92-011

Petitioner, the Board of Education of the East Syracuse-Minoa Central School District, appeals from the decision of an impartial hearing officer which ordered petitioner to provide respondent's child with access to, and supportive assistance for, extracurricular activities in a school in the West Genesee Central School District where the child is enrolled in a special education class of the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES). The appeal must be dismissed.

Respondents' 13 year old child has a profound, bilateral hearing loss. A December, 1990 audiological evaluation of the child reveals that he uses a FM receiver in connection with one of his hearing aids, in order to receive instruction in school. The audiologist reported that the child is an excellent speech reader, and is able to carry on a basic conversation using cues gained from reading speech. The child is classified as deaf in accordance with the provisions of 8 NYCRR 200.1 (ee)(5). There is no dispute about his classification.

During his triennial re-evaluation conducted in September, 1991, the child's performance IQ was found to be within the average range, and his performance on the Test of Non-verbal Intelligence was also within the average range. On achievement tests, the child's overall reading skills were at approximately the middle of second grade level. The CSE chairperson testified at the hearing that the child has difficulty in reading English, in part, because the syntax used by the child in American sign language is different. The child performed mathematical calculations at a 5.9 grade equivalent, while he achieved a grade equivalent of 3.3 in mathematical application. The school psychologist intern who performed the evaluation reported that projective testing revealed that the child had a good self-image in his relationships with others, but also revealed that he has some anxiety about his academic performance, particularly in mainstream courses.

The child attended a BOCES non-categorical preschool program in the 1982-83 school year. The child has been placed by petitioner in the BOCES special education classes since September, 1983. From the 1983-84 through 1989-90 school years, the child was enrolled in a BOCES self-contained class for the deaf located in the Split Rock Elementary School in the West Genesee Central School District. The child then matriculated into a BOCES special program for the deaf in the Camillus Middle School, which is also within the West Genesee Central School District. The child is now in seventh grade at the Camillus Middle School. The child's IEP for the 1991-92 school year provides that he is to receive direct instruction in mathematics, social studies, health and English within a special education class, and is mainstreamed for physical education, study hall, art and home and careers/technology. An interpreter for the deaf is provided for three hours each day as a related service to assist the child in mainstreamed instruction. The child is also receiving three and one half hours of speech/language/hearing therapy each week, and 20 hours of audiology during the course of the school year. The child is in a twelve month educational program.

At the June 13, 1991 meeting of petitioner's committee on special education (CSE), respondents asked the CSE to recommend to petitioner that it provide late bus transportation and an interpreter of the deaf so that the child could participate in interscholastic athletics at the Camillus Middle School. The CSE chairperson testified at the hearing that the CSE did not make any recommendation concerning respondents' request, because the chairperson had not received a legal opinion which he had sought concerning the district's obligation to provide the requested services. On July 22, 1991, petitioner approved the CSE's recommendation concerning the child's program for the 1991-92 school year. In August, 1991, the chairperson of the CSE suggested to respondents that the child participate in interscholastic athletics at petitioner's Pine Grove Middle School. While asserting at the hearing that the CSE had not considered the issue of whether the child should receive the assistance of an interpreter for the deaf if he participated in petitioner's athletic program, the CSE chairperson testified that it was likely that the child would require the services of an interpreter.

On September 3, 1991, respondents requested that an impartial hearing be held, and a hearing was scheduled to be held on September 25, 1991. On the latter date, the parents and the board of education entered into a stipulation, pursuant to which it was agreed that the CSE would complete its triennial re-evaluation of the child and would thereafter reconvene to consider whether the child's participation in the athletic program of the West Genesee Central School District should be part of the child's special education program and whether a late bus and an interpreter should be provided. In the interim, the parties agreed that petitioner would pay a pro rata share of the cost of the services of an interpreter for the deaf who was already working with the West Genesee athletic program, while respondents agreed to provide their own transportation for the child after athletic practices and games.

On October 25, 1991, the CSE met with respondents to review the results of the triennial re-evaluation. The CSE concluded that the child's program, as reflected in his IEP, was appropriate. At the CSE meeting, the child's teacher at BOCES and the parent member of the CSE supported, and the school psychologist and the CSE chairperson opposed, respondents' request for late bus transportation and an interpreter for the deaf. On October 28, 1991, petitioner approved the CSE's program recommendation, and specifically denied respondents' request for a late bus and an interpreter, as part of the child's IEP.

On October 30, 1991, respondents requested that an impartial hearing be held to review petitioner's refusal to provide a late bus and an interpreter. The hearing was held on December 9, 1991, with additional days of hearing on December 13 and 18, 1991. By decision dated January 15, 1992, the hearing officer found that the evidence presented at the hearing supported respondents' contention that the child should be allowed to participate in extracurricular activities at Camillus Middle School, where he attends class. In his decision, the hearing officer relied upon the testimony of two of the child's teachers, who opined that the child would be a better student if he participated in the athletic program of the school which he attends, as well as the provisions of 8 NYCRR 100.2 (k) which require that no child be denied participation in curricular or extracurricular activities, on the basis of race, sex, marital status, color, religion, national origin or disability.

