Rothschild v. Grottenthaler, 89 Civ. 2992 (GLG).

• Decision Date: 12 July 1989
• Docket Number: No. 89 Civ. 2992 (GLG).,89 Civ. 2992 (GLG).
• 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

716 F. Supp. 796

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.

July 12, 1989.

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

Coral Ortenberg Mayer Zeck & Prier, P.C., Suffern, N.Y., for defendants; Reuben Ortenberg, of counsel.

OPINION

GOETTEL, District Judge:

The plaintiffs bring this handicap discrimination action against the defendants alleging that the defendants' refusal to provide a sign language interpreter or other device to aid them in maintaining a meaningful parent-teacher relationship is a violation of section 504 of the Rehabilitation Act and 42 U.S.C. § 1983. The defendants move to dismiss. For the following reasons, that motion is granted in part and denied in part.

I. Facts

The plaintiffs Kenneth and Karen Rothschild are hearing impaired parents of nonhearing impaired children who attend the schools of the defendant Ramapo Central School District in Rockland County, New York (the "district" or "school district"). In September 1981, Kenneth Rothschild made a letter request of the school district that a sign language interpreter be provided, at district expense, to assist Mr. and Mrs. Rothschild in conducting a meaningful parent-teacher relationship, citing section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794 (Supp.1989).

In December 1981, the district advised Mr. Rothschild that, on advice of its counsel and counsel to the New York State Department of Education, the plaintiffs were not eligible for the service requested under section 504 of the Rehabilitation Act or the regulations promulgated thereunder. Specifically, the district contended that the plaintiffs did not meet the definition of a "qualified handicapped person" under 34 C.F.R. 104.3(k)(2) (1986).¹ In September 1982, Mr. Rothschild made an additional request that the district purchase a Telecommunication Device for the Deaf ("TDD")² to facilitate communication between deaf parents and district personnel.

In December 1982, the plaintiffs filed a complaint with the United States Department of Education alleging that the district was in violation of section 504 of the Rehabilitation Act. 29 U.S.C. § 794 (Supp.1989). In February 1986, after investigations and several conferences, the United States Department of Education administratively closed the case based on Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984)³ without a determination as to whether or not the defendants discriminated against the Rothschilds.

In March 1987, the Rothschilds appealed the district's denial of sign language interpreter services and a TDD phone to the Commissioner of Education of the State of New York. This appeal was dismissed. In February 1988, the Rothschilds appealed again to the Commissioner of Education. This appeal was also dismissed.

On March 29, 1988, following passage of the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259 (1988), the Rothschild's renewed their request that the district purchase a TDD unit and/or provide interpretive services at district expense. In August 1988, the Rothschilds filed a new administrative complaint with the Office for Civil Rights of the United States Department of Education alleging that the district is in violation of section 504 of the Rehabilitation Act. That matter is still pending.

On May 2, 1989, the plaintiffs commenced this action pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and 42 U.S.C. § 1983 seeking injunctive relief and damages. The defendants have moved to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(2) & (b)(6).

II. Subject Matter Jurisdiction

The defendants' first contention is that this court lacks subject matter over the plaintiffs' action because the plaintiffs are not "otherwise qualified" handicapped persons within the meaning of section 504. A prima facie case of discrimination on the basis of handicap under the Rehabilitation Act requires proof that (1) the plaintiff is a handicapped person under the Rehabilitation Act; (2) that the plaintiff is otherwise qualified for the program or activity sought; (3) that the plaintiff has been excluded from a federal program or activity solely by reason of a handicap; and (4) that the program or activity receives federal financial assistance. Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir. 1981).

The defendants do not dispute that the plaintiffs are handicapped. Nor do they dispute that the Ramapo Central School District is a recipient of federal funds. Rather, they contend that the plaintiffs are not otherwise qualified for the programs and activities offered by the school district. In support of its position, the defendant directs the court to 34 C.F.R. § 104.3(k)(2). That section defines a qualified handicapped person with respect to public elementary schools, secondary schools and adult education.⁴ The defendants argue that because the plaintiffs are not of school age, they are not otherwise qualified handicapped individuals.

The defendants' argument conveniently ignores the remaining sections of 34 C.F.R. § 104.3(k). The regulation separately defines a qualified handicapped person with respect to employment, 34 C.F.R. § 194.3(k)(1), educational services, 34 C.F.R. § 194.3(k)(2), post-secondary and vocational education services, 34 C.F.R. § 194.3(k)(3), and other services. 34 C.F.R. § 194.3(k)(4). The Rothschilds do not seek to enroll in the Ramapo public schools. Rather, they seek to participate in extracurricular services provided by the school district, specifically those requiring or permitting parental involvement. Thus, our inquiry must focus on the "other services" provided by the school district governed by subsection (k)(4), not the "educational" services referred to in subsection (k)(2).

A qualified handicapped person with respect to other services is one "who meets the essential eligibility requirements for the receipt of such services." 34 C.F.R. § 194.3(k)(4); cf. Bonner v. Lewis, 857 F.2d 559, 563 (9th Cir.1988) (applying Justice Department regulations promulgated under Rehabilitation Act to deaf prison inmate). The plaintiffs argue that they meet all the "essential eligibility requirements" for participation in school district meetings, teacher conferences and other parent activities, i.e., they have children enrolled in school district schools and they have received invitations and requests to participate in conferences and events. The defendants, on the other hand, argue that the term "other services" does not apply to public school districts. This argument is unsupported by the construction of the regulation which groups "other services" with the definitions of other public school activities. The defendants also argue that even if subsection (k)(4) applies to public schools, the plaintiffs are not qualified to participate in the services provided. Specifically, the defendants contend that parent-teacher conferences and similar programs are designed solely for the benefit of the student; the parents, therefore, are not eligible to participate. This argument is patently without merit. While certainly the purpose of maintaining a strong parent-teacher relationship is to benefit the student, that aim cannot be reached without the parent's participation. Consequently, we think that "other services" must include meetings and programs for parents and teachers in aid of the student's academic success.

Particularly persuasive on this issue are rulings from the Office for Civil Rights of the United States Department of Education ("OCR").⁵ In Case No. 02-89-1054, Sherburne-Earville School District, the complainant, a deaf employee of the school district and a parent of children attending the district's schools, alleged discrimination by the district for its failure to provide an oral interpreter during an accounting workshop for employees and during a college financial aid presentation for parents. By opinion letter dated April 18, 1989, the OCR determined that

with respect to other services, a handicapped person is one who meets the essential eligibility requirements for the receipt of such services. The injured party, as a parent, is entitled to participate in activities and programs which affect her children. See 34 C.F.R. § 104.3(k)(4). OCR, therefore, concludes that the injured party is a qualified handicapped person.

Case No. 02-89-1054, Sherburne-Earville School District, p. 2 (attached to plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss as "Attachment 1"). Similarly, in an opinion letter published in the Education for the Handicapped Law Report, the OCR stated that "handicapped parents are considered beneficiaries of school district programs offered to parents pertaining to the academic progress of the children." 305 Educ. Handicapped L.R. 48-49 (June 11, 1988). Finally, in 305 Educ. Handicapped L.R. 17 (February 13, 1987), the OCR stated that

it is our opinion that a recipient school district does have the responsibility to provide auxiliary aids as necessary to allow the participation of hearing impaired parents in school programs and activities to the same degree as other parents.... A deaf parent would certainly be a qualified handicapped person with regard to parent participation in school programs or activities.

Id. at 18.

We are somewhat troubled by the notion that the school district, and in turn the taxpayer, should bear the financial burden of providing hearing impaired parents with an...