Board of Education of Monroe-Woodbury Central School District v. Wieder

OPINION OF THE COURT

This appeal centers on a struggle between the Board of Education of the Monroe-Woodbury Central School District, and parents and handicapped children of Kiryas Joel, an incorporated village of Satmarer Hasidim located within the school district. No one disputes that State and Federal law require the Board of Education to make special services available to these handicapped children. The conflict arises over where the services are to be offered — whether in the public schools, or in the religiously affiliated private schools of Kiryas Joel, or elsewhere.

Despite past efforts at accommodation in the interests of meeting the unquestioned needs of these children, this is a litigation of "musts.” Both sides ask only what the law compels or requires, not what it permits. As the pleadings are framed, plaintiff Board of Education demands judgment declaring that the law compels it to furnish special education and related services of an instructional, remedial and therapeutic nature only in regular public school classes and programs, and declaring that it is without authority to provide such services separately. At the other extreme, defendants’

Both sides sought summary judgment. Defendants in their submissions urged that the regular public schools were inappropriate not only because of the need of many of the children for one-on-one services but also because of the panic, fear and trauma they suffered in leaving their own community and being with people whose ways were so different from theirs. They described specific instances of the children’s anxiety and distress, contending that parents felt compelled to stop sending them because the emotional toll outweighed the benefits of programs offered at the public school. They further stated that they were themselves financially unable to furnish the costly services to which they as taxpayers and their children were by law entitled, and which they urgently need.

Plaintiff in its summary judgment submission disputed certain of defendant’s factual assertions, pointing to the progress made by Satmarer children who actually attended the public school programs. It detailed efforts to integrate the children and accommodate the parents (including Yiddish-speaking aides and bilingual reports), concluding that Satmarer Hasidic children could be appropriately educated in the public schools, and insisted that the Education Law § 3602-c (9) leaves no other option.

Supreme Court directed plaintiff to provide the services to defendants at a site not physically or educationally identified with but reasonably accessible to defendant children ( 134 Misc 2d 658 , 663). The court avoided interpreting section 3602-c (9), whether for inapplicability or invalidity, simply holding that the statute could not deny the children’s right under the Constitution and statutory and decisional law to services outside the regular public school classroom. Defendants’ claim for damages was dismissed as premature, owing to a failure to exhaust administrative remedies.

The Appellate Division modified by granting plaintiff’s cross motion for summary judgment to the extent of dismissing defendants’ counterclaim and declaring that Education Law

We first consider plaintiff’s contention that this appeal, filed by defendants as of right on the ground that a substantial constitutional question is directly involved (NY Const, art VI, § 3; CPLR 5601 [b] [1]), must be dismissed for lack of jurisdiction.

To support an appeal as of right on this basis, appellants must demonstrate that the ground for appeal is " 'directly and primarily an issue determinable only by our construction of the Constitution of the state or of the United States.’ ” (Matter of Haydorn v Carroll, 225 NY 84 , 88.) Even where a constitutional question may be otherwise involved, an appeal as of right does not lie if the decision appealed from was or could have been based upon some ground other than construction of the Constitution (see, Matter of Levy, 255 NY 223 ). These principles require dismissal of defendants’ appeal.

In addressing plaintiff’s request for declaratory relief, the Appellate Division declined to adopt the construction of Education Law § 3602-c (9) urged by either party. The court did, however, conclude that the statute — as interpreted — required that to the maximum extent appropriate, the special services at issue were to be offered in the public schools, not separately. The core of the Appellate Division decision was its construction of the pertinent statutes. While the court went on to find that Supreme Court’s order requiring plaintiff to provide services at a neutral site would contravene the Establishment Clause, the Appellate Division itself observed that "quite apart from the above discussion, the order and judgment must fall because it constitutes an improper usurpation of the plaintiff’s legislatively ordained authority pursuant to Education Law article 89 to evaluate and place handicapped

Because appellants have failed to sustain their burden, the appeal filed as of right must be dismissed. However, there being novel and significant issues tendered for review, we grant the application for leave made during oral argument, and turn to a consideration of the merits of the appeal.

