Rothschild v. Grottenthaler

• Decision Date: 29 November 1989
• Docket Number: No. 89 Civ. 2992 (GLG).,89 Civ. 2992 (GLG).
• Citation: 725 F. Supp. 776
• Parties: Kenneth and Karen ROTHSCHILD, Plaintiffs, v. Charles GROTTENTHALER, Superintendent of the Ramapo Central School District, and Ramapo Central School District, Defendants.
• Court: U.S. District Court — Southern District of New York

725 F. Supp. 776

Kenneth and Karen ROTHSCHILD, Plaintiffs, v. Charles GROTTENTHALER, Superintendent of the Ramapo Central School District, and Ramapo Central School District, Defendants.

No. 89 Civ. 2992 (GLG).

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

November 29, 1989.

National Ass'n for the Deaf Legal Defense Fund, Washington, D.C. (Marc P. Charmatz, Sarah S. Geer, of counsel), Protection and Advocacy Legal Unit Westchester Independent Living Center, White Plains, N.Y. (Ben Arai, of counsel), for plaintiffs.

Coral Ortenberg Mayer Zeck & Prier, P.C., Suffern, N.Y. (Ruben Ortenberg, of counsel), D'Amato & Lynch, New York City (Bill V. Kakoullis, of counsel), for defendants.

DECISION

GOETTEL, District Judge:

On July 12, 1989, we ruled on the defendants' motion to dismiss the complaint, holding, in part, that the plaintiffs were "otherwise qualified" handicapped persons within the meaning of section 504 of the Rehabilitation Act to the extent they desired to participate in "school-initiated conferences incident to the academic and/or disciplinary aspects of their child's education." Rothschild v. Grottenthaler, 716 F.Supp. 796, 800 (S.D.N.Y.1989). With this holding in mind, we issue this decision after a trial on stipulated facts.

I. STIPULATED FACTS

The parties' stipulation of agreed facts may be summarized as follows. Kenneth and Karen Rothschild are the parents of two children enrolled in the public schools of the Ramapo Central School District (the "district" or "school district"). Mr. and Mrs. Rothschild are deaf and use American Sign Language as their primary method of communication. Mr. and Mrs. Rothschild's children have normal hearing. As parents of children enrolled in the public school, the plaintiffs have been invited to meet with teachers and school administrators from time to time concerning their children's programs and to participate in various school functions. Although the plaintiffs repeatedly asked the defendants to provide them with qualified sign-language interpreter services at such meetings, these requests have been denied. Specifically, the school district refuses to provide and pay for qualified sign-language interpreters to assist Mr. and Mrs. Rothschild in communicating with school district teachers and counselors to discuss their children's academic program, disciplinary problems, or other matters. The district also refuses to provide and pay for such services for group meetings and school events in which the Rothschilds are invited or required to participate.

As a result of the defendant's refusal, the plaintiffs claim that they either have not attended some school events or have retained a sign-language interpreter at their own expense. The plaintiffs' expenditures for these services since their children have been enrolled in the school district total $2000.00 through the 1988-1989 academic year. The school district has refused to pay the bills submitted by or on behalf of the Rothschilds.

The plaintiffs contend that, although they are eligible to attend meetings, conferences, and other functions, they cannot communicate effectively with school district personnel without a sign-language interpreter. Thus, the plaintiffs contend that the opportunity they are afforded to participate in school programs is not equal to the opportunity afforded to others and their ability to consult with school district personnel concerning their children is not as effective as the opportunities provided to non-handicapped parents. The Rothschilds claim, therefore, that they are being denied equal access to services offered by the school in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Civil Rights Act, 42 U.S.C. § 1983. The plaintiffs seek declaratory, injunctive and monetary relief.

The defendants contend that, although they have refused to provide and pay for sign-language interpreters, they have facilitated the plaintiffs by making special arrangements for seating of plaintiffs and an interpreter provided and paid for by the plaintiffs. The defendants base their refusal to provide interpreter services on their contention that section 504 of the Rehabilitation Act of 1973 does not apply to deaf parents of normal hearing children.

