QUESTION PRESENTED
Whether this Court's determination in Board of Educ. v. Rowley, 457 U.S. 176, 206 (1982),
binds a district court judge to the decision of the administrative review officer, when that officer is
required to have little or no particular expertise in education matters, and when the decision
concerns the appropriateness of a private educational placement and not a choice of educational
methodology, that is, whether the discretion of the district judge is solely limited to rulings based
upon procedural issues or upon interpretations of law?
PARTIES TO THE PROCEEDING
Petitioner M.S. is the parent of S.S., a child with a disability, both of whom reside in the
respondent's school district.
Respondent, Board of Education of the City School District of the City of Yonkers ("Board
of Education"), is a government entity charged by law with responsibility for the operation,
management, and control of the City School District of the City of Yonkers.
Petitioner, M.S. on behalf of S.S., respectfully requests that a writ of certiorari be issued to
review the judgment of the United States Court of Appeals for the Second Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Second Circuit is reported at
M.S., on behalf of S.S., his minor child, v. Board of Education of the City School District of the
City of Yonkers, 231 F.3d 96 (2d Cir. 2000). (App. A.) The opinion of the District Court in M.S.,
on behalf of S.S., his minor child, v. Board of Education of the City School District of the City of
Yonkers is unreported, but is reproduced in the Appendix. (App. B).
STATEMENT OF JURISDICTION
The judgment of the United States Court of Appeals for the Second Circuit ("Court of
Appeals") was entered on October 26, 2000. Pursuant to Supreme Court Rule 13.1, this petition
has been filed within 90 days after entry of the judgment. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
28 U.S.C. § 1415 (i)(2) (the "Individuals with Disabilities Act" or "I.D.E.A.") provides,
in relevant part:
In general
Any party aggrieved by the findings and decision made under
subsection (f) or (k) who does not have the right to an appeal under
subsection (g), and any party aggrieved by the findings and decision
under this subsection, 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.
Additional requirements
In any action brought under this paragraph, the court
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.
STATEMENT OF THE CASE
A. Background
At the time this case was initiated, S.S. was a nine-year-old child in the third grade PEARLS
Program (Program for Early and Rapid Learners) in the respondent's Hawthorne School. JA 10,
159, 165. The PEARLS program is a general education program for gifted and talented children
selected by scores on a psychological evaluation upon entering the pre-kindergarten program. JA
7.
His kindergarten report card indicates that S.S. had difficulty keeping up academically and
was deficient in the basics. JA 210. His first grade teacher noted his attentional needs, and his
second grade teacher remarked that he still struggled with reading. JA 210. The third grade report
card indicated that not only was S.S. below grade level in most areas, but that he was extremely
active and easily distracted, as well. JA 14, 210. Since the screening test used for evaluating three
to four-year-old children for PEARLS is highly verbal, problems such as those experienced by S.S.
may not yet be apparent at that early age. JA 10.
As S.S. began to exhibit difficulty, he began tutoring outside of school and later received
Computer Assisted Instruction (CAI) while in school. JA 13. School report cards indicate that
S.S. received extra help from his teacher during the 1993/1994 school year; that his aunt, a fourth
grade teacher, tutored him throughout the 1994/1995 school year; that during the 1995/1996
school year he received CAI services; and that during the 1996/1997 school year he received both
private tutoring and resource room services; yet, with a history of private interventions, at least
some at the suggestion of school officials, Board of Education representatives never referred S.S. to
the Committee on Special Education ("C.S.E.") for special education services. JA 34-35, 163,
209.
S.S. was finally referred to the C.S.E. by his parents during the third grade as they believed
that difficulties in reading and writing would effect other subject areas as well. JA 8. The C.S.E.
evaluated S.S. and found that his verbal I.Q. of 119, was thirty-two points higher than his
performance I.Q. of 87, indicating that S.S. had difficulty in visual-motor tasks. JA 8-9. This
significant discrepancy of approximately twenty-five percent indicated a learning disability,
according to the C.S.E chairperson, who holds a Master's Degree in Special Education. JA 7, 13.
According to his third grade teacher, S.S. experienced weakness in the areas of word attack
skills, phonic skills, spelling, and creative writing, and in his attentional skills. JA 20-22. However,
there is some controversy regarding what his actual academic performance levels were during that
year.
