Appendix — Sobol v. Burr ex rel. Burr

89-1091, |! FILED

No. 89-

|

JAN 4 1990

OSES F. SPAPIOL, JR,

IN THE

Supreme Court of the United States

Octroser Term, 1989

THOMAS SOBOL, as Commissioner of the

New York State Education Department,

Petitioner,

— against —

CLIFFORD BURR, by his Parents and Next Friends,

KENNETH BURR, BETTY BURR,

Respondent.

SUPPLEMENTARY APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Ropert ABRAMS

Attorney General of the

State of New York

Attorney for etitioner

120 Broadway

New York, New York 10271

O. Perer SHERWOOD (212) 341-2647

Solicitor General

LAWRENCE S. KAHN

Deputy Solicitor General

Jerrrey I. SLONIM

MartuHa O. SHOEMAKER*

Assistant Attorneys General

* Counsel of Record

ee

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

= i

No. 116—August Term 1988

Argued: October 3, 1988 Decided: December 12, 1988

Docket No. 88-7275

>

CLIFFORD BURR, by his Parents and Next Friends,

KENNETH BURR, BETTY BURR,

Plaintiffs-Appellants,

—against—

GORDON AMBACH, As Commissioner of the

New York State Education Department,

Defendant-A ppellee.

Before:

TEINBERG, Chief Judge,

NEWMAN and GARTH,® Circuit Judges.

ee

Appeal from two orders of the United States District

Court for the Southern District of New York, Robert L.

* Honorable Leonard I. Garth, Senior United States Circuit Judge for

the Third Circuit, sitting by designation.

Eee ES

2a

Carter, J., one affirming the New York State Commis-

sioner of Education's decision refusing to grant appellant

compensatory education under the Education of the

Handicapped Act. and the other declining to award at-

torney’s fees to appellant from the Commissioner.

Reversed in part and dismissed in part.

—-

ELLEN M. SAIDEMAN, New York, NY (New

York Lawyers for the Public Interest, of

Counsel), for Plaintiff-Appeilant.

BRUCE LOREN, Legal Intern, Brooklyn, NY

(BLS Legal Services Corp., Federal Liti-

gation Program, Luzmina Gonzalez,

Legal Intern, Kathleen A. Sullivan, of

Counsel), for Plaintiff-Appellant.

MARTHA O. SHOEMAKER, New York, NY

(Assistant Attorney General of the State

of New York, Robert Abrams, Attorney

General of the State of New York, Stuart

Kaufman, Legal Intern, on the brief, of

Counsel), for Defendant-A ppellee.

BROWN & WOOD, New York, NY (Peter

Tufo, Anita Fisher Barrett, of Counsel),

for The New York Institute for the Edu-

cation of the Blind, Amicus Curiae.

Sean

:

3a

FEINBERG, Chief Judge:

Clifford Burr, by his parents and next friends Kenneth

Burr and Betty Burr, appeals from two orders of the

United States District for the Southern District of New

York, Robert L. Carter, J., dismissing plaintiff’s claims

under the Education of the Handicapped Act, 20 U.S.C.

§ 1400 et seq. (hereafter ‘‘EHA or ‘‘the Act’’), and deny-

ing recovery of attorney’s fees from the New York State

Commissioner of Education, defendant in this case. For

reasons given below, with respect to the first order, we

reverse the judgment of the district court; with respect to

the second order, we dismiss the appeal.

Background

Appellant Clifford is a severely handicapped young

man, now 20 years old. Until four years ago, Clifford

attended a private school for blind and retarded young-

sters at public expense, in accordance with the state’s

responsibility under the EHA to provide a ‘‘free appropri-

ate public education”’ to all handicapped youngsters up to

the age of twenty-two. See 20 U.S.C. § 1412(1). The

school closed in June 1984. Pursuant to his statutory obli-

gation to place handicapped students in schools, N.Y.

Educ. L. § 4201(2)(c), the Commissioner referred Clifford

to the New York Institute for the Education of the Blind

(hereafter ‘‘the Institute’’), a state-supported school. The

Institute rejected Clifford, claiming that Clifford would

not benefit from its program because he needed ‘‘habilita-

tion,’’ or training in life skills, for the mentally retarded

and had no academic potential. In notifying the Burrs of

Clifford’s disqualification for its school, the Institute

4a

failed to mention its Frampton Hall program for those

with multiple handicaps.

Thereafter, Clifford’s parents requested a hearing under

20 U.S.C. § 1415(b)(2), to review the Institute’s rejection.

The hearing officer, who was designated by the New York

State Department of Education pursuant to 8 N.Y.C.R.R.

§ 200.7(d), decided that Clifford should be placed in the

Institute. However, the hearing officer took 13 months

from the time the Burrs requested a hearing to reach a

decision, despite federal and state regulations requiring

that hearings be completed much more promptly. Attrib-

uting fault for the delay to himself as well as to both par-

ties, the hearing officer awarded Clifford one and one-half

years of compensatory education beyond age twenty-one

to make up for the education lost from the time of the

closing of Clifford’s school in June 1984 until the hearing

officer’s decision on January 27, 1986. The hearing offi-

cer notified both sides of their right to appeal his decision

to the Commissioner. See 8 N.Y.C.R.R. § 200.7(d)(1) and

200.5(d).

The Institute appealed to the Commissioner, and Clif-

ford remained out of school during the appeal. On May

20, 1986, the Commissioner affirmed the hearing officer’s

decision to place Clifford at the Institute, but reversed the

award of compensatory education because the EHA does

not authorize an award of compensatory education

beyond the age of 21. Clifford was admitted to the Insti-

tute in June 1986, and is presently a member of its Framp-

ton Hall Program.

Pursuant to 20 U.S.C. § 1415(e)(2), Clifford appealed

to the district court in September 1986, claiming that the

delays in the hearing process violated his right under the

Act to a due process hearing, and caused him to lose

5a

nearly two full academic years of ‘‘free appropriate public

education.’’ Clifford also requested attorney’s fees from

the Commissioner pursuant to 20 U.S.C. § 1415(e)(4)(B).

The district court, in an opinion dated November 9, 1987,

granted the Commissioner’s motion to dismiss the due

process claim. In December 1987, plaintiff filed a notice of

appeal to this court challenging that decision, although no

judgment had then been entered. The parties entered into

a stipulation on February 2, 1988, which was so ordered

by the court, withdrawing the appeal without prejudice to

reinstatement under the conditions set forth in the stipula-

tion. On March 9, 1988, the district court denied plain-

tiff’s claim against the Commissioner for attorney’s fees,

holding that the Institute—not the Commissioner—was

the adverse party in the administrative proceedings. 683 F.

Supp. 46 (S.D.N.Y. 1988). In that opinion, the district

judge also granted plaintiff leave to file an amended com-

plaint seeking attorney’s fees from the Institute for ser-

vices in the administrative proceedings, and directed entry,

under Rule 54(b) of the Federal Rules of Civil Procedure,

of a final judgment for the Commissioner on all of plain-

tiff’s claims against him. That judgment was entered on

March 18, 1988, and appeilant filed a new notice of appeal

shortly thereafter.

Jurisdiction

The first question that we must decide is whether we

have jurisdiction to hear both aspects of this case. When

we first considered the case, we thought that, because of

the complicated procedural history set forth above, there

might be a jurisdictiona! problem based on lack of timeli-

ness with respect to the due process issues decided in the

November 9 order. We therefore asked the parties to brief

6a

those issues as well as the propriety of the Rule 54(b) certi-

fication. After further consideration, however, we con-

clude that we do have jurisdiction over the due process

issues.

The question whether we have jurisdiction over the

attorney’s fees claim requires further discussion. The

Commissioner argues that the district court abused its dis-

cretion in entering judgment with respect to plaintiff’s

claim for fees against him and in certifying for appeal the

attorney’s fees issue pursuant to Rule 54(b). Accordingly,

the Commissioner asks us to dismiss that portion of the

appeal. A district court’s exercise of discretion in certify-

ing a claim under Rule 54(b) is reviewable by this court,

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437

(1956), and if the district court abused its discretion, then

this court is without jurisdiction to hear the appeal, Bruns-

wick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir. 1978).

One requirement of a proper Rule 54(b) certification is a

statement of reasons explaining why “‘there is no just rea-

son for delay’’; mere repetition of the conclusory language

from the Rule will not suffice where the justification for

the certificate is not apparent. See Arlinghaus v. Ritenour,

543 F.2d 461, 463-64 (2d Cir. 1976); Gumer v. Shearson,

Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974). In

this case, even though the attorney’s fees issue against the

Institute will still be tried in the district court, the district

judge gave no adequate explanation as to why the fees

issue as to the Commissioner should be certified.

We have often said that certification under Rule 54(b)

should not be made routinely or as an accommodation to

counsel. See Brunswick, 582 F.2d at 183. If plaintiff

would suffer hardship or injustice if he had to try his claim

against the Institute before appealing denial of his claim

7a

for fees against the Commissioner, then certification was

appropriate. See Campbell v. Westmoreland Farm, Inc., -

403 F.2d 939, 941 (2d Cir. 1968). But we do not see how

deferral of an appeal regarding the attorney’s fees claim

against the Commissioner harms plaintiff. Plaintiff is lim-

ited to a single recovery of attorney’s fees in this case; if he

recovers from the Institute, then there will be no need for

an appeal against the Commissioner. Where there is a sin-

gle claim for relief, certification under Rule 54(b) is

improper, Liberty Mutual Ins. Co. v. Wetzel, 424 U.S.

737, 743 (1976); Rabekoff v. Lazere & Co., 323 F.2d 865,

866 (2d Cir. 1963), and in this case, plaintiff :as only one

claim for attorney’s fees, and will be satisfied if he prevails

against either party. As this court said in Arlinghaus, ‘‘the

mere existence of multiple parties and the dismissal of

some do not afford sufficient warrant for entry of final

judgment under Fed. R. Civ. P. 54(b). . .’’ 543 F.2d at

463. A decision now on plaintiff’s appeal on the claim

against the Commissioner for fees may prejudice the Insti-

tute, which is before us only as amicus curiae, and not as a

party. Gumer, 516 F.2d at 286. It would be most economi-

cal and fair for us to wait and determine the respective

rights of all three interested parties at one time. For all of

these reasons, we believe that the district judge exceeded

his discretion in concluding that the attorney’s fees issue

vis-a-vis the Commissioner should come to this court

before the district court determines the same issue against

the Institute. We agree with the Commissioner that the

Rule 54(b) certification was improvidently granted in this

respect, and we lack jurisdiction to entertain the fees

order.

On the other hand, we do have jurisdiction to decide the

merits of the due process claim and the appropriate rem-

edy for a violation. There is no reason to delay the appeal

8a

of the order concerning the compensatory education issue.

That issue is completely separate from the attorney’s fees

claim to be litigated against the Institute in the district

court. In addition, Clifford and his family would suffer

serious hardship if the compensatory education claim were

not determized now because they would not know until

after the fee litigation ends if they must find adult place-

ment for Clifford in anticipation of his fast-approaching

twenty-first birthday. Even if the attorney’s fees issue is

eventually appealed to this court, entertaining an appeal

on the merits of the due process claim now will not waste

judicial resources because there will be no duplication of

the substantive issues raised in that appeal on a later

appeal concerning fees. We therefore turn to the merits of

the due process claim.

Discussion

Appellant claims that his due process rights were vio-

lated by the delays in deciding his case, and argues that he

should receive compensatory education to make up for

educational time lost as a result of such delays. He also

contends that the appeal taken by the Institute to the Com-

missioner conflicted with the EHA, and was therefore

invalid. The Commissioner responds that the delays did

not constitute a due process violation and that the appeal

was proper, that remedies for violations of the EHA can-

not continue beyond a child’s twenty-first birthday and

that compensatory education is an inappropriate remedy

here, in any event, because it is barred by the eleventh

amendment.

Turning to Clifford’s argument of undue celay, it is

unclear whether he is claiming only a violation o1 the EHA

or a constitutional claim of denial of procedural cue pro-

9a

cess, or both. Since the statute refers to the hearing that

Clifford received as an ‘‘impartial due process hearing,’’

appellant’s merger of the two concepts is understandable.

Nevertheless, a statutory violation does not necessarily

offend the Constitution. In addition, following well-

recognized doctrine, we will consider the constitutional

claim only if it is necessary to do so. As will be seen below,

it is not.

Federal regulations pursuant to the EHA state that the

parents of a handicapped child have a right to a determi-

nation by a hearing officer within 45 days after receipt of a

request for a hearing. 34 C.F.R. §§ 300.506 and 300.512.

Despite this clear command, the hearing regarding Clif-

ford did not even commence until over four months after

the request for it, and the hearing officer’s decision came

over a year after the request. Obviously, the federal regu-

lations were grossly violated in this case.' As the Com-

missioner noted, fault for the delay was completely attrib-

utable to the hearing officer, and appellant should not be

forced to suffer the consequences of it. In most cases, a

lengthy hearing would not be as damaging to a handi-

capped child as it was in this case, because normally the

**stay-put’’ provision of the Act, 20 U.S.C. § 1415(e)(3),

would keep a child in his prior placement until proceedings

are concluded.* In this case, however, Clifford had no

1 The New York regulations were also violated. 8 N.Y.C.R.R.

§ 200.5(cX 10) provides:

The impartial hearing officer shall’ render a decision, and mail a

copy of the decision to the parents and to the board of education,

not later than 45 calendar days after the receipt by the board of

education of a request for a hearing or after the initiation of such a

hearing by the board.

2 The section reads:

During the pendency of any proceedings conducted pursuant to

this section, unless the State of local educational agency and the

prior placement because his former school had closed, and

consequently, he was denied an appropriate education

during pendency of the procedings, the precise unfortu-

nate result that the “‘stay-put’’ provision was designed to

prevent. We have no doubt, therefore, that Clifford was

injured by the hearing officer’s failure to comply with the

regulations, and that he has stated a claim cognizable

under the Act.

We also believe that Clifford was injured by the extra

three-month delay caused by the Commissioner’s review

of the hearing officer’s decision, and that such review

itself failed to comply with the requirements of the EHA.

The relevant portion of the EHA provides:

§ 1415 Procedural safeguards

(b)(2) Whenever a " complaiat has been

received . . . the parents or guardian shall have

an opportunity for an impartial due process

hearing which shall be conducted by the State

educational agency or by the local educational

agency or intermediate educational unit, as

determined by State law or by the State educa-

tional agency. No hearing conducted pursuant to

the requirements of this paragraph shall be con-

ducted by an employee of such agency or unit

involved in the education or care of the child.

(c) If the hearing required in paragraph (2) of

subsection (b) of this section is conducted by a

parents or guardian otherwise agree, the child shall remain in tbe

then current educauonal placement of such child, or, if applying for

imcial admission to « public school, shail, with the consent of the

parenu or guardian, be placed in the public school program unui all

such proceedings have been completed.

local educational agency or an intermediate edu-

cational unit, any partv aggrieved by the findings

and decision rendered in such a hearing may

appeal to the State educational agency which

shall conduct an impartial review of such hear-

ae

(e)(1) A decision made in a hearing conducted

pursuant to paragraph (2) of subsection (b) of

this section shall be final, except that any party

involved in such hearing may appea! such deci-

sion under the provisions of subsection (c) and

paragraph (2) of this subsection. .

(2) Any party aggrieved by the findings and

decision made under subsection (b) of this sec-

tion who does not have the right to an appeal

under subsection (c) of this section, . . . shall

have the right to bring a civil action with respect

to the complaint presented pursuant to this sec-

tion, which action may be brought in any State

court of competent jurisdiction or in a district

court of the United States... .

Thus, a hearing under this section may be conducted by

the ‘*State educational agency’’ or by a “‘local educational

agency’”’ or an “‘intermediate educational unit.’’ In the lat-

ter two instances, subsection (c) provides for an appeal to

the state educational agency, a two-tier administrative

review. However, the statute does not provide for such an

appeal when the initial determination is made by a hearing

officer designated by the state educational agency. When

that occurs, subsections (e)(1) and (e)(2) read together pro-

vide that the hearing officer’s decision is final, a one-tier

administrative review. In this case, only a one-tier review

was appropriate because Clifford’s case was heard by a

12a

hearing officer designated by the state educational agency.

Therefore, allowing the Institute to appeal to the Commis-

sioner was contrary to the EHA.

It is true that the New York State regulations at issue in

this case provided for an appeal by a party to the Commis-

sioner. 8 N.Y.C.R.R. § 200.7(d)(1) and 200.5(d). How-

ever, this court has previously expressed its doubt as to the

validity of one aspect of the New York review procedures.

In Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir.),

cert. denied sub nom. Doe v. Sobol, 109 S. Ct. 133 (1988),

we said that the Commissioner’s review in that case, which

subjected the parties to an extra procedural step not

required by the EHA, seemed inconsistent with the finality

provision of § 1415. It is true that our criticism there was

directed at a state regulation allowing the Commissioner

to review a decision on his own initiative, even if the par-

ties did not appeal. Nevertheless, that expression of con-

cern over ummecessary review seems applicable here. Cf.

