The First Amendment’s purpose was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
I HAD ENCOUNTERED STEVE Benardo years earlier and taken an immediate liking to him. His passion, intellect, and fierce commitment to children with disabilities seemed at odds with his unassuming, pleasant appearance and demeanor. Our paths, and swords, would cross many times in the ensuing years, but I had and have nothing but respect for Steve. I learned quickly that behind the nondescript eyeglasses and bushy mustache was a formidable adversary and first-rate intellect.
A Sephardic Jew whose parents emigrated from Spain to New York City, Steve grew up bilingual, with a background combining the idealism of the 1960s with an immigrant work ethic and values. That combination yielded an unwavering commitment to public service. For Steve, there could be no better way to serve the public than through a career in public education, particularly special education. He welcomed the opportunity to help students with disabilities—who in the recent past would have been written off as useless and quite possibly institutionalized—blossom into all they were capable of becoming.
Special education, the most challenging frontier of education at the time, was only beginning to emerge from the dark ages of abuse, punishment, and indifference into an exciting new paradigm based on humanity and rational expectations and motivated by discovering just what could be expected of any given child. Children with disabilities had been abused physically and culturally for so long that it was anyone’s guess what they might be able to achieve. The goal now was to assume the children were capable and then deal with the disabling condition. For example, teach blind children Braille or with tape recordings, and they can learn as much as their peers.
But the early 1970s was a time of unparalleled change in public education, change that reflected a variety of demographic, economic, sociological, and political evolutions.
Demographically, we had the desegregation movement, and while the white liberals were fully on board intellectually, they were a lot less enthusiastic with the notion of busing kids from the ghetto into their middle-class neighborhoods—and upset at the thought that their children could be sent to school in the slums. Many of them took their kids and their tax dollars to the suburbs. At the same time, the industrial migration to the South and Southwest took its toll on the Northeast and the revenue stream available to the area’s public schools, especially for programs such as special ed.
Also, the teaching field was undergoing its own transformation. Long dominated by underpaid women who viewed themselves—quite legitimately—as professionals but unfortunately eschewed organized representation, the field was suddenly attracting more bread-winning men receptive to unionization.
It was against this backdrop that Tom Hobart and Al Shanker joined forces to turn the fledgling New York State United Teachers union into one of the most powerful political and lobbying forces in the state. When funds became available for public education, NYSUT did its best to steer the money into teacher salaries and pensions rather than innovative programs for kids. Still, legislation enacted both nationally and in New York State in the mid-1970s required all school districts to offer parentally approved, individualized programs for kids with special needs in the least restrictive environment possible, regardless of the cost. Service was required, and due process mandated.
That was the entrée Steve Benardo needed.
Benardo was instantly smitten with the notion of publicly funded special education; it excited his innate sense of fairness, humanity, and justice, and also his need for new intellectual challenges. But he wanted to run a program, not teach under a protocol imposed by someone else. So he enrolled in a doctoral curriculum in educational administration and emerged as one of the few bilingual special education experts in the country. Steve’s first job after earning his doctorate was as a special education adviser to the Bronx representative on the New York City school board.
In those days, the city still had an appointed school board whose function was largely limited to “oversight” of the chancellor, the executive of the system. It was an unwieldy system, with the borough presidents (of the Bronx, Brooklyn, Manhattan, Queens, and Staten Island) each appointing one member, while the mayor appointed two.
By the time Benardo got his first job there, much of the Bronx—long the dream destination of New York’s rising middle class—had descended into urban blight. A borough that was once bucolic, almost quaint, with its wide parkways and avenues, the city’s largest park system, a world-famous zoo and botanical garden, splendid housing, and convenient access to the business centers of Manhattan, was now pockmarked with dilapidated and abandoned buildings and plagued by rampant crime and perpetual economic strife. Its school system reflected the borough’s poverty and abandon. Benardo inherited a system in financial peril where many students lacked fundamental English skills and even basic written language skills in their native tongue, had little support at home, and came from families with little or no understanding of how to care for members with disabilities. Concerned simply with survival, such families had neither the means nor the motivation to demand programming for their children.
