Opposition — Board of Education of the Hendrick Hudson Central School District v. Rowley Ex Rel. Rowley

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Supreme Court, U.S.

FILED

No. _80-1002.

ee MICHAEL RODAK, JR., CLERK

Supreme Court of the Hunited States

OCTOBER TERM, 1980

— eee

THE BOARD OF EDUCATION OF THE HENDRICK

HUDSON CENTRAL SCHOOL DISTRICT, WEST-

CHESTER COUNTY, and THE COMMISSIONER OF

EDUCATION UF THE STATE OF NEW YORK,

Petitioners,

-against-

AMY ROWLEY, by her parents and natural

guardians, CLIFFORD and NANCY ROWLEY,

and CLIFFORD and NANCY ROWLEY in their

own right,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

MICHAEL A. CHATOFF

Attorney for Respondents

270-31M Grand Central Parkway

Floral Park, New York 11005

(212) 428-4596 (TTY)

(516) 248-1900

(10553)

TABLE OF CONTENTS

TABLE OF CASES, STATUTES AND

OTHER AUTHORITIES ii

STATUTES INVOLVED 1

STATEMENT OF THE CASE 1

REASONS FOR REFUSING TO REVIEW

THIS CASE 3

THERE IS NO CONFLICT

AMONG THE CIRCUITS. 3

THE COURT OF APPEALS HAS

NOT DECIDED A FEDERAL

QUESTION IN CONFLICT WITH

A STATE COURT OF LAST

RESORT, 3

THE PETITIONERS HAVE NOT

RAISED ANY ISSUES THAT SHOULD

BE SETTLED BY THIS COURT. 7

RESPONDENTS EXHAUSTED ALL

ADMINISTRATIVE REMEDIES

PRIOR TO INITIATING SUIT. 22

THE COURT OF APPEALS DID

NOT DEPART FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL

PROCEEDINGS, 29

CONCLUSION 29

TABLE OF CASES, STATUTES, AND

OTHER AUTHORITIES

CASES Page

Battle v. Commonwealth of

Pennsylvania, 629 F.2d 269

(Third Circuit, 1980) 11

Berenyi v. District Director,

Immigration and Naturalization

Service, 385 U.S. 630, 87 S.Ct.

666, 17 L.Ed.2d 656 (1967) 7

Bird v. United States, 187 U.S. 118,

23 S.Ct. 42, 47 L.Ed. 100 (1902) 24

Chernack v. Radlo, 331 F.2d 170

(First Circuit, 1964) 6

=e v. United States, 274 U.S.

95, 47 S.Ct. 566, 71 L.Ed. 996

(1927) 19

Federal Trade Commission v. Manager,

Retail Credit Co., Miami Branch

Office, 515 F.2d 988 (District of

Columbia Circuit, 1975) 24

International Brotherhood of

Electrical Workers v. Foust,

442 U.S. 42, 99 S.Ct. 2121,

60 L.Ed.2d 698 (1979) 7

Lawn v. United States, 355 U.S. 339,

78 S.Ct. 311, 2 L.Ed.2d 321 (1958) 19

CASES

Matter of Levy, 38 N.Y.2d 653,

382 N.Y.S.2d 13 (1976)

Meyer v. Nebraska, 262 U.S. 390,

43 S.Ct. 625, 67 L.Ed. 1042

(1923)

Miree v. DeKalb County, + eat

433 U.S. 25, 97 S.Ct. 2490,

53 L.Ed.2d 557 (1977)

Nebraska Press Association v.

Stuart, 427 U.S. 539, 96 S.