In October 1996, his teacher sent a report to the C.S.E. describing his reading level as 2.5,
but stated that they were using a book at a 3.0 grade level. JA 169. His mathematics teacher
reported his instructional level in that area as "beginning of grade 3." JA 170. His writing level
was recorded as 2.5. JA 171. In December 1996, a private psychologist, Oriole Peterfreund,
evaluated S.S. using the Wide Range Achievement Test-3, and found both his reading and
arithmetic to be only at a second grade level. JA 177. Administration of the Gray Oral Reading
Test-3 by this same evaluator found his reading rate and comprehension to be at a late first grade
level. JA 177. This evaluator recommended that S.S. receive intense individual remediation to
enable him to achieve at a level commensurate with his age and ability. JA 179.
In January 1997, the Board of Education's psychologist repeated the Wide Range
Achievement Test-3, and since the test had just been administered to S.S. the month before, these
new results should be viewed with some skepticism due to the repeat effect; however, even this
evaluator found S.S.'s reading skills to be at a third grade level and his arithmetic skills to be at a
second grade level. JA 183. The February 1997 Individualized Education Program ("I.E.P.")
ignores the private testing done only three weeks before their own, as does the May 1997 I.E.P. JA
195, 242.
By his teacher's report, S.S. had an instructional reading and math level of 3.0 in May
1997. JA 205-06. However, the I.E.P. lists the teacher as assessing S.S.'s math, reading, and
writing as at the second grade level in May 1997. JA 11, 242. This corresponds to the assessment
of S.S.'s reading skill in September 1997 upon entering Stephen Gaynor School ("Stephen
Gaynor"). JA 31. Assuming these to be accurate assessments, S.S. showed no improvement in
his reading or arithmetic skills from the December 1997 private evaluation, despite the addition of
resource room services by the Board of Education and private tutoring.
Although the C.S.E. did not have before it an official medical diagnosis for S.S. of attention
deficit disorder or attention deficit hyperactivity disorder, their own documents before them were
replete with references to attentional and hyperactivity issues. JA 19. According to his classroom
teacher, S.S. had so much difficulty sitting at a classroom table, that the other students complained
about his constant movement and noise. JA 14, 205. She indicated that he even had more difficulty
sitting still for short periods of time. JA 15, 205. His mathematics teacher reported that S.S. was
usually not focused on the assigned tasks. JA 15, 206. In an observation of S.S., while he was in a
group of only five students, the observer remarked
4 children highly engrossed. [S.S.] detached. Physically somewhat removed.
Staring into space. Rocked back & forth. Played with pencil against hand and leg.
Greeted a teacher who passed by. Rubbed pencil on floor. Leaned in closer to
group listening to other group members. Hummed to himself loudly. Wrote on his
pants. Separated further from the group [illegible] ... The rest of the class was
attentive and fully engaged in the task assigned to the groups. [S.S.'s] behavior
stood out and attracted the attention of other children who looked at him, watched
for a time, and returned to their work. No one commented to him, and he appeared
unaware of being observed by them.
JA 18-19, 186-87. His third grade teacher testified that this was a fairly accurate observation of
S.S. and that it was typical of his behavior during the 1996/1997 school year. JA 25. In addition to
their own reports, the C.S.E. had before them Oriole Peterfreund's private psychological evaluation
and psychological update of S.S. which also alluded to attentional issues, impulsivity, and a
possible over involvement with fantasy, in addition to deficits in basic skills. JA 14, 179, 203.
S.S.'s third grade teacher testified that S.S. continued to exhibit these attentional issues
from October through May (despite the addition of resource room services by the February I.E.P.).
JA 25. She also opined that there was very little improvement in the area of creative writing and
spelling. JA 25. Her report, written at the end of the year, stated that S.S. was "extremely active
and easily distracted," indicating little or no improvement in that area, either. JA 26, 210. These
attentional issues were later characterized as severe in September 1997, by his teacher at Stephen
Gaynor. JA 28.
