96-036

      Petitioner, the Board of Education of the Croton-Harmon Union Free School District, appeals from the decision of an impartial hearing officer which directed petitioner to provide the services of a teacher aide to respondents' son in the preschool program of the parochial school which the child attended during the 1995-96 school year. Petitioner contends that the hearing officer's order violated the United States Constitution and the New York State Constitution. The appeal must be dismissed.

        Respondents adopted their son when he was 12 days old. The child, who is now five years old, was born with Down Syndrome. He has had a reactive airway disorder since infancy, and reportedly has asthma. The child also has an impairment of his oromotor control, which affects his ability to eat food which has not been pureed. In August, 1995, he received a therapeutic feeding evaluation by the Blythedale Children's Hospital. The evaluator noted that the structure and function of the child's oral musculature were intact, and recommended that the child receive a therapeutic feeding program to improve his self-feeding skills to an age appropriate level. The child reportedly wore braces on his legs for approximately one and one-half years, because his legs were not strong enough to support him. His braces were taken off his legs, when he was three years old. A physician noted on August 9, 1995 that the child could run and negotiate playground equipment well.

        The child has received speech/language therapy since infancy. At the hearing in this proceeding, the child's mother testified that the child received speech/language therapy three times per week at the Blythedale Children's Hospital. The cost of the child's speech/language therapy was borne by his father's health insurance company. In a report dated July 11, 1995, the child's speech/language therapist indicated that the child had inadequate attending skills, and followed single directions inconsistently. The therapist reported that the child's utterances were typically guttural, or bilabial. She indicated that the child communicated through the use of body language, one-to three syllable utterances, crying, smiling, and laughing. The therapist opined that the child could not benefit educationally in a mainstream classroom setting, unless he was provided with the services of an aide. In a brief note dated July 6, 1995, the child's pediatrician also indicated that the child would require 1:1 supervision in school activities.

        Respondents enrolled their son in the "Peas and Karrotts" Pre-kindergarten program of the Saint Ann's Parish School, in Ossining, New York, for the 1995-96 school year. The child's nine year old brother also attended that school, and was in fourth grade of the Saint Ann's Parish School, during the 1995-96 school year. The Saint Ann's Parish School provides instruction in grades kindergarten through eight. It also offers three preschool programs. The preschool program in which respondents enrolled their son was located in a trailer on the premises of the Saint Ann's Parish School, which is reportedly located on separate premises from the Saint Ann's Catholic Church, with which it is affiliated. The child, who was four years old at the time of his enrollment, was in a class of ten three-year olds, and five four-year olds. The class was in session for two hours per day, in the afternoon, five days per week. The child attended the preschool program, with the assistance of a special education teacher who functioned as the child's individual aide from September 11, 1995, until October 20, 1995. The child's parents paid for the aide's services. The aide found other employment, and was replaced by the child's mother, who accompanied her son to the preschool each day.

        The record does not reveal when respondents referred their son to petitioner's committee on preschool special education (CPSE) for the provision of educational services pursuant to Section 4410 of the Education Law. In their memorandum of law, respondents assert that they referred the child to the CPSE, prior to enrolling him in the preschool program.

        On September 15, 1995, the child was evaluated by a psychologist at the Blythedale Children's Hospital. The psychologist described the child as friendly, and having a good ability to imitate. However, she reported that he displayed an infantile impulsivity, and required physical guidance to respond to requests not to touch objects. The psychologist also reported that the child's random, self-motivated play demonstrated a lack of understanding by the child of the dangers or consequences of his actions. She opined that the child required constant supervision. Although the child could not be formally tested with any standardized test, the psychologist reported that her observation of the child and informal assessment of his skills indicated that the child had moderate deficits in language development, and mild to moderate delays in his ability to perform tasks. She noted that the child's motor skills were relatively strong. With the child's mother as an informant, the psychologist assessed the child's adaptive behavior. She reported that the child's scores on the various portions of the Vineland Adaptive Behavior Scales were all in the mildly impaired range. The psychologist concluded by reporting that the child evidenced mild to moderate mental retardation, with behaviors equivalent to those of a child below the age of two. She opined that the child needed a self-contained class, with a low child to adult ratio, and repetitive, multi-modal instruction. She recommended that an individual aide be provided to protect the child against injury, or other dangers arising from his lack of awareness.