Frank J. Macchiarola, the chancellor, was struggling to maintain a school system in a city barely equipped to serve “mainstream” kids, let alone disabled children costing three times as much to educate. He persistently shortchanged children with special needs via extreme understaffing and a game his counterparts all over the country were playing: refusing to acknowledge that a child was in need of special services and letting the parents sue if they didn’t like it. Meanwhile, as tens of thousands of children awaited their evaluations, the money that should have been dedicated to them was diverted to “normal” kids. Indeed, for several years, New York City had a seemingly permanent list of more than fourteen thousand children who were thought to be severely disabled and who were waiting for evaluations.
At the time, I was the state education department’s assistant commissioner in charge of the Office of Children with Handicapping Conditions, tasked with ensuring that people like Macchiarola complied with the law. But he was used to getting his way and didn’t at all appreciate the notion of some bureaucrat from Albany trying to tell him how to run his schools. Not surprisingly, we ended up in court, and Macchiarola sent Benardo as a witness. Steve knew we were right, legally and morally, but Macchiarola ordered him to “tell the judge that it doesn’t matter how many of those kids are waiting in line because nothing’s playing at the movies.” Steve did exactly as instructed, and I’m pretty sure I saw steam come out of the ears of US district judge Eugene Nickerson, a onetime candidate for the US Senate and governor who really found his niche in the judiciary and became an outstanding federal judge.*
Nickerson, whose own child was receiving special needs services, just glared at Benardo—Macchiarola’s sacrificial lamb—before cutting him off in midstream. “Well, you tell Frank Macchiarola that I’m going to send him to jail.” Steve was greatly relieved that it wasn’t he who was going to jail. Ultimately, the city was held in contempt, and a special master was appointed to oversee implementation of the court order to evaluate and serve the children.
By coincidence, I was quickly developing a close friendship with George Shebitz, the chancellor’s counsel who, like Steve Benardo, knew the boss was wrong. In his testimony, the chancellor said he couldn’t reduce the backlog because he was unable to find qualified special educators to perform the services. I subsequently testified that twenty-five of my highly qualified staffers had applied for city jobs and were turned down, and submitted staff affidavits. Macchiarola was so frustrated that he sent Shebitz to communicate with me, and we promptly discovered a common bond.
Shebitz and I both had law degrees and master’s degrees in government administration. We both totally bought into the philosophy of integration. We both worshipped Thomas Jefferson. We both believed to our core in society’s responsibility to assist the most vulnerable, and agreed there are few who are more vulnerable than children with disabling conditions. Benardo had grown equally close to Shebitz, so ours was an unlikely trio; we were officially on different sides of this dispute, but privately we all agreed that Macchiarola was dead wrong. Steve later became the first superintendent for special education in the Bronx—a critically important position—and indeed became a pioneer and renowned expert in bilingual special ed. George became a successful education attorney, serving school districts throughout the state and specializing in the rights of children with disabilities.
About eight years after Benardo and Shebitz had left the chancellor’s office, Steve received an out-of-the-blue call from George, who said he needed some help with a special education problem. “First, I would’ve gone anywhere for George, but, second, special educators have a kind of community code—if somebody calls you and asks for help, you just do it. It’s part of the game,” Benardo recalls. For a lot of good reasons, special educators had developed an us-against-the-world mentality, and without hesitation or further inquiry he went over to George’s office. There he was surprised to find himself in a room full of Hasidic Jews, who promptly cornered him and began talking about their busing fight with the Monroe-Woodbury district, a segue into a discussion of the Pataki-Lentol bill that Cuomo had just signed. One of the oddities of the legislation was that the Satmar were required to prove to the state department of education that they could actually operate a school district. They asked Steve to write up something to satisfy State Ed.
