96-041

      Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer's decision which directed petitioner to provide "hearing education services" (HES)¹ to respondent's daughter at the site of the child's parochial school in Manhattan. The appeal must be dismissed.

        Respondent's daughter, will be seven years old within a few days, was born with profound bilateral sensorineural hearing loss. She received cochlear implants in each ear, at the age of two. The cochlear implants are reportedly used in conjunction with a small receiver, and a small speech processor, which the child wears in a harness on her back under her clothing. The speech processor changes sound into electrical impulses which are perceived in the child's brain as sound. At the hearing in this proceeding, a speech/language pathologist from the League for the Hard of Hearing testified that the child has a profound hearing loss, but that her hearing loss was in the mild to moderate range when she used her cochlear implants.

        In 1993, the child's parents enrolled her in the preschool program of the Rabbi Arthur Schnier Park East Day School, (Park East Day School) for the 1993-94 school year. The Park East Day School provided its students with both secular and Judaic studies within its curriculum. On June 3, 1993, petitioner's hearing handicapped and visually impaired specialized assessment committee on preschool special education (CPSE) recommended that the child be identified as a preschool student with a disability. It also recommended that petitioner provide the child with three hours per week of HES and two hours of individual and two hours of group language therapy per week, on the premises of the Park East Day School. Petitioner reportedly paid an independent contractor to provide those services to the child at the private school during the 1993-94 school year.

        The following year, the child came under the jurisdiction of petitioner's hearing handicapped and visually impaired specialized assessment committee on special education (CSE), because she was no longer eligible to receive preschool educational services. When evaluated on March 4, 1994 by a psychologist in the League for the Hard of Hearing, the child achieved a verbal IQ score of 109, and a performance IQ score of 87. Commenting upon the child's relatively strong verbal ability, the psychologist reported that the child spoke in full sentences, and asked appropriate "what", "where", and "when" questions. She described the child's speech articulation and sign language skills as emerging. The psychologist noted that the child's relative weakness in the performance portion of the IQ test was consistent with the child's reported history of motor delays. The child's adaptive behavior skills were at or above her age level in all domains, except motor skills. The psychologist reported that the child evidenced no sign of emotional distress, and that the child had made remarkable progress in developing her speech/language skills.

        On March 6, 1994, an educational evaluation of the child was also performed at the League for the Hard of Hearing. The child performed at or above the kindergarten level on all portions of the Brigance Diagnostic Inventory of Basic Skills. The evaluator opined that the child had all of the necessary skills for entry into kindergarten in the Fall of 1994. In a joint recommendation, the League psychologist and educational evaluator recommended that the child continue to receive HES services at least three times per week, to assist the child in previewing and reviewing classroom work.

        On May 12, 1994, the CSE recommended that the child be classified as deaf. The CSE also recommended that the child receive five hours per week of HES, and two hours of individual and two hours of group speech/language therapy per week, while in a regular education kindergarten during the 1994-95 school year. It recommended that the child have the use of a "FM unit", which amplifies sounds for the child, as an assistive technology device. On June 10, 1994, the board of education offered a placement for the child in P.59 on 57th Street in Manhattan.

        Respondent enrolled her daughter for kindergarten in the Park East Day School for the 1994-95 school year. She requested that her child receive speech/language therapy from the League for the Hard of Hearing, at petitioner's expense, and that petitioner provide HES to the child in the Park East Day School. Petitioner agreed to contract with the League for the Hard of Hearing for the child's speech/language therapy, and it assigned one of its teachers of the deaf and hard of hearing to provide HES to the child. However, petitioner declined to provide HES to the child at the site of the private school because it believed it was precluded from doing so by the Establishment Clause of the First Amendment to the U.S. Constitution. It was reportedly unaware of the fact that the Park East Day School was affiliated with a local synagogue when it provided services to the child at the private school during the preceding school year.

