93-003

Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the services of a consultant teacher, classroom aide, a speech therapist and an occupational therapist not be provided to petitioners' child at the site of a private school selected by petitioner. The appeal must be dismissed.

Petitioner's eleven year old child is classified as mentally retarded. Her classification is not in dispute. In a May, 1991 psychological evaluation, the child achieved a verbal IQ score of 59, a performance IQ score of 45, and a full scale IQ score of 48. In April, 1992, the child was assessed to be reading at a mid-first grade level, while her mathematic skills were at the kindergarten level. An independent evaluator testified at the hearing that the child was very adept socially, but that her speech was somewhat difficult for others to understand. The evaluator further testified that the child was academically weak in language and comprehension, and had some small motor deficits which were manifested in tasks such as writing and buttoning.

After attending a special education preschool program, the child was referred to respondent's CSE, which recommended that she be enrolled in a diagnostic development program of the Board of Cooperative Educational Services of Albany, Schoharie and Schenectady Counties (BOCES). The child was enrolled in the BOCES program for two years, after which she was enrolled for three years in a BOCES fundamental skills program.

Petitioners met with the CSE in the Spring of 1991, to request that the child be placed in a class with age appropriate peers for fourth grade during the 1991-92 school year, because they believed that a special class program was too restrictive and did not sufficiently challenge their child. Petitioners requested that respondent provide the child with the services of a part-time consultant teacher, a full-time aide, as well as speech therapy and occupational therapy, at the St. Brigid's Regional School, a parochial school in Watervliet which had been selected by petitioners. In June, 1991, the CSE recommended that the requested services be provided at the St. Brigid's Regional School. However, respondent rejected the CSE's recommendation.

Petitioners requested that an impartial hearing be held to review the action of respondent. In the interim, the child was placed by petitioners in a regular education class in respondent's elementary school, where she received the requested services. In a decision dated January 29, 1992, the hearing officer held that respondent was legally authorized and obligated to provide the requested services at the private school selected by petitioners.

Respondent appealed from the hearing officer's decision. In Application of a Child with a Handicapping Condition, Appeal No. 92-14, I annulled the hearing officer's decision, but did not reach the issue of the constitutionality of the provision of the requested services in the private school. I held that the process by which the child's individualized education program (IEP) had been developed was flawed because the child's mother had served as a parent member of the CSE, and that the IEP failed to specify whether the consultant teacher services were direct or indirect, or to identify the areas in which the child was to receive primary instruction from a special education teacher (cf. 8 NYCRR 200.4 [c][2][iv]). I also found that the child's IEP should have delineated the responsibilities of the child's regular education and consultant teachers. The CSE was directed to reconsider its recommendation in a meeting to which representatives of the private school were invited to discuss the feasibility and implementation of the proposed program in the private school, and to clarify the role and supervision of the aide, in a manner consistent with the provisions of 8 NYCRR 80.33.

On May 14, 1992, the CSE met with petitioners, the principal of St. Brigid's and the child's prospective fifth grade teacher at St. Brigid's. The child's fourth grade teacher in respondent's elementary school, who was also at the CSE meeting, told the CSE that the child had successfully participated in the teacher's class, with the assistance of the special educational services. The CSE revised the child's IEP for the 1991-92 school year, and discussed the feasibility of implementing the IEP in the private school. The principal of the private school advised the CSE that the IEP could be implemented in St. Brigid's, if the requested special educational services were provided. The CSE meeting was adjourned without a recommendation for the implementation of the child's IEP. The 1991-92 IEP, which is not part of the present record, was approved by the CSE at a subsequent meeting on May 21, 1992. The CSE again discussed the implementation of the child's IEP in St. Brigid's and then voted to recommend to respondent that the IEP could not be implemented in the private school. The CSE began preparing the child's IEP for the 1992-93 school year, but did not complete that IEP until the CSE's next meeting on May 27, 1992.

The child's IEP for the 1992-93 school year provides that the child be enrolled in a regular education fifth grade class, but receive a curriculum which is modified to meet her needs. The IEP further provides that the child is to receive 30 minutes per day of primary instruction by a consultant teacher for reading, mathematics, and language arts. The consultant teacher is to provide an additional 30 minutes per day of indirect service, consulting with the child's regular education teacher about the child's instruction in reading, English, spelling, penmanship, mathematics, social studies, science and health. The consultant teacher is also to consult with the regular education teacher regarding the daily activities of a full-time teacher aide, and is to be primarily responsible for supervising the aide's performance of support teaching duties. The aide would provide support teaching in reading, English, spelling, penmanship, mathematics, social studies, science and health. The IEP also provides that the child shall receive three 30 minute periods of speech therapy per week and two 30 minute periods of occupational therapy per week. The child's speech therapist is also to consult with the consultant teacher once each week.