Ct. 2791, 49 L.Ed.2d 683

(1976)

Olmstead v. United States, 277

U.S. 438, 48 S.Ct. 564, 72

L.Ed. 944 (1928)

Pierce v. Society of Sisters,

aan U.8. 510, 65 8.Ct. 357i,

69 L.Ed. 1070 (1925)

Porter County Chapter of the

Izaak Walton League of

America, Inc. v. Costle, 571

F.2d 359 (Seventh Circuit,

1978)

Roe v. Wade, 410 U.S. 113, 93

S.Ct. 705, 35 L.Ed.2¢ 147

(1973)

iii

Page

CASES

Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498, 31

§.Ct. 279, 55 L.Ed. 310

(1911)

United States v. Lovasco, 431

U.S. 783, 97 S.Ct. 2044,

52 L.Ed.2d 752 (1977)

United States v. Monasche, 348

U.S. 528, 75 S.Ct. 513, 99

L.Ed. 615 (1955)

United States v. R.J.Reynolds

Tobacco Co., 416 F.Supp. 313

(DNJ, 1976)

Workman v. Mayor, Etc., City

of New York, 179 U.S. 552,

21 S.Ct. 212, 45 L.Ed. 314

(1900)

iv.

Page

CONSTITUTION, STATUTES, RULES, AND

REGULATIONS

Constitution of the State of New

York, Article 11, Section 1 3

Department of Education Organi-

zation Act 20

Education for All Handicapped

Children Act of 1975 1, 8-11,

12, 26

Education Law of the State

of New York 3

Education of the Handi-

capped Act ba 3, Ohi,

Rehabilitation Act of 1973,

Section 504 | re © -

United States Code, 42 U.S.C.

§ 1983 1

Code of Federal Regulations,

Title 45

Part 84 hy one

Part 12la 15

Regulations of the Commissioner

of Education of the State of

New York, Part 200 4-6

OTHER AUTHORITIES

Code of Judicial Conduct

Congressional Record, Volume 121

Helping Children With Handicapping

Condition in New York State,

1978-1979

Senate Conference Report No.

94-455

Senate Report No. 94-168

STATUTES INVOLVED

In addition to section 615(e)(2) of

the Education of the Handicapped Act, as

amended by the Education for All Handi-

capped Children Act of 1975, 20 U.S.C.

§ 1415(e)(2), this case was initiated

under section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794, and the

pertinent regulations promulgated

thereunder, 45 CFR Part 84, Subparts

A and D; and 42 U.S.C. § 1983.

STATEMENT OF THE CASE

The facts of this case, as set

forth in the petition for certiorari,

are so inaccurate and set forth so

selectively that they bear no relation

to reality.1 The facts are adequately

1 To cite just one example, there is no such

thing as "a discrete sound amplification de-

vice." (Petition, page 4).

set forth in the opinion of the district

court, 483 F. Supp. 528.2

The statements made in the petition

for certiorari concerning the contents

and substance of the circuit court and

district court decisions are replete

with distortions, inaccuracies, and un-

truths.3 It is respectfully suggested

that this Court refer to the decisions

themselves.

2 It is respectfully suggested that this Court

refer to the reported opinion of the district

court, inasmuch as Appendix C of the petition

for certiorari omits part of that opinion and

contains typographical errors.

3 To cite just one example, Judge Broderick

did not find that local school districts

must provide "an education which enables the

handicapped child to achieve his full

potential." (Petition, pages 12-13).

REASONS FOR REFUSING TO REVIEW THIS

CASE

1. THERE IS NO CONFLICT AMONG THE

CIRCUITS.

2. THE COURT OF APPEALS HAS NOT

DECIDED A FEDERAL QUESTION IN

CONFLICT WITH A STATE COURT

OF LAST RESORT.

Section 4402(2)(a) of the Education

Law of the State of New York provides

that services shall be made available to

a handicapped child in accordance with

the child's individual needs.

The New York Court of Appeals has

held that Article 11, Section 1 of the

New York State Constitution assures that

each handicapped child will be provided

with a free public education, including

the services necessary for that educa-

tion to be meaningful to the child.

Matter of Levy, 38 N.Y.2d 653, 382 N.Y.S.

2d 13 (1976).