Helms v. McDaniel, 657 F.2d 800 (Sth Cir. 1981), cert.

denied, 455 U.S. 946 (1982). In Helms, the court said that

because of the state board’s power to reject the results of

the hearing, ‘‘the entire system of procedural safeguards is

nullified at a single stroke.’’ Id. at 806. Similarly, the

United States Department of Education has warned the

New York Department of Education that its plan might

not be approved if changes were not made, advising the

State that: “‘In order to meet the requirements of the

EHA, New York must institute procedures that insure that

. . . [w)hen hearings concerning 4201 students are con-

ducted by the (State Educational Agency], the hearing

officer’s decision is final.’’

Appeal to the Commissioner was also improper because

the statute provides that a proper review at the state level

13a

must be impartial. 20 U.S.C. § 1415(c). The Commis-

sioner does not satisfy the impartiality requirement

because he has extensive responsibilities and is integrally

involved with the operation of state-supported schools

such as the Institute. Indeed, his responsibilities for the

Institute are specifically spelled out by statute. See N.Y.

Educ. L. § 4201. The Conference Committee on the EHA

wrote: ‘‘no hearing may be conducted by an employee of

the State. . . involved in the education. . . of the child.

The conferees have adopted this language to clarify the

minimum standard of impartiality which shall apply to

individuals conducting due process hearings and individ-

uals conducting a review of the local due process hear-

ing.”’ S. Conf. Rep. No. 455, 94th Cong., Ist Sess, 49,

reprinted in 1975 U.S. Code Cong. & Admin. News i425,

1502 (emphasis added). Relying on this legislative history,

the weight of authority has supported an interpretation of

the impartiality requirement barring employees of the

state educational agency from conducting reviews involv-

ing state-sponsored schools. See Muth v. Central Bucks

School Dist., 839 F.2d 113, 123 (3d Cir.) (citing cases),

cert. granted sub nom. Gilhool v. Muth, 109 S. Ct. 52

(1988). But see Victoria L. v. District School Board, 741

F.2d 369 (11th Cir. 1984). For both these reasons, we con-

clude that the New York procedures in effect during

administrative review of this case were not consistent with

the Act.

The Commissioner argues that appellant waived his

right to object to review by the Commissioner by failing to

press the point before him. Normally, exhaustion is

required in actions brought under the EHA. See Riley v.

Ambach, 668 F.2d 635, 640 (2d Cir. 1981). But, exhaus-

tion of administrative remedies is not necessary where it

would be futile. See Honig v. Doe, 108 S. Ct. 592, 606

l4a

(1988); Riley v. Ambach, 668 F.2d at 640-41. We are con-

vinced that exhaustion would have been futile in this case.

The Commissioner argues to us that duly-passed State reg-

ulations required him to review the hearing officer’s deci-

sion. Under these circumstances, there is no doubt that he

would have held that the review procedure was permissible

if the issue had been raised before him. We conclude,

therefore, that the decision of the Commissioner should be

set aside and the decision of the hearing officer reinstated.

This, in effect, makes the hearing officer’s decision the

State’s “‘final administrative decision’’ under the EHA.

See Antkowiak, 838 F.2d at 641. We turn now to the issues

raised by the relief ordered by the hearing officer.

As noted above, the hearing officer awarded Clifford

one and one-half years of compensatory education to

make up, at least in part, for the time that Clifford had

wrongfully been denied placement in the Institute. The

district judge reversed the award of such relief because he

interpreted the protections of the EHA to end at the age of

twenty-one, whereas the relief granted by the hearing offi-

cer would extend beyond Clifford’s twenty-first birthday.

Appellant argues that the district court erred in this

respect.

It is true that a handicapped child does not have a right

to demand public education beyond the age of twenty-one.

Nevertheless, we believe that Clifford is entitled to a rem-

edy for deprivation of the right that the statute clearly pro-

vided him—a free appropriate education between the ages

of three and twenty-one, 20 U.S.C. § 1412(2)(B). Section

1415 of the EHA authorizes a district court to award

“‘such relief as the court determines is appropriate.’’ In

some circumstances, the scope of the remedy can extend

beyond the scope of the original right. See Swann v.

15a

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15

(1971). “‘[I}t is also weil settled that where legal rights have

been invaded, and a federal statute provides for a general

right to sue for such invasion, federal courts may use any

available remedy to make good the wrong donc.’’ Bell v.

Hood, 327 U.S. 678, 684 (1946) (footnote omitted). And,

in School Comm. of the Town of Burlington v. Dept. of

Educ., the Supreme Court made clear that ‘‘equitable con-

siderations are relevant in fashioning relief.’’ 471 U.S.

359, 374 (1985). We do not believe that Congress intended

to create a right without a remedy. If, in this case, we do

not allow an award of compensatory education, then Clif-

ford’s right to an education between the ages of three and

twenty-one is illusory. Clifford cannot go back to his pre-

vious birthdays to recover and obtain the free education to

which he was entitled when he was younger.

Furthermore, under the EHA a parent can enroll a child

in a private placement and then recover the tuition paid by

the parent during the proceedings against the school

board, if the proceedings ultimately establish that the par-

ent’s placement was appropriate. Burlington, 471 U.S. at

369. If that is so, then a child should not be wholly

deprived of education because his parents could not afford

to pay for an appropriate education at a private school

while waiting for the state or local agency to litigate the

issue of a proper placement. The Eighth Circuit, in

approving the remedy of compensatory education, said,

“‘(wje are confident that Congress did not intend the

child’s entitlement to a free education to turn upon her

parent’s ability to ‘front’ its costs.’’ Miener v. State of

Mo., 800 F.2d 749, 753 (8th Cir. 1986) (emphasis in origi-

nal). Administrative and legal proceedings are often

lengthy, and a person who prevails at the end of such pro-

ceedings should be able to obtain what the proceedings

establish he was entitled to when they began. Clifford

should not lose the education to which he was entitled at

the time his parents requested a hearing under the Act

because the hearing was protracted. The Institute was mis-

taken when it decided that its program was inappropriate

for Clifford—as the administrative decisions show—and

that mistake should not cost Clifford one and one-half

years of education to which he was entitled.

Finally, the Commissioner argues that this court cannot

award the compensatory education ordered by the hearing

officer because such relief is barred by the eleventh

amendment. Appellant counters that Congress abrogated

the states’ eleventh amendment immunity in passing the

Act, and that, in any event, the remedy Clifford seeks is

purely prospective and thus does not violate the amend-

ment. Although our opinion in Counsel v. Dow, 849 F.2d

731, 736-37 (2d Cir. 1988) indicates receptivity to the argu-

ment that the states’ eleventh amendment immunity was

abrogated by enactment of the EHA, we express no opin-

ion on the issue, and recognize that the circuits are split on

it. Compare Muth v. Central Bucks School Dist., 839 F.2d

113, 128 (3d Cir. 1988) with Gary A. v. New Trier High

School Dist. No. 203, 796 F.2d 940, 944 (7th Cir. 1986)

(per curiam). The Supreme Court has granted certiorari in

Muth to resolve this conflict. Gilhool v. Muth, 109 S. Ct.

52 (1988). Nevertheless, we believe that it is possible to

reinstate the relief fashioned by the hearing officer with-

out addressing the eleventh amendment issue. This panel is

merely vacating the decision of the Commissioner, and

reinstating the decision of the hearing officer. The hearing

officer is a decisionmaker designated by the State and is

not constrained by the eleventh amendment. Therefore,

we do not implicate the eleventh amendment by expunging

the bar to his decision. In addition—although not essential

17a

to our holding—we believe that the mandatory injunction

awarded Clifford in this case is purely prospective in

nature, and any effect on the state treasury is ancillary to

such relief and therefore permissible despite the eleventh

amendment. See Edelman v. Jordan, 415 U.S. 651, 668

(1974).

Clifford has been at the Institute since June 1986, and,

under the district court’s decision, would have remained

there until the end of this academic year in June 1989.

Although Clifford will turn 21 on December 30, 1988, the

hearing officer’s decision, which we reinstate here, directs

that Clifford remain in the Institute until the end of the

1989-90 school year. We believe that this result best fur-

thers the intent of Congress to provide a free, appropriate

education to all handicapped children.

We therefore reverse that part of the judgment that dis-

missed the due process claim, and remand to the district

court with instructions to vacate the decision of the Com-

missioner and reinstate the decision of the hearing officer.

We also dismiss the appeal from that part of the judgment

that dealt with the issue of attorney’s fees. In view of the

extensive delays in this matter, the mandate shall issue one

week from the date of this opinion. Appellant may recover

his costs related to the appeal of the due process order. No

costs are awarded with respect to the appeal of the fees

order.

18a

Clifford BURR, by his parents and next

friends, Kenneth and Betty

BURR, Plaintiffs,

Vv.

Gordon AMBACH,. as Commissioner of

the New York State Education

Department, Defendant.

No. 86 Civ. 7164 (RLC).

United States District Court,

S.D. New York.

March 9, 1988.

Handicapped student sought attorney fees following his suc-

cess at administrative level in obtaining placement at special

school. The District Court, Robert L. Carter, J., held that stu-

dent was entitled to recover fees from school, against whom he

prevailed at administrative level, but not from Commissioner

of Education, who had authority to appoint student to school.

Ordered accordingly.

19a

OPINION

ROBERT L. CARTER, District

Judge:

In administrative proceedings before a hearing officer ap-

pointed by the New York State Commissioner of Education,

plaintiff Clifford Burr challenged the recommendation of the

New York Institute for the Education of the Blind (“the Insti-

tute”) that he not be appointed to its program for the handi-

capped. The hearing officer directed plaintiffs admission to the

Institute’s program, and awarded plaintiff a year of free public

education to compensate him for the delay in his placement.

The Institute appealed both of these decisions to the Commis-

sioner of Education, who upheld plaintiffs admission to the

Institute, but reversed the award of compensatory education.

Plaintiff brought suit in this court under the Education of the

Handicapped Act (“the Act”), 20 U.S.C. §§ 1400-1485, challeng-

ing the Commissioner’s denial of compensatory education to

him. In an opinion dated November 9, 1987, with which famil-

iarity is assumed, the court granted the Commissioner's motion

dismissing the amended complaint for failure to state a claim.

Burr v. Ambach, 86 Civ. 7164 (RLC), slip op. (S.D.N.Y. Nov.

9, 1987) (Carter, J.) [Available on WESTLAW, 1987 WL 19957].

The court noted, however, that plaintiff's claim for attorney's

fees in connection with representation at the agency level that

culminated in plaintiff's admission to the Institute was still pend-

ing’ Id., slip op. at 9 nn. 1 & 4.

Shortly before the court issued its opinion, the Commissioner

moved for a judgment dismissing the Supplemental Complaint

on the pleadings. Plaintiff then moved for summary judgment

granting him some $52,000 in attorney’s fees. Plaintiff also moves

to amend the Supplemental Complaint to name the Institute

' The claim for attorney's fees was brought by way of Supplemental Com-

ee ee re he Sepplemneneel Complete

20a

as a party defendant. With regard to the court’s previous deci-

sion on the claim for compensatory education, plaintiff filed

a Notice of Appeal. That appeal was withdrawn without preju-

dice, however, in the belief that the order appealed from was

not final. Burr v. Ambach, No. 88-7005 (2d Cir. Jan. 26, 1988)

(stipulation). Plaintiff now asks the court to direct the entry of

final judgment as to the claim adjudicated in the court’s

November 9 opinion.

DISCUSSION

Section 615(e)(4)(B) of the Education of the Handicapped Act,

20 U.S.C. § 1415(e)(4)(B), added by the Handicapped Children’s

Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796-98

(1986), provides that

[ijn any action or proceeding brought under this sub-

section, the court, in its discretion, may award reason-

able attorney’s fees as part of the costs to the parents

or guardian of a handicapped child or youth who is

the prevailing party.

Defendant’s motion for judgment on the pleadings is premised

on two alternative grounds. First, defendant asserts that the Act’s

attorney-fee provision does not envision the award of fees to a

party who prevails at the administrative level. In the alternative,

defendant argues that the Commissioner was not a party against

whom plaintiff prevailed at the agency level, and hence cannot

be held responsible for plaintiffs attorneys’ fees.

Defendant’s first argument has been rejected by the over-

whelming weight of authority. While it is true that the literal

? Of the eleven district courts that have considered this issue, ten have rejected

defendant's argument. Unified School Dist. No. 259 v. Newton, 673 F.Supp.

418 (D.Kan. 1987); Moore v. District of Columbia, 666 F.Supp. 263 (D.D.C.

1987); Kristi W. v. Graham Independent School Dist., 663 F.Supp. 86 (N.D-Tex.

1987); School Board of Prince William County o. Malone, 662 F.Supp. 999

(E.D.Va. 1987); Burpee v. Manchester School Dist., 661 F.Supp. 731 (D.N.H.

1987); Prescott vo. Palos Verdes Peninsula Unified School Dist., 659 F.Supp.

(Footnote continued)

ee ed

2la

language of section 615(e)(4)(B) refers only to “action(s] or pro-

ceeding{s] brought under this subsection,” i.e. subsection (e) of

section 615, and it is arguable that section 615(e) authorizes civil

actions but not administrative proceedings, but see Michael F.

v. Cambridge School Dep't, 1986-87 E.H.L.R. Dec. 558:269,

270 (D.Mass. Mar. 5, 1987) [available on WESTLAW, 1987 WL

7752]; Prescott v. Palos Verdes Peninsula Unified School, 659

F.Supp. 921, 923 (C.D. Cal. 1987), the court cannot overlook

the plain fact that sections 615(e)(4)(D)(i) & (E)* expressly envi-

sion the award of fees for administrative representation. Michael

F., 1986-87 E.H.L.R. at 558:271. Nor may one readily accede

to an interpretation of the phrase “any action or proceeding”

which renders the latter term mere surplusage. New York

Gaslight Club v. Carey, 447 U.S. 54, 61, 100 S.Ct. 2024, 2029-30,

64 L.Ed.2d 723 (1980); see United States v. Menasche, 348 U.S.

528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955).

Any doubt to which the provision’s ambiguity might give rise

is dispelled by its remarkably unequivocal legislative history. See

generally Schreck, Attornevs’ Fees for Administrative Proceedings

Under the Education of the Handicapped Act, 60 Temple L.Q.

921 (C.D.Cal. 1987); Holly S. v. Mars Area School Dist., 1987-88 E.H.L.R.

Dec. 559:148 (W.D.Pa. Sept. 4, 1987) (Magistrate's Report and Recommenda-

tion, adopted by the court Sept. 24, 1987); Dodds v. Simpson, 676 F.Supp.

1045 (D.Or. 1987); Keay v. Bismarck R-V School Dist., 1986-87 E.H.L.R. Dec.

558:317 (E.D.Mo. Apr. 14, 1987) [Available on WESTLAW, 1987 WL 16882};

Michael F. vs. Cambridge School Dist., 1986-87 E.H.L.R. 558:269 (D.Mass.

Mar. 5, 1987}. See also Schreck, Attorneys’ Fees for Administrative Proceed-

ings Under the Education of the Handicapped Act, 60 Temple L.Q. 599 (1987).

Contra Rollison v. Biggs, 660 F.Supp. 875 (D.Del. 1987).

* Section 615(e)(4)(D)(i) provides that “[n]o award of attornevs’ fees... may

be made in any action or proceeding under this subsection for services per-

formed subsequent to the time of a written offer of settlement to a parent

or guardian, if... the offer is made within the time prescribed by Rule 68

of the Federal Rules of Civil Procedure or, in the case of an administrative

proceeding, at any time more than ten days before the proceeding begins.”

Section 615(e)(4)(E) provides that “[n]otwithstanding the provisions of sub-

paragraph (D), an award of attorneys’ fees and related costs may be made

to a parent or guardian who is the prevailing party and who was substan-

tially justified in rejecting the settlement offer.”

22a

599, 639-50 (1987). The Senate Report explained that Senate

Bill 415 “will allow the Court, but not the hearing officer, to

award fees for time spent by counsel in mandatory EHA admin-

istrative proceedings.” S.Rep. No. 112, 99th Cong., Ist Sess. 14,

reprinted in 1986 U.S.Code Cong. & Admin. News 1798, 1804.

See also H.R. Rep. No. 296, 99th Cong., Ist Sess. 5 (1985) (“pro-

ceeding” refers to “a due process hearing or a state level review”);

131 Cong.Rec. 21392 (1985) (statement of Sen. Simon); id. at

31370 (remarks of Rep. Williams); id. at 31371 (remarks of Rep.

Bartlett); id. at 31373 (remarks of Rep. Biaggi); id. at 31376

(remarks of Rep. Miller). The House Report explained that

[t]he ‘action or proceeding’ language in section 2 of

the bill is identical to the language in title VII of the

Civil Rights Act of 1964, interpreted by the Supreme

Court in (Gaslight, supra]. In Gaslight, the Court held

that the use of the phrase ‘action or proceeding’ indi-

cates an intent to subject the losing party to an award

of attorneys’ fees, expenses and costs incurred in court.

The Court’s decision also established a similar right

under title VII to obtain an award of fees, costs, and

expenses incurred in mandatory state and local admin-

istrative proceedings, even where no lawsuit is filed.

H.R.Rep. No. 296, supra, at 5. See also S.Rep. No. 112, supra,

at l«. s‘he Act's fee provision is essentially identical to Title VII's,

42 U.S.C. § 2000e-5(k),* after which it was modelled.‘

*42 U.S.C. § 2000e-5(k) provides that “[i]n any action or proceeding brought

under this subchapter the court, in its discretion, may allow the prevailing

party, other than the Commission or the United States, a reasonable attor-

ney’'s fee as part of the costs, and the Commission and the United States shall

be liable for costs the same as a private person.”