In view of the fact that the parties have stipulated that the child's IEP would be appropriate, I do not reach the issue of the appropriateness of providing only 30 minutes per day of primary special education instruction in reading, mathematics and language arts to the child, or the rationale for also having the child receive instruction in these subjects from her regular education teacher (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. NY, 1987]).

The CSE voted to recommend to respondent that the special educational services set forth on the child's 1992-93 IEP could not be delivered in an appropriate manner at the private school in which petitioners wished to enroll the child. Petitioners requested that an impartial hearing be held to review the CSE's recommendation. The record reveals that the child remained in respondent's elementary school for fifth grade during the 1992-93 school year. At the hearing which was held on October 15 and 16, 1992, the parties stipulated that the child's IEP was appropriate and that the hearing officer should consider the record of the prior hearing in addition to the record to be developed at the new hearing. They further stipulated that respondent would provide speech therapy and occupational therapy to the child at St. Brigid's (cf. Wolman v. Walters, 433 U.S. 229; Filler v. Port Washington UFSD, 436 F. Supp. 1231 [E.D. NY, 1977]). In view of the parties' stipulation, I do not reach the issue of the provision of those services (Hiller v. Bd. of Ed.,supra).

In a decision dated December 24, 1992, the hearing officer found that the CSE had prepared the child's IEP in accordance with the directives of my decision in Appeal No. 92-14. The hearing officer noted that little competent evidence had been presented at the hearing with regard to the manner in which St. Brigid's Regional School functioned or the way in which instruction was presented in the school. Nevertheless, he concluded that there was sufficient evidence to determine whether respondent could, consistent with the Establishment Clause of the First Amendment to the U.S. Constitution, provide the services of a consultant teacher and an aide at St. Brigid's. Relying upon the minutes of CSE meetings at which the St. Brigid's principal explained the philosophy and practices of that school, the hearing officer found that the school offered its students a religiously oriented curriculum, and held that providing the services of the consultant teacher and aide at the school would improperly advance religion and result in excessive government entanglement with religion (Lemon v. Kurtzman, 403 U.S. 602). The hearing officer further held that the respondent's denial of services to the child at St. Brigid's did not unlawfully abridge petitioners' or the child's rights under the Free Exercise Clause of the First Amendment to the U.S. Constitution.

Petitioners assert that respondent is required by Federal and State law to provide the services of a consultant teacher and an aide at St. Brigid's school. However, petitioner's assertion that there is such a requirement is, at least, overstated. Federal regulations and state statute require each board of education to provide special education and related services designed to meet the needs of disabled children who reside within the school district and attend private school (34 CFR 300.403 and 300.452; Education Law Section 3602-c). Although petitioners' child was enrolled in respondent's schools when petitioners met with the CSE, petitioners stated their intention to enroll the child in St. Brigid's. Accordingly, respondent's CSE was obligated to offer an appropriate public school placement for the child, and an appropriate program of special education/and or related services if the child enrolled in St. Brigid's (Application of a Child with a Handicapping Condition, Appeal No. 91-13).

The U.S. Department of Education has opined that a board of education is not required by Federal law to make suitable educational services available to a child on the premises of the private school which the child attends (Goodall, 16 EHLR 1398; see also, Goodall v. Stafford County School Board, 930 F. 2nd 363 [4th Cir., 1991], cert. den. 112 S. Ct. 177). In New York, disabled children who are enrolled by their parents in private schools are eligible to receive special educational services from their respective boards of education pursuant to Section 3602-c of the Education Law. However, Section 3602-c does not require boards of education to provide services on the premises of the private schools, but allows boards of education to determine an appropriate program for each child, within statutory guidelines and constitutional constraints (Board of Education Monroe-Woodbury CSE v. Wieder et al., 72 NY 2nd 174).

