Russman v. Board of Education of Watervliet
United States Court of Appeals for the Second Circuit (1997)
September 22, 1997
United States Court of Appeals for the Second Circuit
Re: Russman v. Board of Education of Watervliet,
Pursuant to FRAP 29, and upon the written consent of both parties (copies of which accompany this letter), Agudath Israel of America respectfully submits this letter brief as amicus curiae in support of plaintiff-appellee Russman. In accordance with the September 8, 1997 directive from the clerk's office to counsel for the respective parties, the focus of this letter brief will be exclusively on the impact of the 1997 IDEA amendments.
Agudath Israel is a 75-year-old national Orthodox Jewish movement. One of its functions is to advocate the interests of the network of elementary and secondary schools that come under the umbrella of the National Society for Hebrew Day Schools, and the growing number of families who choose Jewish education for their children.
Among the most vexing problems Agudath Israel has grappled with over the years has been special education services for handicapped children enrolled in Jewish schools -- an issue that has also occupied the attention of many other nonpublic school groups and families throughout the country. Despite the IDEA's clear mandate that all handicapped children be provided with appropriate services, children enrolled in nonpublic schools have all too often been unable to access the important benefits of the law. One reason for this is that, while it has long been clear that a school district must bear the costs of private special education when there is no appropriate public school placement, the precise parameters of a school district's obligation to children whose parents voluntarily enroll them in nonpublic schools has been the subject of considerable controversy.
This controversy, which was reflected in several conflicting circuit court rulings -- as described in this Court's initial decision in this case (Russman v. Sobol, 85 F.3d 1050 (2d Cir. 1996); see discussion in Fowler v. Unified School District No. 259, 107 F.3d 797, 803-04 (10th Cir. 1997) -- has now been laid to rest, we are assured by the U.S. Department of Education. In an informal summary of the 1997 IDEA amendments, the Department opined as follows:
Agudath Israel submits, however, that the matter is far from definitively resolved. It would be a mistake to read the IDEA as absolving states and local school districts from any independent obligation toward handicapped children voluntarily enrolled in nonpublic schools. For a school district to refuse to furnish special education services to such children would be, at least under certain circumstances, totally incompatible with both the letter and the spirit of the IDEA. Certainly, school districts are permitted to use nonfederal funds to service such children if they so choose -- as the Watervliet School District was apparently prepared to do in this case had it not been concerned that servicing Colleen Russman at the site of her religious school would violate the Establishment Clause, see 85 F.3d at 1057. And, just as certainly, school districts are authorized to provide such services on the nonpublic school site.
The key provisions of the amended IDEA statute, insofar as they relate to this specific issue, are 612 (10)(A) and (C)(i):
Thus, "subject to subparagraph (A)" -- more on this crucial statutory caveat in a moment -- IDEA "does not require" a school district to expend funds to cover special education costs of handicapped students voluntarily enrolled in nonpublic schools. The clear implication of 612 (10)(C)(i), therefore, is that nonfederal expenditures, though not necessarily required, are permitted. And, once a school district chooses to make such expenditures -- as apparently is (or at least was) the case here -- 612 (10)(A)(i)(II) makes clear there is no impediment to servicing such students on their own school sites. See generally Agostini v. Felton, 1997 WL 338583 (U.S. 1997).
As the "subject to subparagraph A" clause of 612 (10)(C)(i) makes clear, moreover, there are certain expenditures that IDEA affirmatively mandates on behalf of handicapped students voluntarily enrolled in nonpublic schools -- the expenditures envisioned in subparagraph (A). These include "a proportionate amount of Federal funds," 612 (10)(A)(i)(I) -- and also expenditures pursuant to the state's "child-find" obligations, 612 (10)(A)(ii).
The "child-find" requirements are spelled out in 612 (3)(A), under which a state must identify, locate and evaluate all children with disabilities, including those enrolled in nonpublic schools, and "develop and implement" a practical method "to determine which children are currently receiving needed special education and related services." The purpose of this process, one would logically assume, lest it be nothing more than an expensive exercise in frustrating futility, is to ensure that those handicapped children currently not receiving services be given meaningful opportunity to receive them -- consistent with the state's obligation under 612 (2) to establish "a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal."
There may be times, therefore, when it would be inconsistent with its child-find obligations for a school district to shirk its responsibility to handicapped children voluntarily enrolled in nonpublic schools. An example would be a special education service that can reasonably be provided only during regular school hours on the premises of the school the child attends. As this Court noted in its earlier ruling, 85 F.3d at 1057:
The Tenth Circuit made a similar point in Fowler, supra, 107 F.3d at 806:
In sum, when Congress in 612 (10)(C)(1) exempted (not prohibited) states and local school districts from paying the costs of special education services for children voluntarily enrolled in nonpublic schools, it did so "subject to subparagraph (A)." Subparagraph (A), in turn, imposes two separate obligations on school districts: to expend a proportionate amount of Federal IDEA funds for nonpublic school children; and to satisfy their obligations to such children under the "child-find" requirements of the law. Agudath Israel respectfully submits that those obligations are substantial; that they belie the suggestion that the 1997 IDEA amendments have absolved school districts from taking concrete steps to address the special education needs of handicapped children voluntarily enrolled in nonpublic schools; and that they oblige the Watervliet School District to furnish Colleen Russman with the services she requires on the site of her parochial school.
Thank you for your consideration of our views.
cc: Nancy Maurer, Esq., counsel for plaintiff-appellee Russman
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