Rowley ex rel. Rowley v. Board of Education

632 F.2d 945

• Court: Court of Appeals for the Second Circuit
• Decided: July 17, 1980
• Docket: No. 1105, Docket 80-7098
• Status: Published

Opinions

PER CURIAM:

This case is about Amy. She is eight years old. She is deaf and has been since birth. She needs a sign language interpreter in her classroom to enable her to have the same educational opportunity as her classmates. The district court, Vincent L. Broderick, District Judge, held that she is entitled by law to have such an interpreter. We agree and accordingly we affirm the judgment of the district court.

Amy Rowley presently is enrolled at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, New York. In accordance with the requirements of federal law, The Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (1978) (the Act), the School District prepared an individualized education program for Amy.¹

Her parents objected to the program because no provision was made for a sign language interpreter. Accordingly, they commenced proceedings under New York law for the administrative review provided by the Act.² When the School District’s decision not to provide an interpreter was upheld by the Commissioner of Education of the State of New York, the Rowleys, individually and on behalf of Amy, commenced the instant action in the Southern District of New York under Section 1415(e)(2).³ The School District was named as defendant and the Commissioner subsequently was added as a necessary party defendant.

After a four day evidentiary hearing and after reviewing the records of the administrative proceedings, the district court made detailed findings of fact and concluded that Amy had been denied a “free appropriate public education” provided by the Act.⁴ The court ordered the School District and the Commissioner to provide an interpreter during Amy’s academic classes. 483 F.Supp. 528. The court also denied the Commissioner’s motion to dismiss for lack of jurisdiction. 483 F.Supp. 536. From the judgment entered on the decisions of the district court, the School District and the Commissioner have appealed.

Our careful review of the record satisfies us that the district court’s findings of fact are not clearly erroneous, but are adequately supported by the evidence. We also agree with the district court’s conclusions of law. Accordingly, we affirm substantially for the reasons set forth in Judge Broderick’s well-reasoned opinions of January 15, 1980, adding only the following brief observations of our own — chiefly to focus upon certain critical evidence.

Amy is the child of deaf parents. Since her birth, her parents have communicated with her by a method which includes the use of sign language, visual cues, the mouthing of words, and amplification.

Amy is a bright child. Despite her handicap, she performs above the median standard of her class. The district court attributed this to her intense desire to learn and the extraordinary degree of additional academic help and support she receives from her parents.

Like many deaf people, Amy has some residual hearing. In her classroom she uses an FM wireless hearing aid. She also reads lips. This is a limited skill, however, under the best of conditions. Many sounds are not visible on the lips and communication is impossible when the teacher and students are not facing Amy.

The district court found, based on the evidence before it, including Amy’s auditory speech discrimination tests, academic records, and observations of her in the classroom, that Amy misses a substantial part of what goes on in her classroom. The court found that, while only 59% of what transpires is now accessible to Amy under her present individualized education program, with a sign language interpreter 100% would be accessible to her.

The court therefore concluded that the services of an interpreter were needed “to bring her educational opportunity up to the level of the educational opportunity being offered to her non-handicapped peers.” 483 F.Supp. at 535. The court held that Amy was entitled by law to have an interpreter during any school period when academic subjects are taught. We agree.

Section 1415(e)(2), supra note 3, provides that the district court’s decision must be based “on the preponderance of the evidence”.⁵ The decision in the instant case clearly is supported by a preponderance of the evidence. Moreover, the court weighed and evaluated the evidence with great care. In affirming the judgment of the district court, we are satisfied that the court meticulously applied precisely the standard pre-. scribed by Congress.⁶

Finally, we wish to emphasize the narrow scope of our holding. This is not a class action in which the needs of all deaf school children are being determined. The evidence upon which our decision rests is concerned with a particular child, her atypical family, her upbringing and training since birth, and her classroom experience. In short, our decision is limited to the unique facts of this case and is not intended as authority beyond this case.⁷

Affirmed.

1 . Unless otherwise stated, all statutory citations in this opinion are to sections of the Act as codified in 20 U.S.C.

Section 1414(a)(5) provides:

“[T]he local educational agency or intermediate educational unit will establish, or revise, whichever is appropriate, an individualized education program for each handicapped child at the beginning of each school year and will then review and, if appropriate, revise its provisions periodically, but not less than annually”.

In September 1978, when Amy entered the first grade, her program was prepared by the School District’s Committee on the Handicapped and her teacher. Under the program Amy was placed in a regular classroom and was provided with an FM wireless hearing aid. She was assigned to a one hour session each day with a tutor for the deaf and three hour-long sessions each week with a speech therapist.

The same services are still being provided. Although Amy is now in the second grade, the issue presented in this case is the same for both school years.

2 . Procedural safeguards for the provision of free appropriate public education to handicapped school children are set forth in Section 1415.

Following the procedure established by the State of New York, the Rowleys first requested the District’s Committee on the Handicapped to reconsider its recommendation. When the Committee finally refused to recommend that an interpreter be provided, the Rowleys appealed to an Independent Hearing Officer. The Officer upheld the decision of the Committee. His decision was appealed by the Rowleys to the Commissioner of Education of the State of New York.

3 . Section 1415(e)(2) provides:

“Any party aggrieved by the findings and decision made [in the administrative proceedings pursuant to § 1415] shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”

4 . The Act requires that all state and local educational agencies which receive funds under the Act provide each handicapped child with a “free appropriate public education”. Sections 1412(1), 1414(a)(1).

A "free appropriate public education” is defined in Section 1401(18) as

“special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate pre- school, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.”

Appellants concede that the definition of “special education”, Section 1401(16), and “related services”, Section 1401(17), and regulations promulgated pursuant to the Act, are sufficiently broad to encompass a sign language interpreter. Appellants nevertheless claim that an interpreter is not required in Amy’s case.

5 . This is a different standard of proof than that which originally had been proposed. The initial bill passed by the House had provided that the determination of the state agency would be “conclusive in any court of the United States if supported by substantial evidence . . . H.R.7217, 94th Cong., 1st Sess., reprinted in H.R.Rep.No.332, 94th Cong., 1st Sess. 56 (1975).

6 . Appellants also bring up for review the district court’s ruling which admitted in evidence three affidavits which were attached to appellees’ petition for review by the Independent Hearing Officer, but were not considered by him. We find it unnecessary to reach this claim, since the statutory standard of proof by a preponderance of the evidence has been complied with in this case without reliance on the affidavits.

7 . A majority of the panel of this Court which heard this appeal on May 1, 1980 voted shortly thereafter to affirm the judgment of the district court and to do so pursuant to a provision of the Rules of our Court which would preclude citation of our decision as authority in any other case, thus recognizing what we believe to be the lack of precedential character of our decision in view of the unique facts of this case. We continue to adhere to that view.