New York’s boarding school of hard knocks

By Lisa Riordan Seville, Hannah Rappleye, Teresa Tomassoni
and Khristina Narizhnaya

A mirrored pink beauty salon, a tiki lounge, basketball courts and a movie theater. Nestled among trees more than 200 miles from New York City, the Judge Rotenberg Educational Center seems worlds away from Gotham’s public schools–yet most of the children in the classrooms at this New England boarding school hail from the five boroughs.

The controversial facility, known for punishing special needs children with electrical shocks, has been fighting to prevent New York from joining a growing list of states that have stopped government funds paying for students to go there.

The Massachusetts school relies heavily on getting students from New York. Millions of dollars, and perhaps even the school’s existence as it now stands, are at stake.

With lobbying in Albany, courtrooms battles and advertisements on the airwaves targeted at poorer minority communities, an investigation by the New York City News Service found the Massachusetts school spends hundreds of thousands of dollars every year to press its case in New York. Its efforts have ensured that New York state spends millions of dollars every year to send more than 100 students to the school, and so more keep coming.

And it has worked. At a time when New York state education officials are slashing programs because of budget shortfalls, New York City alone paid more than $30 million last year to the private Boston school. That covers about two-thirds of the facility’s annual operating budget, according to its most recent publicly available financial statements.

This despite the fact a top United Nations’ torture investigator last year decried the institution’s methods and called for further investigations. In February 2010, the U.S. Department of Justice launched an inquiry into possible civil rights violations at the school.

The Judge Rotenberg Center is not the only special education school to fight hard to attract New York City special education students, and the hundreds of thousands of dollars that come with them. But it may, in spite of decades of controversy, be one of the most successful.

Electric shocks, Investigations, and Reticence from Other States

The story of the Rotenberg Center’s controversial methods has been told. But few have looked at how, in the face of continued opposition, the school has continued to flourish. To understand, it helps to look at its evolution.

Founded in the 1970s by a Harvard-trained psychologist named Doctor Matthew Israel, the Rotenberg Center was a small institution for the severely autistic and mentally disabled children and adults. In the nineties, the school began to broaden its scope, accepting increasing numbers of school-aged children with “emotional disturbances” ranging from Attention Deficit Disorder to Post Traumatic Stress Disorder to issues stemming from abuse. Many of these students came from New York City, skipping from school to school. Many had spent time in psychiatric hospitals. Some came straight from Rikers Island jail.

Under federal law, all students are entitled to a “free and appropriate” education until they are 21 years old. But New York City and State do not have enough beds in residential schools–public or private–to provide that education. With its “near-zero rejection” policy, the Rotenberg Center welcomes the nation’s most difficult students.

In an interview last fall, Dr. Israel described the patterns at other schools that often turn students away. “You’ll find that when they get the really difficult students they expel them—and then what’s the poor parent to do?”

Many parents call Dr. Israel a miracle worker, and have approved for their children a broad range of experimental behavioral treatment meant to curb bad behavior–some were denied food or sprayed with ammonia, others submitted to a noise helmet or four-point restraint boards.

In 1989, Dr. Israel developed a proprietary device now infamous. Students approved for the device wear it throughout the day in a backpack or fanny pack. Wires snake out and attach to their legs and torso. When they engage in a prohibited activity, the press of a button by an administrator jolts them with a two-second electrical shock.

A Massachusetts probate court must approve the treatment before a student starts on the device, known at the Rotenberg Center as the Graduated Electronic Device. While the Rotenberg Center contends its unorthodox methods help severely autistic as well as emotionally and behaviorally troubled children, the results are not always good.

In 2006, the mother of a child named Antwone Nicholson, 17 at the time, sued the school, saying her son was subjected to inhumane treatment because electrical shocks were used far more often than she was led to believe. Nicholson was one of about 140 New York State students enrolled at the school.

The suit prompted an investigation by the New York State Department of Education. The experts sent to the school found a wide range of problems, including lack of oversight on how students are shocked, restrained and denied food as punishment. The use of electrical shocks “raises health and safety concerns,” according to the report. Withholding meals “may impose unnecessary risks affecting the normal growth and development” of students. Education at the school was deemed “insufficient.”