* To assuage the concerns of some Representatives over the provision for fee

awards based solely on administrative representation, e.g. H.R.Rep. No. 296,

supra, at 15 (Supplemental Views); 131 Cong.Rec. at 31371 (1985) (remarks of

Rep. Bartlett) (provision “mistakenly extends the authority for the recovery of

attorneys’ fees into (the Act's] administrative hearing process”); id. at 31376 (Rep.

Jeffords); id. at 31377 (Rep. Johnson), the House Committee included a “sunset”

clause in its bill which would have replaced the words “action or proceeding”

(Footnote continued)

siimatal

23a

Defendant argues, however, that North Carolina Dep't of

Transportation v. Crest Street Community Council, Inc., 479

USS. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), decided subsequent

to the Act’s amendment, requires a different result. In Crest

Street, the Court found that both the plain language and the

legislative history of the Civil Rights Attorney’s Fees Awards Act

of 1976, 42 U.S.C. § 1988, supported the conclusion that attor-

ney’s fees may not be awarded under that section “in an indepen-

dent action which is not to enforce any of the civil rights listed

in § 1988.” 107 S.Ct. at 340. “ ‘(T]he short answer’ ” to defen-

dant’s argument that the same rule should govern the fee peti-

tions under the Education of the Handicapped Act ‘is that Con-

gress did not write the statute that way. ” 107 S.Ct. at 34]

(quoting Garcia v. United States, 469 U.S. 70, 79, 105 S.Ct.

479, 484-85, 83 L.Ed.2d 472 (1984)). See, e.g., Michael F.,

1986-87 E.H.L.R. at 558:271-72. Rather, as noted above, Con-

gress modelled the Act’s fee provision on Title VII's, 42 U.S.C.

§ 2000e-5(k), which, unlike section 1988, authorizes a civil

action seeking no relief other than attorney's fees for ad-

ministrative representation. Gaslight, 447 U.S. at 66, 100 S.Ct.

at 2032.°

For these reasons, plaintiff is entitled to recover a reason-

able attorney's fee from the party against whom he prevailed

at the administrative level on the issue of his placement at the

Institute. That party, the Institute itself, is not presentiy before

the court, and plaintiff has moved pursuant to Rule 15(a),

with “civil action,” effective four years after enactment. /d. at 31370. The con-

ference committee deleted ‘jie clause. H.R.Conf.Rep. No. 687, 99th Cong.,

2d Sess. 7, reprinted in 1946 U.S.Code Cong. & Admin.News 1807, 1809.

* Defendant also asserts that Crest Street disapproved of dicta in Gaslight upon

which Congress relied in drafting the Act's fee provision. Even if tru’

“(nJothing in [Crest Street] does — or for that matter, could — change Congress's

clear intention” to permit a parent to file a lawsuit ‘for the limited purpose

of receiving an award of reasonable fees, costs and expenses. “ Moore, 666

F.Supp. at 266 (quoting H.Rep. No. 296, supra, at 5); see also Unified School

District No. 259 0. Newton, 673 F.Supp. at 423; Burpee, 661 F.Supp. at 733;

Michael F., 1986-87 E.H.L.R. at 558:272. Contra Rollison, 660 F.Supp. at 877.

24a

F.R.Civ.P., to amend the Supplemental Complaint to add the

Institute as a party-defendant. Leave to amend must be “freely

given when justice so requires.” Rule 15(a), F.R.Civ.P. Defend-

ant’s argument that leave to amend must be denied where the

amended pleading is legally insufficient, while true, is irrele-

vant here, where the right to the relief sought is given by statute

No prejudice has been shown.’

The conclusion t .at plaintiff may seek attorneys’ fees in this

court for his administrative victory, however, does not settle the

question of whether the Commissioner is a party liable for those

fees. Plaintiff argues that, since the Commissioner is the only

official with the authority to appoint state pupils to the Insti-

tute, N.Y.Educ.L. § 4201(2)(c), it is the Commissioner against

whom plaintiff prevailed when he gained admission to the Insti-

tute Plaintiff cites no authority, however, for the novel proposi-

tion that attorneys’ fees may be levied against a decisionmaker.

Plaintiff might have gone on to argue that the Commissioner

almost certainly violated federal law by reviewing the hearing

officer's decision admitting plaintiff to the Institute See Burr

v. Ambach, supra, slip op. at 9, n. 4. The Act provides that the

decision of a hearing officer appointed by the State educational

agency —here, the State Department of Education —‘shall be

final” as to “complaints” within the scope of section

1415(b)(1)(E), unless challenged by civil action. 20 U.S.C. § 1415

(b)(1)(E). While, as was noted in the court's previous opinion,

plaintiff is not aggrieved by the Commissioner's affirmance of

the decision to place him at the Institute, Burr v. Ambach, supra,

slip op. at 6, the unlawful act of review caused plaintiff to incur

unnecessary attorneys’ fees.*

’ The Institute was served with plaintiff's petition for attorneys’ fees in Octo-

ber. 1986. Saideman Afft. Jan. 15, 1988. ¢ 8. The Commissioner's delegate

responded to that petition by stating that only the courts “are authorized to

award attorneys fees. The statute does not authonze an administrative officer

such as the Commissioner) to award attorneys fees in such matters.” Letter

of Robert D. Stone to Lewis A. Colinker, Dec. L, 1986.

* The Commissioner's review of the hearing officer's award of compensatory

education. on the other hand, was not proscribed by the Act. Burr 0. Ambach,

supra, slip op. at 6.

25a

Nonetheless, from such an argument it does not follow that

plaintiff's remedy is an assessment against the Commissioner

of the attorneys’ fees he incurred by virtue of the unlawful

administrative review proceeding. The general rule in the federal

courts is that, in the absence of congressional authorization, the

judiciary may not reward a party with his attorney's fee. Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247,

95 S.Ct. 1612, 1616-17, 44 L.Ed.2d 14] (1975). No statute known

to the court permits it to remedy the Commissioner's violation

of the Education of the Handicapped Act by requiring him to

pay plaintiff's attorneys’ fees. Plaintiff's only remedy is against

the Institute.

CONCLUSION

Plaintiff is granted leave to file an amended complaint seek-

ing his administrative attorneys’ fees from the New York Institute

for the Education of the Blind. Plaintiff shall submit full docu-

mentation in support of his claim that all of the attorney-time

for which he seeks reimbursement was devoted to the issue of

placement, not that of compensatory education. Plaintiff is fur-

ther instructed to append to his amended complaint a typewrit-

ten transcript of the partly illegible time sheets attached to the

Affidavit of Lewis A. Golinker, sworn to March 3, 1987.

The Commissioner's motion to dismiss the Supplemental

Complaint is granted, and plaintiff's motion for summary judg-

ment is denied. Because plaintiff's action has been completely

terminated as to the Commissioner, the court determines that

there is no just reason for delay in the entry of a final judgment.

Nat Metalcrafters v. McNeil, 784 F.2d 817, 821 (7th Cir. 1986);

Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339,

3Al (2d Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, L. L.Ed.2d

L10 (1963). The clerk of the court is therefore directed, pursuant

to Rule 54(b), F.R.Civ.P., to enter a final judgment dismissing

all of plaintiff's claims against the Commissioner.

IT IS SO ORDERED.

26a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

x

CLIFFORD BURR, by his parents and

next friends, KENNETH and BETTY BURR, OPINION

Piatnsiife, 86 Civ. 7164

— against — (RLC)

GORDON AMBACH, as Commissioner of

the New York State Education Department,

Defendant.

x

APPEARANCES:

BLS LEGAL SERVICES CORP.

Federal Litigation Program

Attorneys for Plaintiff

One Boerum Place

Brooklyn, New York 11201

KATHLEEN A. SULLIVAN, ESQ.

Clinical Instructor

LEWIS GOLINKER

New York Lawyers for the Public Interest

135 East 15th Street

New York, New York 10003

Of Counsel

ROBERT ABRAMS

Attorney General of the State of New York

Attorney for Defendant

120 Broadway

New York, New York 1027]

MARTHA O. SHOEMAKER

Assistant Attorney General

Of Counsel

27a

Plaintiff, a handicapped youngster, brings this action against

the Commissioner of the New York State Education Department

seeking declaratory and injunctive relief under the Education

of the Handicapped Act (“the Handicapped Act”). 20 U.S.C.

§§ 1400-1485. Plaintiff claims that the Commissioner and his

designated hearing officer delayed reaching a decision to place

him in an appropriate school. To remedy the deprivation of an

appropriate free education which that delay occastoned him,

plaintiff seeks an award of compensatory public education

beyond his twenty-first birthday:

Defendant moves to dismiss for failure to state a claim. under

Rule 12(b)(6), F.R. Civ. P., or, in the alternative, for summary

judgment. Plaintiff in turn cross-moves for summary judgment.

Background

A. Administrative Proceedings

When the private school which plaintiff Clifford Burr had

attended closed it doors in June 1984, his parents applied to

defendant for plaintiff's admission to a state-supported school.

Defendant referred the Burrs to the New York Institute for the

Education of the Blind (“the Institute”), which evaluated plain-

tiff and found him to be unsuitable for its program. The Burrs

requested a hearing on the Institute's refusal to recommend

Clifford for admission. That hearing commenced on May 2 and

concluded on December 11, 1985. A decision was rendered on

January 27, 1986.

The decision overruled the Institute's “recommendation” that

plaintiff not be admitted, and directed that plaintiff's educa-

tion “continue until the end of the school year in which [he]

shall attain the age of 22 years.” Decision of Hearing Officer

at 109. Ordinarily, a handicapped individual may expect a free

public education only until he attains age twenty-one. N.Y. Educ.

L. §§ 3202, 4402 (McKinney's 1981 & Supp. 1987); 20 U.S.C.

§ 1412(2)(B). The hearing Officer's direction that plaintiff receive

additional years of free training is referred to as an award of

“compensatory education.”

28a

The Institute appealed the Hearing Officer's decision to the

Commissioner on February 28, 1986. The Commissioner, on May

20, issued his decision sustaining plaintiffs placement at the In-

stitute but reversing the Hearing Officer's award of compen-

satory education. Plaintiff sought review in this court on

September 17, 1986.

B. Statutory Framework

The Education of the Handicapped Act authorizes the pro-

vision of federal funds to participating States “to assure that all

handicapped children have available to them a free ap-

propriate public education...”. 20 U.S.C. § 1400(c). States

receiving federal monies under the Act are required, inter alia,

to adopt extensive procedural safeguards for the protection. of

handicapped children and their parents. 20 U.S.C. § 1415.

This case involves the mandate of the Handicapped Act that

parents be afforded “an impartial due process hearing” , 20

U.S.C. § 1415(b)(2), when they are aggrieved by a “refus{al] to

initiate ... the ... educational placement of [their] child or

the provision of a free appropriate public education to [their]

child.” 20 U.S.C. § 1415(b)(1)(C)(ii). Where the parents’ com-

plaint concerns the refusal of a “local educational agency” (such

as a local schoo! district, see 5 U.S.C. § 1401(8)), the local agency

is to provide an opportunity for a hearing, while that respon-

sibility rests with the “State educational agency” (here, the New

York State Department of Education, see 20 U.S.C. § 1401(7))

when its own action is challenged. 20 U.S.C. § 1415(b)(2). In

either case, to ensure impartiality, the appropriate agency is to

appoint as a hearing officer an individual whom it does not

employ. Id.

The Handicapped Act differentiates between review of state

and local agency action in one crucial respect, however. In the

case of the latter, but not the former, “any party aggrieved by

the ... decision rendered in [the] hearing may appeal to the

State educational agency... ”. 20 U.S.C. § 1415(c). At this second

tier of administrative review, the official charged with review

“shall make an independent decision.” Id.

29a

The Handicapped Act provides that a second-tier decision in

the case of local agency action “shall be final,” 20 U.S.C.

§ 1415(e)(1), subject only to judicial review. 20 U.S.C.

§ 1415(e)(2). Where the action challenged is that of the state

agency, on the other hand, the “impartial due process hearing”

conducted by a hearing officer independent of the state agency

pursuant to § 1415(b)(2) is reviewable only by civil action. 5

U.S.C. § 1415(e)(2). In this instance, the aggrieved party “does

not have the right to an appeal” to the state agency itself. Jd.

Defendant, as Commissioner of the New York State Depart-

ment of Education (“the Department”), is vested under state

law with the duty to “make appointments of pupils” to state-

supported schools for the deaf and blind, among them the In-

stitute. N.Y. Educ. L. § 4201(1)(h) & (2)(c) (McKinney's 1981).

By regulation, a state-supported school such as the Institute

makes a recommendation to the Commissioner as to the appoint-

ment of an applicant-child to its program. 8 N.Y.C.R.R.

§ 200.7(d). The regulation provides for a single tier of ad-

ministrative review where the Commissioner declines to appoint

a child whom the school has recommended for appointment.

8 N.Y.C.R.R. § 200.7(d)(2). But where, as in plaintiff's case, the

school does not recommend a child for appointment, the child's

parents may request a hearing before “an impartial hearing of-

ficer.. designated by the department.” 8 N.Y.C.R.R.

§ 200.7(d)(1). The hearing officer's decision is in this situation

subject to review by appeal to the Commissioner. 8 N.Y.C.R.R.

§§ 200.7(d)(1) & 200.5(d).

Discussion

Plaintiff's amended complaint is premised upon the theory

that the operation of 8 N.Y.C.R.R. § 200.7(d)(1) deprived him

of the “impartial due process hearing” that the Handicapped

Act promises. Plaintiff points to the Handicapped Act's insistence

that an independent hearing officer's decision be final when the

action complained of is that of the state agency, 20 U.S.C.

§ 1415(e)(1), and contends that defendant, by reviewing that in-

dependent decision, rendered it a nullity in effect. Defendant

argues, to the contrary, that his regulation is fully consistent

with the commands of federal law.

30a

The details of the Handicapped Act's procedural safeguards

are not mere technicalities, see Board of Education v. Rowley,

458 U.S. 176, 205-6 (1982), but rather embody the emphasis

Congress placed upon “the participation of the parents in

developing the child’s educational program and assessing its ef-

fectiveness.” School Committee of the Town of Burlington v.

Department of Education, 471 U.S. 359, 368 (1985). To assure

that parents in dispute with school officials not be placed at

a competitive disadvantage, id., Congress adopted a “minimum

standard of impartiality” to govern the hearing and review of

parental complaints. Sen. Conf. Rep. No. 455, 94th Cong., Ist

Sess. 48-49 (1975), reprinted in [1975] U.S. Code Cong. & Admin.

News 1480, 1502. Because the impartiality and finality re-

quirements are so central to the Handicapped Act's substantive

purposes, departures from their strict terms are not tolerated.

See, e.g., Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), cert.

denied, 455 U.S. 946 (1982); Monahan v. State of Nebraska, 645

F.2d 592 (8th Cir. 1981), cert. denied, 460 U.S. 1012 (1983);

Sherry v. New York State Education Dept., 479 F. Supp. 1328,

1337-38 (W.D.N-Y. 1979).

The right to an “impartial due process hearing” under the

Handicapped Act extends to parental

complaints with respect to any matter relating to the

identification, evaluation, or educational placement

of the child, or the provision of a free appropriate

public education to such child.

20 U.S.C. § 1415(b)(1)(E) & (2). Only insofar as plaintiff's “com-

plaint” concerned one of the matters just stated do the strict

procedural and finality requirements of § 1415 come into play.

Of the two issues that defendant decided in his challenged

review, one concerned the “educational placement of the child”

at the Institute. Plaintiff, however, is not aggrieved by defen-

dant’s decision on that score; rather, plaintiff complains of defen-

dant’s reversal of the Hearing Officer's award of compensatory

education through age twenty-two. If indeed this is a complaint

within the scope of section 1415(b)(1)(E), it could only be one

that concerns “the provision of a free appropriate public educa-

tion” to plaintiff.

3la

The Handicapped Act guarantees that states receiving federal

funds will provide a “free appropriate public education. ” but

only through age twenty-one. 20 U.S.C. § 1412(2)(B). As the pro-

vision of free education past age twenty-one is not a substan-

tive right secured by the Handicapped Act, it is inconceivable

that Congress contemplated extending procedural protections

to parties claiming that right. See Stemple v. Board of Educa-

tion of Prince George's County, 464 F. Supp. 258, 260 (D.Md.

1979), affd on other grounds, 623 F.2d 893 (4th Cir. 1980), cert.

denied, 450 U.S. 911 (1981). Thus, plaintiff's claim that defen-

dant’s decision must be nullified as in conflict with the pro-

cedural requirements of the Handicapped Act is without merit

in this instance.’

Plaintiff argues, however, not only for the reinstatement of

the Hearing Officer's award of compensatory education but, in

the alternative, that the court itself should compensate him for

lost educational opportunities, including the added delay that

defendant's review caused him. As such relief is barred by the

eleventh amendment, the court need not address any of defend-

ant’s other arguments in opposition to it.