Although a CSE may use its discretion in recommending an appropriate program, it must nevertheless recommend a program which can be implemented (Matter of a Child with a Handicapping Condition, 20 Ed. Dept. Rep. 138; Matter of a Handicapped Child, 21 id. 527; Matter of a Handicapped Child, 22 id. 571). There is no dispute about the appropriateness of the child's IEP, if the child attends respondent's elementary school. However, the CSE prepared a single IEP for the child, and recommended to respondent that the IEP could not be implemented if the child attended St. Brigid's. A child's IEP is the CSE's recommendation (8 NYCRR 200.4 [c]). I find that the CSE's recommendation for petitioner's child is inherently contradictory, with regard to the child's attendance at St. Brigid's. The minutes of the CSE's meeting of May 21, 1992 reveal that the CSE considered, but then rejected, the option of providing some of the IEP services at respondent's elementary school and the rest of the services at the private school. However, the CSE made no recommendation for services to be provided to the child if the child enrolled in St. Brigid's. Therefore, the CSE has not met its obligation to recommend an appropriate program for a child who has been or will be enrolled in a private school (Application of a Child with a Handicapping Condition, Appeal No. 91-13).

Although the CSE should have recommended a program which it believed could have been implemented if the child enrolled in the private school, the resolution of this matter would be needlessly delayed by ordering the CSE to make a new recommendation. The parties agree that the child's IEP prepared by the CSE is appropriate, and that the only area of disagreement is whether the IEP services can be provided on the premises of the private school. While the CSE did not offer any explanation for its recommendation that the IEP could not be implemented, it is readily apparent from the minutes of the CSE meetings and the position taken by respondent at the hearing that the CSE refrained from recommending that the services of a consultant teacher and aide be provided on the premises of St. Brigid's because it believed that respondent was constitutionally precluded from providing those services at the private school. Therefore, I find that it is necessary to reach the constitutional issue (Goodall v. Stafford County School Board, supra).

Upon review of the records of the first and second hearings, I find that there is some evidence about the program of the St. Brigid's Regional Catholic School. The CSE minutes of its May 14, 1992 meeting report that the principal of St. Brigid's told the CSE that religious concepts are introduced during the course of instructional presentations at St. Brigid's in subjects such as social studies, science and health, and that children were directed to pray four times each day at the school. At the May 21, 1992 CSE meeting, the principal of St. Brigid's presented the CSE chairperson with a written description of the school's philosophy, in which it was stated that:

"Our responsibility is to foster the total Christian in a Catholic environment: Christian morals and principles should permeate all disciplines."

Petitioners do not dispute the hearing officer's finding that the private school offers a "religion-permeated academic curriculum." (Decision, page 15). I concur with the hearing officer's conclusion that the record presents a sufficient basis to support a determination of the constitutional issue.

The First Amendment to the United States Constitution reads, in material part, as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Since 1948, the provision of the First Amendment have been held to be applicable to State funded assistance to children attending sectarian schools (Everson v. Board of Education, 330 U.S. 1).

This appeal presents issues premised upon both the Establishment Clause and the Free Exercise Clause. The Establishment Clause issue arises because petitioners seek to have a public school teacher and a public school aide provide services to their child on the premises of a sectarian private school. In Lemon v. Kurtzman, supra, the United States Supreme Court established a three-part test for ascertaining whether government action impermissibly establishes or results in active involvement in religious activity:

1. The government action must have a secular purpose;

2. The action must not have the primary effect of advancing religion; and

3. The action must not create excessive entanglement between church and state.

In applying the three-part Lemon test to both Federal and State funded activities, the Supreme Court had held that the challenged activity is unconstitutional if it does not meet each of the three parts of the Lemon standard. In Lemon, the Court held that the supervision needed to ensure that publicly funded teachers in parochial schools were not conveying religious messages would constitute an excessive entanglement of church and state. In 1975, the Court reached the same conclusion in invalidating a state program which provided guidance, testing, remedial and therapeutic services by school district employees on the premises of pervasively sectarian schools (Meek v. Pittenger, 421 U.S. 349). In Meek, the Court stated that:

"Whether the subject is 'remedial reading,' 'advanced reading,' or simply 'reading,' a teacher remains a teacher and the danger that religious doctrine will become intertwined with secular instruction persists." (Ibid, at 370).

