# Appendix — Sobol v. Burr ex rel. Burr

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1005

## Text

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

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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 (19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0896%3A2. Public record. Not legal advice.