The eleventh amendment limits the power of the federal courts

to award relief against state officials when that relief amounts

to a “money judgment payable out of the state treasury. ”

Edelman v. Jordan, 415 U.S. 651, 666 (1974). In Edelman, a class

of plaintiffs sued the Illinois official charged with administer-

ing federal and state payments in aid of the aged, blind and

disabled under the Social Security Act. The state agency im-

plemented policies which had the result of wrongfully delay-

ing and withholding benefits from eligible recipients. The Court

of Appeals affirmed a District Court order which directed the

state agency to pay the benefits so withheld. The Supreme Court

reversed, holding that retroactive monetary relief, even if

characterized as “equitable restitution,” infringed the state's

sovereign immunity in violation of the eleventh amendment.

Plaintiff does not distinguish Edelman, but argues instead that

the subsequent decision in Burlington School Committee v.

Department of Education, 471 U.S. 359 (1985), permits the relief

he seeks notwithstanding the eleventh amendment’s prohibition.

32a

Neither Burlington nor Miener v. State of Missouri, 800 F.2d

749 (8th Cir. 1986), however, supports the proposition that a

federal court may award compensation against a state official

for education wrongfully withheld under the Handicapped Act.

The defendant in Burlington was not a state but a locality; since

“a county defendant is not necessarily a state defendant for pur-

poses of the Eleventh Amendment, ” Edelman, supra, 415 U.S.

at 667 n. 12, the issue at bar did not arise in that case. In Miener,

the Eighth Circuit simply reversed its earlier holding that the

Handicapped Act, as a matter of congressional intent, did not

authorize relief in the form of compensatory education. See

Miener v. State of Missouri, 673 F.2d 969, 979-80 (8th Cir.), cert.

denied, 459 U.S. 909; id. at 916 (1982). The court did not,

however, reconsider its original view that the eleventh amend-

ment barred an award of such retroactive relief against the state

defendants. 673 F.2d at 980-81.

For the reasons just given, defendant’s motion to dismiss the

amended complaint is granted.‘ Plaintiff's motion for summary

judgment is denied.

IT IS SO ORDERED.

Dated: New York, New York

November 9, 1987

/s/ Robert L. Carter

ROBERT L. CARTER

US.DJ.

33a

FOOTNOTES

Plaintiff's supplemental complaint also seeks costs and at-

torney’s fees, pursuant to 20 U.S.C. § 1415(e)(4)(B), for

representation in connection with the administrative pro-

ceedings herein.

8 N.Y.C.R.R. §200.5(c)(10), which governs such hearings,

requires that a decision be rendered within 45 days after

the hearing commences.

The potential for abuse under defendant's regulations is,

however, apparent. Had defendant reversed the Hearing

Officer’s decision placing plaintiff at the Institute, plain-

tiffs federal procedural rights might well have been

infringed.

Plaintiff's claim for attorney's fees, brought by way of a

supplemental complaint, remains to be resolved.

34a

No. 11639

Che University of the State of New Bork

The State Education Department

Before the Commissioner

Application of the NEW YORK INSTITUTE FOR

THE EDUCATION OF THE BLIND for a review of

a determination of an impartial hearing officer

relating to appointment to a school for the handi-

capped pursuant to the provisions of Education Law

Article 85.

Brown & Wood/Tufo & Zuccotti, Esqs., Anita F. Barrett, Esq.,

of counsel, and Neil Howard Rosenberg, Esq., attorneys for

petitioner

New York Lawyers for the Public Interest, Inc., Lewis A.

Golinker, Esq., of counsel, and New York Law School Federal

Litigation Clinic, Peter Margulies, Esq., of counsel, attorneys

for respondent

Petitioner appea!s from the determination of an impartial

hearing officer which reviewed petitioner’s refusal to recommend

respondents’ son for a State appointment to the New York In-

stitute for the Education of the Blind (NYIEB) pursuant to Ar-

ticle 85 of the Education Law, and which found that the stu-

dent should be recommended by the NYIEB for such appoint-

ment and recommended that such appointment continue an ad-

ditional one and one-half years after the student attains 2] years

of age. The appeal must be sustained in part.

Respondents’ son is currently eighteen years of age and was

identified as a multiply handicapped child at a very early age.

There is no dispute between the parties regarding the boy’s

classification as multiply handicapped with profound mental

retardation, blindness and an orthopedic handicap due to

cerebral palsy.

35a

The most recent psycho-educational evaluation of the student

was completed by the NYIEB on November 26, 1984, when the

boy was age sixteen years eleven months. A developmental pro-

file indicates that his motor skills were at the level of the average

child at age one year eight months. Self-help skills and social

development were at the level of a two year two month old child.

His academic skills were at the level of one year six months, and

communication skills were at the level of an average three year

old.

The determination that the student’s academic skills were at

the one year six month level was based on his ability to provide

his own address and telephone number. He appears to be aware

that different activities occur at different times each day. Most

of his expressive language appears to be memorized, and he is

able to repeat rhymes, count to six, sing several songs and use

basic sentences to express his needs for toileting or feeding. A

speech/language evaluation completed in April, 1984 indicates

that he is able to produce four to five word expressions. He is

able to respond to questions after extended delay.

The student is described as uncoordinated and unsteady on

his feet, requiring minor assistance on stairs, particularly in

descending. He also requires assistance exiting from a school bus,

but only minimal assistance in most areas of self-help, and he

can independently eat with 2 spoon and drink from a cup. He

needs assistance in toileting and dressing, but can undress

independently.

The evaluations indicate that the student generally does not

initiate interaction with others. A variety of stereotypical

behaviors is reported, most notably rocking and flicking

behaviors. He occasionally has been observed to scratch adults

or pull their hair. ‘

Respondents’ son attended the Jewish Guild for the Blind for

several years and subsequently moved to a program at the

Association for the Advancement of Blind and Retarded (AABR)

in September, 1981. After the AABR advised the New York City

Committee on the Handicapped (COH) in the spring of 1984

that its program would close at the end of the school year, the

36a

COH developed a Phase individualized educational program

(IEP) which recommended placement in a Specialized Instruc-

tional Environment II class at P.S. 396 with a student-to-staff

ratio of 9 to 1 plus 3 teacher assistants, speech/language therapy

twice a week, and educational vision services twice a week.

Although the parents agreed that the goals and related services

provided in the IEP were appropriate to meet their son’s educa-

tional needs, they objected to the COH placement

recommendation.

The assistant superintendent of citywide programs also ques-

tioned the recommended placement at P.S. 396 and upon recon-

sideration the COH determined that no appropriate placement

was available in the public schools.

The COH then tried to locate a private school placement,

but the student was rejected by each school to which an ap-

plication was made. The student was provided with home in-

struction while an alternative placement was sought. The COH

again recommended placement at P.S. 396, since that school had

altered the program it had previously offered. The parents ob-

jected and requested an impartial hearing. In a decision dated

December 6, 1985, the hearing officer in that proceeding held

that the placement at P.S. 396 was not appropriate to meet

respondent’s needs. The school district did not seek review of

that decision.

While the placement recommended by the COH was under

review, the student’s parents applied to the State Education

Department for an appointment to one of the State-supported

schools specified in Education Law section 4201. In accordance

with 8 NYCRR 200.7(d), the application was referred to peti-

tioner to conduct an evaluation of respondent. Petitioner com-

pleted the evaluation on November 26, 1984, and on January

2, 1985 petitioner advised respondents that it would not recom-

mend their son for appointment to petitioner's school. The

parents requested an impartial hearing, and a hearing was heid

on sixteen different days between May 2 and December LI, 1985.

On January 27, 1986, the impartial hearing officer issued a deci-

sion finding that the NYIEB could provide an appropriate educa-

tion for the student, and recommending that I appoint him to

37a

attend New York Institute for the Education of the Blind. The

hearing officer also recommended that the student receive an

additional one and one-half years of education after he reaches

the age of 21, in view of the extensive delay in reaching a deter-

mination in this matter.

Petitioner advances several arguments, both proceaural and

substantive, in seeking review of the hearing officer's decision.

Initially, petitioner contends that the hearing officer should

have disqualified himself because the hearing officer had

previously contacted the attorneys representing respondents with

regard to a matter concerning his own child. Although petitioner

promptly noted its objection concerning the possibility of par-

tiality by the hearing officer on the record at the outset of the

hearing, I must note that petitioner makes no specific allega-

tion of partiality on the part of the hearing officer with respect

to any action taken by the hearing officer throughout the very

lengthy hearing. In material part. 8 NYCRR 200.1(0) provides

that a hearing officer shall be:

. independent, shall not be an officer, emplovee

or agent of the schcol ... shall not have a personal

or professional interest which would conflict with his

or her objectivity in the hearing, and shall not have

participated in any manner in the formulation of the

recommendation sought to be reviewed ...”.

Petitioner has failed to establish that the hearing officer does

not meet that standard. Absent any specific allegation of par-

tiality and finding no such instance in the record before me,

I find that petitioner's argument concerning the impartiality

of the hearing officer is without merit.

With respect to the hearing officer’s recommendation that

the student receive an appointment to its program, petitioner

contends that is unable to provide him with an appropriate

education. However, upon review of the extensive record before

me, including numerous exhibits documenting the student's

educational needs as well as the program offered at New York

Institute for the Education of the Blind, I must conclude that

38a

New York Institute for the Education of the Blind is an ap-

propriate placement for respondents’ son.

The program in which the student would be placed at NYIEB

is designated as “Frampton Hall”. Most of the students in the

program have vision and heauing losses resulting from mater-

nal rubella. The student/staff ration is 6 pupils to 1 teacher with

two teacher assistants, which will provide the student with the

individual] attention he needs.

There are four verbal students in the program population who

are grouped together with one nonverbal student in a class.

Although respondents’ son has no background in the total com-

munication skills which are used in the program, the level of

language development among children in the group, as well as

verbal development activities provided in the program, indicate

that this student's language skills would be appropriately ad-

dressec and developed.

The program is also able to provide activities in independent

living skills which the student needs to develop, including self-

help skills, exploratory activities, orientation and mobility skills.

Although petitioner argues that no individual in the program

exhibits the same combination of disabilities as does this stu-

dent. it is clear that each student in the program exhibits some

educational deficits which are similar to those of respondent's

son. The goals included in some of the other students’ Phase I

IEPs include exploratory activities, motor skills, self-help skills,

following directions and decreasing stereotypical behavior, and

those are similar to the goals outlined on the Phase I IEP

prepared for respondents’ son by the COH of the school district.

In addition, testimony presented at the hearing, as well as

a State Education Department program evaluation, indicate that

petitioner's staff is qualified to address all of the student's educa-

tional needs, currently serves those needs in its present popula-

tion. and that all of the special services required by petitioner

can be provided.

Petitioner alleges that respondents’ son exhibits a higher level

of aggressive behavior than that of the students in the Frampton

—-

39a

Hall program, and that the placement is therefore inappropriate

Although it is evident that respondent's son occasionally acts

out in response to frustration, such behavior is not unexpected

in an individual with underdeveloped communication skills, and

is apparent in some of the other students in the Frampton Hal!

program. The boy’s reaction to frustration can be controlled by

adult intervention with verbal directives. The student to staff

ratio provided in the Frampton Hall program is thus more than

adequate to address that area of behavior, and I must conclude.

as did the hearing officer, that petitioner can provide

respondents’ son with an appropriate education.

Petitioner argues that it is phasing out the non-academic pro-

gram in which respondents’ son would be placed. and that it

has not accepted a new student in the program in three years.

Petitioner further argues that the student does not meet the ad-

missions criteria for the academically oriented program it will

continue to provide.

| However, petitioner indicates that it will continue to offer

the Frampton Hall program until the currently enrolled pupils

| reach twenty-one vears of age. Because some of the individuals

in the program now are younger that respondents’ son, this pro-

gram and its attendant services will be available as long as he

is of school age and his admission to petitioner's non-academic

program will not interfere with petitioner's plan to phase-out

the program. The fact that respondents’ son cannot meet the

admissions criteria for petitioner's continuing academic program

for the less severely handicapped is irrelevant to entry into the

Frampton Hall program.

Although I have indicated that petitioner's future program

plans will not be affected by the student's appointment to its

non-academic program, I must note that petitioner appears to

be under the erroneous impression that its curricula and pro-

grams may not be affected by State action. Section 4201 of the

Education Law clearly subjects petitioner and the other State-

supported schools to the authority of the Commissioner of

Education. Indeed, paragraph (c) of subdivision 2 of that section

specifically authorizes the Commissioner to “prescribe courses

40a

of study” offered by the State-supported schools to “meet the

requirements of the State for the education of State pupils.” Peti-

tioner’s reliance upon two of my decisions in which I sustained

the conclusions of hearing officers upholding the recommen-

dation of two schools that State appointments not be made (Mat-

ter of Handicapped Child, 23 Ed. Dept. Rep. 273, and Matter

of Handicapped Child, 23 id. 276) is misplaced because in

neither instance did the Article 85 school have an appropriate

placement for the students in question.

Petitioner's other arguments in support of its contention that

the student should not be recommended for appointment to its

school include budgetary considerations as well as what it alleges

is NYIEB’s historical mission. Those reasons are not relevant to

the determination whether petitioner can provide the student

with an appropriate education, and I need not address them

further.

Petitioner also contends that the hearing officer's decision must

be annulled because the NYIEB is not the least restrictive place-

ment for respondents’ son. Although petitioner attempts to com-

pare its program with the placement at P.S. 396 recommended

by the COH, it must be noted that the latter placement was

determined by another hearing officer to be inappropriate. Peti-

tioner’s assertion that respondents’ son should be in a public

school program in order to afford him the opportunity for inter-

action with nonhandicapped peers ignores the extent and nature

of his handicapping conditions. The placement of a handicapped

student in a building serving handicapped children exclusively

is not inconsistent with the requirement that handicapped

students be educated with nonhandicapped peers to the max-

imum extent appropriate where the needs and abilities of such

student preclude the student from taking part in activities with

nonhandicapped students (Matter of a Handicapped Child, 19

Ed. Dept. Rep. 455; Matter of a Handicapped Child, 19 id. 485).

Petitioner also argues that its program would not be the least

restrictive environment because of the distance and travel time

for daily trips between the student's home and NYIEB, and ex-

presses concern about the student’s need for assistance exiting

4la

from a bus. Proximity of a student’s residence to a particular

program is to be considered, but is not the sole factor in detr-

mining the least restrictive environment (Matter of a Handi-

capped Child, 22 Ed. Dept. Rep. 571; Matter of a Handicapped

Child, 24 id. __, Decision No. 11426, dated March 12, 1985).

In this instance, the student would be required to ride the bus

one and one-half hours each way to attend petitioner's program

and would require assistance exiting the bus. Neither the Educa-

tion Law nor the regulations established thereunder provide any

maximum time limit for the transportation of handicapped

children (Matter of a Handicapped Child, 19 Ed. Dept. Rep.

494). The record indicates that the student’s most recent ex-

perience with transportation - a one-hour bus ride to AABR -

was successful. There is no reason to conclude that the one and

one-half hour bus ride to New York Institute for the Education

of the Blind renders placement there inappropriate. In addi-

tion, although petitioner has indicated has indicated that it does

not regularly provide assistance to its students in entering or

exiting the bus, there is nothing in the record which indicates

that petitioner could not provide such assistance.

Petitioner also argues that the hearing officer erred in recom-

mending that respondents’ son continue in attendance at the

NYIEB beyond his twenty-first birthday because of the delay

which occurred in petitioner's processing of respondents’ applica-

tion and in the conduct of the hearing. The hearing officer con-

cluded that the student was entitled to compensatory educa-

tion, “without attributing all of the unnecessary delay in resolv-

ing the controversy about placement to IEB. Petitioner (the bov’s

parent), also is not without fault, and neither am I”.

Although I have previously indicated that there is no statutory

or regulatory provision entitling a student to continue to receive

educational services after attaining 2] years of age (Matter of

a Handicapped Child, 19 Ed. Dept. Rep. 148) and there is an

as yet unresolved difference of opinion among the courts on this

issue (Timms v. Metropolitan Sch. Dist., 722 F 2d 1310; Miener

v. State of Missouri, 673 F 2d 969, cert. den. 103 S. Ct. 215;

Anderson v. Thompson, 658 F 2d 1202; Max M. v. Thompson,

42a

592, F. Supp. 1450), an order directing the provision of com-

pensatory education would clearly be unwarranted in any event,

given the hearing officer's own assessment of fault. While I do

not condone the excessive delay, as I will discuss below, I can-

not sanction an order requiring the provision of an additional

year and one-half of instruction by petitioner.

After reviewing the record in this matter, I am compelled to

comment on the length of time over which the hearing was con-

ducted. Although the student’s parents requested a hearing in

January, 1985, the hearing did not commence until May, 1985.

Sixteen hearing days were consumed before the hearing was com-

pleted, and because of adjournments, the hearing was not finally

declared closed until December 11, 1985, and the decision was

issued on January 27, 1986.

Section 200.5(c)(10) of the Regulations of the Commissioner

of Education requires that an impartial hearing officer render

a decision no later than 45 calendar days after the initiation

of such hearing. In this instance, the hearing officer’s decision

was issued 260 days after initiation of the hearing. I find it com-

pletely unacceptable that an impartial hearing convened for the

purpose of providing educational services to a handicapped child

required nearly a year to complete. The delay in this instance

appears to be attributable solely to the management of the hear-

ing by the hearing officer, and is unconscionable.

THE APPEAL IS SUSTAINED IN PART, and

IT IS ORDERED that the decision of the hearing officer is

annulled to the extent that it ordered that compensatory educa-

tion be provided to respondent.

