Board of Educ. of Monroe-Woodbury Cent. School Dist. v. Wieder

• Decision Date: 12 July 1988
• Docket Number: MONROE-WOODBURY
• Citation: 527 N.E.2d 767,72 N.Y.2d 174,531 N.Y.S.2d 889
• Parties: , 527 N.E.2d 767, 48 Ed. Law Rep. 894 BOARD OF EDUCATION OF theCENTRAL SCHOOL DISTRICT, Respondent, v. Abraham WIEDER, Individually and as Parent and Natural Guardian of Hudes Wieder, and on Behalf of All Others Similarly Situated, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 889

531 N.Y.S.2d 889

72 N.Y.2d 174, 527 N.E.2d 767, 48 Ed.

Law Rep. 894

BOARD OF EDUCATION OF the MONROE-WOODBURY CENTRAL SCHOOL DISTRICT, Respondent, v. Abraham WIEDER, Individually and as Parent and Natural Guardian of Hudes Wieder, and on Behalf of All Others Similarly Situated, et al., Appellants.

Court of Appeals of New York.

July 12, 1988.

Louis G. Adolfsen, Darrel M. Seife and Karen E. Heller, New York City, for appellants.

Lawrence W. Reich, for respondent.

Norman H. Gross, Albany, and Jay Worona, for New York State School Bds. Ass'n, Inc., amicus curiae.

Nathan Lewin and Dennis Rapps, New York City, for Nat. Jewish Com on Law and Public Affairs, amicus curiae.

OPINION OF THE COURT

KAYE, Judge.

This appeal centers on a struggle between the Board of Education of the Monroe-Woodbury Central School District, and parents and handicapped children of Kiryas Joel, an incorporated village of Satmarer Hasidim located within the school district. No one disputes that State and Federal law require the Board of Education to make special services available to these handicapped children. The conflict arises over where the services are to be offered--whether in the public schools, or in the religiously affiliated private schools of Kiryas Joel, or elsewhere.

Despite past efforts at accommodation in the interests of meeting the unquestioned needs of these children, this is a litigation of "musts." Both sides ask only what the law compels or requires, not what it permits. As the pleadings are framed, plaintiff Board of Education demands judgment declaring that the law compels it to furnish special education and related services of an instructional, remedial and therapeutic nature only in regular public school classes and programs, and declaring that it is without authority to provide such services separately. At the other extreme, defendants' counterclaim demands a declaration that the Board must furnish these services in classes conducted on the premises of the school the children attend for their normal educational instruction. Both sides have modified their demands somewhat during the course of the litigation: plaintiff would now recognize certain exceptions, defendants would accept services at a neutral site. We conclude, however, that on this record neither party's position is compelled by law.

Approximately 150 Satmarer children are the true subjects of this controversy, with handicaps such as mental retardation, deafness, speech and language impairments, emotional disorders, learning disabilities, Down's syndrome, spina bifida and cerebral palsy. The record does not specify the precise services in issue, apparently encompassing occupational, physical and speech therapy, adaptive physical education, and education of the hearing-impaired and learning-disabled. Defendants urge that, apart from physical and mental handicaps, these children are further affected in their need to obtain special services by their language, and their social and cultural backgrounds, which are markedly different from the outside community. ¹

Kiryas Joel is a community of Hasidic Jews. Apart from separation from the outside community, separation of the sexes is observed within the village. Yiddish is the principal language of Kiryas Joel; television, radio and English language publications are not in general use. The dress and appearance of the Hasidim are distinctive--the boys, for example, wear long side curls, head coverings and special garments, and both males and females follow a prescribed dress code. Education is also different: Satmarer children generally do not attend public schools, but attend their own religiously affiliated schools within Kiryas Joel. Boys are enrolled in the United Talmudic Academy (UTA) and girls in Bais Rochel, a UTA affiliate. With an apparent over-all goal that children should continue to live by the religious standards of their parents, "Satmarer want their school to serve primarily as a bastion against undesirable acculturation, as a training ground for Torah knowledge in the case of boys, and, in the case of girls, as a place to gather knowledge they will need as adult women." (Rubin, Satmar: An Island in the City, at 140 [Quadrangle 1972].) ²

In the spring of 1984, the Board of Education met with representatives of Kiryas Joel to develop procedures for the classification and delivery of services to the handicapped children. After extensive negotiations, the Board agreed to furnish various services and programs, characterized as "health and welfare" services (see, Education Law § 912), at a "neutral site" within Kiryas Joel--actually an annex to Bais Rochel under the auspices of the UTA.

