Russman by Russman v. Sobol

• Decision Date: 27 June 1996
• Docket Number: D,No. 996,996
• Parties: , 17 A.D.D. 257 Colleen RUSSMAN, a child with disabilities, by her parents, Patricia and Paul RUSSMAN, Plaintiffs-Appellees, v. Thomas SOBOL, as Commissioner of the New York State Education Department, Defendant, Board of Education of the Enlarged City School District of the City of Watervliet, New York, Defendant-Appellant. ocket 95-7756.
• Court: U.S. Court of Appeals — Second Circuit

Page 1050

85 F.3d 1050

64 USLW 2812, 17 A.D.D. 257

Colleen RUSSMAN, a child with disabilities, by her parents, Patricia and Paul RUSSMAN, Plaintiffs-Appellees, v. Thomas SOBOL, as Commissioner of the New York State

Education Department, Defendant,

Board of Education of the Enlarged City School District of

the City of Watervliet, New York, Defendant-Appellant.

No. 996, Docket 95-7756.

United States Court of Appeals, Second Circuit.

Argued Feb. 1, 1996.

Decided June 12, 1996.

As Amended June 27, 1996.

Cory Haines, Law Intern, Disabilities Law Clinic of Albany Law School, Albany, New York (Nancy M. Maurer; Joseph Connors; Michael Cardinale, law intern, of counsel), for Plaintiff-Appellee.

Stephen F. Bailly, Hicks & Bailly, Albany, New York, for Defendant-Appellant.

Michael L. Costello, Albany, New York (Richard E. Barnes, John A. Liekweg, Mark A. Mainello, of counsel), for Amicus Curiae New York State Catholic Conference.

Gerald A. Rosenberg, Rosenman & Colin, New York City (John F. Finnegan, Bruce M. Sabados, Rosemary Halligan, Stacey B. Creem, of counsel), for Amici Curiae New York State Schools are for Everyone, the National Association of Protection and Advocacy Systems, and Western New York Disability Law Coalition.

Jay Worona, Albany, New York (Pilar Sokol, of counsel), for Amicus Curiae New York State School Boards Association, Inc.

Before: OAKES, WINTER, and WALKER, Circuit Judges.

WINTER, Circuit Judge:

This appeal presents important questions concerning obligations imposed upon public school authorities by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and the constitutionality of those obligations under the Establishment Clause of the First Amendment. Colleen Russman and her parents commenced this suit against the Board of Education of Watervliet, New York (the "school district"), alleging that the school district's refusal to provide Colleen special education services at a parochial school violates Section 1413 of New York Educ. Law § 3602-c, and the Free Exercise Clause of the First Amendment to the United States Constitution. On cross-motions for summary judgment, Magistrate Judge Smith granted judgment for the school district on the grounds that: (i) IDEA forbids the school district from using federal funds to provide instructional services at a parochial school; (ii) New York law does not require the school district to provide special education services at parochial schools; and (iii) such aid is forbidden by the Establishment Clause of the First Amendment to the United States Constitution. Judge Cholakis reversed Magistrate Smith's ruling and granted summary judgment for the Russmans. ¹ The school district appeals, and we affirm.

BACKGROUND

The pertinent facts are not in dispute and were set forth in detail in the two district court opinions, Russman v. Board of Educ., No. 93-CV-905, slip op. (N.D.N.Y., June 30, 1995); Russman v. Board of Educ., No. 93-CV-905, slip op. (N.D.N.Y., June 22, 1994), familiarity with which is assumed. Colleen Russman, currently fifteen years old, has been classified as mentally retarded since 1986. For the first five years of her schooling, Colleen was educated in classes set aside by the school district exclusively for children with disabilities. In the Spring of 1991, Colleen's parents asked the school district's Committee on Special Education to develop an Individualized Educational Program ("IEP") for Colleen that would allow her to be "mainstreamed" into a regular, age-appropriate class. The IEP developed by the district called for the services of a consultant teacher to work with the regular classroom teacher in modifying the academic curriculum for Colleen and a teaching aide to assist Colleen directly with her studies. It provided as well for speech and occupational therapy. The parties agree that the mainstream program is appropriate for Colleen and that the services described in the IEP are necessary for her to be mainstreamed successfully. Agreement ends here.