        In a report dated November 7, 1995, the child's teacher in the preschool program indicated that the child could follow the routine of the teacher's educational program, only with the full-time assistance of another adult. She reported that the child had a very short attention span of up to two minutes, unless an adult worked with him. She noted that the child required assistance to dress and eat, and with toileting. In a letter reportedly written on November 8, 1995 to the CPSE's school social worker, the child's teacher indicated that the preschool's curriculum involved indoor and outdoor play, circle games, songs, storytime, a brief rest period, art projects, and snack time. She also indicated that the child liked to walk around the room, and touch objects. The teacher reported that respondents' son was able to do everything the other children in the class did, with the assistance of his former 1:1 aide. She also reported that the child had begun to socialize with the other children in his class, but that his cooperation and socialization skills had regressed since his former aide left the class. The teacher reported that the child pulled the hair of others, and frequently ran away from the group when his name was called. The child's teacher indicated that she wanted the child to have an individual aide to help him develop his language skills, attention span, and ability to interact with other children, as well as to help the child participate safely in the activities of the class.

        On November 8, 1995, the CPSE met with the child's mother, the child's teacher and the principal of the Saint Ann's Parish School. The CPSE recommended that the child be classified as a preschool child with a disability (See 8 NYCRR 200.1 [ee]). It also recommended that the child be placed in a mainstream, i.e., regular education, nursery school program, with a 1:1 "teacher aide in a non-sectarian site." At the hearing in this proceeding, the CPSE chairperson testified that the CPSE believed that the child's behavioral and learning needs were such that another adult should be present in the classroom with him. He further testified that the CPSE had recommended that the services of an aide be provided in a non-sectarian nursery school because of the chairperson's understanding of the law. He acknowledged that neither he nor any member of petitioner's staff had observed the curriculum being taught in the private school. The CPSE chairperson also acknowledged that he did not know what, if any, religious activities took place in the child's preschool classroom. The individualized education program (IEP) which the CPSE prepared for the child included annual goals and improvement of the child's speech/language, basic cognitive, and social skills.

        By letter dated November 17, 1995, the child's mother asked petitioner to appoint an impartial hearing officer to review the CPSE's recommendation. The hearing in this proceeding was not held until March 5, 1996. The hearing officer stated on the record that he was not contacted about the hearing until February 5, 1996. However, both parties waived the requirement that the hearing officer render his decision within 45 days after the board of education received the parent's request for an impartial hearing (34 CFR 300.512 [a]). The hearing officer noted that two representatives of Westchester County, which was financially responsible for the services recommended by the CPSE (See Section 4410 [11] of the Education Law), were afforded the opportunity to participate in the hearing, but they chose to merely observe the proceedings.

        In his decision, which was rendered on April 15, 1996, the hearing officer indicated that the sole issue which the parties had asked him to decide was whether a publicly funded teacher aide could be employed to provide services to respondents' child on the premises of the sectarian Saint Ann's Parish School. However, before addressing that issue, the hearing officer also found that the CPSE should have recommended that the child receive speech/language therapy, when it prepared the child's IEP. He remanded the matter to the CPSE to prospectively amend the child's IEP. The hearing officer noted that respondents had not sought reimbursement for the cost of the speech/language therapy which the child had been receiving at the Blythedale Children's Hospital, and found that they had waived their right to do so.

        With regard to the provision of an aide, the hearing officer found that the CPSE had correctly determined that the child required a full-time individual aide, but he noted that the child's IEP provided little guidance about the duties of the aide. He found that the Croton-Harmon Union Free School District had no reason to believe that the private preschool program's curriculum had any religious content. The hearing officer rejected petitioner's contention that an aide would provide instruction to the child, and would therefore perform services which were proscribed by the holdings of various decisions of the United States Supreme Court, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger, 421 U.S. 349 (1975). Instead, the hearing officer noted that the Supreme Court had held that there were certain circumstances in which special education services could be provided to children in a sectarian school setting (Zobrest v. Catalina Foothills School District, U. S. , 113 S. Ct. 2462 [1993]). He found that the services to be provided by the aide were not instructional, and could be provided without violating either the United States Constitution, or the New York State Constitution. However, he remanded the matter back to the CPSE to delineate the services to be provided by an aide, and indicated that the CPSE should provide a description of services which are "merely custodial", i.e., safety related, so as not to conflict with the provisions of Article 11, Section 3 of the New York State Constitution. Respondents have annexed to their memorandum of law a copy of a revised IEP for the child, which indicated that an aide would be provided to the child in the private school, in accordance with the hearing officer's decision.

        Respondents raise two procedural objections to the petition in this appeal. First, they contend that the appeal was not properly commenced because they were not personally served with a copy of the notice of petition and petition. Instead, petitioner mailed a copy of those documents to respondent's attorneys, on or about May 23, 1996. Section 279.4 of the Regulations of the Commissioner of Education provides that:

" The party seeking review shall file with the Office of Counsel of the State Education Department the petition for review including any written argument, memorandum of law, and additional documentary evidence, and the notice of intention to seek review where required, together with proof of service of a copy of such documents upon the other party to the hearing."