. IN WITNESS WHEREOF, I, Gordon

M. Ambach, Commissioner of Educa-

tion of the State of New York, for and

Seal on behalf of the State Education

Department, do hereunto set my hand

and affix the seal of the State Educa-

tion Department, at the City of

Albany, this 20th day of May, 1986.

/s/ Gordon M. Ambach

Commissioner of Education

43a

Appeal of

KENNETH and BETTY BURR from the

recommendation of the New York DECISION

Institute for the Education of

the Blind regarding the further

education of their son, CLIFFORD.

Hearings: 2 and 14 May 1985

8 June 1985

1 and 11 July 1985

23 and 30 September 1985

1,4 and 15 October 1985

6, 8 and 12 November 1985

4,5 and 11 December 1985

2 World Trade Center

New York, New York

270 Broadway

New York, New York

New York Institute for the

Education of the Blind

Bronx, New York -

Before: A. William Larson

Hearing Officer

464 Main Street #106

Port Washington, NY 11050

44a

TABLE OF CONTENTS

Page

OVETVIEW 22.2.2... cccecsccccccccccccescccccscccsecesoooees 45a

Relevant Statutory ProvisiOns..........----esrsss: 47a

TSSUES 2..ciccccanrcsccccvccescccaceconsuccsssssssoncccosssess - 49a :

Respondent's Case...........sssssessesseeeseeeseesseeees 54a

Petitioner's Case...........cceceeceeceeccececereeseeneces: 82a

Summation .............sccsceccccoscesccscccccccccscscors 97a

Analysis and Conclusions ..........+++++ssseeeeeeseerees 10la

CHOI occ ccesisevetncastsnccensccseencsssesesssepeneeneuenea 120a

* ae ae ST. ef oe:

45a

OVERVIEW

This appeal concerns the education of a multiply

handicapped boy, Clifford Burr, who attained the chronologica!

age of 18 years on 30 December 1985. Handicapped by reason

of profound mental retardation, blindness and cerebral palsy,

Clifford has been in need of special education since birth. "We

didn't know how to handle it, and we needed all the help we

could get, from the moment he was bor, even before he left

the hospital." So said the father, Kenneth Burr, in his

testimony at the hearing in the session held 11 December 1985.

(Tr 1731/21-23)! In light of the father's testimony among

other evidence, Clifford's educational requirements were not

easily to be fulfilled. Early “patterning” was followed by a pre-

school program in Brooklyn, where the Burrs resided, and

thereafter Clifford attended, first, the Jewish Guild for the

Blind (JGB), followed by the Association for the Advancement

of the Blind and Retarded (AABR).

The Committee on the Handicapped (COH) had identified

AABR as an appropriate placement for Clifford in 1981,

lacking one in the public schools of New York City. In

anticipation of the closing of Clifford's AABR program in June

1984, the COH recommended that he continue his education for

the 1984-85 school year in the then-Track IV program at Public

School 396 (PS 396) in Brooklyn. This program was only in

formation at the time of the recommendation, and after a site

visit the Burrs registered their objection to such placement with

the COH. Reconsideration by concerned school district officials

thereafter resulted in a determination that Track IV in PS 396

would not meet Clifford's needs. This appears to have

precluded appropriate public school placement, and referral to

1 The reference is to page 1731, lines 21-23, of the transcript of

proceedings. Other citations of the transcript will be similar except in

regard to the first session of the hearing, 2 May 1985, for which the

designation will be “TrS,” a feature occasioned by the renumbering of

Pages in the following session's transcript before consecutive numbering

was continued. Respondent's exhibits are to be designated "REx #” and

Petitioner's "PEx #.”

46a

the Central Based Support Team (CBST) followed for the

purpose of seeking placement in the private sector. This led to

inquiries, one of which resulted in an indication, by letter of 2

November 1984, that United Cerebral Palsy of New York City,

Inc. found Clifford to be an appropriate candidate for their

Manhattan Severely Handicapped Program. Prior to that

occurrence, however, the Burrs had received nonfication from

the New York State Education Department (SED), in a letter

dated September 27, that the application of the parents for

placement in a state-supported or state-operated school was

being referred to the New York Institute for the Education of

the Blind (IEB).

IEB responded to the referral by writing to Mr. and Mrs.

Burr on November 6 about the scheduling of an evaluation of

Clifford for November 28. The latter date was advanced to

November 26, and the evaluation resulted in a recommendation

by IEB's Multidisciplinary Team (MDT) that Clifford "not be

appointed to our program." (PEx 5) The Burts were so

informed by letter of 2 January 1985 from Leslie Trott, MDT

Chairperson, which enclosed copy of Trott's letter of same date

to Dr. Rebecca Cort, Acting Supervisor, SED, (PEx 5 and REx

3) and copies of attachments that set forth "evaluation findings

and instructional objectives." Completing a summary

overview, attention is directed to the opening and closing of the

communication of Trott to Cort:

At a recent meeting, the Multidisciplinary Team of the

New York Institute reviewed evaluations concerning

Clifford Burr, 17-years of age. Evaluation findings

enabled the Team to agree that Clifford, as a muitiply

handicapped student, functions with a primary

handicap of mental retardation. As a result of this

finding, it is recommended he participate in a

program of habilitation for the mentally retarded.

Clifford would not benefit from an educational

program for the blind, and, therefore, educational

placement at the New York Institute for the Education

of the Blind is not recommended ...

47a

In summary, Clifford Burr is a seventeen-year old

youngster whose primary handicap is mental

retardation. He would benefit most from placement in

a program for the mentally retarded. His instruction

should be of a habilitational nature and focus on his

learning appropriate behavior and to take care of his

own needs. He does not have academic potential and

would not benefit from enrollment in an educational

program for the blind. He is not recommended for

enrollment at the New York Institute for the

Education of the Blind.

This forms the basis of the appeal of Burr v. Institute, but

Clifford's parents in effect had previously filed a notice of

appeal, requesting "an Impartial Hearing,” by their letter of 21

December 1984 to SED's Assistant Commissioner Lawrence

C. Gloeckler. (REx 8) In this letter Mr. and Mrs. Burr write of

their having learned at a conference at IEB on 11/28/84 that "all

voted no" regarding Clifford's admission, that "nothing (in

writing) had been received to date," and that they were

requesting, in addition to the hearing, interim placement of their

son at IEB and "the Commissioner's review of any possible

time violations in this case."

RELEVANT STATUTORY PROVISIONS

IEB is a so-called "4201 school,” one of several identified

by name in Article 85, Section 4201, Education Law of the

State of New York. These are State-supported institutions, as

explained in the Article, and with respect to them the duties of

the Commissioner of Education, specified in #4201, include:

“To make appointments of pupils to the several schools, to

transfer such pupils from one school to another as

circumstances may require; to cance! appointments for

sufficient reason.” In #4206 it is provided in part as follows:

1. All blind persons of suitable age and capacity

and who shall have been residents in this state

for one year immediately preceding the

application or, if a minor, whose parent or

48a

parents, or, if an orphan, whose nearest friend,

shall have been a resident in this state for one

year immediately preceding the application, shall

be eligible for appointment as state pupils to the

Institute for the Education of the Blind in the city

of New York...

Reference to multiple handicaps appears in #4209 which

provides in part that:

1. All children who are both blind and deaf or both

blind and cerebral palsied shall be admitted as

state pupils into one of the institutions described

in this article for the instruction of the deaf or

blind and under the same conditions of eligibility

as are provided for the admission of deaf or

blind state pupils.

The application of the foregoing statutory provisions is

amplified by Regulations of the Commissioner of Education.

Part 200, effective 1 July 1984, includes governing

specifications in #200.7(d):

(1) Application for State appointment of deaf, blind or

severely physically handicapped pupils to ... State-

aided schools ... shall be initiated by parents through

application to the commissioner, supported by

adequate written evidence of the blind, deaf or

severely handicapping condition. The commissioner

will direct the parents to make arrangements at a.

designated ... State-supported school for an evalu-

ation. Such school will evaluate the child's eligibility

for its program and notify the parents and

commissioner of the results of such evaluation and

recommend appointment if appropriate. In the case of

a child not recommended for appointment to a

particular ... State-supported school ... the school

shall notify the parent. Such notification shall be

comparable to that required by section 200.5(a) of

this Part, shall include all reasons for lack of

’

49a

acceptance of the child into the program ... and shall

include suggestions for more appropriate placement

or program.

This section then makes provision for appeal procedure,

including hearing and review, and subsection (ii) provides

further that "Deaf or blind children will be appointed to the

school for the deaf or blind nearest their place of residence on a

day basis.” In section 200.5(a), referred to in #200.7(d), the

required notfication to the parent includes the following in

subsection (5): "The board of education shall notify the parents

of its decision and arrange for placement of the pupil within 30

days of the committee's recommendation."

Both underpinning and overarching State statutory

provisions, legislative enactments and related regulations alike,

is P.L. 94-142, the Education for All Handicapped Children

Act of 1975, providing that "It is the purpose of this Act to

assure that all handicapped children have available to them ... a

free appropriate public education ... designed to meet their

unique needs ..." (Section 601(3)(c)) It is further provided that

"The State (shall have) established ... procedures to assure that,

to the maximum extent appropriate, handicapped children.

including children in public or private institutions or other care

facilities, are educated with children who are not handicapped

..." (Section 612(5)) This concept is again set forth in

implementing Federal regulations (34 CFR Part 300) under the

heading of “Least Restrictive Environment." (Reg.

300.550(b)(1))

ISSUES

In my opening statement 2 May 1985, the first session of

the hearing,? I said: "The Institute's case is the first to be

presented, as it has the burden of proving the reasonableness of

the recommendation against placement, as well as the timeliness

of its actions." (TrS 6/24-25; 7/2-4) Further on in my

Statement, after reviewing reasons for the delay in getting

2 The hearing required 16 sessions - May 2 - December 11.

50a

started, I referred to "... the question to be resolved here,

namely, whether the Institute reasonably determined that

Clifford's placement, presumably in the Frampton Hall

program, would not be the appropriate education in the least

restrictive environment contemplated by applicable statutes."

(TrS 15/7-14; the comma after “program” has been added

here.)

Representing Respondent IEB throughout the hearing has

been the firm of Tufo & Zuccotti, Anita F. Barrett, of

Counsel.3 In her opening, Barrett said: "... the issue to be

determined by the Hearing Officer in this case is whether the

Institute would be the appropriate placement for Clifford in the

least restrictive environment." (TrS 19/22-25; 20/2)

Serving as advocate for Petitioner is Ms. Victoria Ruocco,

Protection and Advocacy Specialist, State of New York

Commission on Quality of Care for the Mentally Disabled.‘

Her opening included this statement: “The only question there

seems to be before us today is whether or not the Frampton

Hall program is an appropriate program and whether the

Institute is appropriate for Clifford Burr." (TrS 28/22-25; 29/2)

In the closing session, December 11, summations were

made by Lewis A. Golinker for Petitioner and, for Respondent,

by Barrett and co-counsel Neal H. Rosenberg. Regarding

issues, Golinker said: "The expressed purpose of this hearing

was to determine whether Frampton can appropriately educate

Clifford. And then the second question is whether Clifford can

or may receive a period of compensatory ed." (Tr 1861/15-19)

3 Neal Howard Rosenberg, Esq., made an appearance as co-counsel for

Respondent on 28 June 1985.

4 Lewis A. Golinker, Esq., New York Lawyers for the Public Interest,

Inc., appeared on May 2 as counsel for Petitioner, and there were further

appearances September 18 by Michael L. Perlin and Peter Margulies of the

Federal Litigation Clinic, as well as Clinic student interns Mark Colligan,

Noreen Cooney, Maureen Mahoney, Heidi Minuskin, Agnes Reiss, and

Steve Foreht

Sla

Barrett's closing included another reference to issues,

comparable to but not identical with her opening: "We would

restate the issue to be determined by you as whether the

institute was reasonable in its decision to reject Clifford, or

rather to recommend that the State Education Department

concur in the decision not to accept him at this time." (Tr

1879/4-9) Rosenberg essentially concurred in completing the

summation for Respondent: "And I think the issue is, was my

client reasonable when they rejected Clifford.” (Tr 1887/18-20)

He also acknowledged the issue of compensatory education,

stating that "I disagree with Mr. Golinker,” (Tr 1888/8-9) and

"... It is My position they are not entitled to any compensatory

education." (Tr 1889/22-23)

The Burrs, as previously indicated, raised three issues in

their letter to SED of 12/21/84: IEB's rejection of the

application for Clifford's admission, “interim placement" at

IEB, and "possible time violations" by IEB. (REx 8) The

Commissioner did not provide for interim placement, and this

request of the Burrs was not mentioned in the letter of 9

January 1985 that I received from SED confirming my

appointment as impartial hearing officer for this appeal. This

letter, sent to me by Lawrence C. Gloeckler, Assistant

Commissioner for Education of Children with Handicapping

Conditions, includes the following:

Mr. and Mrs. Burr are appealing the recommendation

of the New York Institute for Education of the Blind

which rejects Clifford's placement at the Institute.

There is also a secondary issue involving the

tmelines [sic] of notice in this matter from NYIEB to

the parents.

It is clear that Gloeckler’s reference was intended to be to

the question of "timeliness" on the part of IEB in its contact

with the Burrs. This concern about timeliness was soon

overtaken by greater concern about time: the time required, in

the first instance, to get the hearing started on 2 May 1985, and

then the time that passed before it came to a close on December

11. This was understandable to say the least, and expressions

52a

of concern emanated penodically not only from Petitioner, but

from all partes involved in this proceeding. In my opening

statement at the opening of the hearing, I said: "We are meeung

to commence this hearing in the morning of 2 May 1985, no

fewer than 80 days after the normal deadline for decision, 125

days following receipt of notice of appeal, and but ... several

weeks before the end of the 1984/85 school year. These

numbers reflect very considerable delay, and I believe that

comment is called for in this opening statement of mine.” (TrS

4/24-25; 5/2-8) I thereafter recounted developments from

January-May, including procedural issues that had ansen and

my action with respect to them. (TrS 8-14) At the final session

my comments included the following:

This is a hearing which some, if not all, may feel has

gone on far too long. Inasmuch as a decision ...

should have been forthcoming in ... February of this

vear, perhaps by any standard of measurement one

would say that the duranon of this hearing has been

excessive. And if that is true, I would accept the

responsibility ... At least I believe that the hearing

has certainly afforded an opportunity for each side to

make a presentation of its case fully and fairly, and

that is not unimportant. (Tr 1724/15-25; 1725/2-6)

The record of this proceeding, running through 16 sessions

of heanng testimony and receiving documentary evidence,

produced transcnpts with a total of almost 2,000 pages, and the

exhibits add up comparably all told. In addition, there have

been numerous letters and memoranda from counsel, including

one from each side post-hearing, as well as many decisions of

the Commussioner and the courts. This must surely give pause.

to reviewing authonty or to any other reader of this decision, to

wonder about the zeal with which the representauves of the

parnes must have pursued their respective interests, and the

manner in which the heanng was conducted so as to have

allowed it to conunue for many months and the record to have

become so voluminous. Apart from the soundness of the

decision herein set forth. some judgment about the propnety of

53a

the procedure leading up to it is not unlikely on the part of a

reviewer.°

The main issues presented for consideration are: (1) Was

IEB reasonable in recommending that Clifford Burr not be

accepted for placement in one of its programs? (2) Did IEB fail

to observe prescribed time limits in acting on the Burr referral

5 One may also be inclined to speculate on the occasion for the SED

referral giving rise to this appeal. In her opening, Barret said "... there is

no one at Clifford's funcuoning level that has been accepted at the New

York Institute for some tume. This is a policy of the school which is

within its rights. It is its mght to determine its own admissions policy.

Much has been said in the preliminary proceeding as to the Frampton Hall

program. We will offer evidence as to the history of that program and the

current Frampton Hall program, as in fact, our expert believes it is

inappropriate for Clifford to be placed there, for there is no suitable group

or class for him at Frampton Hall now. It is not the duty of the Insutute to

create a program for him, merely because it has other students who are

mulu-handicapped. We believe that the history and current program for

Frampton Hall is relevant as to the overall correctness and reasonableness

of its determination ... The Institute is engaged presently in reviewing the

direcuon for its future. We believe this is within its mghts as a private

insutuuon.” (TrS 25/3-22; 26/2-5) Dr. Robert Guarino, IEB Director,

described “Admissions Criteria” adopted by [EB in May 1983 (REx 20) wo

“reaffirm its course of education for visually impaired children that had

academic potential,” part of “a new five year plan, which was formally

adopted in February of 1985.” He said that “Clifford would not meet the

educational criteria,” that he “was with the State Education Department” in

1983, but “did not see” the new IEB Criteria at that ume. SED was

notified, however, according to Guarino, who acknowledged that he had

been “surprised to have (the Burr) referral made in view of the fact that the

State Education Department had been notified of the change...” His

explanation for SED's referral under the circumstances? “My

understanding,” he said, “is that the State Education Department refers —

at its pleasure can refer to any school at any time for any reason without

regard to criteria of schools.” (Tr 391/16-19; 392/6-8; 394/7-8; 399/8-9;

401/7-8; 476/3-5, 11-16; 5327-13) One might reasonably quesuon the

efficiency of operations in an educational bureaucracy if the left hand does

NOt appear to know what the nght hand is doing or, alternauvely, a State

agency routinely makes referrals without regard for the changing policy of

a State-supporied school.

