No.  94-35

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:

Lawrence E. Becker, Esq., attorney for petitioner, Phoebe V. Redmond, Esq., of counsel

Advocates Children of New York, Inc., attorney for respondents, Diana Autin, Esq., of counsel

DECISION

Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which held that respondent must provide what respondent calls "hearing education services" (HES) to a hearing impaired child whose individualized educational program (IEP) included such services, notwithstanding the fact that the child attends a reportedly sectarian nonpublic school. The appeal must be sustained.

The record in this appeal is highly abbreviated. From the pleadings which are before me, it appears that respondents' daughter, who is five years old, was born with bilateral profound sensorineural hearing loss. When she was two years old, the child received cochlear implants in each of her ears to enhance her hearing. Petitioner's Hard of Hearing Vision Impaired Committee on Preschool Special Education (CPSE) recommended that the child be identified as a preschool student with a disability (8 NYCRR 200.1 [ee]), and that petitioner provide her with HES on the premises of the Park East Day School, in which she was enrolled in a preschool program during the 1993-94 school year. The child received the recommended services from petitioner in the Park East Day School, which petitioner describes as a "religiously affiliated regular education private school located in Manhattan."

The child, because of her age, came under the jurisdiction of respondent's Hard of Hearing Vision Impaired Committee on Special Education (CSE) for the 1994-95 school year, during which the child was to be enrolled in the kindergarten of the Park East Day School. On May 12, 1994, the CSE reportedly recommended that the child be classified as a child with a disability and that she receive HES and speech/language therapy as related services and have the use of an "FM unit" as an assistive technology device. Petitioner asserts, and respondents agree, that the child is presently classified as "hearing impaired", and that there is no dispute about her classification. Although I do not reach the issue of the child's classification because there is no dispute (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]), I must point out to the parties that there is no classification of hearing impaired in the Regulations of the Commissioner of Education. Students with a hearing disability may be classified as either deaf (8 NYCRR 200.1 [mm][2]), or hard of hearing (8 NYCRR 200.1 [mm][5]). Petitioner also asserts, and respondents agree, that there is no dispute about the appropriateness of the services recommended by the CSE.

The issue dividing the parties is whether petitioner may legally provide the recommended HES on the premises of the Park East Day School notwithstanding the school's reportedly religious affiliation. There is apparently no dispute about petitioner's provision of speech/language therapy in the private school. Petitioner asserts that it is precluded from providing HES to the child at the private school by the Establishment Clause of the First Amendment to the United States Constitution, as made applicable to States and their legal subdivisions by the Fourteenth Amendment to the United States Constitution. Respondents assert that the Establishment Clause, as interpreted by the courts, does not preclude petitioner from providing HES on the premises of the Park East Day School.

At respondents' request, an impartial hearing was held on July 26, 1994. The hearing transcript, which is only 13 pages long, reveals that the hearing officer briefly summarized what he believed to be the relevant facts, including the following statement:

" She [the child] is now, this September, articulating into kindergarten there [Park East Day School], and she has, as that, for that reason, a new IEP, which is an initial IEP for regular school service. And, that IEP apparently calls for an hour a day of hearing education services to be provided by a teacher of hearing education, who, as I understand it, routinely works with the child to help them integrate into the regular education setting in which they are being educated, which involves, among other things, helping the child understand and address their own needs as they play out educationally, but also identifying what's being taught in the school and helping the child acquire that information through, sometimes through reteaching the material, sometimes through working with the child's teacher, sometimes working with the entire class that the child is in to educate them about the nature of and the implications of, having a hearing impaired colleague ... In any case, these services are on the IEP one hour a day, five days a week, and the parents and the CSE agreed that, at this point in time, they both feel that that's an appropriate level of service for [the child]." (Transcript, pages 5 and 6)

The transcript further reveals that respondents and petitioner's representatives agreed that the hearing officer had accurately stated the facts. At that point, the hearing officer asserted that the hearing was unnecessary because there were no disputed factual questions about which written evidence must be entered or testimony must be taken. The hearing officer announced that he would research the legal questions, and invited the parties to submit memoranda of law to him. Both parties submitted memoranda of law to the hearing officer. At the request of a representative of League for the Hard of Hearing and the child's mother, the hearing officer allowed the two individuals to make brief, unsworn statements, before ending the hearing, without taking any testimony or entering any written evidence into the record.

The hearing officer rendered his decision on September 13, 1994, and amended his decision on September 16, 1994. In his decision, the hearing officer referred to "the Board of Education's witness" as having provided a description of HES as "direct tutorial services, as well as training for the teachers, staff and children at the child's school", although no testimony had been taken. The hearing officer found that " ... the undisputed facts in the record of this case reveal that these services (HES) are provided to non-parochial private schools and that parochial schools are singled out for denial of this alleged benefit." The hearing officer held that the withholding of HES from students who attend parochial schools while providing such services to students enrolled in non-sectarian private schools violated the Free Exercise Clause of the First Amendment to the United States Constitution. In addition, the hearing officer further held that the decision of the United States Supreme Court in Zobrest et al. v. Catalina Foothills School District, U.S. , 113 S. Ct. 2462 (1993), compelled petitioner to provide HES to respondents' child if it provided HES to other children with disabilities who attend non-sectarian private schools.