Plaintiffs reading of Education Law § 3602-c is over-broad and must be rejected. That section does not mandate that a board can provide special services to private school handicapped children only in regular classes and programs of the public schools, and not elsewhere.

Upon request of a parent, guardian or custodian of a handicapped student, boards of education of all school districts must offer services to pupils who are residents of the State and who attend nonpublic schools in their districts (Education Law § 3602-c [2]). "Services” include "education for students with handicapping conditions, and counseling, psychological and social work services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district.” (Education Law § 3602-c [1] [a].) "Education for students with handicapping conditions” is further defined to mean special programs designed to serve "persons who meet the definition of children with handicapping conditions set forth in subdivision one of section forty-four hundred one of this chapter.” (Education Law § 3602-c [1] [d].) No one disputes that defendant children, as well as the services in controversy, are within the sweep of section 3602-c. Subdivision (9) provides: "Pupils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools.” As the Appellate Division analysis recognizes ( 132 AD2d 409 , 413-414, supra), this is not a statute that can be read without consideration of

While insisting in its complaint that section 3602-c (9) must be read literally as the exclusive vehicle for providing special services to handicapped private school students, plaintiff now embraces the Appellate Division’s modification of that proposition, urging that, to the maximum extent possible — and consistent with other laws mandating services at specific places, and with individual exceptions for hardship — section 3602-c compels, and authorizes, school districts to offer programs and services to private school handicapped students only in regular public school classes and programs, and not elsewhere. We disagree.

We conclude that section 3602-c authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public school programs; if they become part-time public school students, for the purpose of receiving the special services, the statute directs that they be integrated with other public school students, not isolated from them. The statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise (see, Education Law § 4401-a), but that is not a matter of statutory compulsion under section 3602-c.

Supreme Court described section 3602-c (9) as a "modest, if not obscure” law ( 134 Misc 2d 658 , 661, supra). Indeed, since its enactment in 1974, Education Law § 3602-c has remained uncontroversial. It was adopted — as part of the Education Law article pertaining to apportionment of moneys — in the wake of Lemon v Kurtzman ( 403 US 602 ) and Committee for Pub. Educ. v Nyquist ( 413 US 756 ), which struck down New York laws providing financial assistance programs to nonpublic schools because they had the primary effect of advancing religion.

The statute was plainly designed to increase benefits afforded to handicapped children in private schools — not to limit them — by offering these students access to all of the special

The view that the statute affords an added double-enrollment option — rather than dictating the sole or presumptive means for affording services — is in harmony with the scheme of State and Federal regulation pertaining to services for handicapped school children.

The Federal Education of the Handicapped Act ( 20 USC § 1400 et seq.) declares the congressional objective that each handicapped child is to have available a free appropriate public education, with special education and related services— including classroom instruction, instruction in physical education, home instruction and instruction in hospitals and institutions — available to meet a child’s unique needs ( 20 USC § 1401 [16]). To the extent consistent with the number and location of

To implement the goals declared by Federal law, New York has adopted an extensive statutory and regulatory scheme (see generally, Education Law art 89; 8 NYCRR part 200). Several pertinent points may be distilled from these laws. First, the paramount principle that guides State law is concern for a handicapped child’s educational needs, whether in public or private school. All handicapped children residing within a school district are to be afforded suitable educational opportunities according to their individual needs, in a manner that enables them to participate in regular education services when appropriate (see, e.g., Education Law §§ 4401-a, 4402 [2] [a]; 8 NYCRR §§ 200.1, 200.6). Second, the statutes and regulations vest in State educational authorities broad responsibility for tailoring programs to a child’s individual needs in the least restrictive environment, considering the appropriateness of the resources of the regular education program (see, e.g., Education Law §§ 4401-a, 4402, 4403). Third, to this end, the authorities have a wide choice of programs and services, including home instruction, itinerant teachers (Education Law § 4401 [2] [a]), and counseling and psychological services (Education Law §4401 [2] [k]). The Education Law permits contracts with private facilities, even out-of-State facilities, where such services are deemed necessary for a child’s appropriate education (Education Law § 4407). From the scope of services and programs, it is plain that not all services can even be furnished in "regular classes of the public school” (Education Law § 3602-c [9]).