54a

from SED? And, contingently, (3) Is Clifford entitled to a

period of compensatory education at IEB? Subsidiary issues

related to those enumerated, which emerged before and during

the hearing, will be covered in consideration of the

presentations of the parties.

RESPONDENT'S CASE

The case of Respondent IEB, presented by co-counsel

Barrett and Rosenberg, consisted of 25 exhibits and the

testimony of eight witnesses. All of the evidence related, at

least ostensibly, to the determination of IEB, following

evaluation of Clifford Burr, that he “not be appointed to our

program.” (REx 3) So stated the “Referral Status Notification”

in the form of the letter of 2 January 1985 to Mr. and Mrs.

Kenneth Burr from the Chairperson of IEB's Multidisciplinary

Team. A copy of this letter appears in the indicated exhibit as an

attachment to letter of the same date from the same source,

namely, Dr. Leslie A. Trott, to Dr. Rebecca Cort of SED. Other

attachments to the Trott letter to Cort consisted of the MDT's

"Summary Sheet,” report of “Psychoeducational Evaluation,"

and report of “Educational Evaluation.” The letter itself

included in part the following:

In summary, Clifford Burr is a seventeen-year old

youngster whose primary handicap is mental

retardation. He would benefit most from placement in

a program for the mentally retarded. His instruction

should be of a habilitational nature and focus on his

learning appropriate behavior and to take care of his

own needs. He does not have the academic potential

and would not benefit from enrollment in an

educational program for the blind. He is not

recommended for enrollment at the New York

Institute for the Education of the Blind.

Clifford Burr, as described by Trott in the letter to Cort, is

"a multiply handicapped student" whose “mannerisms and

inappropriate behaviors severely interfere with his learning.”

These mannerisms were said to include “head rocking, body

55a

rocking, hand waving, and flicking articles," and, in addition,

"Clifford was observed to pull his mother’s hair and scratch an

examiner.” He "requires physical prompting for most tasks...

is dependent in all forms of travel due to lack of skill and

balance ... is dependent in activities of daily living. . . (and) in

all areas of development, Clifford functions as a profoundly

retarded youngster.”

Trott wrote about the development age levels indicated on

the basis of IEB's evaluation: performance of skills assigned --

18-24 months; gross motor skills - 24 months; communication

skills - 32-36 months; and self-help skills - 26 months. The

Summary Sheet puts the “functioning overall at a 16-22 month

age level,” and shows that the psychological testing employed

as instruments the Merrill Palmer Scale and Developmental

Profile II. The report of Psychoeducational Evaluation,

submitted over Trott's name, also included the Bayley Scales of

Infant Development, and the Developmental Assessment

Screening Inventory was the means employed in the

Educational Evaluation performed by Linda Gerra.

Gerra did not testify, but the hearing had Trott as a witness

on May 14. (Tr 19-121) Responding to Barrett's questions,

Trott reviewed the results of the evaluation reported in REx 3,

and he classified Clifford's handicapping conditions as being

primarily mental retardation and also “cerebral palsy and lack of

vision or loss of vision.” (Tr 23/18-25; 24/2-4) All of the

evaluations, he said, “translate to IQ's below 20,” an indication

that Clifford is “profoundly retarded.” (Tr 24/13-19) Trott

wren Clifford has “leveled off in his ability to learn."(Tr

12-15)

The MDT at IEB, in addition to the aforesaid evaluations,

had for review material provided by SED and also the Burrs,

the latter including reports from the Association for the

Advancement of the Blind and Retarded (AABR) where

Clifford had previously been placed. (REx 4) The “Medical

Profile” from AABR shows Clifford to have been taking

medication in the form of Haldol, and “Irregular gait” is noted

under the heading of "Special Alerts.” Reevaluation at AABR

56a

on 26 April 1984, when Clifford was 16 years, 4 months of

age, included language, speech and hearing. The "Final

Summary" reports "overall improvement in the auditory and

tactile modalities (and) performance in expressive language has

shown the more significant growth.” Recommendations were

for "Continued speech therapy” and "A behavioral program ...

which would reduce inappropriate behaviors and facilitate

receptive and expressive language.” Covering the period 1983-

84, AABR also reported on progress in the areas of academic,

vision, orientations and mobility, and speech, and there is a

section of the report providing a "Social and Emotional

Profile." The latter depicts Clifford as

... a young man of average height who is stocky in

his build. He has a fair complexion and brown hair

which ... often times covers his eyes. Clifford has a

very limbering (sic) gait and he requires assistance to

ascend and descend stairs. This is attributed to his

Cerebral Palsy involvement. Clifford has made

significant strides in his ambulation ability as well as

stair climbing...

The information from AABR led Trott to say, when asked by

Barrett if their materials “are consistent with the determination

of the Institute,” that "it produces a perception of a youngster

who is profoundly retarded; whose potential is limited to that

level of functioning.” (Tr 30/21-25; 31/2-6)

Additional information about Clifford was forthcoming

from Craig Curry, Administrative Coordinator, Board of

Education of New York City, who sent material to IEB with a

covering letter of 11/2/84, (REx 5) and other records from the

City school district's Central Based Support Team also reached

IEB (REx 6). Curry's packet included various items from

differert sources, including: diagnosis of Clifford Burr by

Arthur L. Rose, M.D., Pediatric Neurologist at Downstate

Medical Center/SUNY, dated 28 September 1984, that lists

"1) Anophthalmia 2) Mental Retardation 3) Cerebral Palsy”;

reports from AABR; social history prepared 9/20/84 in the City

school district's office for Hearing Handicapped and Visually

57a

Impaired; COH determination of 10/5/84; and COH addendum

dated 10/17/84. From this material one learns that the COH,

based on reevaluation requested by the parents after Clifford's

program at AABR came to a close, classified him as multiply

handicapped and recommended a program of "Special

Class/Special School and Related Services" in the service

category of "Track IV." The indicated related services are bus,

speech/language therapy, and vision education. Explanatory

comments by Hattie Rayburn, COH Chairperson, disclose that

Clifford had not been attending school since June, 1984,

because the parents objected to a previous recommendation of

Track IV at PS 396. In the addendum prepared 10/17/84, the

recommended program is changed to: "Defer to CBST- for

Private School (Day)," and Rayburn notes that City Wide

Placement informed CBST that “the Track IV program, as it is

currently constituted, cannot appropriately meet Clifford's

needs.”

Departing from consideration of IEB's evaluation of

Clifford Burr, including information made available to the

MDT, Barrett asked Trott about other applicants to IEB who

had been rejected. He said these "are basically youngsters who

are in need of maintenance activities; would not be able to

perform academically...," (Tr 41/23-25; 42/2-13; 42-48, REx9)

Barrett then turned attention to Trott's visit to the Track IV

program at PS 396 in Brooklyn where he regarded the type of

program the students were engaged in as the same as those

recommended by IEB for Clifford. (Tr 53/6-14; REx 11 and

12) In the course of Trott's direct examination, counsel

introduced maps to show locations with particular reference to

the distance from the Burr residence in Brooklyn to IEB in the

Bronx. (REx 13, 14, 15)

Cross-examination was conducted initially by Victoria

Ruocco, who coupled her questions with the introduction of

several exhibits. (PEx 1-5) These show that the Burrs applied

on 9/10/84 to the Commissioner of Education for approval to

attend a school for the blind, deaf, or severely physically

handicapped (form PHC-10). Rebecca Cort, SED Regional

Associate, responded on September 27 with advice to the Burrs

58a

that their application "to a state-supported or state-operated

school ... has been reviewed and referred to the NY Insutute

for Blind ... to conduct an evaluation to determine whether it

has an appropriate program to meet your child's needs." On

November 6 Trott wrote the Burrs about the scheduling of an

evaluation on November 28, a date subsequently advanced to

November 26. The result of the evaluation, as previously

indicated, was set forth in writing 2 January 1985 in a "Referral

Status Notification,” a copy of which Trott sent to Curry under

date of January 7. This means that elapsed time was almost

four months from application to written report of

recommendation, which period embraced intervals of 17 days

from application to notice of referral, 40 days from notice of

referral to notice of scheduled evaluation, and 37 days from

evaluation to written recommendation of non-appointment.

Asked about the delay in notification, Trott said "there is not a

process or mechanism for responding rapidly to evaluations to

(sic) 4201 schools, such as the Institute ... the processing of

papers; getting it typed -- even typing -- secretarial ..."(Tr

71/15-21)

Regarding admission to IEB, Trott indicated that COH

recommendation is not a prerequisite, but "we would hope to

check as much information as possible . .. (and) in the interest

of the child it would be important to check any information

available." (Tr 77/18-23; 78/15-16) At IEB, according to Trott,

there are “non-academic children, " probably 17 years of age,

and some "not toilet trained,” some needing "hand-over-hand

ADL skills," some taking medication, but "there may not be

peers of Clifford's attending.” (Tr 90/7-25; 91/2-12; 92/4-5)

In continuing cross-examination, Golinker asking the

questions, Trott said Clifford, with whom he had spent four

hours at IEB on November 26, (Tr 102/20-21) exhibited "the

characteristics ... defined as being at a level of profoundly

mentally retarded,” and that there are other persons who fit that

description at IEB. (Tr 104/3-14) Returning to the matter of

admission, Trott agreed that in the normal course the MDT

would request prior relevant information from the parents and

other sources, and it is fair to state that in Clifford's case the

59a

MDT at IEB had all the information believed to be needed to

make a recommendation based on evaluation. (Tr 108/14-25) In

the student population at IEB, Trott said, there are profoundly

retarded youngsters who do have academic potennal, but still

are not peers of Clifford. (Tr 110/ 4-17) He based this opinion

on Individualized Education Plans (IEPs) and “other

documents" considered by "professionals at the meeting." (Tr

111/6-16)

Trott had been in attendance May 2 and heard the tesumony

of Laura Colamonico, Educational Supervisor in Frampton Hall

at IEB. He recalled her having said "something about’ a student

in Frampton Hall being comparable to Clifford, but he was not

certain of the individual's identity. (Tr 92/17-25; 93/2-3)

Colamonico had testified that there was just one Frampton Hall

student functioning at Clifford's level, (TrS 63/20-23) and she

described the Frampton Hall program in detail. In late 1984

there were 38 students in nine classes, their chronological ages

ranging from 7-21. (TrS 42/20-25; 43/2) Although she had

never seen Clifford Burr, (TrS58/19-20) she did review his file

at IEB when asked to determine whether there was an

appropniate class grouping for him in Frampton Hall. And she

concluded that there was no appropriate group in that program.

(TrS 43/3-25; 44/2-6) In her testimony she contrasted the

characteristics of students at Frampton Hall with those of

Clifford, noting the problem of peer interaction between non-

verbal students and one whose "primary strength is his

communication.” (TrS 52/8-20) And she said that no student

like Clifford had been admitted to the Frampton Hall program

in the last few years. (TrS 55/17-20)

Upon the excusal of Calomonico, who was recalled later in

the hearing (see below), Respondent sought to hear the

tesumony of Rayburn, and Petitioner objected. Regarding this

witmess, and the COH file on Clifford, I said:

... I do not discount the possibility that there is

tesumony and documentary evidence stemming from

consideration by COH that may be relevant to the

issue at hand. That issue in my judgment is not

60a

whether what the COH has been doing is reasonable.

That's not my concern. My only concern is whether

or not the determination of the Institute that Clifford

is not an appropriate child to be placed in the

Frampton Hall program is a _ reasonable

determination. Anything that bears on that

determination, I believe, is relevant to my

consideration, and consistent with my efforts to have

full disclosure ...

It is necessary, in my judgment, for me to have the

fullest possible understanding of this young man in

order to arrive at a fair determination. That is my

responsibility. (Tr 75/21-25; 76/2-12, 19-22 --

comma dropped lines 7 and 9, added line 8, of

quotation from page 76.)

Rayburn was sworn in on May 2 to testify that dnving me

to IEB that morning from her office, located near to the Burr

residence, took more than an hour, perhaps close to an hour

and fifteen minutes. There was no further Rayburn testimony

on this occasion, and the hearing was recessed for luncheon

and for the purpose of viewing the program in Frampton Hall.

Resumption was brief before a further recess for the day in

order to allow for settlement discussion and for preparation of

Frampton Hall IEPs for examination by Petitioner. In addition,

I invited counsel to submit written arguments about tesumony

by Rayburn and the admissibility of the COH file on Clifford

Burr. I received submissions before the hearing resumed May

14.

In an opening statement May 14, I reviewed the procedural

issues that had arisen, commented on the submissions of

counsel, and took this position:

The regulations - 200.7(d) make no reference to the

COH in providing for "appointment of blind, deaf

and severely handicapped pupils to certain State-

operated and State-supported schools ..." I need not

-- indeed, should not -- pass on the reasonableness of

6la

any COH action regarding placement and program

for Clifford Burr. Whether the water is over the

dam, and/or still in front of it, is of no moment to me;

the parents of Clifford Burr having been referred by

the Commissioner to IEB for evaluation, and the

recommendation resulting therefrom having been

against placement, my task is to make a judgment

about the action of the IEB, namely, whether

reasonable or not in its conclusion that placement of

Clifford at the Institute would not be appropmate.

In arriving at such a judgment, I shall consider “least

restrictive environment" ... PL 94-142 imposes an

over-arching mandate for placement of a handicapped

pupil in the least restrictive educational environment.

Accordingly, IEB may seek to establish that

Clifford's handicapping conditions warrant a less

restrictive environment than the Institute can provide

with existing programs, and that IEB placement

would therefore not be appropriate ...

I am not interested in COH action on placement and

program, and I shall sustain objections to tesumony

and documentary evidence of this character. Regard—

ing evaluation, on the other hand, am receptive to

any offering of evidence, oral or written, that will

give me a fuller understanding of Clifford's condition

and the Frampton Hall program of IEB together with

its 39 resident students. (Tr 9; 10/2-8; 11/4-13)

Rayburn's further appearance as a witness was permitted

on the basis of the foregoing, and so, too, was the COH file on

Clifford admitted into evidence as REx 2. Her testimony

©The absence of expected objection to evidence about COH activity in

Clifford's case, as well as the Track IV program, led to an expanded scope

of the hearing. This occurred notwithstanding repeated expression of

concern about protraction of proceedings, including reference to the

Commissioner in my opening remarks May 14 when, quoting his decision

(Footnote continued)

62a

disclosed that Rayburn, as COH Chairperson of District 21,

Brooklyn, had contact with the Burrs initially in 1977, and that

the COH again was recommending Track IV placement for

Clifford. (Tr 125/15-23) Rayburn reviewed Clifford's

experience, as she knew of it, including his having remained at

home until the age of eight, education at the Jewish Guild for

the Blind, and then placement with the AABR. (Tr 126-130) In

developing Clifford's IEP for the COH, dating to 19 February

1985 (transcript incorrectly has "1984"), the classification is

"muitihandicapped," and Rayburn said that profound

retardation was primary, visual impairment secondary, and then

orthopedic impairment. (Tr 126/25; 127/2-5; 130/13-19)

Rayburn then reviewed COH action on Clifford, as weil as the

parents’ response, and I commented in response to an objection

that "my inclination is very clear at this time to regard this

testimony as susceptible to be stricken on the grounds that it is

not relevant ..." (Tr 141/13-17)? Further on direct, Rayburn

gave her understanding of "least restrictive environment,” (Tr

145/19-25; 146/2-13) and she enlarged on the matter of

classification in Clifford's case. (Tr 148/23-25; 149/2-18)

From cross-examination it appears that Clifford received

home instruction beginning in September, 1984, when there

was no appropriate placement available for him. This

instruction came to an end in April, 1985, after the parents had

failed to agree with, or appeal from, a COH recommendation

on 2/19/85 for Track IV/PS 396 placement. (Tr 151-152)

Golinker's cross went into detail regarding the public school

situation, including COH procedures and the recommended

Track IV/PS 396 placement for Clifford.

#11402, I said that "It is the responsibility of the parties. . . for all parues

to cooperate in an effort to conduct and conclude the impartial hearing in an

expedient manner to assure the due process procedures are completed in a

timely manner.” (Tr 13/20-25; 14/2)

7See "Analysis and Conclusions” for further reference to this matter.

63a

Scheduling problems delayed resumption of the hearing

until June 288 when Respondent's next witness was Dr.