Petitioner advances two distinct claims. First, it asserts that the hearing officer lacked authority to determine whether public funds may be used to provide services to students with disabilities attending sectarian nonpublic schools. It relies upon the decision of the Commissioner of Education in Application of Board of Education of the City School District of the City of New York, 25 Ed. Dept. Rep. 189, for that proposition. However, in the case upon which petitioner relies, the U.S. Supreme Court had not yet addressed the issue of a school district's responsibility under the Individuals with Disabilities Education Act (20 USC 1400 et seq.) to provide services to children attending private schools. In addition, petitioner in that case sought a determination that certain Federal regulations were without statutory authority. Neither circumstance is present in this appeal, and I find that the holding in that decision of the Commissioner of Education is inapposite.

In its second claim, petitioner asks for "clarification" of its legal responsibilities in this particular case. However, it is not the function of either a hearing officer or a State Review Officer to issue advisory opinions. The parents of the child involved in this case requested that an impartial hearing be held to review the alleged refusal of petitioner to provide the services which its CSE had recommended for the child at the site of the child's private school. They had a right to obtain an impartial hearing under those circumstances (8 NYCRR 200.5 [c]). Petitioner was obligated to appoint an impartial hearing officer to conduct the hearing. It was the hearing officer's responsibility to render a decision based solely upon the record of the proceedings before him, and to set forth the reasons and the factual basis for his determination (8 NYCRR 200.5 [c][11]). I am constrained to find that the hearing officer failed to perform his duty of ensuring that there would be an adequate record upon which to premise his decision. His failure to do so precludes a meaningful review of the issues presented in this case.

The parties in an impartial hearing may stipulate that certain facts are not in dispute, and thereby avoid the necessity of presenting documentary evidence or testimony to establish those facts. However, a hearing officer may not dispense with the requirement that there be an adequate basis in the record for his or her decision. Although the parties apparently agreed that there were no disputed facts, the limited record which is before me does not support that position. Petitioner asserts that the Park East Day School is "religiously affiliated" which precludes petitioner from providing services on the premises of the school. In their memorandum of law to the hearing officer, respondents asserted that the Park East Day School is "Jewish", but that its program is "bifurcated" between secular and sectarian instruction, and that the recommended HES would be provided only during the secular portion of the child's instructional program. The decisions of the United States Supreme Court upon which petitioner relies, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); Aguilar v. Felton, 473 US 402 (1985), involved public services for children attending "pervasively sectarian" non-public schools. In this instance, the only information which the hearing officer had about the Park East Day School was set forth in respondents' brief, which is not evidence (Section 302 [1] of the State Administrative Procedure Act), and which did not afford a basis for determining whether the Park East Day School was pervasively sectarian (cf., Application of a Child with a Disability, Appeal No. 93-3).

There is also insufficient information about the recommended HES in the record. Both parties annexed a two-page excerpt from petitioner's publication Educational Services for Student with Handicapping Conditions describing HES to their respective memoranda of law to the hearing officer. The two-page excerpt indicates that HES may include specialized instruction to a child with a disability, special services such as audiology and interpreting, as well as "assistance and orientation to general and special education teachers, students or other personnel with respect to the instructional and guidance needs of students with hearing impairments." In their respective briefs to the hearing officers, the parties emphasized the specific HES tasks which were consistent with their respective positions regarding the Establishment Clause. However, the child's IEP is not part of the record, and there is no information about the child's academic needs or the specific services which she requires.

In its Zobrest decision, the United States Supreme Court held that the Establishment Clause of the First Amendment did not preclude a school district from using Individuals with Disabilities Act funds to provide the services of a sign-language interpreter to a child in a sectarian nonpublic school. The Court found that the task of a sign-language interpreter was quite different from that of a teacher. A distinction between instructional services which only a certified or licensed teacher could provide, and other kinds of services, which other individuals could provide, may be dispositive of this matter (Russman v. Board of Education of the Enlarged City School District of the City of Watervliet, 93-CV-905, [N.D.N.Y., 1994], n.o.r.; Application of a Child with a Disability, Appeal No. 94-19). However, the record in this instance is inadequate to ascertain the nature of the service which respondents seek for their child. It is also not clear from the record what, if any, services could be provided to the child off the premises of the private school. Boards of Education may provide appropriate special education and related services to children who are unilaterally enrolled by their parents in private schools, by offering such education and services in the public schools, in private schools or at neutral sites (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et al., 72 NY 2d 174 [1988]). In the absence of information about the specific services to be provided to respondent's child, I find that the Establishment Clause issue is prematurely raised.

The hearing officer premised his decision, in part, upon the Free Exercise Clause of the First Amendment. However, the present record is no more adequate to support a determination with respect to the Free Exercise Clause then it is to support a determination with respect to the Establishment Clause. Accordingly, I do not reach the issue of the respondent's rights under the Free Exercise Clause, which in any event would not be dispositive of the Establishment Clause issue (Lee v. Weisman, U.S. , 112 S. CT. 2649 [1992]).

The absence of a record which reveals whether the Park East Day School is pervasively sectarian, whether the services the child requires must be provided on the premises of the school, and whether the services are instructional in nature compels me to annul the decision of the hearing officer, and to require petitioner to immediately schedule a hearing to provide the parties with an opportunity to introduce adequate information to support a hearing officer's decision (Application of the Board of Education of the Enlarged City School District of the City of Watervliet, Appeal No. 92-14).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and:

IT IS FURTHER ORDERED that within ten days after the date of this decision petitioner shall schedule a hearing to resolve the issues raised by respondents' request for a hearing.

Dated: Albany, New York                                                                    ____________________________
             November 23, 1994                                                                  DANIEL W. SZETELA