Colleen and her parents wish to implement the IEP at St. Brigid's Regional Catholic School, the school that Colleen's two sisters attend. The Russmans can and will pay St. Brigid's tuition, but they cannot afford to pay for the support services of a consultant The school district's decision to provide Colleen with special education benefits only at a Watervliet public school was upheld by an impartial hearing officer on December 24, 1992. That decision was affirmed by the state review officer of the New York State Education Department on March 8, 1993. Subsequently, Colleen, then eleven years old, and her parents brought the present action alleging that the failure to provide the services at St. Brigid's violates the Free Exercise Clause of the First Amendment to the United States Constitution as well as federal and state statutory law. During the pendency of the administrative proceedings and this litigation, Colleen has had her IEP implemented in a Watervliet public school.

teacher and a teaching aide. The Russmans do not seek special education services in connection with religious courses but only in connection with core academic subjects such as math and English. The school district refuses to implement the plan at a parochial school. Although the district provides speech and occupational therapy to other students at a "neutral" site at St. Brigid's, the school district contends that the provision of a consultant teacher and a teaching aide for Colleen at St. Brigid's would violate the Establishment Clause of the First Amendment.

DISCUSSION

We review a district court's grant of summary judgment de novo, United States v. Articles of Banned Hazardous Substances, 34 F.3d 91, 96 (2d Cir.1994), affirming only where there are no genuine issues of material fact and the moving party is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

A. The Establishment Clause

The First Amendment of the United States Constitution provides in relevant part that "Congress shall make no law respecting an establishment of religion." U.S. Const. Amend. I. The school district argues that the Establishment Clause prohibits it from implementing Colleen's IEP at St. Brigid's. We disagree.

Where government programs are made available to a broad class of citizens defined in a religion-neutral fashion, the individuals receiving the benefits may choose to use them in a religious setting, and the program does not thereby violate the Establishment Clause. See Witters v. Washington Dept. of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (Establishment Clause does not forbid blind student studying at Christian college from receiving generally available state assistance distributed to blind students for vocational training); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (state law that provided tax deductions for certain educational expenses not unconstitutional even though deductions might primarily benefit parents whose children attended sectarian schools); see also Rosenberger v. Rector and Visitors of the Univ. of Virginia, --- U.S. ----, ---- - ----, 115 S.Ct. 2510, 2521-24, 132 L.Ed.2d 700 (1995) (state university does not violate Establishment Clause by funding printing services for student newspaper with heavily Christian themes where printing services are provided as part of policy of funding all student newspapers without respect to religion).

In Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Supreme Court held that a public school district may constitutionally use IDEA funds to provide a sign language interpreter for a deaf student at a Catholic high school. Id. at 13, 113 S.Ct. at 2469. Under Zobrest, the provision of governmental services to a religious school will survive a First Amendment challenge if: (i) the services are provided in a neutral manner without regard to religion; (ii) the services are provided at the parochial school not as a result of legislative choice but rather as a result of the private choice of the individual utilizing the services; and (iii) the funds traceable to the government do not "find their way into the sectarian schools' coffers." Zobrest, 509 U.S. at 10, 113 S.Ct. at 2468.

The special assistance required by Colleen's IEP would satisfy these factors if provided at St. Brigid's. First, the assistance is a neutral governmental service made available without regard to religion. See id. at 10, 113 S.Ct. at 2467-68. Second, the teaching aide and teaching consultant will provide services at St. Brigid's solely because of a decision made by the Russman family. See id. Third, the special education benefits flow directly to Colleen and do not financially benefit St. Brigid's. See id. (funds spent on special education services under IDEA not co-mingled with funds belonging to sectarian schools); see also Rosenberger, --- U.S. at ---- - ----, 115 S.Ct. at 2523-24 (where school pays third-party contractor to perform services to program beneficiaries and funds are not paid directly to religious organization, benefit received by religious organization is incidental and does not violate Establishment clause). Thus, provision of the stipulated services to Colleen falls within the scope of permissible activity under Zobrest.

We are not persuaded by the school district's argument that under Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), it is prohibited from providing such services to Colleen. In Meek and Ball the Court struck down government programs that provided teachers, counselors, teaching materials, and equipment to sectarian schools. However, both cases involved massive grants provided directly to the parochial...