“To tell you the truth, I thought this would be an easy task,” Steve remembers. “I thought I would just take a few hours to help out my friend George. How hard could it be? I mean, I knew the law backwards and forwards. I was running the whole freaking Bronx! I had a three-thousand-person staff. I knew what I was doing. The first thing I did was call the [superintendent] of Lancaster, Pennsylvania, to find out how he handled the Amish.”
Benardo soon discovered that the issue with the Amish was in many ways unrelated to the Satmar Hasidim. After all, the Amish fought to be left alone and to be free of force-fed government services; Kiryas Joel, on the other hand, wanted the government’s services and subsidies and amenities—on their terms and in conformance with their religious mandates. So Benardo drove up to Albany to do a little research.
“When you’ve gone to school as much as I have, you think there’s a book for everything. I thought I’d go up to State Ed and check out the book on how to start a school district.”
Steve remembers venturing into the pillared porticos of the state department of education building, where he eventually found an office that seemed right, the Office of Private School Organizational Structures. An employee there informed him that there hadn’t been a new school district created in New York State in many decades.
Benardo spent the next five months working on the project every single night after he left his job as Bronx superintendent. He drove up to Kiryas Joel each night after work, talking to people in the village to get a full grasp of their needs and concerns. He began going up in the daytimes, burning through every vacation day he had accumulated over twenty-one years.
“When they first asked me to do this, they asked what I wanted to be paid,” Steve says. “At the time, my kid wanted to go to summer camp and it cost $3,000, so I said $3,000, which made sense to me. I had no idea what consultants got paid. I had no idea what the scope of this was going to turn out to be. I was just helping out George.”
Finally, the day came for Benardo to present the proposal to State Ed. At the meeting were Manny Axelrod, superintendent of the Orange County Board of Cooperative Education Services (a peculiarly New York institution that originally provided regional programs for vocational training and later also special education), and Dr. Hannah Flegenheimer, the state division director for special education. Hannah had been my chief aide during my days at State Ed when we were defunding private schools that accepted public funding to serve students with disabilities but did not serve them well. We moved thousands of children with disabilities into less restrictive settings in the public schools. Indeed, Hannah had provided the staffing when I was working with Judge Nickerson to force New York City schools to evaluate and serve all of their disabled children. I admire her courage, integrity, and intelligence more than almost any public servant I have ever met. Hannah arrived at the meeting with an attorney and was clearly intent on holding Steve’s feet to the fire.
Steve had brought with him the school board of this soon-to-be public school district, whose members were selected to serve by the grand rebbe himself. Not only did none of them appear to speak much English, but none of them had ever been in a public school, let alone attended one. George Shebitz came with Benardo as the KJ district’s attorney.
Benardo submitted a massive tome that described everything about the district, which, at that point, had no building or staff. Flegenheimer demanded to know if boys and girls would be segregated according to religious traditions, and whether they could take gym together. She was promptly expelled from the room. After a two-hour discussion, without Hannah and her apparently jaw-dropping inquiry, Manny Axelrod took out a small mallet, whacked the table, and declared the birth of the Kiryas Joel Village School District. “By the way,”he asked, “who’s the superintendent?” Without a word in advance to Steve, George Shebitz said the board wanted Benardo to take the job.
Steve was stunned, and more than a little annoyed that George would be so presumptuous as to assume he would give up a huge job in the Bronx to assume the responsibilities of the first superintendent of the first new school district established in New York in a generation. But once they were out of earshot of Axelrod, Shebitz convinced Benardo that Abe Wieder would make it well worth his while, and that running the new school district of Kiryas Joel would be more rewarding than anything he would leave undone in the Bronx.
Steve decided to take up the challenge. He immediately impressed the KJ community, both with his bureaucratic expertise in garnering state funding and his ability to build an impressive program. He also became one of the highest-paid superintendents in the state, though he served one of the smallest districts.