Roseanne Silberman, an associate professor at Hunter/CUNY,

a teacher trainer in the areas of blind/visually impaired students

and the severely multihandicapped. (Tr 214/8-20 and REx 17)

From testimony reported in 46 pages of the transcript one

learns of Silberman's professional contact with IEB, including

her familiarity with Frampton Hall, the fact that she reviewed

IEB's file on Clifford Burr, and her visit on behalf of IEB to

Track IV/396. She "was really excited about what they were

doing” there, she said, detailing the reasons, (Tr 223-226) and

expressed her perception that for Clifford "it certainly does

meet the requirement for the least restrictive environment." (Tr

227/16-23)? Silberman had not seen Clifford, although "she

would like that opportunity.” (Tr 233/11-18)

Golinker asked Silberman to "compare a mentally retarded

child who is blind to a child who is blind and mentally retarded

on a profound level." Her reply: "I think they are one in (sic)

the same. I think we are just using labels." (Tr 242/22-25;

243/2) Asked again, she confirmed her opinion, (Tr 243/9-13)

but then, on redirect, she seemed to contraindicate by saying

“the bottom line is that the primary handicap is profound mental

retardation." (Tr 243/22-25; 244/2-3) Recross pursued the

point, and I asked: “Profoundly mentally retarded, and blind is

the same as blind and profoundly mentally retarded; is that

correct? They are one in (sic) the same. It's just a matter of

semantics." Silberman's response: "Yes." (Tr 245/19-23)

8Unusual difficulty in scheduling in this matter is explained by the active

participation of IEB's Director and staff associates, as well as consultants

to Petitioner, and representation by co-counsel for Respondent and an

advocate, assisting co-counsel, and legal interns for Petitioner. In addition,

delays were occasioned by piecemeal requests for data, including in

particular Petitioner's at a point when IEB was not in operation and staff

was dispersed. (Both the transcript and Petitioner's post-hearing

memorandum reflect an attitude of self-righteous indignation about delay

that is ill-becoming to counsel under the circumstances of the case.)

9Testimony was permitted over objection, apropos the issue of least

restrictive environment, but see note "(7).”

64a

Then Golinker developed in further questioning that IEB has

profoundly mentally retarded people who are also blind, and

whose primary handicap is also mental retardation. (Tr 247/6-

11) But based on her review of Clifford's file and her

familiarity with Frampton Hall, she considers the latter not to

be "an appropriate placement." (Tr 260/6-18)

Sidney Miller followed as Respondent's next witness. The

Principal of the Track IV program, Miller described the

program, (REx 11 and 12) and remarked on his contacts with

the Burrs, including Clifford when he visited P.S. 396.10

Next to testify was Dr. Robert Guarino, IEB's Director,

whose appearance as a witness extended over several days.!!

Having assumed his present position in January, 1984,

Guarino previously served as Director of the Division of

Interagency Cooperation and Support Services in SED (1977-

84), responsible "to supervise the program in special schools in

New York State." (Tr 291/3-4) This function involved “the

fiscal program and monitoring of the 4201 school programs."

(Tr 291/21-23) Counsel elicited information about Guarino's

professional background and experience, (REx 18) then

focused his attention on the characteristics and operation of

4201 schools under relevant statutory provisions with particular

reference to IEB. (Tr 291-298)!2 In the Frampton Hall, he

explained, is a "Special Education program for ... deaf-blind

students" funded by the Federal government 4s a regional

center with additional funding from private sources. (Tr 298-

299)

July 1 saw Dr. Ellis Barowsky leading off for Respondent

to testify as consultant for IEB ir his capacity as associate

professor of special education at Hunter College (REx 19) He,

too, had not seen Clifford Burr, but both volumes of the COH

file (REx 2) had been referred to him for review. He described

10See note "(7).”

11June 28, July 1 and 11, September 23 and 30, October 1, 4 and 15.

\2TEB's establishment dates to 1831, not 1931 as reported in Tr 297/3.

65a

his findings about Clifford in this file which indicate "that he 1s

profoundly retarded." (Tr 325-328/3-4) He had visited

Frampton Hall June 18, forming then the opinion that "Clifford

needs a little more attention and different structure than what

Frampton Hall can offer ... because ... his profound level of

retardation requires developing pre-vocational training.” (Tr

329/7-25; 330/2-3) He also expressed his reservations in regard

to Clifford's behavior pattern, (Tr 330/16-20) remarked on

other aspects of the Frampton Hall program, and agreed with

counsel's statement that “it would be an inappropriate

placement." (Tr 331/12-15) Moreover, he added, “one hour

and a half of a bus nde would generally work against him.” (Tr

331/16-21)

On cross-examination Barowsky told of observing in

Frampton Hall a child who "sort of sat and was rocking and not

interacting”, and another was was "Shrieking -- shouting.” (Tr

342/4-5, 10-15) But he didn't know “what the children's levels

were at Frampton Hall ... I did not see their IEPs." (Tr 350/14-

17) Nor had he had any experience with blind, profoundly

mentally retarded people, (Tr 358/16-23) but had been involved

with profoundly retarded who were not blind. (Tr 370/25;

371/2-3) Based on his impressions of Clifford, gained from the

COH and IEB files, and his understanding of Frampton Hall

from observation and discussion, he would not recommend

Clifford for admission to that program. (Tr 386/13-15)

Recalled for continuing direct examination, Guarino was

asked about IEB's admissions criteria. (REx 20) He explained

that new criteria were adopted by IEB's Board in May, 1983,

following studies that resulted in reaffirmation of “its course of

education for visually impaired children that had academic

potenual." (Tr 391/16-19; 392/3-8) He added that his “coming

to the Institute and subsequent months of further study ... (led

to) a new five year plan, which was formally adopted in

February of 1985." (Tr 394/4-8) This contemplates changes in

the student population of IEB, including Frampton Hall where

physically handicapped students would be placed, (Tr 396/2-5)

and presently, he noted, [EB rents space in the Hall to a

program called "Grow With Us" for pre-school handicapped

66a

children. Any vacant student position now at Frampton Hall,

he was asked. The answer: "No, there are not.” (Tr 398/5-7)

From Guarino's testimony one learns that "The primary

purpose when Frampton Hall was started was to provide

services to young rubella, or deaf-blind population,” and the

space is therefore ideal for Grow With Us. Not so for

adolescents, and their education in the same space where pre-

school children are located he regards as “detrimental for both

groups.” (Tr 398/11-13, 17-24) Reverting to the admissions

criteria, Guarino said that “Clifford would not meet the

educational criteria,” nor would his behavior manifestations be

appropriate . ( Tr 399/2-9; 400/4-11) The criteria, he noted, are

not necessarily :o be filed with SED, but "It was seen in the

past several months.” (Tr 401/13-20)

Barrett asked Guarino about the implications of two

decisions of the Commissioner of Education that she had

submitted for consideration early in the hearing, and he said

that they “point out to me the correctness of the school decision

... Of not accepting (Clifford) into the school program.” (Tr

420/10-19; 421/2-6)!> As far as the COH file and PS 396 are

concerned, Guarino said that IEB in considering the application

for Clifford had proceeded without the complete file being

available and was not aware of the COH recommendation

regarding PS 396. (Tr 424/20-25; 425/9-12)

Commencing what developed into extended cross-

examination, Golinker asked about various things, including

procedure in seeking placement, information about Clifford

available to IEB, the time line for IEB regarding the referral of

Clifford for evaluation, funding, IEB’s MDT, and the

population at Frampton Hall. The latter, Guarino said, includes

profoundly mentally retarded students between the ages of five

and 21. (Tr 437/19-25; 438/2-10) Then Golinker asked “for the

description of the profoundly mentally retarded students at the

Frampton Hall program.” Tr 439/14-18) This was followed

on July 2 by Golinker’s written request in a letter to Barret. At

\3 Decisions #11215 and 11216.

67a

the outset of the next session, July 11, 1 repeated what I had

said on May 14, namely, that “I am not interested in COH

action on placement and program ... (but) I am receptive to any

offering of evidence, oral or written, that will give me a fuller

understanding of Clifford's condition and the Frampton Hall

program of IED, (sic) together with its 39 resident students.”

(Tr 448/8-17)'4 Referring to Golinker’s request, I said that "I

do not find the request to be unreasonable ... (because) I am

interested, in order to do the job that I have to do in this matter,

to learn as much as I can about the individual student in

question, that is, Clifford Burr, and about the program and its

population to which he sought unsuccessfully to gain

admission.” (Tr 449/14-24) I added that I “would expect

respondent to be interested to supply that in order to further

support its contention that the requested placement was

reasonably rejected.” (Tr 450/14-17)

Cross-examination of Guarino resumed with reference to

IEB's budget, and the witness acknowledged that nothing

prevents the making of a request for suppiementa! funding from

SED if needed for an additional student. (Tr 462/3-14)

Continuing about space and class size and student/teacher rauos

in Frampton Hall, Golinker's cross drew from Guarino his

acknowledgment that there are students at IEB who cannot meet

the criteria for new admissions, but will be allowed to conunue

their education there until they age out or “until a least

restrictive more appropriate program might be found for them.”

(Tr 471/24-25; 472/2-8) And Guarino agreed that all

profoundly mentally retarded blind persons could not meet

admission requirements because “they would not meet the

criteria of the intellectual.” (Tr 472/24-25; 473/2-10) SED had

been notified of the new admission requirements of IEB, and

Guarino accordingly admitted, as previously indicated in

footnote “(5),” to having been surprised upon receiving the

referral of Clifford Burr for evaluation. (Tr 476/3-16) He later

said:

'4Not all Frampton Hall swdents are residenual, but the figure is

approximately 90%. (Tr 498/14-22)

68a

The only thing that the State Education Department

requires, as far as I understand, is an ophthalmology

report to accompany the referral to our school ... My

understanding is that the State Education Department

refers — at its pleasure can refer to any school at any

time for any reason without regard to criteria of

schools. (Tr 531/7-11; 532/9-13)

Frampton Hall has been in existence since 1970, and thus

far planning at IEB has been successful in making sure that

both IEB's students and those of Grow With Us use the Hall in

harmony. (Tr 483/24-25; 484/2-6) Classes are not self-

contained insofar as students leave the classroom for physical

education, lunch, physical therapy and occupational therapy.

(Tr 492/14-25) The Hall's educational program is related to

"activity and (sic) daily living,” to self-help and to behavioral

management, but the students are not academically oriented. (Tr

501/7-17) The program provides the basic foundation for

special education for students who might need a community

residence environment at their next placement. (Tr 518/4-10)

This session of the hearing ended with debate between

counsel about the production of IEPs for Frampton Hall's

students, requested by Golinker July 2. In accommodating to

IEB's asserted need for time, I observed that "earlier on there

was not only reluctance of respondents to provide the IEP as

noted by petitioner, but petitioner was equally reluctant to

provide the most recent COH, IEP on Clifford Burr ...

pursuant to the suggestion of the Hearing Officer, but that is

water under the bridge.” (Tr 549/18-25) Further dates were

decided upon, after the IEPs were to be provided, and the

hearing was recessed.

Cross-examination of Guarino resumed September 23 and

carried through until redirect occurred on October 15.

Golinker’s line of inquiry was directed first to the particulars of

Frampton Hall's staffing and the services provided to the

students there. The latter, as the record indicates, encompasses

speech and language therapy, physical education and therapy,

occupational therapy, otological, psychological and social

69a

work, movement science, and activities of daily living (ADL).

(Tr 567-568) Counsel then took up the IEPs for 1985-86,

asking about the comparison of individual Frampton Hall

students to Clifford in terms of functioning levels in order “to

determine whether the concept of peers for Clifford exists.” (Tr

586/19-20) "In some respects they are," Guarino said, adding

that "If we take the general terms, like gross motor, fine motor,

et cetera, and look at age and -- developmental age and

achievement levels; yes, in some areas.” (Tr 586/25; 587/2-4)

Referring to six students by number,!> with information

disclosed by IEPs and psycho-educational evaluations, the

inquiry turned to hearing ability, and Guarino said “they all

seem to have enough hearing to Understand speech.” (Tr

594/13-18) Moving on to the question of grouping, the witness

expressed doubts in this regard for the six students under

discussion because of one’s need for physical prompting and

another's seizures. (Tr 601/2-6) Later, referring to student

#12, the testimony indicated that this student functioned at a

level of 18-24 months and, similar to Clifford, engaged in

finger-flicking activity as a form of self-stimulatory behavior.

(Tr 614/21-25; 615/14-21) Is he a peer of Clifford's in the way

that he functions? “It (sic) certain areas probably he would be,”

said Guarino. (Tr 616/17-21)

Guarino had not personally observed Clifford, (Tr 618/16-

17) but from his educational evaluation it appeared to him that

Clifford is physically appropriate for his age. (Tr 619/11-13)

Student #12, also 17 years of age, has an educational plan at

IEB to address needs indicated by no interaction with peers,

self-stimulatory finger flicking behavior, increased stereotypical

behavior when excited, tantrum behavior, encouragement

required in exploring his!® environment, and the intellectual

equivalent of the functioning level of 60 months. (Tr 626/14-

25; 627/2-13) But Guarino did not admit that IEB couid do the

same for Clifford in Frampton Hall. (Tr 627/20-25; 628/2-8)

Pressed in regard to the degree of retardation in the case of #12,

15First names were used to begin with, then numbers only.

16"His” is used without regard to sex which is unknown.

70a

Guarino noted from the psycho-educational that "he is severely

handicapped,” but whether this means "severely retarded” he

didn't know. (Tr 629/4-14)!7

At IEB there are aggressive students, Guarino agreed, and

students who are on some forms of medication. (Tr 631/20-21;

632/14-25; 633/2-5) He understood Clifford to be taking

Haldol, (Tr 633/9-11) and IEB's students #32, 16 and 31 also

take Haldol. (Tr 637/25; 638/2-3) Other medication taken at

Frampton Hall was indicated, (Tr 638-647) but students still

make progress in the program. (Tr 647/17-20)

At the following session, September 30, Guarino’s

testimony indicated that the Frampton Hall staff has the

experuse to educate students who

are profoundly retarded

are older, younger or the same age as Clifford

have behavior problems

do not explore their environment

require physical prompting or hand over hand

instruction

- function within an 18-24 month cognitive level

- have gross motor capabilities at approximately the 24

month level

- require orientation and mobility training that includes

trailing skills

- respond t0 verbal commands as a means of instruction

- cannot communicate with less than or equal to a 36

month communication level

- havea full range of ADL skills above, beiow and about

the same as Clifford's 28 months, as well as those who

are totally dependent in their ADL skills

- require assistance in toileting, dressing and feeding.

(Tr 731-749)

!7Guarino’s testimony is sprinkled with "I don’t know,””Maybe,” “I'm not

sure” and other qualifying terms, reflective of his position as Director,

rather than program person, at [EB.

7la

Related testimony regarding instructional objectives was

forthcoming in conjunction with indications of staff expertise, a

goal being to increase independent functioning by the students.

Tr 749/10-21) In further questioning, immediately pnor to a

luncheon break, counsel obtained an affirmative response when

he asked if the Trott letter to SED (REx 3) listed all the reasons

for rejecting Clifford. After the break, however, Guarino said

his answer had not been complete in that he should have

mentioned that admissions criteria had come up in discussion

with Trott about the MDT recommendation for Clifford. (Tr

752/20-25; 753/2-11; 755/5-11) Guarino agreed that nothing in

the Commissioner's procedures or regulations precluded citing

admissions criteria as a reason for rejection, but he said that

“based on the fact that my work with SED, and the letters that

typically are transmitted about a student, contain student

information and not admission criteria information. That helps

in placement of the student in the appropriate program.” (Tr

756/20-25; 757/2-6) Similarly, regarding appropriate placement

for Clifford, Guarino said that SED cautioned IEB “not to

recommend a particular program; that that then becomes the

responsibility of the COH and/or SED.” (Tr 757/7-13)

Referring to records compiled by Respondent for

Petitioner, Guarino’s answers to further questions disclosed

that student #31 engages in frequent stereotypical and

disruptive behavior, ignores directions, is resistant to teaching,

and throws things unpredictably. (Tr 761/15-25; 762/16-25;

763/2-14) Golinker then brought out SED's comments, in a

1982 “Program Review Report" on IEB, about a

“Behavior/Management Class” in Frampton Hall for students

who are "severely impaired, acting-out formerly

institutionalized youngsters whose disruptive, agressive (sic)

and self-abusive behaviors represent the primary area of need in

programming.” (PEx 7 and Tr 771/6-22) Further questioning

concerned grouping and characteristics of students in Frampton

Hall, counsel introducing a chart of groupings for 1985-86.

(PEx 8) Guarino's further testimony indicated the presence of

self-abusive behavior, which staff tries to deal with, and limited

attention spans, also a matter for staff attention. (Tr 782-786)

Palmar and pincer grasps are indicated among Frampton's

72a

students, and staff has the ability to develop fine motor skills.

(Tr 786-789)

The cross-examination of Guarino, resuming October 1,

involved classroom groupings (PEx 8), the mix of ambulatory

and non-ambulatory students (PEx 9), and the medications

administered in Frampton Hall. (PEx 10 and 11) With respect

to staff expertise at IEB, covered in testimony at the previous

session, Guarino was asked if the qualifications of staff would

permit the development of a plan for Clifford. “No,” he said,

because what is missing includes "Teacher, teacher aide,

mobility, PT, which is physical therapy, OT, which is

occupational therapy, extra behavior management people

outside of the classroom. We would need extra consultants to

come in and help us with behavior management. We would

probably need ... (r)ehabilitation program assistance ..." (Tr

827/17-25; 828/2-5) But he then acknowledged that Frampton

Hall had six teachers, two aides in each class for a total of 12,

mobility instruction, physical therapy, occupational therapy,

and behavior management. (Tr 828-829) Guarino stopped short

on rehabilitation, although his answers to following questions

affirmed the education of profoundly retarded children in

Frampton Hall, and this includes training in ADL skills as well

as hand over hand instruction. (Tr 830-831) All of this, it

developed, was provided in September of 1984, (Tr 833-835)

and this applies to the related services specified for Clifford in

the MDT recommendation. (REx 3 or PEx 5 and TR 837/7-20)

The situation differs today, Guarino said, in that speech is

missing, but then he admitted that otological service, or speech

therapy, is provided. (Tr 837/21-25; 838/16-23)

Ensuing discussion concerned space and class size and

ratios of teacher-aide-student prescribed in SED review (5-1-2

and 6-1-2), leading up to agreement that if the 1985-86 rano of.

