The city’s education department is forcing thousands of students with disabilities to give up certain special education services as a condition of signing up for its high school equivalency program, a practice that is drawing renewed scrutiny from state officials. 

Known as Pathways to Graduation, the program is geared toward students who have struggled in traditional high schools or are unlikely to earn enough credits to graduate. Pathways prepares these students for an exam to earn a high school equivalency diploma.

State officials have asserted that federal law requires the city’s education department to provide a full array of special education services to students enrolled in the program, an argument the city has disputed for several years, records show.

But after the state issued a scathing report earlier this summer that found systemic flaws in the city’s special education system, and again demanded the city provide more services to students in its equivalency programs, city officials have now promised to make tweaks.

City officials have vowed to stop forcing students who enroll in Pathways to sign a waiver giving up services listed on their customized learning plans, also known as an IEP, which can mandate smaller classes, group counseling, or benefits such as physical therapy. And they agreed to provide vouchers or directly offer some services, including for occupational, physical, and speech therapy, along with certain counseling services. 

Still, city officials say they will not fully comply with students’ learning plans, especially if they require classes co-taught by a special education teacher and a traditional classroom educator or group counseling sessions. 

City officials have asked the state to drop its request to provide a full range of services in the Pathways program, arguing it is not required by law and would pose big logistical challenges. But advocates contend that the city is shortchanging students who need services most: Those who have struggled in traditional high schools, or new arrivals to the country, whose chance at applying to college, joining the military, or getting on a path to higher wages hinges on earning an equivalency diploma.

“Students with disabilities should have the same access,” said Ashley Grant, an attorney at Advocates for Children, an organization that works with special needs families. “Right now, they don’t.” According to city data, there were 2,300 students with disabilities enrolled in the program as of early June; about 8,000 students enrolled in the program at some point during the 2018-19 school year. Pathways typically serves students from 18 to 21 years old.

Robert Zweig, a city superintendent who oversees the Pathways program, said it doesn’t make sense to provide the same exact services to students seeking an equivalency diploma as it does to students in traditional high schools. “I don’t think our position is that we don’t offer special education services, it’s that we don’t offer it perhaps consistent with the letter of the IEP,” he said, adding that using the standard IEP process “would be more about compliance than driven by service.”

Danae Mcleod, who oversees a high school equivalency program in the South Bronx that is not affiliated with the education department, said it is increasingly difficult to find jobs without at least an equivalency diploma and argues the city should provide every service people with disabilities need to earn one. 

“If you don’t have this degree there are very few options for you,” said Mcleod, who is the executive director of Grace Outreach, whose equivalency program is geared toward adult women. “They may have left high school because they weren’t getting the right learning support, and now the exam is even harder,” she added, noting that students may need more help to pass the revamped test called the TASCTM, which replaced the more commonly known GED

City officials said there are significant practical challenges to meeting traditional special education mandates for Pathways students. Students are enrolled in the Pathways program for 75 school days on average, and the city contends that by the time evaluations are lined up and services are in place, a student may have already completed or dropped out of the program.

“There is an individualized plan for every student at Pathways, including small class sizes, counseling, and other personalized support, and there are special education teachers and related services to meet the needs of students with disabilities,” wrote Danielle Filson, a city education department spokeswoman. The city also runs five “hub” sites, which employ a total of seven special education teachers, and are set up for students who need more intensive help.

She also pointed to city data that show an increase in the proportion of students with disabilities passing the equivalency exam. Last school year, the pass rate for students with disabilities was 35%, up from 23% three years earlier. (Forty-one percent of non-disabled students passed the exam last year.)

State officials have directly pushed back against the city’s argument that it doesn’t have to provide a full range of services since at least since 2012, according to documents obtained under a freedom of information request, arguing that withholding services is a violation of federal law. The dispute hinges partly on a technical argument about whether the high school equivalency programs are considered “secondary” education programs; the state maintains that they are.

It is unclear how many large school systems provide special education services to students in equivalency programs. The Los Angeles Unified School District, the nation’s second largest school system behind New York City, provides the same services to students in equivalency programs as they do in traditional high schools, a spokeswoman said.

State officials did not say whether the city would face any consequences if they continued to ignore the state’s demands to provide full special education services, though they reiterated that the city must provide them.

Even with the city’s pledge to provide more services, advocates worry about the effects on students with disabilities. Students might be steered away from the Pathways program, and a shot at a diploma, or might struggle to earn one if they enroll. And students who are born outside the country, who accounted for about 24% of Pathways students last year, may not get all they help they need if they are never formally evaluated and diagnosed with a disability.

Nelson Mar, a lawyer at Bronx Legal Services, echoed that he believes the city should provide more support, even if it presents logistical hurdles.

“They’re obviously playing both sides,” Mar added. If the city believed they had no legal obligation to provide services, “why are they asking kids to sign away their rights?”