Petitioner asserts that the hearing officer's decision is not supported by the record, and that the hearing officer abused his discretion in ordering petitioner to provide the services requested by respondent. Petitioner's assertion is based upon its belief that its obligation to make special transportation arrangements and to provide the services of an interpreter for the deaf is conditioned upon a finding that such services are required in order for the child to benefit from his instructional program. The initial question, according to petitioner, is whether the educational program recommended by the CSE is appropriate for the child. If the program is appropriate, petitioner asserts that it has met its obligation to provide a free appropriate public education pursuant to 20 USC 1414 (a)(1)(c)(ii). Petitioner further asserts that it may satisfy its obligation to provide a free appropriate public education by showing that it has provided respondents' child with an educational program which is reasonably calculated to enable the child to receive educational benefits (Board of Education Hendrick Hudson School District v. Rowley, 458 U.S. 176). Petitioner relies upon the testimony of the child's teachers, his teachers' comments on his IEPs and report cards and the results of his performance on standardized tests to demonstrate that the child has made satisfactory progress in achieving his annual goals and is therefore benefiting from his instructional program. Petitioner asserts that since the child is benefiting from his current educational program, the requested services are not required in order for him to benefit educationally from such program, and petitioner is not obligated to provide those services.

Respondents assert that the record demonstrates that the child has an educational need for the requested services, in order to improve his academic performance and to enhance his self-confidence and communication skills in mainstreamed settings. In the alternative, respondents assert that the child is entitled to participate in the West Genesee athletic program, as a matter of access and the least restrictive environment, and that the hearing officer did not abuse his discretion in ordering petitioner to provide the requested services.

Petitioner premises its position upon the assumption that the only issue in the case is whether the child is entitled to receive the requested services under the criterion used to ascertain whether specific related services are to be provided to the child as part of the free appropriate public education which petitioner must provide. The Federal regulatory definition of the term related services includes transportation and "such other development corrective, and other supportive services as are required to assist a handicapped child to benefit from instruction ..." (34 CFR 300.13 [a]). However, whether the requested services are necessary to assist the child to benefit from special education is not the dispositive issue in this appeal.

Respondents' request for late bus service and for an interpreter for the deaf raises the issue of petitioner's obligation to provide meaningful access to extracurricular activities, in accordance with the provisions of both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Federal regulations promulgated pursuant to IDEA require boards of education to:

"... take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped children an equal opportunity for participation in those services and activities" (34 CFR 300.306[a]).

In Rettig v. Kent City School District, 788 F. 2d 328, the mandate of equal opportunity which this regulation imposed was found to be inconsistent with the Supreme Court's holding in Rowley, supra. However, unlike the facts in this case, the Rettig court also found that the child in question was unable to significantly benefit from involvement in any extracurricular activity. The U.S. Department of Education subsequently opined that under the IDEA, a school district is not obligated to ensure that a disabled child participates in all extracurricular activities which the parent or the child chooses, but may exercise discretion in determining for which extracurricular activities it will provide transportation and it may use Federal funds under the IDEA to provide transportation to extracurricular activities not listed on a child's IEP (EHLR 211:468).

Although petitioner has some discretion in determining what transportation services it will provide under the provisions of 34 CFR 300.306 (a), it would be an abuse of discretion to deny late bus service to respondent's child in view of the obvious educational benefits to the child. The testimony of the BOCES school psychologist and of two of the child's teachers affords a basis for concluding that the child would receive educational benefits, if he participated in the athletic program of the Camillus Middle School. The School psychologist, who has known the child for four years, testified that participation in athletics would motivate the child to perform better academically, would afford him an opportunity to excel, and would encourage him to take risks in class where he shies away from new or unfamiliar tasks. The child's speech/language pathologist testified that the child needed to be motivated to complete his written assignment, and that sports participation could enhance the child's self-image and be used as a "carrot" to improve his academic performance. The child's teacher for English, social studies and health also testified that participation in sports would motivate the child to succeed in school, improve his self-confidence, and aid him in developing a sense of responsibility. I also note that the relevant Federal regulation implementing Section 504 is virtually identical with that of the Federal regulation under IDEA, except that the 504 regulation states that a recipient of Federal funds shall provide non-academic and extracurricular services (34 CFR 104.37 [a]). In addition, petitioner may not withhold late bus service from respondents' child if it provides late bus service to student athletes who attend petitioner's schools (Matter of Board of Education of Lindenhurst Union Free School District, 19 Ed. Dept. Rep. 590).

There does not appear to be any serious dispute that the child requires the services of an interpreter for the deaf in order to participate in athletics. The record reveals that although the child has intelligible speech, he communicates primarily in American sign language. Petitioner has an obligation to provide its disabled children with the opportunity to participate in extracurricular programs pursuant to Federal and State regulations (34 CFR 300.306[a], 34 CFR 104.37 and 8 NYCRR 200.2[b][1]). In order for the child to have a meaningful opportunity to participate in athletics, I find that the services of a speech interpreter must be provided (Rothschild v. Grottenthaler, 716 F. Supp. 146).

The remaining issue is whether the child must be afforded access to extracurricular activities at the Camillus Middle School. Petitioner asserts that it has met its obligation to provide access under the IDEA, Section 504 and state regulation, by offering to have the child participate on the football team of petitioner's Pine Grove Junior High School. Although petitioner has offered access to its extracurricular activities in a literal sense, I find that it has not offered meaningful access (Rothschild v. Grottenthaler, supra). This child has never attended school in petitioner's district. He has always attended school in the West Genesee Central School District. As the BOCES psychologist and the child's teachers testified, the child's peers are the children who also attend the Camillus Middle School. The record reveals that the BOCES program for the deaf is well established in that school. Its teachers and coaches are familiar with the needs of deaf children. The administrator of the BOCES program for the deaf testified that during the 1990-91 school year 12 deaf children from at least four different school districts participated on the athletic teams of the Camillus Middle School, and that these four school districts had provided late bus service and contributed to the cost of the interpreters for the deaf who provided assistance to the deaf players. Under these circumstances, I find that there is ample support in the record for the hearing officer's decision. I have considered petitioner's other assertions, and find them to be without merit.

THE APPEAL IS DISMISSED.