        Section 279.2 of the Regulations of the Commissioner of Education provides that when a parent brings an appeal, a notice of intention to seek review must be served upon the board of education in the manner prescribed for the service of a petition pursuant to Section 275.8 (a) of the Regulations of the Commissioner of Education, which requires personal service of a petition to the Commissioner for review pursuant to Section 310 of the Education Law, upon each named respondent. Part 279 of the Regulations of the Commissioner of Education, which governs appeals to the State Review Officer, does not explicitly set forth the method of service to be used when a board of education brings an appeal to the State Review Officer. However, Section 279.1 (a) of the Regulations of the Commissioner of Education provides that: "The provision of Parts 275 and 276 of this title shall govern the practice on such reviews, except as provided in this Part." In the absence of a specific provision to the contrary in Part 279, I find that personal service upon respondents was required to initiate this review.

        In its reply, petitioner alleges that on May 31, 1996, it was informed by a representative of the Office of Counsel of the State Education Department of the need to personally serve respondents with a copy of the notice of petition and petition, and that it subsequently served those papers upon the respondents on June 3, 1996. It argues that respondents have not been prejudiced by the delay in personally serving them with a copy of the notice of petition and petition, and asks that I accept its appeal. I agree with petitioner, and find that it would be inequitable not to accept its appeal.

        Respondents also contend that this appeal is moot because the IEP upon which it is based has been superseded by another IEP which the CPSE prepared on April 25, 1996, in response to the hearing officer's directive. Petitioner argues that its good faith compliance with the hearing officer's directive should not be used to deprive it of its right to seek review of the hearing officer's decision. Some disputes about a child's IEP may become moot when the child's IEP is superseded by another IEP (Robbins v. Maine School Admin. Dist. No. 56, 807 F. Supp. 11 [D. Maine, 1992]). However, that it is not the case in this instance because the underlying dispute between the parties was, and continues to be, whether petitioner may legally provide an aide for the child on the premises of the Saint Ann's Parish School. Accordingly, I find that the appeal is not moot (Application of a Child with a Handicapping Condition, Appeal No. 92-46; Application of a Child with a Disability, Appeal No. 94-23).

        In this appeal, there is no dispute about the CPSE's recommendation that respondents' child be classified as a child with a disability, or that he should be enrolled in a regular education preschool program, with the services of a full-time individual aide. It is undisputed that the child requires the services of an individual aide, in order to benefit from instruction in a regular education class. Petitioner has not challenged the hearing officer's determination that the child's IEP should be amended to include speech/language therapy. Petitioner challenges the hearing officer's determination that it may legally provide the services of an aide to the child in the Saint Ann's Parish School. The board of education argues that it is precluded by the provisions of the Establishment Clause of the First Amendment to the United States Constitution, and by Article 11, Section 3 of the New York State Constitution, from providing the services of an aide to the child in that private school.

        Petitioner alleges that the St. Ann's School is a parochial school with a religious curriculum. Respondents deny the allegation that the private school has a religious curriculum, yet they concede that one of the reasons they enrolled the child in Saint Ann's was because it is a Catholic school. At the hearing in this proceeding, the principal of the Saint Ann's Parish School was asked whether there was any religious content to the school's curriculum. She testified that:

"Well, we are a religious school so the children will be taught values and so that there is certainly an element of religion within our school." (Transcript, page 64)

        The principal also testified that there was no specific religious observance, such as attendance at Mass, that was appropriate for a three year old. She further testified that approximately 25 percent of the children enrolled in the Saint Ann's School are not Catholic. The child's teacher testified that the religious content of the curriculum is provided by the example of the staff. She stated that:

"We try to exhibit the qualities that we believe are exhibited by our God that we believe in as a staff. Values of sharing, getting along with others, being kind to other children." (Transcript, page 71)

        Although the parties disagree about the religious content of the instruction provided in the preschool program of the Saint Ann's Parish School, I find that the preschool program is part of a private school which is admittedly a parochial school affiliated with a local Roman Catholic parish, and that the school is therefore a sectarian school.

        Petitioner argues that the hearing officer erred by concluding that it could provide a teacher aide on the premises of a parochial school, without violating the Establishment Clause. It argues that the Supreme Court has consistently held that a public school may not provide instruction on the premises of a parochial school (see Lemon v. Kurtzman, supra; Meek v. Pittinger, supra; Grand Rapids School District v. Ball, 473 U.S. 373 [1985]; and Aguilar v. Felton, 473 U.S. 402 [1985]). Petitioner acknowledges that in Zobrest v. Catalina Foothills School District, supra, the Supreme Court held that the Establishment Clause did not preclude a school district from furnishing an interpreter of the deaf to a child with a disability who was enrolled in a sectarian school. However, it places great weight upon the Court's apparent distinction between the services of an interpreter and those of a teacher:

" ... the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor ... Nothing in this record suggests that a sign-language interpreter would do more than accurately interpret whatever material is presented to the class as a whole." (113 S. Ct. 2462, at 2469)