        In July, 1994, an impartial hearing was held at respondent's request, as the result of the disagreement between the parties about whether petitioner was precluded from providing HES to the child at the Park East Day School by the Establishment Clause. The hearing officer noted that the parties agreed that the one hour per day of HES services which were to be provided pursuant to the child's individualized education program (IEP) was appropriate to meet the needs of the child. The hearing officer concluded the hearing shortly after it had begun, because he believed that only legal issues were involved. In his decision which was rendered in September, 1994, the hearing officer held that to withhold HES from students who attend parochial schools, while providing such services to students who are enrolled in non-sectarian private schools, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

        The board of education appealed from the hearing officer's decision. On November 23, 1994, the State Review Officer annulled the hearing officer's decision, upon the ground that the record which was before the hearing officer was inadequate to support his decision (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35). The State Review Officer found that there was insufficient information in the record with regard to the allegedly "pervasively sectarian" nature of the Park East Day School, the specific services which the child was to receive from petitioner in accordance with her IEP, and the degree to which those services could be provided to the child at a neutral site. Petitioner was ordered to schedule a hearing to address the issues raised by the parent's request for services for her daughter.

        On December 19, 1994, the hearing officer issued an interim order directing the board of education to provide HES services to the child in the Park East Day School, during the pendency of the proceeding. However, the child's HES teacher testified that she had continued to pick up the child at the Park East Day School, and walk with her to the Julia Richmond High School, where she provided HES to the child. After the child received her HES at the public school, she was escorted back to her private school by the HES teacher.

        On March 31, 1995, the CSE amended the child's individualized education program (IEP) to reduce the amount of the child's HES from five 60 minute sessions per week to three 30 minute sessions per week. The HES were reportedly reduced by the CSE, upon the recommendation of the child's HES provider. An updated report of the child's audiological skills revealed that the child could perceive all vowels, and most consonants. With speech reading cues, her ability to perceive consonants reportedly improved. The child could receive paragraph-level material, and correctly answer 60 percent of the content questions about the material. The child's IEP was also amended to provide that she would receive four 30 minute sessions of individual speech/language therapy per week, rather than the two individual and two group sessions of speech/language therapy per week which the CSE had previously recommended. Although the child's mother did not agree with the CSE's reduction of her daughter's HES, she did not challenge the CSE action.

        The CSE conducted its annual review of the child's educational program on May 10, 1995. For the 1995-96 school year, when the child would be in the first grade, the CSE recommended that the child remain in a regular education class, with the related services of HES and speech/language therapy. It recommended that she receive one hour sessions of HES three times per week, and 30 minute sessions for individual speech/language therapy four times per week. Once again, the CSE recommended that the child have the assistance of a FM unit to amplify sounds. With regard to her HES, the child's IEP provided separate annual goals for auditory training, speech reading, and receptive language skills. Her auditory training IEP goals involved both the recognition of auditory stimuli, and the ability to adjust and use her speech processor.

        On September 29, 1995, another impartial hearing officer was designated by petitioner to hear this case. The parties reportedly agreed on that date that the child would continue to receive HES five times per week at a public school during the pendency of this proceeding, and the hearing officer issued an interim order to that effect. After two adjournments with the consent of the parties, the hearing resumed on January 11, 1996. The hearing concluded on March 7, 1996.

        In her decision which was rendered on May 15, 1996, the hearing officer found that the child should receive one hour of HES three times per week, as the CSE had recommended in the IEP which was prepared on May 10, 1995. Relying upon a written description of HES provided by the board of education and the testimony of the child's HES teacher and a former supervisor of the petitioner's HES program, the hearing officer further found that HES are instructional in nature, and that they must be provided to the child at the Park East Day School, in order to be effective. She also noted that the board of education employees who attended the hearing acknowledged that it was petitioner's policy to provide HES on the premises of non-sectarian private schools to children who were enrolled in those schools, but to provide HES at neutral sites to children who were enrolled in sectarian schools. The hearing officer reviewed the contents of a brochure prepared by the Park East Day School, and heard the testimony of two of its employees about the school. She found that the Park East Day School was a pervasively sectarian school.