Nicholson’s case was settled last year, but the controversy continues. Massachusetts authorities have tried unsuccessfully to shut the school down several times in its 40-year history. A prosecutor recently settled charges against the school’s longtime director that workers, in a prank gone wrong, inappropriately restrained and shocked two students–one was shocked 77 times in a row.

The incident helped convince Washington, D.C., to no longer send students to the Rotenberg Center. Tameria Lewis, assistant superintendent of special education, described her inspection of the institution, “We continuously heard this howling and screaming through the facility of students reacting to pain from their punishments.”

“It was difficult to see what was happening at JRC under the guise of helping,” she said in an interview last fall.

Washington, D.C., was not alone. States including California, New Jersey, Illinois and Connecticut have virtually stopped sending any students to the school. Maine and Nevada have both banned methods that include electric shock therapy, stopping any public dollars from paying for students to go to the Rotenberg Center.

New York, too, has now banned the use of electric shocks on nearly all its students. But more than four years after the stinging New York State Department of Education investigation, New York remains the suburban Boston institution’s largest customer.

The Rotenberg Center once saw students from states around the country. Now, despite efforts by New York State to curb enrollment there, about 90 percent of its school-aged residents now come from New York. The majority is from New York City.

As of last spring, there were 144 school-aged children enrolled at the Rotenberg Center. New York City accounted for 118 of those children under 21.

In addition to students, there are about 80 disabled adults at the Rotenberg Center. Some had been at the facility as children, and remained there as they got older. And some of those are also from New York, and continue to get state aid to remain at the facility.

Records from the New York City Comptroller show the city alone paid nearly $32.5 million to the Rotenberg Center during fiscal year 2011. Of that, $16.8 million comes from the city Department of Education. The balance comes from the Administration for Children Services. Hundreds of thousands of dollars also come from other local school district funds to pay for students from elsewhere in New York State.

New York State continues to be a leading source of students and money for the Rotenberg Center despite several recent measures that attempt to address concerns about its operations.

Lobbying For Government-funded Students

The Rotenberg Center has fought hard to keep students coming. To combat the possibility that New York and others will pull out, the institution has spent hundreds of thousands of dollars in recent years to contest regulations that would prevent students from going there at public expense.

The debate around “aversive therapy,” which includes shocks, is one of the most contentious in special education. States around the country have rejected the school’s methods. Districts in Illinois, California, Pennsylvania and elsewhere no longer send students there. Maine and Nevada have issued bans against any school that uses electrical shocks.

Last year, the U.S. Senate passed a bill that would do the same at the federal level. Congress people in the house and senate have for years introduced, and failed to pass, legislation that would severely limit or ban the use of restraint and seclusion in schools, including the use of aversives.

California Rep. George Miller’s bill died in the house last year. “In the year since this legislation passed the House but failed to become law, more children were abused in school,” said Rep. Miller in a statement. He has re-introduced his bill, called “Keeping All Students Safe Act,” this year. “This legislation makes it very clear that there is no room for torture and abuse in America’s schools,” he said.

Federal records show the Rotenberg Center spent more than $116,000 to lobby against such legislation in the halls of Congress last year. The bulk of that went Bracewell and Giuliani, the firm of former New York City mayor Rudolf Giuliani.

It was not the school’s first foray into intensive lobbying efforts. Since 2005, JRC has spent at least $1.2 million to fight measures that would curb or bar the use of such controversial measure. State disclosure records show that in 2010, the school spent $123,000 to lobby in New York State alone.

Steven Sanders, a lobbyist with the firm Malkin and Ross, has represented the Rotenberg Center. He is a former New York State assemblyman, and served on the state education committee for ten years until stepping down in 2005.

He acknowledged objections raised by opponents, but countered that its programs work.

“Some people believe aversives should not be used on children, even though they are perfectly legal,” Sanders said. “These kids are in school, they are learning. Their violent behavior is controlled.”

Still, despite these efforts, New York City recently began to officially warn parents about its concerns, and it now recommends students go elsewhere.

“We don’t agree with the school’s behavioral approach,” said Matthew Mittenthal, deputy press secretary at the New York City Department of Education. “Parents of students who attend JRC have been advised that we are uncomfortable with the school’s practices, and that we strongly recommend they attend a different school.”

Radio Ads and Basketballs

Yet students keep coming, in part because the Rotenberg Center has reached out to their parents in a variety of ways.