In 1985, the Court held that a school district's program of providing staff to teach classes to supplement core curriculum courses in sectarian schools and a second program of providing staff to teach voluntary "community education" courses in such schools after regular school hours violated each of the three parts of the Lemon test (School District of the City of Grand Rapids et al. v. Ball et al., 473 U.S. 373. In the same year, the Court held that the New York City School District could not constitutionally use Federal funds received under the former Title I of the Elementary and Secondary Education Act of 1965 (now Chapter 1 of the Education Consolidation and Improvement Act of 1981, 20 USC 3801) to pay the salaries of school personnel, including teachers, psychologists and social workers, who were assigned to parochial schools to provide remedial instruction to educationally deprived children (Aguilar et al. v. Felton et al., 473 U.S. 402). Acknowledging that the board of education had adopted a supervisory system to prevent the Title I program employees from inculcating religious beliefs, the Court held that the supervisory system inevitably results in the excessive entanglement, and noted that:

"The administrative cooperation that is required to maintain the educational program at issue here entangles church and state in still another way that infringes interests at the heart of the Establishment Clause...(because) the program necessitates 'frequent contacts between the regular and the remedial teacher...in which each side reports on individual student needs, problems encountered, and results achieved'..." (Ibid at 412).

The U.S. Department of Education has expressed the opinion that it would not "presume" to extend the ruling of the Aguilar decision to the provision of services to disabled children at the site of private schools pursuant to 20 USC 1400 et seq. (Orschel, 16 EHLR 1368). Nevertheless, two United States Circuit Courts of Appeal have held that the provision of interpreters to deaf children in sectarian schools under the authority of 20 USC 1400 et seq. would violate the Establishment Clause of the First Amendment (Goodall v. Stafford County School Board, supra;Zobrest v. Catalina Foothills School District, 936 F. 2nd 1190 (9th Cir., 1992). In Zobrest, the Court noted that even if the presence of a publicly funded interpreter were limited to classes in which secular subjects were taught, i.e. other than religion, it could not be sustained because the supervision necessary to prevent the use of the interpreter to advance religion would require an excessive entanglement of church and state.

The Zobrest case is now pending before the U.S. Supreme Court. Whether the Court will adhere to the Lemon test, or articulate a new standard as some have urged, remains to be seen. At present, I am constrained to apply the Lemon test to the facts of this appeal. The educational program which the CSE designed for this child was described at the hearing as an inclusion program. Petitioners' expert witness testified about the purpose of the inclusion program and the duties of the consultant teacher as follows:

"Well, the idea in providing a program for students in the regular classroom is to make use of the activities that exist in there but to modify either the input or the output, whatever the student is doing so that it is directly related to what she needs to learn. It is the same sort of modification but tied to what the other students are doing. In some ways it is very similar to what we do with groups of students who have various learning disabilities. We make the activities similar, related, but distinct for each group's needs or for each individual's needs.

So, a consultant teacher would take charge of designing those specific activities in working with the regular classroom teacher to decide where in the schedule and which aspect of the IEP would be delivered." (Transcript, p. 141)

The child's program would be based upon the curriculum of St. Brigid's, with modifications as directed by the child's IEP and determined by the consultant teacher. It is an inescapable conclusion that the daily consultation between the consultant teacher and the child's regular education teacher at St. Brigid's could not be sustained under the third part of the Lemon test. The primary instruction which the consultant teacher would provide the child as a direct service cannot be analytically distinguished from the remedial instruction involved in Aguilar, and the supervision necessary to ensure that such instruction does not inculcate religion compels me to conclude that the provision of such instruction would not satisfy the third part of the Lemon test.

While the classroom aide would be ostensibly assigned to the child to support the special education program provided by the consultant teacher, the IEP discloses that the aide would assist the child in subjects for which she would not receive special education. In view of the private school's stated purpose of introducing religious concepts throughout the curriculum and the virtual absence of any public school supervision of the aide's activities, there is a substantial likelihood of advancing religion under the second part of the Lemon test. The activities of the classroom aide in support of the child's education program are clearly distinguishable from those of the personal hygiene aide involved in Application of Bd. of Ed. City School District City of New York, 24 Ed. Dept. Rep. 155, upon which petitioners rely.

Petitioners assert that the hearing officer erred in not balancing the competing constitutional interests of petitioners and respondent. They contend that their right to freely exercise their religion has been circumscribed by respondent's refusal to provide their child with services at St. Brigid's compelling them to keep the child enrolled in respondent's elementary school. Petitioner's reliance upon Free Exercise Clause of the First Amendment is unavailing. Infringement by the government upon free exercise of religion is subject to strict scrutiny, and can be justified only by a compelling state interest. However, the avoidance of a violation of the Establishment Clause is a compelling state interest (Goodall v. Stafford County School Board, supra; Zobrest v. Catalina Foothills School District, supra).

Upon the record before me, I must uphold the hearing officer's decision.

THE APPEAL IS DISMISSED.