5-1-2 in two groups was increased to make all six groups 6-1-

2, there would be at least two spaces opened up for new

students. (Tr 850-875/2-5) Then the focus shifted to the SED

report on a “Special Education Program Review" of IEB,

transmitted to Guarino with a covering letter of 30 April 1985.

(PEx 12) Golinker read sections of the report beginning with

73a

SED's perception that "The present admission and discharge

criteria are relatively vague, and did not apply to the mulu-

handicapped population currently enrolled ..., to which

Guarino responded in part that "... this recommendation is just

that ... a program recommendation ... (and) (w)e need not

follow that recommendation.” (Tr 881/15-18 - 889/13-17)

Golinker returned attention to the MDT recommendation (PEx 3

or REx 5), referring Guarino to Frampton Hall's IEPs for

1984-85, (PEx 16) the IEPs for 1985-86, (PEx 17) and

psychoeducational evaluations of Frampton Hall students, (PEx

i8 ) and consumed the remainder of the time October 1 in

having the witness answer questions about the comparison of

— to students in the Frampton Hall program. (Tr 895-

)

Exhibits introduced at the beginning of the session October

4 included the floor plan of Frampton Hall. (PEx 16A) !8 The

allocation of space was considered at length, then again a

comparison of Clifford with Frampton Hall students, and

Guarino agreed "that you could employ the term peers in the

sense of referring to students at the institute who were grouped

on the basis of having similar needs or requirements and in turn

were receiving similar services addressed to those needs and

requirements.” (Tr 971/21-25; 972/2) Noting that Clifford fits

within the range of functioning of students in group/class #1,

(PEx 8) with reference to age, mix of ambulatory and non-

ambulatory, day and residential, intellectual, personal, social

and motor, Golinker asked what else would need be known.

Guarino: "Some staff judgment relative to how he would fit

with that group.” (Tr 980/11-21) The mix of #1 also involved

some with hearing and some without. (Tr 984/20-24)

This process of comparison continued with counsel turning

to group #2 in regard to: age, ambulatory/non-ambulatory, day/

residential, intellectual, educational, personal/social, fine

motor, gross motor, ADL, medication, hearing and

communication. Are they peers of one another? Guarino: "In

\8This was marked "Ex 16” by the reporter, but I have added the “A” to

distinguish from “PEx 16” noted above.

74a

relation to age, chronological age, and some of the achievement

levels and some of the communication areas, I would say yes."

(Tr 989-1000/3-7)

Redirect examination by Barrett October 4 involved the IEB

admissions criteria and the omission of any reference to them in

the MDT recommendation for Clifford, more appropriate

placement and program, and the time taken by IEB in

processing the Burr referral, all apropos the requirements of the

Commissioner's Regulations for #4201 schools. Regarding

time to act, Guarino said "I believe it's 40 days from the date of

receipt of referral by the 4201 school ... to notify in writing the

department ... school workdays." (Tr 1033/14-23) Extenuation

was thereafter asserted by the witness. Admissions came up

again, and it was indicated that new criteria were adopted in

February, 1985, although "discussed several months before

then by the board.” (Tr 1077/3-13 and REx 23) This led into

explication of future plans for IEB, including particularly in this

instance Frampton Hall. As far as the IEB recommendation for

Clifford is concerned, Guarino testified "I can't think of

anything that was omitted.” (Tr 1082/7-10; 1084/18-21) About

groupings, relevant considerations are "(f)unction (sic) ability

... age, behavioral characteristics, physical size ... the key ones

... all considered together in a composite." (Tr 1094/12-17)

The factors affecting admission are the same and, in addition,

“we would look at those factors which have a match with the

admission criterion, along the same lines, physical, intellectual

or educational or behavioral, medical also." (Tr 1096/4-13)

And once a student is admitted, Guarino said, he or she would

not be discharged because of changing circumstances without a

more appropriate placement being available. (Tr 1099/4-9)

Laura Colamonico, who supervises the educational

program in Frampton Hall, was recalled December 4 for

redirect examination by Barrett. She described further the

population in the program: "... primarily deaf/blind ... a term

used at the Institute ... for students who have congenital rubella

at birth which manifested itself in either loss of hearing or loss

of vision, and some mental retardation and other characteristics

besides.” (Tr 1449/ 5-15) Of 34 students presently enrolled in

75a

the program, 24 are deaf/blind with sign language “probably

the primary form of communication with these students." (Tr

1449/18-25; 1450/7-9) Colamonico feels that "(y)ou try not to

group verbal students ... with students that are using vision for

sign purposes ..." (Tr 1450/20-22) She had heard tesumony

about Clifford's communication skills, his highest functioning

level, and said that only one class in Frampton Hall now has

verbal students. Also, apropos Clifford's educational needs in

terms of ADL, she said her program does provide training in

“dressing skills and eating skills, and some grooming actvites,

just to mention a few, (but) the focus for the ADL has been

primarily in residenual programs.” She went on to say that the

verbal group is higher functioning with ADL than Clifford, and

in other groups the emphasis is on physical prompting, or

signing, which would not be appropriate for Clifford. (Tr

1452-1454) She explained about the process of grouping,

which considers the whole child and not merely individual

characteristics, taking account of functional age,

communication, mobility and ADL, as well as medical needs.

All of this takes place with due regard for the considerations

specified in #200.6(f) of the Regulations of the Commissioner

of Education: academic or educational achievement and learning

characterisucs; levels of social development, levels of physical

development; and management needs. (Tr 1455-1456)

Regarding Golinker'’s approach in questioning Guarino, the

testimony of Colamonico raised questions about “taking just

specific individual characteristics and comparing them to a

student in Frampton who had just one characteristic or one

functional level that was similar." (Tr 1457/7-11) Turning to

existing groups, she described #1 as non-verbal with little

interaction, some tantrum behavior and self-abuse, needing

work on gross motor skills. Appropriate for Clifford? Not so,

in her judgment, given his skill for verbal communication and

his behaviors. (Tr 1462/1463) Group #2 is composed of six

aging out, deaf/blind students, ADL is a strength, and it would

not be appropriate for Clifford because it is a non-verbal group,

and “there would be no students in terms of conversanonal

skills to interact with." (Tr 1469/2-3) The third group is 6-1-2

with five deaf/blind, three with hearing, but in all a non-verbal

76a

group. Also, there are behavior problems in the group, and "to

develop a program for Clifford would be difficult (so) this

group would be inappropriate." (Tr 1473/15-19) Group #4 is

the same size, primarily still a young group with five deaf/blind

because of rubella, and "on a higher level overall than the other

students in Frampton -- than some of the other students in

Frampton.” (Tr 1476/25; 1477/2-3)

Turning to group #5, which is 6-1-2 with a 3-3 split

between ambulatory and non-ambulatory, Colamonico said it is

not a deaf/blind group, and four of the students are verbal. She

described their speech, suggesting just the possibility of their

having expressive abilities at a higher level than Clifford's. (Tr

1477-1479/19-25) Regarding ADL, there is "(n)ot necessarily"

any instruction, as it "has really been stressed more in the

residential program.” But two of the students are day students,

and "the ADL skills ... eating and toileting ... (are) a focus for

that group.” (Tr 1480/5-11; 1481/3-10) Three students have

seizures, but "(n)one of these students exhibit aggressive

behavior." (Tr 1481/18-19; 1482/11-12) For this group, she

said, "you hope to create a safe kind of environment and quieter

environment. " (Tr 1483/18-20)

In group #6, the witness explained, there is a ratio of five

students to one teacher and two aides. Four students are

deaf/blind, four have some hearing, gestures and signing are

used to communicate, and three students are hyperactive. The

group "would not be appropriate for verbal students," one

reason it would not be appropriate for Clifford. (Tr 1484-

1485/14-15; 1487/ 9-12) Attention then having been returned to

group #5, Colamonico said regarding Clifford that "I guess

ADL is an area he would need some work ... not a main focus

of that group." She added that “the fact that he had exhibited,

when demands were placed on him, some behaviors that can be

demanding on the group ... I believe for those two specific

areas, that would not be a group for him." (Tr 1487/13-25)

Summing up about the groups, Barrett suggested that "the only

verbal group at Frampton Hall has been excluded by you as

appropriate for Clifford, whose strength is verbal skills, for

77a

other reasons," and Colamonico said: “That is correct." (Tr

1488/2-6)

The witness feels a commute of 1-1/2 hours each way

would be "demanding on anyone ... not a good idea" (for a

student such as Clifford). (Tr 1488/16-25) Nor would

outdoor travel be part of Clifford's instructional program at IEB

as far as mobility training is concerned. This was part of further

testimony about bus travel to IEB for commuting students, (Tr

1488-1493) and Colamonico then said that the Frampton Hall

Classes presently “are crammed.” (Tr 1493/21-22) She spoke

of the admission and discharge procedures, least restricuve

environment as she understood the term, the self-contained

Situation at Frampton Hall, and the Track IV program in PS

396 where she had made a visit and believes Clifford "would fit

in nicely ... in terms of his communication and the skill areas

that he would need ... that it is close by to his home, and also

that he would be receiving the same special services that he

needs, such as occupational therapy, physical therapy, speech,

and there is a vision specialist there ..." (Tr 1512/16-25;

1513/2-6) Redirect concluded with opinions from Colamonico

that there is no class at Frampton Hall appropriate for Clifford,

based on present grouping, because of “his needs in

communication, and in providing him with a program that

would provide him with the needs of physical prompting ...

and also that the idea that a least restricuve environment -- there

could be another appropriate environment for him.” (Tr 1519-

1520/12-19)

Beginning recross-examination, Golinker introduced the

Guarino memo of 7 March 1985 to staff and parents enclosing

a copy of the "Executive Summary — Srrategic Planning

Report."* Testimony dealt with the difference in groupings

from 1984-85 to the current school year, and Colamonico

agreed that "lots of the students at Frampton Hall have

functioning level characteristics that are similar to those

exhibited by Clifford." (Tr 1525/11-19) Continuing, topics

covered included the verbal students in Frampton, funcuonal

* PEx 25

78a

levels, ADL skills, ambulation, hearing loss, mental ages,

physical prompting, hand over hand instruction, change in

groupings within the year, and total communication. (Tr 1527-

1536) Asked if there are any characteristics of Clifford that are

not found among the Frampton Hall students, Colamonico said:

"One area that comes to mind is behavior. To be specific, the

pulling of hair, and the scratching, I believe. As far as

behaviors, I don't see that in my program.” (Tr 1537/14-20)

But she acknowledged the presence of those students who are

hyperactive, who display disciplinary behavior, who are highly

distractable, and for whom there is a behavior management

pro There are self-abusive students, aggressive students,

body-rockers and head-rockers, and, according to IEP/1985 for

student #15, one who "resists supervision, scratching

frequently and lies on the floor." (Tr 1539-1540/2-3 and PEx

17) There are grabbers, students who yeli, and those for

whom there is a need to use a pincer grasp and/or to use a

palmar grasp. Some are on a toileting schedule, some need

assistance in eating and dressing, some with mobility and

trailing as goals, who receive speech and occupational therapy,

orientation and mobility training, and adaptive physical

education. (Tr 1541-1542)

Golinker recalled Colamonico's testimony in May that there

was a student in Frampton Hall similar to Clifford, and she said

this was #38. He is 18 years old, has normal hearing and uses

sentences, and is placed in group #5. The similarities she had in

mind, said Colamonico, are functioning level, verbal, and age.

(Tr 1545/20-25 - 1547/2-5) Answering the questions that

followed, Colamonico said that “there are specific

characteristics that Clifford Burr has that students at Frampton

also have ... (but) (t)here are no groupings appropriate for

Clifford." (Tr 1549/3-22) At the same time, it appears from her

further testimony, staff at Frampton Hall educates students with

the following characteristics:

profoundly retarded

blind

verbal

interfering behaviors

79a

- highly distractable

- on medication

- learn by physical prompting

- learn by hand over hand instruction

- can speak

- have no hearing loss

- are day students

- are ambulatory

- need behavior management

- mouth objects

- have limited exploration of objects in their environment

- may not interact with other students in the classroom

- use palmar grasp

- need assistance in toileting, eating and dressing

- need help in traveling and related services

- Teceive speech therapy

- receive physical therapy

- feceive occupational therapy

- receive orientation and mobility training

- receive adaptive physical education

and "(w)e have the ability to educate the students that are in

Frampton Hali." (Tr 155i-1554/2-10) Question: "Is there

anything by way of staff expertise that you couldn't provide at

Frampton Hall as a program for Clifford?" Answer: "Presently,

after going through the groupings and all, no, but as far as

what you said, going through every single category, my staff is

able to do that." (Tr 1555/19-25)

On December 11 Respondent's witness, pursuant to

subpoena, was Kenneth Burr, and his direct examination was

conducted by Rosenberg. From the testimony of Clifford's

father one learns that "...from the earliest ... my wife has been

involved with a new pattern ... an idea of reaching very young

children, like reverse process of reaching different parts of the

brain and stimulating the body in different ways.” (Tr 1731/5S-

12) Until six years of age Clifford was in a preschool program

in Brooklyn, then in a program at the Jewish Guild for the

Blind (JGB) for 5-6 years and, after that, at AABR in Queens

until 1984. He left JGB at the school’s request as "(t)hey felt

ee

80a

that they just couldn't provide services ... he needed any more,

and that he would be better off in a different, more stimulating

type program.” It appears, according to Burr, that "(t)hey

preferred not to keep or accept a blind, low functioning child.”

His further education at AABR came to an end when “they

closed the dayschool program.” The Burrs were pleased with

AABR, and they were in contact with the COH when its

closing was announced. This led to the suggestion of PS 396,

made in May of 1984, but "(t)here was nothing to look at”

then. The parents took a look in September, 1984, at which

time #396 had children who had been at AABR, but the Burrs

did not like the idea of this placement. The assistance of

various people was obtained, a referral to the State-school in

Batavia was declined as not an appropriate placement in their

judgment, and referral to IEB by SED followed in September,

1984. Other possibilities for placement came to the attention of

the Burrs, including United Cerebral Palsy/Manhattan, which

“could have been appropriate,” but the COH said placement

there “will never be allowed.”

To IEB, for an evaluation November 26, the mip had taken

less than an hour, less ume than Clifford's commute to AABR.

Attending the latter, Clifford was picked up at 7:00-7:20 a.m.

and delivered about 8:30. Previously, traveling to and from

JGB, he had been in a wheelchair toward the end of the five-

year period because “the bus people did not want to bother

helping my son off the bus.” Although Burr said “(m)y son is

not aggressive,” he admitted that Clifford did pull his mother's

hair during the interview at IEB. (Tr 1732-1786)

Under cross by Golinker, the testimony disclosed that

Clifford had received home instruction in September, 1984,

which continued until April, 1985, and "(i)t was reinstated just

recently.” This appears to have resulted from the Burr appeal

from the COH recommendation for #396 placement, and this

involved a hearing which “confirmed that the Board's

recommendation was not appropriate.” (REx 25) At IEB, Burr

said, Trott had told him that “we have not accepted a child at

Frampton Hall for over three years ... (and that) (w)e are going

to slowly phase out the children here.” (Tr 1794/12-13, 18-19)

8la

Regarding Clifford, his father said that he had not been in a full

day education program since June, 1984, and as a result “his

attention span has lessened.” At home he does not throw food

or utensils, but requires toileting assistance and help with

handwashing, toothbrushing and facewashing. His eating skills

have also regressed during his period at home.

Clifford received Haldol at JGB, which wanted to increase

the dosage greatly, but this was not done at AABR. Having

said this, Burr then described his son's activity at home ...

"(b)asically he gets around the house by himself, and he

explores his environment ... discovered the bedroom (but)

basically stays in the living room” where he has his chair and

his bed. "He goes from his bed to his chair. He goes into the

kitchen when he wants to cat, sits down in his own chair.

When he goes to the bedroom ... he has to go into the kitchen,

make a left-hand turn, make a right-hand turn, and another nght

down the long hallway to go into the bathroom ... So he is

very ambulatory in the house. We notice that he does use some

of the trailing techniques learned at the AABR school, whereby

if he is not sure when he makes a turn, he will feel the wall,

trail the wall, a little bit, get his bearings and continue to where

he is going ... And outside, he is dependent on the sighted

guide technique.” (Tr 1787-1803)

Respondent recalled Colamonico for the final testimony in

the presentation of its case. She said that it was no secret at

IEB, which had been established in 1831, about phasing out

the program of Frampton Hall. She said the busing procedure

is not part of the instructional program, and she would not be

available to help in meeting the bus upon the arrival of a student

such as Clifford. She explained the self-contained nature of the

Frampton Hall program where the groupings are more

important than in the case of departmental organization. IEB,

she said, was designated as a regional center to educate the

deaf/blind population, those who have congenital rubella with

manifestation of visual impairment, or who are blind, and

various degrees of hearing impairment. Colamonico offered

the opinion that JGB is more like Frampton Hall than

This text is long and has been trimmed here. Open the source document for the complete record.