At the oral argument before the

court of appeals, each petitioner con-

ceded that the Regulations of the

Commissioner of Education of the State

of New York’ are broad enough to en-

compass the provisions of an interpreter

for a deaf child.> In their petition

for certiorari, the petitioners concede

once again that the regulations are

broad enough to encompass the provisions

of an interpreter for a deaf child when

the child's unique needs so require.

(Petition, page 26) .6

4 Section 200.4(c)(1) of the regulations, which

the petitioners have omitted from their petition,

provides that: "The formation of resource pro-

grams as instructional service options shall de-

pend upon the nature of the child's capabilities

and individual needs."

5 oral Argument before the Court of Appeals

Thus, Judge Broderick was called upon

to, and did, apply the State implementing

standards, in order to provide services to

Amy Rowley because of the unique needs

occasioned by her deafness in order to

furnish her with a free appropriate

public education.’ This case never has

("TCCA"), pages 7-8, 35-36. See also, petitioner

school board's memorandum of law in response to

respondents' memorandum of law in opposition to

the petitioner's motion to dismiss under Rule

12(b), page 5; and petitioner school board's

trial memorandum of law, page 15.

In the district court, neither petitioner

pleaded or argued that the regulations preclude

the provision of a sign language interpreter

for a deaf child.

6 Indeed, the plan submitted to the United

States Commissioner of Education under 20

U.S.C. § 1413 for school year 1978-79 speci-

fically envisions the use of sign language

in the education of deaf children. Helping

Children With Handicapping Conditions in New

York State, 1978-79, page 34.

7 If, as petitioners claim (Petition, page

24), they applied only section 200.4(d)(4) of

tion, disregarding section 200.4(c)(1) (note

4, supra) and section 200.4(a)(2) ("Unless

and never will raise anything more than

a question of fact, as recognized by the

attorney for the petitioner school board

(TCCA 43). On the evidence presented,

it would have been a virtual impossibility

for any reasonable person to find against

the respondents. 8

the student's handicapping condition requires

special classes, the student shall be educated

in regular classes with appropriate supportive

supplementary assistance."), then it was the

petitioners, not the district court, who based

their determination on a category of handicapping

condition (deafness), rather than on Amy Rowley's

unique needs.

Respondents’ (plaintiffs') Exhibit No. 23, in-

troduced at the hearing, shows clearly that the

school board furnished Amy with what it deemed to

be the minimally acceptable educational program

provided for in the regulations for a deaf child.

The petitioners failed to present that exhibit

to the court of appeals; it was presented

separately by the attorney for the respondents.

Chernack v. Radlo, 331 F.2d 170, 171 (First

Circuit, 1964).

8 "The policy underlying the 'two-court' rule

is obvious. This court possesses no empirical

expertise to set against the careful and

reasonable conclusions of lower courts on

purely factual issues. When, as here, resolution

3. THE PETITIONERS HAVE NOT

RAISED ANY ISSUES THAT SHOULD

BE SETTLED BY THIS COURT.

The petitioners appear to contest

the standard for "free appropriate pub-

lic education" set forth in the opinion

of the disputed factual issues turns largely

on an assessment of the relative credibility

of witnesses whose testimonial demeanor was

observed only by the trial court, the rule

has particular force . .. " Berenyi v.

District Director, Immigration and

Naturalization Service, 385 U.S. 630, 636,

87 S.Ct. 666, 17 L.Ed.2d 656 (1967). See

also, Workman v. Mayor, Etc., City of New

York, 179 U.S. 552, 21 S.Ct. 212, 45 L.Ed.

314 (1900); International Brotherhood of

Electrical Workers v. Foust, 442 U.S. 42,

note 7, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979).

The rule is of even greater importance in this

case because four of the witnesses for the re-

spondents who are deaf, including Mr. and Mrs.

