by Regina Skyer
On February 4, the popular online newspaper Chalkbeat published an excellent article entitled: Your child’s birth month matters: NYC students born in November and December are classified with learning disabilities at higher rates.
This article focuses on what I like to call the “Calendar Year Rule,” which requires children to begin kindergarten in September of the calendar year they turn five, regardless of their level of readiness or maturity. This means that a child born at 12:01 am on January 1st 2015 and a child born at 11:59pm on December 31st 2015 are both considered “turning five” children for 2020 and would be required to begin kindergarten in September of this year.
This inflexible policy runs counter to the consensus position of most child development experts and is not followed by the vast majority of New York City’s private schools; nor is it the policy of scarcely any other school districts in the United States. In my book about special education kindergarten transition, How To Survive Turning Five, I discuss how this policy is particularly harmful for children who have been identified with a learning delay or disability.
My friend, the esteemed Dorothy Siegel, Director and co-founder of the ASD Nest Program, favors changing the December 31st deadline. In the Chalkbeat article she says that changing the cutoff “would reduce the misery of children who are labeled something because they’re not learning at grade-level expectations, when the truth is, they’re too young to learn at that level.” I echo her sentiments.
At our firm, we handle over 100 cases each year that involve parents seeking to maintain the services on their child’s preschool IEP for one simple reason: most children with special needs are simply not ready to enter kindergarten in the calendar year they turn five.
Because of this reality, the Stay-Put (or “Pendency”) provision of the Individuals with Disabilities Education Act (IDEA) is one of the most valuable legal tools we have for a “turning-five” special needs child.
Pendency can provide another year of a preschool program and services, and facilitate the development of a more stable foundation for the school years ahead. In NYC, to use pendency, parents must challenge the kindergarten program proposed by the DOE using their due process rights. An impartial hearing officer (a judge) issues the pendency order. It is not something that can be requested at an IEP meeting. (To learn more about this topic, read Skyer Law attorney Magda Labonté-Blaise’s excellent article, “What is Pendency?” from our blog.)
The biggest problem our firm sees with preschool pendency programs arises when families want a child to attend public school the following year. The DOE insists on placing these children in first grade, despite the reasonable position taken by parents and professionals that if a child has missed kindergarten they will not be ready for these demands. Whether to place a child coming from an “extra” year of preschool in kindergarten or first grade used to be at the discretion of the public school’s principal. However, principals are now forced to register students for first grade at the start of the year and may only move students back to kindergarten if a child is failing—and there is room in a kindergarten classroom. This is something I always warn parents about, and it’s something else that needs to be addressed. Too many families end up breaking the bank for private school tuition because of this when their children would do just fine in an appropriate kindergarten class.
It’s far past time for the city to change these archaic policies. They are not based in sound pedagogical practices or in evidence. The “Calendar Year Rule” needs to go.