It has paid for radio ads, including one broadcast on the popular FM station Hot 97, the city’s most prominent outlet for hip-hop and R&B. “Is your child autistic or emotionally disturbed?” it began. “Unmanageable, failing in school or refusing to attend or stuck in psychiatric or correctional setting?” At the end, the advertisement offers a number to call for “free consultation and placement assistance.”

Documents and interviews with parents describe how those who show interest in the school receive home visits from the school’s marketing representatives. According to a 2006 New York State Education Department report that included a review of the Rotenberg Center’s internal records, representatives “provide the family with information and gifts for the family and student.” The presents include gift bags for family members and basketballs for students. In all, tax documents from 2008 show the school spent more than $390,000 on advertising and promotion that year.

The school also markets to professionals at psychiatric and juvenile justice conferences, who then suggest the school to parents and guardians. Some children also come directly out of the foster system.

Helping Families Sue New York

Once families decide they want to send their children to the Rotenberg Center, the next step may well be in a courtroom.

New York City is legally required to pay for special education services when it cannot provide them itself. Parents who want to send their children to the Rotenberg Center argue that is exactly why they need the Rotenberg Center – that no place in the state provides the same approach that help those with severe special needs.

That is because, under the federal Individuals with Disabilities Education Act, states must provide a “free and appropriate” education to all students. If a school district cannot provide that education, it must pay to send a student to a school in New York, or outside the state, that will help them.

The Rotenberg Center has remained on the New York State’s list of approved out-of-state schools. Indeed, when New York City students go to an out of state school, the one that has the largest single enrollment is the Rotenberg School.

The city Department of Education often fights parents who seek to send their children to the Massachusetts facility, contending in court that those families can get similar services closer to home.

Lawyers have been a key to the school’s success. The Rotenberg Center has guided parents to particular lawyers to help fight their way into the school. Those attorneys have worked on behalf of parents within the special education system to negotiate the scope of a student’s individualized education plan.

The school declined to say how many New York students have gone to court in order to attend the school. Government records that would detail the scope of litigation are not public.

In an interview last spring, school founder Dr. Israel said the Rotenberg Center directs New York City parents to one attorney: Brooklyn-based Anton Papakhin.

There are few public records that reveal the number of clients Papakhin has represented to go to the Rotenberg Center. He declined to reveal that number. Lawsuits involving special education students are largely protected by privacy rules, and are conducted behind closed doors. One of the few times these cases become public is when lower court decisions are appealed.

Papakhin is listed as the attorney of record on at least seven appeals, which become public record when they move to higher appellate state courts.  In cases in which parents prevail, Papakhin may also be awarded attorneys fees, paid for by the city.

Papakhin has also been paid directly by the Rotenberg Center. At the same time that Papakhin has represented families in legal proceedings to convince courts to send students to the Rotenberg Center, he is also listed by the school as a contractor. The most recent financial filings, for 2008, show he was paid more than $270,000 for his work that year. Papakhin declined repeated requests to clarify the nature of the services provided to the Rotenberg Center in 2008. The Rotenberg Center declined to provide further details on its relationship with Papakhin.

In a brief interview last spring, Papakhin explained he works closely for about four years with Arthur Block, another New York attorney with a background in special education law, who is documented as having earned more than $600,000 in 2007 and 2008 for unspecified “legal services” for the Rotenberg Center. Block, too, declined repeated requests to discuss his work for the school.

It is not illegal or unethical for an attorney who is paid by an organization to represent people and benefit financially from the arrangement. Professor Stephen Gillers, a legal ethics expert at New York University, said, “There’s nothing wrong with a person who is not a client paying the lawyer to represent a client.”

Lawyers are used for more than just getting students into the Rotenberg Center. The institution also makes efforts to keep students at the institution after they “age out” of the state school system’s jurisdiction when they become 21 years old. The Rotenberg Center has launched lawsuits for back payment from school districts and states for care provided to these forgotten students.

Meanwhile in Massachusetts, the fight over aversive therapy continues. This month, Gov. Deval Patrick’s administration put forward new regulations that would ban all aversive therapy going forward, and impose yearly reviews on individuals already receiving such treatment. The Rotenberg Center has already begun to fight back.

Check out an archive of documents related to this story