Rowley, testified using total communication,

which is visual in nature. Per force,

Judge Broderick, and only Judge Broderick, was

able to assimilate that testimony.

of the district court, %but no where

do they say it is wrong. The district

court's standard is bottomed in "equal

educational opportunity." Both the

petitioner Commissioner (TCCA 27, 30)

and the petitioner school board

(post trial brief in the district

court, page 24) concede that handi-

capped children are entitled to an

equal educational opportunity. 1°

9 During the oral argument before the court

of appeals, the attorney for the school board

stated:

The District court's standard was

that each handicapped child be given

an opportunity to achieve full poten-

tial commensurate with the opportunity

given to other children. The District

Court went on -- because I frankly

think that we have no great disagree-

ment with that standard as a standard

per se... (TCCA 33).

10 the petitioners have omitted from their

petition the Findings and Purpose section

of the Education of the Handicapped Act, as

amended by the Education for All Handicapped

Children Act of 1975. That section is set

out:

The petitioners chide Judge

Broderick for formulating a definition

of "free appropriate public education"

Section 601. Findings and Purpose.

"(a) This title may be cited as the

"Education of the Handicapped Act’.

"(b) The Congress finds that-

"(1) there are more than eight million

handicapped children in the United States

today;

"(2) the special educational needs of

such children are not being fully met;

"(3) more than half of the handicapped

children in the United States do not

receive appropriate educational services

which would enable them to have full

equality of opportunity;

"(4) one million of the handicapped

children in the United States are ex-

cluded entirely from the public school

system and will not go through the

educational process with their peers;

"(5) there are many handicapped

children throughout the United States

participating in regular school pro-

grams whose handicaps prevent them

from having a successful educational

experience because their handicaps

are undetected;

"(6) because of the lack of adequate

services within the public school sys-

tem, families are often forced to find

services outside the public school

system, often at a great distance from

when there is a definition set out in

the Education of the Handicapped Act,

20 U.S.C. § 1401(18). But that is

their residence and at their own

expense;

"(7) developments in the training

of teachers and in diagnostic and in-

structional procedures and methods

have advanced to the point that,

given appropriate funding, State

and local educational agencies can and

will provide effective special educa-

tion and related services to meet the

needs of handicapped children;

"(8) State and local educational

agencies have a responsibility to

provide education for all handicapped

children, but present financial re-

sources are inadequate to meet the

special educational needs of handi-

capped children; and

"(9) it is in the national interest

that the Federal Government assist

State and local efforts to provide pro-

grams to meet the educational needs of

handicapped children in order to assure

equal protection of the law.

"(c) It is the purpose of this Act

{this chapter] to assure that all handi-

capped children have available to them,

within the time periods specified in

section 612(2)(B) a free appropriate |

public education which emphasizes

special education and related services

designed to meet their unique needs,

to assure that the rights of handicapped

not a functional definition; it pro-

vides no guidance to judges in their

consideration of controversies in-

volving "the identification, eval-

uation, or educational placement of

the child or the provision of a

free appropriate public education."

20 U.S.C. § 1415(b)(1)(C). Cf.

Battle v. Commonwealth of Penn-

sylvania, 629 F.2d 269, 276

(Third Circuit, 1980). Thus

children and their parents or guardians are

protected, to assist States and localities

to provide for the education of all handi-

capped children, and to assess and assure

the effectiveness of efforts to educate

handicapped children."

Judge Broderick was obligated to form-

ulate a standard based upon the legis-

lative history of the Education for

All Handicapped Children Act of 1975,

Public Law 94-142, and the standard

so formulated is in complete accord

with the Act and its legislative

history. 11

Inasmuch as these papers are not

supposed to review the merits of this

controversy, it is respectfully sug-

gested that this Court refer to the

respondents’ (plaintiffs-appellees')

brief to the court of appeals.

pages 15 to 36.

It is interesting to note that

neither petitioner so much as suggested

that there existed a statutory definition

of free appropriate public education

prior to their briefs filed in the court

of appeals. Indeed, each petitioner

offered material to assist Judge Broderick

in the formulation of the proper standard

(at page 18 of its trial memorandum,

the petitioner school board set forth the

definition of “appropriate education"

established in the regulations promulgated

under section 504 of the Rehabilitation

Act of 1973, 45 CFR § 84.33(b)).

