New York State Ass'n for Retarded Children, Inc. v. Carey

• Decision Date: 10 December 1979
• Docket Number: No. 87,D,87
• Citation: 612 F.2d 644
• Parties: NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC. et al., and Patricia Parisi et al., Plaintiffs, v. Hugh L. CAREY, Individually and as Governor of the State of New York et al., Defendants, United States of America, Amicus Curiae. Thomas A. COUGHLIN III, Individually and as Commissioner of the Office of Mental Retardation and Developmental Disabilities, Third-Party Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, Frank J. Macchiarola and Charles I. Schonhaut, Third-Party Defendants-Appellees. Christine WEST, on behalf of her son Mark West, a minor, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, Frank J. Macchiarola, etc., Charles I. Schonhaut, etc., Defendants-Appellants. ocket 79-7257.
• Court: U.S. Court of Appeals — Second Circuit

Page 644

612 F.2d 644

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC. et

al., and Patricia Parisi et al., Plaintiffs, v. Hugh L. CAREY, Individually and as Governor of the State of

New York et al., Defendants,

United States of America, Amicus Curiae.

Thomas A. COUGHLIN III, Individually and as Commissioner of

the Office of Mental Retardation and Developmental

Disabilities, Third-Party Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, Frank J.

Macchiarola and Charles I. Schonhaut, Third-Party

Defendants-Appellees.

Christine WEST, on behalf of her son Mark West, a minor,

Individually and on behalf of all others similarly

situated, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, Frank J.

Macchiarola, etc., Charles I. Schonhaut, etc.,

Defendants-Appellants.

No. 87, Docket 79-7257.

United States Court of Appeals, Second Circuit.

Argued Sept. 26, 1979.

Decided Dec. 10, 1979.

Ronald E. Sternberg, New York City (Allen G. Schwartz, Corp. Counsel of the City of New York, L. Kevin Sheridan, New York City, Mary C. Tucker, Brooklyn, N. Y., on brief), for defendants-appellants.

Taylor R. Briggs, New York City (LeBoeuf, Lamb, Leiby & MacRae, New York City, on brief), for third-party plaintiff-appellee Thomas A. Coughlin, III.

Carol Kellermann, New York City (John Kirklin, Christopher A. Hansen, New York City, on brief), for plaintiff-appellee Christine West.

Drew S. Days, III, Asst. Atty. Gen., Jessica Dunsay Silver, Dennis J. Dimsey, Washington, D. C., Edward R. Korman, U. S. Atty., Brooklyn, N. Y., on brief, for the United States as amicus curiae.

Before MOORE, OAKES and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

This case involves a challenge to the New York City Board of Education's decision to exclude certain mentally retarded children from regular school classes because they are carriers of serum hepatitis. Although the wisdom of this decision is sharply contested by the parties, the initial and crucial issue in the case is whether a federal court should determine the merits of the dispute by reviewing the adequacy of the factual determinations of the local administrative agency, or by requiring the agency to prove in court the validity of its position.

Most of the children involved in this case were formerly residents of Willowbrook Developmental Center, a state facility for the mentally retarded located on Staten Island. In 1972, a class action suit was brought in the United States District Court for the Eastern District of New York by the New York Association for Retarded Children, one of the plaintiffs-appellees in this case, on behalf of Willowbrook residents. The suit alleged that living conditions and treatment programs at the facility were unsatisfactory in violation of constitutional and statutory requirements. Pursuant to a consent judgment entered in April, 1975, the defendants were required to make extensive alterations in the Willowbrook program, and to "ready each resident . . . for life in the community at large." Part of this latter effort was to consist of a "full and suitable educational program" in the New York City public schools. Beginning in May, 1976, some 1,000 residents were removed from Willowbrook and placed with families or in group homes; a number of these, being of school age, were enrolled in special education programs in the public school system. ¹

As a result of testing performed at the Willowbrook facility, it was known that approximately forty of the children who were ultimately enrolled in public school were carriers of hepatitis B, commonly known as serum hepatitis. The acute stage of this disease, which is relatively rare, is manifested by symptoms that vary from a mild fever to jaundice and inflammation of the liver. Carriers are those who have the hepatitis B virus, or antigen, in their blood, but do not experience any outward symptoms. It is known that carriers can transmit the disease by parenteral, or blood-to-blood routes, characteristically by transfusions or successive inoculations of different people with the same needle; however, the antigen has also been detected in the saliva of carriers, though the extent to which contact with infected saliva can transmit the disease has yet to be determined.

In September, 1977, a case of possible hepatitis B infection was reported in one New York City elementary school, and caused a considerable amount of concern among the teachers and parents. Although the report proved to be incorrect, ² it motivated the New York City Department of Health to undertake a study of the children known to be carriers. Department officials visited ten special education classrooms, and a group of experts in the disease was assembled for a planning session on possible solutions. The conclusion, issued in the form of tentative guidelines in February, 1978, was that mentally retarded children identified as carriers of hepatitis B should be isolated in special classrooms within each school they attended. Although the Board of Education requested that the Department of Health issue an order to exclude the carrier children from the public schools, the Department refused to do so, instead, it reissued its suggested guidelines in August, 1978. ³ The Board then acted on its own. Four days before the start of the 1978-79 school year, it sent mailgrams to the parents or caretakers of the carrier children, informing them that the children were to be excluded from public school until appropriate arrangements could be made.

The following day, plaintiff-appellee Thomas Coughlin, Commissioner of the Office of Mental Retardation and Developmental Disabilities, acting pursuant to his authority under the Willowbrook consent decree, brought an action in the District Court for the Eastern District to enjoin the Board's exclusion of the Willowbrook children. This suit was consolidated with a class action suit by plaintiff-appellee West on behalf of the Willowbrook children and the small number of other children who had been excluded. After a two-day evidentiary hearing, the District Court (John R. Bartels, Judge) granted the injunction on behalf of all plaintiffs, holding that the exclusion violated the Willowbrook Consent Decree; the Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794 (1976); the Education of the Handicapped Act, 20 U.S.C. §§ 1401-1414 (1976); the New York Education Law § 4402 (McKinney 1978); and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The Board then convened a task force to develop a new plan for the implementation of the Department of Health guidelines; when the members of this task force failed to agree, the Board developed its own plan. Under this plan, the 48 retarded children identified as carriers of hepatitis B were to be placed in nine separate classes, with at least one class located in each of the five boroughs of New York City. Each child was to be individually evaluated, and placed in an educational setting based on the results of that evaluation. The parents or other caretakers of each child were to be given the right to appeal their child's placement to a Board-established Committee on the Handicapped.

The Board then moved in the District Court for a declaratory judgment establishing the legality of its plan. This motion was opposed by appellee Commissioner Coughlin, on behalf of the Willowbrook children, appellee Christine West, on behalf of all the affected children, and the United States, as Amicus curiae. After another evidentiary hearing, Judge Bartels held that the Board's new plan violated the Willowbrook Consent Judgment, the Rehabilitation Act of 1973, the Education of the Handicapped Act, the New York Education Law, and the Equal Protection Clause of the Fourteenth Amendment. The Board now appeals from this decision.

The proper resolution of this appeal necessarily depends upon the extent of the Board's obligation to prove the validity of its plan to a federal court. The Board contends that judicial review should be limited to determining whether the plan is reasonable. ⁴ What this means, in essence, is that the only showing that the Board would have to make is that there is a substantial basis in the administrative record for concluding that a problem exists, and that the proposed plan is rationally related to this problem. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). On the other hand, the appellees contend that this is the sort of case where the challenged governmental action can be upheld only if its validity is established by evidence presented in court and found persuasive by the trier of fact.

There is no generally accepted rule to determine the degree of deference that federal courts should give to the factual determinations of state and local administrative agencies. The Board advances a strong argument that its factual determinations should be reviewed only to determine whether they are rational, much as state economic legislation is reviewed for constitutionality in the post-1937 era. Concededly, the Board's decision to isolate a group of children in order to guard against the spread of a serious disease involves the very essence of the state's police power to protect the health, welfare, and safety of its citizens. This decision was reached after an investigation by Department of Health staff members, and after serious consideration by professional educators from the Board. In many contexts the reasoned decision-making of administrators bearing sensitive responsibilities is entitled to judicial deference.

However, the courts are also assigned a sensitive task, and that task is to ensure that the established legal standards constitutional and statutory are followed by government agencies. To permit the factual determinations of these agencies to go unchallenged may be to neglect this task, for the facts will often be dispositive, and the question of compliance with prevailing...