated for, an IEP—and then developing strategies and services to get students back to school.
The four students in the complaint, whose ages range from 10 to 16, have received diagnoses such as agoraphobia, major depressive disorder, social anxiety disorder, autism spectrum disorder, and attention deficit/hyperactivity.
One student began experiencing school avoidance in 2018 and allegedly went the entire 2022-23 school year without a school placement. Another student’s school counselor allegedly suggested her parents drive her to school each day; her parents, who were both employed full time, would remain outside the school for up to two hours until she ultimately stopped attending altogether.
A separate student received small incentives from their school for attending classes—a small prize awarding attendance and a set of headphones to address sensory difficulties—but lawyers argue they “fell short of the accommodations and services necessary” for the student to return full time.
In some cases, schools counseled children out of the public school system, suggesting home schooling, the complaint charges. Students were also allegedly placed on “home instruction”—intended as a short-term service to provide some instruction in students’ homes when they cannot attend school for at least 10 days in a three-month period due to physical or psychiatric disorders, according to the complaint—which the parents argue is not adequate and only offers a few hours of instruction a day.
“When we look at what happens, it’s not just about the student staying in bed, not going to school. It’s about the parent not being able to work,” said Susan Horwitz, the supervising lawyer of The Legal Aid Society’s Education Law Project, which is also representing the families in the suit. “The whole family structure becomes so stressed by the one member of the family who is struggling so, so deeply that it just has these cascading effects around income, food, housing.”
School avoidance has long flown ‘under the radar’
It’s a “light bulb moment” to see a spotlight on school avoidance, which often is “under the radar,” said Jayne Demsky, the founder of the School Avoidance Alliance. Demsky was prompted to start the organization, which provides interventions and resources to help schools and parents navigate school refusal, after she experienced the issue with her own child.
School avoidance, she said, is usually caused by a mental health disorder or learning difference, coupled with contributing factors at school. Schools often don’t have the staff, or the funding, to properly identify and support students who are experiencing this. Parents are isolated, because many don’t understand what school avoidance is.
“Think of being a parent and walking into your child’s bedroom in the morning and not knowing what’s going to happen: if they’re going to hide, if they’re going to cry or scream,” Demsky said. “Then your school is calling you, the robo-calls with the principal saying, ‘Where is your child?’ If a parent doesn’t know that there’s something called school avoidance, they’re ditching the phone calls. They think there’s something wrong.”
Tackling school avoidance can’t fall just to the parents or be a piecemeal effort with a number of educators and a few schools, the lawyers argue.
“Right now, by them ignoring it at the central level, it’s pushing the responsibility down onto schools, often an individual guidance counselor. Then that gets pushed down onto the parents when the guidance counselor is unable to find an adequate solution,” Metzler said. “When you’re looking at a problem at this scale—46 percent of students with disabilities are chronically absent—there’s got to be a systemic solution to that.”
