J.G. v. Kiryas Joel Union Free Sch. Dist.

• Decision Date: 31 March 2011
• Docket Number: No. 08 CIV 6395–WGY.,08 CIV 6395–WGY.
• Citation: 270 Ed. Law Rep. 135,777 F.Supp.2d 606
• Parties: J.G. and R.G., on behalf of N.G., Plaintiffs,v.KIRYAS JOEL UNION FREE SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of New York

777 F.Supp.2d 606

270 Ed. Law Rep. 135

J.G. and R.G., on behalf of N.G., Plaintiffs,

v.KIRYAS JOEL UNION FREE SCHOOL DISTRICT, Defendant.

No. 08 CIV 6395–WGY.

United States District Court, S.D. New York.

March 31, 2011.

Gary S. Mayerson, Mayerson and Associates, New York, NY, for Plaintiffs.Frederick J. Berman, Matthew J. Delforte, Shebitz Berman Cohen & Delforte, P.C., New York, NY, for Defendant.

Memorandum and Order

WILLIAM G. YOUNG, District Judge.¹I. INTRODUCTION

N.G. is an elementary school student with multiple disabilities. At the start of the 2005–06 school year, his parents, J.G. (his father) and R.G. (his mother), rejected the individualized education plan (“IEP”) provided to N.G. by the Kiryas Joel Union Free School District (“Kiryas Joel”) because no “mainstream” classroom component was offered. J.G. and R.G. then unilaterally placed N.G. at B'nai Yoel, a private Jewish yeshiva. N.G.'s parents now seek reimbursement from Kiryas Joel for their related educational expenses pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq. (McKinney 2007), and the applicable state and federal regulations. They contend that procedural and substantive flaws in Kiryas Joel's IEP denied N.G. his statutory right to a free appropriate public education in the least restrictive environment.

II. FINDINGS OF FACT ²A. Kiryas Joel Union Free School District

While the basic premise of this case is identical to that of virtually every action brought under the IDEA, the backdrop against which it takes place is most unusual. Kiryas Joel Village, located within the town of Monroe in Orange County, New York, is an ultra-Orthodox Jewish enclave of the Satmar Hasidic sect. See Board of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 690, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994).

The residents of Kiryas Joel are vigorously religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications; and dress in distinctive ways that include headcoverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools, ... where they receive a thorough grounding in the Torah and limited exposure to secular subjects....

These schools do not, however, offer any distinctive services to handicapped children....

Id. at 691–92, 114 S.Ct. 2481. Because special education services were not available to them at the religious schools, children with disabilities were “forced to attend public schools outside the village, which their families found highly unsatisfactory.” Id. at 692, 114 S.Ct. 2481. By 1989, only one child from Kiryas Joel Village was enrolled in the local public school district, the Monroe–Woodbury Central School District, while the village's other children with disabilities received either privately funded special education services or none at all. Id. at 693, 114 S.Ct. 2481.

To solve this unique problem, the New York State Legislature authorized Kiryas Joel Village to create its own union free school district. Id. (citing 1989 N.Y. Laws, c. 748). The new school district, despite its plenary authority over the elementary and secondary education of all school-aged children in the village, began operating only a special education program exclusively for children with disabilities. Id. at 693–94, 114 S.Ct. 2481. Parents continued to educate their typically developing children in the private religious schools, known as “yeshivas.” Id. at 694, 114 S.Ct. 2481. Five years after the district's creation, the United States Supreme Court held that the New York statute creating it violated the Establishment Clause of the First Amendment. Id. at 690, 114 S.Ct. 2481. Four legislative attempts later, constitutional concerns over the district's existence have been put to rest. See Tamar Lewin, Controversy Over, Enclave Joins School Board Group, N.Y. Times, Apr. 20, 2002, at B4.

Today, Kiryas Joel continues to operate as the village's only public school and continues to operate only a special education program.³ Impartial Hearing Officer's Decision (“IHO Decision”) 50, Def.'s Ex. E, ECF No. 15–16. The district serves approximately two-hundred children with disabilities; roughly half of them are educated in the district's self-contained, special education classrooms, while the other half attend the private yeshivas and receive only related services from Kiryas Joel. Id. at 31, 50. Kiryas Joel also has established “resources room services” on-site at one of the local yeshivas, Id. at 32.

