Rowley v. Board of Ed. of Hendrick Hudson Central School Dist.

• Citation: 632 F.2d 945
• Decision Date: 17 July 1980
• Docket Number: D,No. 1105,1105
• Parties: Amy ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley, and Clifford and Nancy Rowley, in their own right, Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Westchester County, and the Commissioner of Education of the State of New York, Defendants-Appellants. ocket 80-7098.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 945

632 F.2d 945

Amy ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley, and Clifford and Nancy Rowley in their own right, Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Westchester County, and the Commissioner of Education of the State of New York Defendants-Appellants.

No. 1105, Docket 80-7098.

United States Court of Appeals Second Circuit.

Argued May 1, 1980.

Decided July 17, 1980.

Raymond G. Kuntz, Poughkeepsie, N.Y. (Teresa K. Kuntz and Kuntz & Spletzer, Poughkeepsie, N.Y., on the brief), for defendant-appellant Board of Education.

Paul E. Sherman, Jr., Albany, N.Y. (Jean M. Coon, Albany, N.Y., on the brief), for defendant-appellant Commissioner of Education.

Michael A. Chatoff, Jamaica, N.Y., for plaintiffs-appellees.

Diane Shisk, Seymour Dubow and Marc Charmatz, Washington, D.C.; Thomas K. Gilhool, Frank J. Laski and Beverly Lucas, Philadelphia, Pa., filed a brief amici curiae for The National Association of the Deaf, Gallaudet College, and The American Coalition of Citizens with Disabilities.

Norman H. Gross and McGivern, Shaw & O'Connor, Albany, N.Y., filed a brief amicus curiae for The New York State School Boards Association.

Before MANSFIELD and TIMBERS, Circuit Judges, and BONSAL, Senior District Judge. ^*

PER CURIAM:

This case is about Amy. She is eight years old. She is deaf and has been since birth. She needs a sign language interpreter in her classroom to enable her to have the same educational opportunity as her classmates. The district court, Vincent L. Broderick, District Judge, held that she is entitled by law to have such an interpreter. We agree and accordingly we affirm the judgment of the district court.

Amy Rowley presently is enrolled at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, New York. In accordance with the requirements of federal law, The Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (1978) (the Act), the School District prepared an individualized education program for Amy. ¹

Her parents objected to the program because no provision was made for a sign language interpreter. Accordingly, they commenced proceedings under New York law for the administrative review provided by the Act. ² When the School District's After a four day evidentiary hearing and after reviewing the records of the administrative proceedings, the district court made detailed findings of fact and concluded that Amy had been denied a "free appropriate public education" provided by the Act. ⁴ The court ordered the School District and the Commissioner to provide an interpreter during Amy's academic classes. 483 F.Supp. 528. The court also denied the Commissioner's motion to dismiss for lack of jurisdiction. 483 F.Supp. 536. From the judgment entered on the decisions of the district court, the School District and the Commissioner have appealed.

decision not to provide an interpreter was upheld by the Commissioner of Education of the State of New York, the Rowleys, individually and on behalf of Amy, commenced the instant action in the Southern District of New York under Section 1415(e)(2). ³ The School District was named as defendant and the Commissioner subsequently was added as a necessary party defendant.

Our careful review of the record satisfies us that the district court's findings of fact are not clearly erroneous, but are adequately supported by the evidence. We also agree with the district court's conclusions of law. Accordingly, we affirm substantially for the reasons set forth in Judge Broderick's well-reasoned opinions of January 15, 1980, adding only the following brief observations of our own chiefly to focus upon certain critical evidence.

Amy is the child of deaf parents. Since her birth, her parents have communicated with her by a method which includes the use of sign language, visual cues, the mouthing of words, and amplification.

Amy is a bright child. Despite her handicap, she performs above the median standard of her class. The district court attributed this to her intense desire to learn and the extraordinary degree of additional academic help and support she receives from her parents.

Like many deaf people, Amy has some residual hearing. In her classroom she uses an FM wireless hearing aid. She also reads lips. This is a limited skill, however, under the best of conditions. Many sounds are not visible on the lips and communication is impossible when the teacher and students are not facing Amy.

The district court found, based on the evidence before it, including Amy's auditory The court therefore concluded that the services of an interpreter were needed "to bring her educational opportunity up to the level of the educational opportunity being offered to her non-handicapped peers." 483 F.Supp. at 535. The court held that Amy was entitled by law to have an interpreter during any school period when academic subjects are taught. We agree.

speech discrimination tests, academic records, and observations of her in the classroom, that Amy misses a substantial part of what goes on in her classroom. The court found that, while only 59% of what transpires is now accessible to Amy under her present individualized education program, with a sign language interpreter 100% would be accessible to her.

Section 1415(e)(2), supra note 3, provides that the district court's decision must be based "on the preponderance of the evidence". ⁵ The decision in the instant case clearly is supported by a preponderance of the evidence. Moreover, the court weighed and evaluated the evidence with great care. In affirming the judgment of the district court, we are satisfied that the court meticulously applied precisely the standard prescribed by Congress. ⁶

Finally, we wish to emphasize the narrow scope of our holding. This is not a class action in which the needs of all deaf school children are being determined. The evidence upon which our decision rests is concerned with a particular child, her atypical family, her upbringing and training since birth, and her classroom experience. In short, our decision is limited to the unique facts of this case and is not intended as authority beyond this case. ⁷

Affirmed.

MANSFIELD, Circuit Judge (dissenting):

I respectfully dissent on several grounds. First, the district court, unaware that the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401, et seq., already defines a "free appropriate public education," adopted an erroneous and impractical guideline or standard for determining whether a handicapped child's education is "appropriate" within the meaning of the pertinent sections of the Act, 20 U.S.C. §§ 1401(18), 1412(1), 1414(a)(1)(C) (ii), and regulations promulgated thereunder. Second, the court should first have given the state educational authorities, who have much more expertise in the education of handicapped children than the court, the opportunity to apply the proper standard and submit their determination before deciding the case. Third, in view of the paucity of evidence supporting the district court's findings, I believe the court erred in considering crucial hearsay affidavits that were not properly a part of the state administrative record or in evidence before it without giving the defendants an opportunity to cross-examine the affiants and offer rebuttal proof.

First a bit of undisputed background. The Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401, et seq. (the "Act"), obligates state and local educational agencies, as a condition to receiving federal grants under the Act, to develop "(18) The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title."

and submit to the United States Commissioner of Education, a policy and procedure that will insure handicapped students a "free appropriate public education," 20 U.S.C. § 1412(1), ¹ which is defined in 20 U.S.C. § 1401(18) as follows:

See also 45 C.F.R. § 121a.4.

A "special education" is defined, 20 U.S.C. § 1401(16), as follows:

"(16) The term 'special education' means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." (Emphasis added).

See also 45 C.F.R. § 121a.14.

"Related services" are defined, 20 U.S.C. § 1401(17), as follows:

"(17) The term 'related services' means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children."

See also 45 C.F.R. § 121a.13.

Regulations promulgated under the Act, although they define in detail the term "audiology" and refer to specific services and equipment to be furnished as "related services" to children with hearing problems, 45 C.F.R. § 11a.13(b), do not refer to a sign language interpreter.

The Act and regulations thereunder require the state to formulate and revise annually an individualized education program (IEP) for each handicapped child, 20 U.S.C. § 1414(a)(5), and the parents of the child are entitled...