Levy, Matter of

• Decision Date: 17 February 1976
• Citation: 345 N.E.2d 556,382 N.Y.S.2d 13,38 N.Y.2d 653
• Parties: , 345 N.E.2d 556 In the Matter of Bruce M. LEVY (two cases). Joseph W. LEVY, Appellant, v. CITY OF NEW YORK et al., Respondents (two cases). In the Matter of Claudia MANN. Herbert MANN, Appellant, v. CITY OF NEW YORK et al., Respondents. In the Matter of Bruce A. VANDER MALLE. Harold A. VANDER MALLE, Appellant, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 13

382 N.Y.S.2d 13

38 N.Y.2d 653, 345 N.E.2d 556

In the Matter of Bruce M. LEVY (two cases).

Joseph W. LEVY, Appellant, v. CITY OF NEW YORK et al., Respondents (two cases).

In the Matter of Claudia MANN.

Herbert MANN, Appellant, v. CITY OF NEW YORK et al., Respondents.

In the Matter of Bruce A. VANDER MALLE.

Harold A. VANDER MALLE, Appellant, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Feb. 17, 1976.

Arthur D. Zinberg, New York City, for appellants.

Bernard W. Richland, Corp. Counsel, New York City (Ellen Kramer Sawyer and L. Kevin Sheridan, New York City, of counsel), for City of New York, respondent.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Gabriel I. Levy, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law.

JONES, Justice.

We hold that section 234 of the Family Court Act is constitutional notwithstanding that it authorizes Family Court in New York City to direct parents of handicapped children, other than children who are blind or deaf, to contribute to the maintenance of such children in connection with their education.

Appellants are parents of three handicapped children, ¹ each of whom it is agreed is in need of special residential educational training and for none of whom does the City of New York have an appropriate educational facility. Each of the three children was attending a suitable private residential school. In each case Family Court granted the parents' applications for payment of full tuition as well as of all related transportation expenses. Three orders denied that part of the applications requesting maintenance payment, the court finding the parents of two of the children financially able to pay for board and lodging in full and accordingly directing them to make such payments. The fourth order granted the application to the extent of two thirds of maintenance costs, directing the parent of the third child to pay the remaining third. Appellants all concede their ability to make the payments ordered. It is their contention that the statute under which they were directed to pay maintenance expenses is unconstitutional. Family Court rejected that contention in each case. The present direct appeals on constitutional grounds ensued (N.Y. Const. art. VI, § 3, subd. b, par. (2); CPLR 5601, subd. (b), par. 2) and have been consolidated for our review.

Appellants' challenge to the statute is grounded in contentions that they have been denied equal protection of the law in two aspects. First, and principally, they urge that to require them to contribute to the maintenance component of educational expenses when no such contribution is required of the parents of deaf or blind children works a constitutionally impermissible discrimination. Secondly, they argue that, while the statutes authorize the imposition of such burden on parents of handicapped children in New York City, the same is not true with respect to children who reside outside New York City, and that this circumstance likewise constitutes a denial of equal protection.

There can be no doubt that a handicapped child has a right to a free education in the State of New York. (N.Y. Const. art. XI, § 1; Education Law, § 3202, subd. 1; Matter of Wiltwyck School for Boys v. Hill, 11 N.Y.2d 182, 227 N.Y.S.2d 655, 182 N.E.2d 268.) The handicapped child further assured such free specialized educational training as may be required. (Education Law, § 4403; Family Ct. Act, § 231 Et seq.)

Incident to the direct cost of education, i.e., tuition, are the expenses of maintenance and transportation. It is not disputed that under our State's educational program the parents of all handicapped children have no responsibility for either tuition or transportation expense. The controversy here revolves around the imposition on the parents of handicapped children, other than those who are blind or deaf, of the costs of maintenance.

The fulcrum of appellants' argument is the circumstance that in consequence of legislative enactment the State provides wholly free education, including all maintenance expense, to children who are either blind or deaf, and that the parents of such handicapped children are not required to make any contribution to the cost of maintenance regardless of their financial ability. (Education Law, arts. 85, 87, 88; §§ 4204 (deaf children), 4207 (blind children).) The assertion is that this differentiation, operating to the disadvantage of appellants, deprives them of equal protection of the law.

At the threshold of consideration of any equal protection claim is the determination of the applicable standard of review. Handicapped children as such do not constitute a 'suspect classification' (cf. Matter of Lalli, 38 N.Y.2d 77, 378 N.Y.S.2d 351, 340 N.E.2d 721 (illegitimate children); Matter of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (illegitimate children); contrast Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (race); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (national origin); Matter of Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (alienage)). Nor is the right to education such a 'fundamental constitutional right' as to be entitled to special constitutional protection (San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 36 L.Ed.2d 16). Accordingly, the appropriate standard is not the so-called strict scrutiny test or anything approaching it, but rather the traditional rational basis test. (Montgomery v. Daniels, 38 N.Y.2d 41, 59, 378 N.Y.S.2d 1, 340 N.E.2d 444; cf. Matter of Jesmer v. Dundon, 29 N.Y.2d 5, 323 N.Y.S.2d 417, 271 N.E.2d 905, app. dsmd. 404 U.S. 953, 92 S.Ct. 324, 30 L.Ed.2d 270.)

A rational basis does exist for the distinction made in relieving the parents of blind and deaf children from any financial responsibility in connection with their children's education while at the same time requiring parents whose children are otherwise handicapped to contribute to the maintenance component of educational expenses.

There can be no doubt that as a matter of history a tradition our society has accorded special recognition to the blind and to the deaf in the field of education as elsewhere. In New York State since 1865 a school for the blind has been maintained by the State at Batavia (Education Law, art. 87) and a school for the deaf at Rome ² (Education Law, art. 88). In addition there are five other schools for the deaf and five other schools for the blind subject 'to the visitation of the commissioner of education' who has broad supervisory powers in the operation of such schools (Education Law, § 4201).

In the related field of social services, assistance to the blind has long been recognized as a special category (Social Services Law, art. 5, tit. 7, prior to repeal and consolidation with other categories by L.1974, ch. 1080, § 4). Additionally the New York State Commission for the Blind and Visually Handicapped has a venerable and distinguished history (L.1913, ch. 415, as amd.; Social Services Law, § 38).

The Federal Government has also long accorded privileges and benefits to the blind which are not available to other handicapped persons--e.g., an additional exemption for income tax purposes (Internal Revenue Code, U.S. Code, tit. 26, § 151, subd. (d)); disability benefits to the blind under the Social Security Act 'without regard to ability to engage in any substantial gainful activity' (U.S. Code, tit. 42, § 423; 20 CFR 404.1501(b); see Ferguson v. Celebrezze, D.C.S.C., 232 F.Supp. 952, 955--956); free mailing privileges (U.S. Code, tit. 39, §§ 3403, 3404).

We think that the Legislature acts rationally when, in the exercise of its authority and responsibility to identify concerns of the State and to make provision with respect thereto, it takes into account distinctions which carry the imprimatur of historical authenticity, provided that such distinctions are not the reflection of invidious discrimination and have not been demonstrated to be irrational by knowledge subsequently acquired. ³ It strikes us as unintelligent to say that the decisions made in the past and the value judgments of those preceding us who were then responsible for identifying the priorities of governmental concern and response must be wholly ignored unless the determinations which were then made can be justified, Ab initio, when measured by...