        In Application of a Child with a Disability, Appeal No. 93-3, the State Review Officer held that the Establishment Clause precluded a board of education from providing the services of a consultant teacher, or a classroom aide, to a mentally retarded child who was enrolled in the regular education program of a parochial elementary school. The decision in that appeal was subsequently annulled by the United States District Court for the Northern District of New York (Russman v. Sobol and Bd. of Ed. of the Enlarged City School District of the City of Watervliet, 93-CV-905, 22 IDELR 1028 [1995]). When petitioner filed its papers in this appeal, the District Court's decision was on appeal to the U.S. Circuit Court of Appeals for the Second Circuit. On June 12, 1996, the Court of Appeals affirmed the District Court's decision. It acknowledged that, unlike the sign-language interpreter in Zobrest, a consultant teacher and a classroom aide provided cognitive aid to the child, but held that the distinction was not dispositive. The Court of Appeals observed that:

"The primary purpose of both a sign-language interpreter and a teaching aide is solely to make the material intelligible to the disabled student, not to create a particular religious message or to advance a particular religious viewpoint."

        In this appeal, only the services of an aide are involved. State regulation provides that:

"A teacher aide may be assigned by the board of education to assist teachers in such nonteaching duties as:

(1) managing records, materials, and equipment;

(2) attending to the physical needs of children, and

(3) supervising students and performing such other services as support teaching duties when such services are determined and supervised by teachers." (8 NYCRR 80.33 [a])

        I find that the requested aide's duties, as delineated by the child's teacher in her reports of November 7 and 8, 1995, are consistent with the regulatory definition of a teacher aide. Although the record which is before me is rather limited about the nature of the religious activities which may occur in the child's classroom, I must note that the child's teacher opined at the hearing that the child did not understand anything about religion. Her opinion was supported by the affidavit of the Blythedale Childrens' Hospital psychologist who evaluated the child in September, 1995, and who opined that the child was incapable of understanding any religious instruction which he might receive in the nursery school program. In view of the Russman decision by the Court of Appeals, I find that petitioner's argument that the hearing officer erred by finding that the Establishment Clause did not preclude it from providing a classroom aide for this child is without merit.

        Petitioner argues that the Russman decision did not address the issue of whether the New York State Constitution precluded a board of education from providing the services of a classroom aide on the premises of a sectarian school. It contends that the Russman decision is therefore not dispositive of this matter. Petitioner relies in part upon the decision in Goodall by Goodall v. Stafford County School Board, 930 F. 2d 363 (4th Cir., 1991) cert. den. 502 U.S. 864(1991) for the proposition that even if the provision of a special education service to a child in a parochial school were permissible under the Establishment Clause of the First Amendment, it might nevertheless be impermissible because it violates the State's Constitution. Petitioner argues that Article 11, Section 3 of the New York State Constitution, also known as the "Blaine Amendment," precludes it from providing the services of an aide to this child on the premises of the Saint Ann's School. Article 11, Section 3 of the State Constitution reads as follows:

"Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning."

        Petitioner has discussed the history of the Blaine Amendment in its memorandum of law, and it urges that the Blaine Amendment was adopted to prohibit attempts to divert public funds to parochial schools. However, it does not follow that the use of public funds to directly assist a child who is enrolled in a sectarian school violates the Blaine Amendment (Scales v. Bd. of Ed. UFSD No. 12 Town of Harrison, 41 Misc. 2d 391 [1963]). As the court noted in the Scales decision, Article 7, Section 8 of the State Constitution provides, in material part, that:

" ... nothing in this constitution contained shall prevent the legislature from providing for the ... education and support of the blind, the deaf, the dumb, the physically handicapped, the mentally ill, the emotionally disturbed, the mentally retarded ... as it may deem proper;"

        In any event, petitioner has not cited any judicial decision which is directly on point. I note that in holding that neither Federal nor State law required a school district to provide special education services to private school children in the private schools, the New York Court of Appeals did not reach the constitutional issue in Board of Education of the Monroe-Woodbury Central School District v. Wieder, 72 NY 2d 174 [1988]). I decline to give the Blaine Amendment the interpretation which petitioner urges me to do. Issues of that nature are more appropriately resolved by the Courts.

        Finally, I note that there is difference of opinion among the United States Circuit Courts of Appeal about the extent to which the Federal Individuals with Disabilities Education Act (IDEA) requires school districts to provide services to private school children on the site of their private schools (See K.R.v. Anderson Community School Corporation, 81 F. 3d 673 [7th Cir., 1996]; Russman v. Sobol and Bd. of Ed. of the Enlarged City School District of the City of Watervliet, supra). However, I find that the facts in this appeal are sufficiently similar to those in Russman to warrant the same conclusion, i.e., that the services of the aide should be provided in the private school.

THE APPEAL IS DISMISSED.