When Benardo started assembling the KJ district in 1990, Monroe-Woodbury was providing $181,000 worth of services to the community, holding classes in two temporary classrooms. Steve went to State Ed and got $1.2 million overnight. Still, finances were tough the first year, and the district survived largely on IOUs. The second year, Steve applied for and received significant state and federal funding. So in short order he established a brand-new, adequately funded school district that served the needs of the KJ children far better than Monroe-Woodbury ever had, and actually better than the community had dared to hope. Furthermore, the village residents were relieved of the responsibility of paying the high property taxes that were levied by Monroe-Woodbury. This is what you’d call a win-win-win for the KJ community, and the credit goes to Steve Benardo.
At first the district just took in the village’s special needs kids aged five through twenty-one, but it soon expanded to pre-K and early childhood education and began accepting Satmar children with disabilities from other communities as well. Being a part of the child’s (and family’s) life from early years to adulthood allowed Kiryas Joel to provide an extraordinary continuum of services. As issues arose in a child’s development (or in a parent’s adjustment to realistic goals for his child), Steve could easily fine-tune programming based on input from teachers and therapists who had interacted with the child at a range of different ages. In a few short years, the student body had grown from the original group of thirteen children to several hundred.
“It’s exactly what one would want to develop. If you had a blank page and somebody told you to forget the rules, forget the regulations, forget any of those concerns, and just create a school for special education students, I really believe it would look like our school,” Steve says.
Irrespective of culture, parents of special ed students have a variety of anxieties about their children—concerns ranging from denial of the condition to obsession over it. One way Benardo fought those anxieties was to install a two-way mirror in a classroom so that parents could observe the services without interfering. He also recognized that denial was a natural reaction of parents and that most parents could move past it if they weren’t forced to confront the disability head-on, if they could ease into it on their own terms. So he had a separate entrance and a separate area for the parents of preschool and younger kids so that they didn’t have to see older kids, allowing them to hold onto, for the moment, the belief that their kids would “grow out of it.” That way parents could come to grips with their own child’s potential and limits, accepting the hard and sometimes cold facts gradually and in their own time. It was an important innovation, and a very creative solution to an old problem in special education.
Benardo was also able to put together a well-qualified staff, most of whom were Orthodox Jews. Every single staff member spoke at least two languages, mostly Yiddish and English, with a smattering of Hebrew, Spanish, and Russian. Everyone on the professional staff had at least a master’s degree, and most had doctoral degrees. Many of them were intrigued by the opportunity to make a real difference at the ground level.
As the district prospered and the children thrived, the community dug its heels in more than ever. Although my association’s public relations campaign had suggested a number of ways in which the village could achieve exactly the same results, with the same staff, in a way that didn’t desecrate the Constitution, the Kiryas Joel leaders weren’t hearing it. There was little chance they were going to backtrack, and no chance they were going to give up what had become a treasure chest of state and federal aid,* at least not without a real fight.
When Justice Kahn’s decision came down, Steve viewed it as a momentary distraction, knowing that the district would appeal, as of course it did, and that the status quo would be maintained while the case worked its way through the courts. The next fight would be in the appellate division of the state supreme court, a tribunal composed entirely of gubernatorial appointees, some of whom dreamed of getting promoted to the top rung of the judicial ladder. And there I was, asking these judges to tell the governor that the law he signed was unconstitutional.
________________
* Nickerson, a descendant of President John Adams, was appointed to the federal bench in 1977 by President Jimmy Carter. As a judge, he had a reputation for keeping lawyers on a short leash and had little patience for courtroom antics. He died in 2002.
* In addition to aid for the children whose special needs they were serving, the district was also getting millions of dollars in transportation aid for the nondisabled students in the private yeshivas, as well as control over who drove the buses (see chapter 2). Those extra benefits materialized solely because of the existence of a “public” school district.