A year later, however, reacting to Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 and Grand Rapids School Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 the Board terminated those arrangements. It concluded that it could furnish services to defendant children only in the public schools, and it proceeded to place them there based on individual evaluations by the Board's Committee on the Handicapped. After several months, defendant parents refused to permit the children to continue attending the public schools; a few sought administrative review of the recommended placements.

In November 1985, the Board of Education commenced the present action for a declaration that it lacks statutory authority to provide the services except within regular public school classes. Plaintiff asserted that, pursuant to Education Law § 3602-c, a board is authorized to provide the services in issue to children attending nonpublic schools only in regular classes of the public school. Despite pending administrative review proceedings, defendants instead joined in the litigation, contending that the declaratory relief sought by the Board was inconsistent with its legal obligations, and demanding both an injunction directing plaintiff to furnish services in classes conducted on the premises of the school they attend for their normal educational instruction and damages equal to their own payments for substitute services. Except for private arrangements for a few of the children to continue receiving special services, apparently the other children have remained without them as the litigation has escalated.

Both sides sought summary judgment. Defendants in their submissions urged that the regular public schools were inappropriate not only because of the need of many of the children for one-on-one services but also because of the panic, fear and trauma they suffered in leaving their own community and being with people whose ways were so different from theirs. They described specific instances of the children's anxiety and distress, contending that parents felt compelled to stop sending them because the emotional toll outweighed the benefits of programs offered at the public school. They further stated that they were themselves financially unable to furnish the costly services to which they as taxpayers and their children were by law entitled, and which they urgently need.

Plaintiff in its summary judgment submission disputed certain of defendant's factual assertions, pointing to the progress made by Satmarer children who actually attended the public school programs. It detailed efforts to integrate the children and accommodate the parents (including Yiddish-speaking aides and bilingual reports), concluding that Satmarer Hasidic children could be appropriately educated in the public schools, and insisted that the Education Law § 3602-c(9) leaves no other option.

Supreme Court directed plaintiff to provide the services to defendants at a site not physically or educationally identified with but reasonably accessible to defendant children (134 Misc.2d 658, 663, 512 N.Y.S.2d 305). The court avoided interpreting section 3602-c(9), whether for inapplicability or invalidity, simply holding that the statute could not deny the children's right under the Constitution and statutory and decisional law to services outside the regular public school classroom. Defendants' claim for damages was dismissed as premature, owing to a failure to exhaust administrative remedies.

The Appellate Division modified by granting plaintiff's cross motion for summary judgment to the extent of dismissing defendants' counterclaim and declaring that Education Law § 3602-c(9) requires that, to the maximum extent appropriate for the individualized educational needs of each child, plaintiff shall furnish special education and related services in the regular classes and programs of the public schools and not separately from public school students (132 A.D.2d 409, 417-418, 522 N.Y.S.2d 878). In denying defendants' counterclaim, the court concluded that the "neutral site" contemplated by Supreme Court's order would in reality contravene the Establishment Clause of the First Amendment and would moreover usurp plaintiff's authority under the Education Law to place the children according to their individual needs.

I.

We first consider plaintiff's contention that this appeal, filed by defendants as of right on the ground that a substantial constitutional question is directly involved (N.Y. Const., art. VI, § 3; CPLR 5601[b][1] ), must be dismissed for lack of jurisdiction.

To support an appeal as of right on this basis, appellants must demonstrate that the ground for appeal is " 'directly and primarily an issue determinable only by our construction of the Constitution of the state or of the United States.' " ( Matter of Haydorn v. Carroll, 225 N.Y. 84, 88, 121 N.E. 463.) Even where a constitutional question may be otherwise involved, an appeal as of right does not lie if the decision appealed from was or could have been based upon some ground other than construction of the Constitution ( see, Matter of Levy, 255 N.Y. 223, 174 N.E. 461). These principles require dismissal of defendants' appeal.

In addressing plaintiff's request for...