Because parents in Kiryas Joel “are highly interested in their children getting a Yeshiva religious education,” ⁴ Tr. at 7264, they want even their children with disabilities to be in “culturally and linguistically appropriate program[s],” id. at 5153. While Kiryas Joel focuses on teaching children to read, write, make decisions, and understand information, parents in the village, “most typically, want their children to be able to recite prayers, to read the Bible in its original, in the Hebrew text, to read comment areas in that language.” Id. at 7265. Some parents have objected to Kiryas Joel teaching reading and writing because they instead want their children to pray and study the Bible and “they feel that their only way of doing that is if they go to the parochial school.” Id. “if [parents] had the choice, if their child does not have special needs they wouldn't send their child to [Kiryas Joel] either, they prefer having their children in yeshivas.” Id. at 5075; see id. at 5074 (“[P]arents send their children to the private yeshivas here, and that's one hundred percent true.”).

Thus, it is not uncommon for the parents of a child with disabilities to ask Kiryas Joel about a mainstream placement at one of the yeshivas, and such requests are “frequently” granted. Id. at 7252. Mainstreaming, in this context, does not entail a regular education as usually conceived of, but does give children with disabilities the experience of “be[ing] with nondisabled peers for a short period of time” during the school day. Id. at 5155. Where a child with disabilities has shown progress in a special education setting, Kiryas Joel's Committee on Special Education (“CSE”) considers whether “[the] child is ready for some other kinds of experiences,” meaning a mainstream placement. Id. at 7253. At the same time, the CSE will not change a child's placement without first exploring the details of the transition to a more mainstream setting, usually by way of a trial period, to ensure that the child is not put into “a failing situation.” Id. at 7253–54. Kiryas Joel employs “community liaisons” to help “smooth the waters” with the yeshiva of the parents' choice and assess the appropriateness of that placement. Id. at 7255–56. Only after the liaisons have investigated the possibilities will Kiryas Joel consider changing a child's IEP because changing an IEP means “saying [the district] believe[s] that this will work.” Id. at 5758.

Some of the children for whom mainstreaming is appropriate attend Kiryas Joel during the day and the yeshiva before school or after 3:00 P.M. Id. at 5240. As this only amounts to half an hour to an hour at the yeshiva, parents occasionally want their children to spend more time there. Id. at 5241. If Kiryas Joel believes that the particular child can still excel in terms of meeting his or her public education requirements, then the district will consent to a “less restrictive education,” which could entail only half days at Kiryas Joel or resources room services at the yeshiva itself. Id. If Kiryas Joel believes that “the child really must be in the special education class for a longer period of time” to “receive all of the services and the education that the child is mandated to receive,” then “that becomes a larger discussion with the staff that deals with the child” as well as the CSE. Id. at 5241–42. Ultimately, the district's concern is whether the placement will allow the child “to achieve all the goals that [the CSE] put[s] forth in the IEP.” Id. at 5242.

“Belive[ing] that the parent's voice has to be heard” in determining what is best for a child, Kiryas Joel's CSE is genuinely willing to accommodate requests by parents for mainstreaming. Id. at 7269. Parents are given the opportunity to convince the CSE that their child is eligible for a less restrictive placement, just as Kiryas Joel personnel are given a chance to convince the parents of their position that special education is appropriate. Id. The district's preference is to reach a compromise with parents, whenever possible. Id. at 7270. For example, while prayer cannot be a goal or activity outlined in a student's IEP, the CSE may consider whether the child “can listen and repeat and tell a story over again,” which is part of the New York state curriculum but also “might match up with what the non-public school is going to do.” Id. In this way, the district can satisfy the parents' goal that the child be in the yeshiva for as much of the day as possible while still meeting state requirements. Id.

B. N.G.'s Educational Background

N.G. is an elementary school child with multiple disabilities. CSE Draft Data Form (“CSE Draft”) 2, Dist.'s Ex. B–2, ECF No. 15–11. Born September 6, 2000, N.G.'s developmental delays were apparent from a very young age and attributed to “ ‘growth retardation during pregnancy’ resulting in global developmental delays.” Id. at 1 (quoting N.G.'s physicians). At five months, he was “already receiving a great deal of therapy,” Social History by J. Stimmel (“Social History”) 1, Dist.'s Ex. B–2, ECF No. 15–11; CSE Draft 1. In May 2003, N.G.'s parents placed him in a ...