While the Appellate Division reading of the Education Law § 3602-c would recognize limited exceptions from the general mandate for public school services to avoid inconsistency and individual hardship, we believe the better reading is that this provision in the first instance imposes no such mandate but leaves educational authorities to fashion an appropriate pro

Our reading of the statute also appears to be consonant with the State Education Department’s interpretation (see, Matter of Mutual Life Ins. Co. v State Tax Commn., 32 NY2d 348 , 353-354). Several letters from counsel for the Department have been made part of this record, none of them opining that section 3602-c mandates public school placement. In response to a question put by plaintiffs counsel, counsel for the Department explained that section 3602-c governs the option of dual enrollment, that where it found compelling individual or group reasons for doing so a board of education otherwise might elect to provide services elsewhere to private school handicapped children. He wrote: "In such a case, the provisions of § 3602-c would not be invoked because there would have been no parental request for 'dual enrollment’ in a public school pursuant to that section. Rather, the board of education would be exercising its authority and discharging its responsibilities pursuant to 34 CFR § 300.452 .” (Emphasis added.) Similarly, the Commissioner of Education has declined to construe the statute as the blanket mandate plaintiff suggests. In Matter of Board of Educ. (24 Ed Dept Rep 155 [Oct. 31, 1984]), the Commissioner concluded that "Section 3602-c relates solely to so-called 'dual enrollment’ in public schools for specified purposes by youngsters who otherwise attend nonpublic schools. Subdivision 9 of that section pertains solely to youngsters who are dually enrolled”. (Id., at 159-160; see also, Matter of Handicapped Child, 21 Ed Dept Rep 708 [June 16, 1982]; Matter of Handicapped Child, 19 Ed Dept Rep 463 [Mar. 7, 1980].)

We therefore conclude that plaintiffs contention should be rejected: it is neither compelled to make services available to private school handicapped children only in regular public school classes and programs, nor without authority to provide otherwise.

That plaintiff may be free of the claimed restraint of Education Law § 3602-c (9) does not, however, establish defendants’ contention that the services must be provided within their own schools, or even at a neutral site.

Defendants’ contention that State and Federal statutes

Similarly, on this record defendants have been denied no constitutional right by the children’s public school placements.

Considerable doubt has been voiced by the Appellate Division ( 132 AD2d 409 , 416, supra), by plaintiff and by the New York State School Boards Association as amicus, that the alternate setting contemplated by defendants could ever be a genuinely neutral, public site, free of identification with defendants’ beliefs. The point is made that the fear and trauma of leaving the language, life-style and environment of Kiryas Joel and mixing with others — defendants’ stated grounds for refusing to attend the public schools — of necessity mean that any acceptable alternate site designated to address those concerns could never be truly neutral. We see an even more fundamental flaw in defendants’ position: on this record, defendants’ statutory entitlement to special services does not carry with it a constitutional right to dictate where they must be offered.

Defendants’ constitutional “right” to services in their own schools or at a neutral site, as asserted in this court, rests on their contention that the Board’s public school placements interfere with the free exercise of their sincere religious beliefs guaranteed by the State and Federal Constitutions (NY Const, art I, § 3; US Const 1st Amend), that compelling the children to attend regular public school classes and programs forces them to choose between following the precepts of their religion and foregoing benefits on the one hand, and accepting benefits while violating their religious beliefs on the other (see, e.g., Lyng v Northwest Indian Cemetery Protective Assn., 485 US —, 108 S Ct 1319 [Apr. 19, 1988]; Hobbie v Unemployment Appeals Commn., 480 US 136 ; Sherbert v Verner, 374 US 398 ).

But that is not the claim defendants asserted and supported

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Oral application for leave to appeal granted. Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs.