Greve v. Board of Education

43 A.D.2d 851, 351 N.Y.S.2d 715, 1974 N.Y. App. Div. LEXIS 5912
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 21, 1974
StatusPublished
Cited by5 cases

This text of 43 A.D.2d 851 (Greve v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greve v. Board of Education, 43 A.D.2d 851, 351 N.Y.S.2d 715, 1974 N.Y. App. Div. LEXIS 5912 (N.Y. Ct. App. 1974).

Opinion

In a proceeding under article 78 of the CPLR, the appeal is from a judgment of the Supreme Court, Nassau County, entered January 17, 1973, which directed appellant [852]*852board of education td provide, pursuant to section 912 of the Education Law, an itinerant teacher for the petitioner child at the St. Thomas the Apostle School in the same manner and to the same extent appellant provides in its own schools to students with an auditory handicap. Judgment affirmed, with $20 costs and disbursements. We agree with Mr. Justice Shapiro that if the special teacher, whose salary is paid by appellant out of tax-raised moneys, is used by the parochial school to teach religion to the child here in question, whose hearing is so impaired that he requires special training to minimize his deafness, it, would be in violation of the First Amendment of the Constitution of the United States (Lemon v. Kurtzman, 403 U. S. 602) and section 912 of the Education Law. However, we do not agree that the special educational assistance necessary to aid the child in overcoming his auditory handicap must therefore be withheld. Neither the public school authorities, the parochial school authorities, nor anyone having to do with supplying this aid would, in our view, use the special “hearing aid” teacher to teach religion' and thereby violate the spirit of this determination, the Constitution of the United States and the eases which interpret it and the statute law of this State. Since use of the teacher for that purpose could seriously endanger the continuation of this valuable service, no one could or should be reasonably expected to violate this caveat. If religious instruction is to be given to this child with an auditory handicap, it will have to be done without the aid of the special teacher. Hopkins, Acting P. J., Christ and Brennan, JJ., concur; Shapiro, J., dissents and votes to reverse and to dismiss the proceeding, with the following memorandum: In this case we are faced with the heartrending problem of having to determine whether a physically handicapped child (in this case a child suffering severe loss of hearing) is to be denied access to a helpful educational service to which he would clearly be entitled if he were enrolled in a public school. The judgment .appealed from directs the appellant board of education "to provide at its own cost and expense an itinerant teacher for Michael Greve to provide Michael Greve with the same services on the same basis, in the same manner and to the same extent as it now provides for students in its own schools with an auditory handicap and that said services be provided to Michael Greve at St. Thomas the Apostle School.” It is with regret that I have concluded that the applicable provisions of our State and Federal Constitutions1 bar the board from so doing. The duties of the itinerant teacher whose services Special Term has directed the board of education to provide to the petitioner’s child are described by the appellant’s Assistant Superintendent of Schools as the giving of " instruction in auditory training, speech reading, language and speech development and supportive education or tutorial assistance in curriculum [853]*853areas indicated by the individual needs of each student.”2 The same authoritative source states that this “ special instruction is offered to students who attend their regular classes and receive special instruction at their regular school two or three times each week for a period of forty-five minutes to an hour” and that “ the itinerant teacher confers with the regular teacher among othersf m planning his work ” and “ provides supportive instruction in the regular curriculum with the proper use of auditory equipment ” and “ provides instruction in lip reading and speech communication skills” (emphasis supplied). The Assistant Superintendent also states in his affidavit, “ The children who receive this special instruction take their regular class textbooks with them from their classroom to the itinerant teacher,” whose function is “ to instruct the child despite his handicap, and thereby reduce the disadvantage of the child through learning techniques” (emphasis supplied). We are faced here with the problem of drawing the line between services which the State or its subdivisions may provide to all such children, such as health and welfare services and facilities, which include “ health, surgical, medical, dental and therapeutic care and treatment, and corrective aids and appliances” (Education Law, § 912)3, vis-a-vis educational services such as those described by the. Assistant Superintendent, which include such matters as “ tutorial assistance in curriculum areas,” involve conferring “with the regular teacher among others” of the physically handicapped child and provide him with “supportive instruction in the regular curriculum” (emphasis supplied). In dealing with the validity of the use of public funds to assist children enrolled in parochial schools by providing them with free secular textbooks, a service provided to children attending public schools, the Supreme Court of the United States in Lemán v. Kurtzman (403 U. S. 602, 612-613) formulated a threefold test of constitutionality for such aid under the establishment-of-religion aspect of the First Amendment: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 243 (1968); finally, the statute must not foster 'an excessive governmental entanglement with religion.’ Walz [v. Tax Comm., 397 U. S. 664].” This test Was reaffirmed and restated in Committee for Public Educ. v. Nyquist (413 U. S. 756, 772-773) in the following words: “The now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause eases. Taken together, these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e. g., Epperson V. Arkansas, 393 U. S. 97 (1968), second, must have a primary effect that neither [854]*854advances nor inhibits religion, e. g., McGowan v. Maryland, supra; School District of Abington Township v. Schempp, 374 U. S. 203 (1963), and, third, must avoid excessive government entanglement with religion, e. g., Walz v. Tax Comm’n, supra.”

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Bluebook (online)
43 A.D.2d 851, 351 N.Y.S.2d 715, 1974 N.Y. App. Div. LEXIS 5912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greve-v-board-of-education-nyappdiv-1974.