The petitioners question

Judge Broderick's consideration of

expert testimony. A Federal judge

is called upon to hear and decide

controversies covering the entire

spectrum of human activity. No judge,

not anyone, can be so well versed

that he is able to render judicious

decisions on all matters before him

without the presentation of expert

testimony to acquaint him with the

field in which he is called upon to

decide.12 The respondents called

five experts for that purpose --

four of whom had and have personal

knowledge of Amy Rowley. 3 The

12 ", , . [I]t is the very purpose of

expert testimony to assist the trier of

the facts (in this case, a court sitting

without a jury) to understand, evaluate

and decide the complex evidential

materials in the case." United States

v. R.J. Reynolds Tobacco Co., 416 F.

Supp. 313, 315 (DNJ, 1976).

13 rs. Rowley, Amy's mother, is a

certified teacher of the deaf with six

years experience. She testified to and

submitted documentary material on her

observation of Amy in class over a one

week period.

petitioners called three experts for

that purpose. In addition, Judge

Broderick received two parent ini-

tiated independent educational eval-

uations (20 U.S.C. § 1415(b) (1) (A)

and 45 CFR § 121a.503(c)) prepared

by two experts in the education of

deaf children. Having reviewed and

assimiliated that expert testimony,

Mr. Taras B. Denis, an Administrator at

the New York School for the Deaf, testified

to the fact that he has known Amy all her

life.

Dr. Ann Barbara Kligerman, Director of

the Speech and Hearing Clinic of the

Westchester County Medical Center, testified

that she has been testing Amy's hearing

periodically for at least five years.

Dr. Martin L.A. Sternberg, Professor

at the New York University Deafness Re-

search and Training Center, testified

that he spent several hours with Amy during

the spring of 1979 to gauge her communica-

tion skills.

Judge Broderick applied the standard

mandated by the Education for the

Handicapped Act. He determined that,

based upon Amy's upbringing, her

parents' wishes,+4 and her level of

comprehension of oral communications

with and without the use of total

communication, Amy had proved by a

preponderance of the evidence pre-

sented her right to the relief re-

quested in her complaint.

=i An individualized education program,

20 U.S.C. § 1401(19), is a written state-

ment, developed by, among others, the

child's parents, 483 F. Supp. 530,

setting forth". . . the specific educa-

tional services to be provided to such

child..."

The petitioners seek to raise the

issue of cost. That is a novel, self-

serving, speculative issue, not sup-

_ ported by any evidence presented be-

low, contrary to the purpose and

legislative history of the 1975 Act

(Senate Report No. 94-168, page 8,

reprinted in 1975 United States Code

Congressional and Administrative News,

page 1432), and based upon a misunder-

standing or misreading of the opinions

below. The April 10, 1979 decision

of the Commissioner of Education

does not indicate in any way that cost

is a relevant consideration in the

provision of a free appropriate

public education. During the final

pre-trial conference, the attorney for

the petitioner school board told

Judge Broderick that cost is not a fac-

tor in this litigation (a point

reiterated at the pre-argument

conference conducted by Staff Counsel,

pursuant to section 5 of the Civil

Action Management Plan of the Court

of Appeals for the Second Circuit).

Neither petitioner sought to intro-

duce any evidence relevant to cost

at the hearing held on September 26,

27, and 28 and October 4, 1979.

Neither petitioner referred to cost

in its trial or post trial brief.

Neither petitioner referred to cost

in the court of appeals, "The fact

that this asserted basis of liability

is so obviously an afterthought may

be some indication of its merit, but

since it was neither pleaded, argued,

nor briefed either in the District

Court or the Court of Appeals, we will

not consider it."' Miree v. DeKalb

County, Georgia, 433 U.S. 25, 33-34,

97 S.Ct. 2490, 53 L.Ed.2d 557 (1977).