        Having determined that HES could not be meaningful provided to the child off the site of the private school, and that the private school was sectarian, the hearing officer found that she must address the legal issue of whether petitioner could provide HES at the Park East Day School without violating the Establishment Clause. The hearing officer noted that the U.S. Supreme Court had held that the Establishment Clause did not bar a school district from providing a sign language interpreter to a deaf student on the premises of a parochial school, under the Individuals with Disabilities Education Act (IDEA) (Zobrest v. Catalina Foothills School District, 509 U.S. 1[1993]). She further noted that the Supreme Court had also held that the Establishment Clause precluded petitioner from offering remedial educational services to students on the premises of parochial schools, under the former Title I of the Elementary and Secondary Education Act of 1965 which is now Chapter 1 of the Education Consolidation and Improvement Act (Aguilar v. Felton, 473 U.S. 402[1985]). The hearing officer found that the ruling in Zobrest was controlling, notwithstanding the fact that HES were instructional in nature. She reasoned that, unlike the services provided in Aguilar, the provision of HES to this child did not relieve the Park East School of any burden it would have otherwise borne, and was of no direct benefit to the school. The hearing officer also noted that the record revealed that the Park East Day School's curriculum was divided into two distinct components, one of which was secular and the other was sectarian. She ordered petitioner to provide HES to the child in the Park East Day School, but only during the secular studies portion of the child's school day.

        In this appeal, there is no dispute about the appropriateness of the child's classification as deaf (8 NYCRR 200.1[mm][2]), or that she should receive the HES which the CSE recommended that she receive. There does not appear to be any dispute that HES are instructional in nature. I note that petitioner's publication entitled "Educational Services for Students with Handicapping Conditions" describes HES in part, as:

" ... designed to provide direct specialized instruction to students, ages 4.9 to 21, with hearing handicaps who are enrolled in a general or special education program. Specialized instruction in speech reading and auditory training are provided by a teacher of the deaf and hard of hearing ...

Hearing Education provides:

"(a) Intensive instruction in speech reading and auditory training to enhance the development of receptive/expressive communication skills.

(b) Assistance in acquiring and maintaining the skills necessary to function in the environment.

(c) Assistance in maximum use of students' residual hearing, including instruction and follow-up in the proper care and use of personal hearing aids and auditory training equipment.

(d) Assistance and orientation to general or special education teachers, students, or other personnel with respect to the instructional and guidance needs of students with hearing impairments.

(e) Ongoing communication and interaction with educational staff to coordinate the use of adaptive equipment and ensure congruence with the primary educational program.

(f) Consultation and assistance to other staff on specific strategies, adaptations, modification of learning activities which enable the students to achieve the goals on the Individualized Education Programs.

(g) Systematic, ongoing evaluation of students' educational progress." (Exhibit 6)

        The record reveals that the Park East Day School is located at 164 East 68th Street in Manhattan. It shares a building with the Park East Synagogue, whose rabbi founded the school. A brochure prepared by the school indicates that:

"It offers a bicultural program that combines a rigorous private school education with Judaic studies...As a Jewish day school, Park East regards moral values and a positive Jewish identity as indispensable components of a well-rounded education...It is a vibrant community that reinforces and strengthens the children's pride in their Jewish heritage and sense of moral values" (Exhibit 6).

        Ms. Marilyn Meltzes, the Director of English Studies, i.e., the secular portion of the school's education program, testified that the school had an open admissions policy, but that all students were required to participate in Judaic Studies, i.e., the religious portion of the educational program. She also testified that the school day was about equally divided between the English and Judaic Studies portions of the school's educational program. Ms. Meltzes further testified that the curricula for the two parts of the school's program were planned separately, and were taught by different teachers. Ms. Jeannette Fleicher, this child's secular subjects first grade teacher, testified that religious topics were not discussed in her classroom, and that she did not permit children to speak Hebrew in class. Notwithstanding the dual nature of the Park East Day School's educational program, I note that respondent admitted in her answer, petitioner's allegation that the school was pervasively sectarian. In any event, one of the substantial purposes of the Park East Day School would appear to be the "inculcation of religious values" (Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 768 [1973]).

        Petitioner challenges respondent's right to obtain services for her daughter on the site of the private school, even if the school were non-sectarian. The board of education contends that children who have been offered a free appropriate public education by their school districts, but who have been placed by their parents in private schools, do not have an individual entitlement to IDEA services. Instead, those children must be given an opportunity for equitable participation in the programs and services provided by their school districts (34 CFR 300.451; 34 CFR 76.652). The U.S. Department of Education has taken the position that the so-called "equitable participation" provisions do not require school districts to provide services on the grounds of private schools (22 IDELR 369), and two Circuit Courts of Appeal have also held that school districts were not required to make IDEA services available to children on the premises of their private schools (Goodall v. Stafford County Sch. Dist. 930 F. 2d 363 [4th Cir.], cert. den., 502 U.S. 864, [1991]; K.R. v. Anderson Community School Corporation, 81 F. 3d 673 [7th Cir., 1996]). Nevertheless, the U.S. Court of Appeals for the Second Circuit recently declined to adopt the position advocated by petitioner that a board of education has substantial discretion in determining where and under what circumstances services will be provided to children who attend private schools to the extent of denying them all on-site services (Russman v. Sobol and Bd. of Ed. of the Enlarged City School District of the City of Watervliet, 85 F. 3d 1050 [1996]). However, the Russman Court did not adopt the position that all services which might be required in the context of a public education must also be provided on the premises of a private school. The Court suggested that the relative cost of providing services on the premises of a private school, when compared to the cost of providing the services elsewhere, could be a relevant consideration. However, I note that petitioner has not raised that issue. Indeed, it concedes that it provides IDEA services at the site of non-sectarian private schools.

        Petitioner also argues that the HES which it provided to the child at the nearest neutral site were appropriate for the child. Ms. Wolfson, the child's HES teacher, testified at the hearing that she provided the child with auditory training to improve her listening, sound discrimination, and comprehension skills. She also provided the child with speech reading training to enable the child to have a better understanding of what she hears, and worked with the child to help her accept the fact that she has a hearing loss. In addition to working directly with the child, the HES teacher also attempted to "interface" with the child's regular education teachers, and the child's peers. The HES teacher acknowledged that she had spent less time observing this child in her regular classroom than she would spend with a deaf child who was enrolled in the public schools. Ms. Wolfson also acknowledged that she had less time to interface with the child's teachers and peers. Although she had met with the child's first grade teacher at the beginning of the 1995-96 school year, Ms. Wolfson testified that she spoke to the teacher only a few times thereafter to ensure that she and the child's teacher were using compatible approaches with the child. Ms. Janet Stone, an administrator of petitioner's hard of hearing and visually impaired program testified that HES teachers worked closely with the regular education teachers in the public schools.

        Mr. Stanley Mink, a retired supervisor for HES in petitioner's school district, opined that providing the child with HES at a neutral site was not appropriate because of the loss of time involved in traveling to and from the neutral site, and the loss of opportunity for the HES teacher to observe the child in her regular education classroom and to interact with the child's teachers and peers. He explained that the purpose of HES was to enable deaf children to function in their environment, and that the HES teacher needed to be aware of how the deaf child functioned in class, and how the regular education teacher dealt with the child. Notwithstanding his statement about the inappropriateness of providing the services at a neutral site, Mr. Mink noted that the child had made progress with the HES which petitioner had provided. However, I must note that petitioner did not document the extent of the child's achievement of her IEP goals related to the HES. Upon the record before me, I find that petitioner did not meet its burden of proving that the services which it provided at its Julia Richmond High School were appropriate.

        Petitioner argues that the hearing officer erred by extending the ruling in Zobrest v. Catalina Foothills School District, supra, which involved the services of a sign language interpreter in a sectarian school, to the provision of HES to this child in the Park East Day School. The board of education contends that HES are instructional services, and that the U.S. Supreme Court has consistently held that public funds may not be spent to provide instruction to children in sectarian schools (Lemon v. Kurtzman, 403 U.S. 602 [1971]; Meek v. Pittinger, 429 U.S. 349 [1975]; Wolman v. Walter, 433 U.S. 229 [1977]; School District of the City of Grand Rapids v. Ball, 473 U.S. 373 [1985]; Aguilar v. Felton, supra). In Zobrest, the Supreme Court noted that:

" ... the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor ... " (509 U.S. 1 at 13)

        Nevertheless, the Court of Appeals in Russman, a case which involved the services of a consultant (special education) teacher and a teacher's aide in a parochial school classroom, declined to find that the distinction between the services of an interpreter and those of a teacher was dispositive. It suggested that IDEA made no distinction between a physically disabled child who needed mechanical assistance, and a mentally disabled child who required cognitive assistance. In this instance, the instruction which the HES teacher provided was directed towards having the child achieve her IEP goals of improved auditory comprehension and lip reading. At the hearing, Mr. Mink testified that HES were not intended to provide "academic support", i.e., review or remediation of the content material provided in the child's regular classroom. In view of the Russman decision and the facts which are in the record before me, I find that there is no legal basis for annulling the hearing officer's decision.

THE APPEAL IS DISMISSED.