II. DISCUSSION

A. Subject Matter Jurisdiction

The defendants' initial contention that this court lacks subject matter jurisdiction because the plaintiffs are not "otherwise qualified" individuals within the meaning of section 504 of the Rehabilitation Act was squarely rejected by this court in our prior decision. In light of the lengthy analysis conducted in that decision, Rothschild v. Grottenthaler, 716 F.Supp. 796, 798-800 (S.D.N.Y.1989), we need not reiterate our holding herein. Suffice it to say that

where the services in which the parents seek to participate ... are school-initiated conferences incident to the academic and/or disciplinary aspects of their child's education, as they are in this case, we think it clear that the parents are entitled to participate to the same extent as non-handicapped parents. In sum, we are convinced that the plaintiffs are otherwise qualified to take part in the parent-teacher programs in which they seek to participate.

Id. at 800. The next issue, therefore, is whether the conduct of the defendants in refusing to provide sign-language interpreter services to the plaintiffs under the circumstances delineated above violates the Rehabilitation Act and/or the Civil Rights Act.

B. Meaningful Access

"An otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). There is little doubt that section 504 of the Rehabilitation Act requires a federally financed institution to take some affirmative action to accommodate the handicapped. Dopico v. Goldschmidt, 687 F.2d 644, 652 (2d Cir.1982). Defining meaningful access with respect to the needs of a deaf individual, however, is a difficult task that has not been heretofore attempted by the courts of this circuit.

Instructive in this respect are the regulations promulgated under section 504 of the Rehabilitation Act by the Department of Education. In no less than three places, the regulations define reasonable access as including the provision of a sign-language interpreter for a deaf individual otherwise qualified to participate in a service. See 34 C.F.R. § 104.12(b)(2) (1986) (With regard to employment practices, "reasonable accommodation may include ... the provision of readers or interpreters."); 34 C.F.R. § 104.44(d)(2) (1986) (With regard to post-secondary education, "auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments."); 34 C.F.R. § 104.52(d)(3) (1986) (With regard to health, welfare and other social services, "auxiliary aids may include ... interpreters, and other aids for persons with impaired hearing."). Thus, the regulations promulgated under section 504 of the Rehabilitation Act apparently contemplate the inclusion of sign-language interpreters within the definition of "meaningful access."

The plaintiffs cite four cases in which the federal courts have ruled on whether the Rehabilitation Act requires the provision of sign-language interpreters for the hearing impaired. Each of these cases determined that such services were within the requirements of section 504 of the Rehabilitation Act. See Jones v. Illinois Dep't of Rehabilitation Serv., 689 F.2d 724, 728 (7th Cir.1982) (Illinois Department of Rehabilitation Services required to provide sign-language interpreter to deaf college student); Camenisch v. University of Texas, 616 F.2d 127, 133 (5th Cir.1980) (on preliminary injunction, likely that university must pay for interpreter services for deaf graduate student), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Crawford v. University of North Carolina, 440 F.Supp. 1047, 1059 (M.D.N.C. 1977) (same); Barnes v. Converse College, 436 F.Supp. 635, 637 (D.S.C.1977) ("It is probable that, under this statute and regulation, the defendant is obliged to provide for such `auxiliary aids' as an interpreter to a deaf graduate student.").

The only case cited by the defendants on this issue is unavailing. Colin K. v. Schmidt, 536 F.Supp. 1375 (D.R.I.1982), aff'd on other grounds, 715 F.2d 1 (1st Cir.1983), involved a suit brought under the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. §§ 1401-1461 (1982), to fund the special education placement of two handicapped children.¹ Specifically, the plaintiffs sought residential placement for the handicapped children. The court held that the plaintiffs were not entitled to damages because "funding a residential placement would constitute affirmative conduct making available to handicapped children facilities and programs not available to non-handicapped students." Id. at 1388.

Colin K. is distinguishable on at least two grounds. First, in the instant action, the plaintiffs do not seek to participate in programs that are not available to hearing parents. They do not seek special conferences or instructional programs. Rather, they seek to participate in precisely those activities that are currently available to non-handicapped parents. Second, the court's decision in Colin K. preceded the Supreme Court's decision in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) which held that "to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made." Id. at 301, 105 S.Ct. at 720. Moreover, Colin K. was seemingly overruled by the Supreme Court's decision in School Committee of Burlington v. Dep't of Education, 471 U.S. 359, 370, 105 S.Ct. 1996, 2002-03, 85 L.Ed.2d 385 (1985).²

Our discussion of applicable case law would be incomplete without an...