Upon entering Stephen Gaynor School in September 1997, S.S.'s teacher described his
attentional issues as severe, and that he required refocusing every few minutes. JA 28-29. She also
noted that he had a language/auditory processing disability, in that he had difficulty following
directions. JA 28-29. Other difficulties were found in memory, sound-symbol relationship,
temporal difficulties, and sequencing difficulties which effected his ability to organize and write in
an expository style, as well as his ability to work through word problems in mathematics. JA 28
29. This teacher opined that because of these difficulties it would be very difficult for S.S. to
function in a fourth grade classroom for three-quarters of the school day, and further opined that
because of his disabilities his self-esteem would suffer. JA 29.
In February, 1997, the C.S.E. recommended that S.S. receive one period of resource room
services per day. JA 9. The resource room teacher, who coincidentally was S.S.'s tutor at the time,
stated that the resource room programs were already operating at capacity, meaning five or more
students. JA 35. S.S., himself, told his father that the resource room program's enrollment
exceeded five. JA 35. In addition, the I.E.P. that resulted from that meeting contained no goals or
objectives by which to measure S.S.'s performance.
S.S. was the only child in PEARLS to be removed from the general education classroom for
resource room services. JA 13. There was no evidence presented regarding how this effected his
self-esteem. The C.S.E. chairperson testified that the teacher and the resource room teacher
determine when a child is to be removed from the general education classroom for resource room
services, but there was no testimony as to when S.S. was removed for resource room, or what
academic class he missed while in the resource room. JA 17. As to coordination of professional
effort to remediate S.S.'s difficulties, the classroom teacher testified that there were no regularly
scheduled meetings between herself and the resource room teacher, that there was no time given to
confer together, but that they would see each other while passing in the hall. JA 26. Moreover,
there was no testimony regarding the methodologies, techniques, or materials used in the resource
room to remediate S.S.'s deficits or address his disabilities.
The parents expressed their concerns regarding the February I.E.P. and the recommended
program, and as a result another C.S.E. conference was scheduled. JA 13, 198-202. S.S. was then
classified as learning disabled (the prior I.E.P. had indicated the classification was "[t]o [b]e
[d]etermined.") JA 194, 239. The C.S.E., who cannot recommend that a child be removed from
PEARLS unless they recommend a self-contained class, recommended that S.S. receive two periods
of resource room services per day. JA 9-10. Although the C.S.E. chairperson testified that
"[b]ecause he was making improvement, [they] felt an additional period of resource room would
only be more helpful," they did not counsel the parents that they could or should seek to remove
S.S. from the PEARLS program, nor did they offer the parents an option other than an additional
period of resource room. JA 12, 18, 36. The parents disagreed with the recommendation of the
C.S.E., placed S.S. in the Stephen Gaynor School for the 1997/1998 school year, and notified the
Board of Education of their intentions by a letter dated June 16, 1997. JA 159.
As a result of their dissatisfaction with the educational program recommended by the Board
of Education, S.S.'s parents enrolled him in the Stephen Gaynor School. As described by S.S.'s
teacher, Ms. Miller, Stephen Gaynor is a school of approximately one hundred eight learning
disabled children of normal to above normal intelligence. JA 27. During the 1997/1998 school
year, S.S. was in a class of nine children, nine to ten-years-old, taught by two co-teachers
possessing Master's level degrees, and an assistant teacher working towards her Master's degree.
JA 28. The children were broken into even smaller groups for reading and math instruction, but
even so, S.S. still required reading and math remediation in groups of two children taught by a
specialist twice per week. In addition to the reading and math remediation services, S.S. also
worked with a language specialist twice per week again in a group of two children, and received
occupational therapy services within the classroom setting. JA 28, 32. Within the classroom, S.S.
was taught using manipulatives and teacher-made materials. JA 29-30.
When asked whether S.S. had made progress, Ms. Miller testified that she had not seen
progress in attentional issues until S.S. began medication, but that she had seen academic
improvement. JA 30. (This testimony was misconstrued by the Impartial Hearing Officer, but
properly understood by the State Review Officer to refer to a lack of progress in attentional issues
prior to the start of medication. Ms. Miller clarified her testimony in an Affidavit submitted to the
District Court. JA 73, 83, 85-88, 130.) S.S.'s progress at Stephen Gaynor is illustrated by an in
house report prepared by his teacher. JA 31, 214-38. From an initial reading level of a 2.0 grade
equivalent, S.S. advanced to 2.5 at mid year, a gain of half of a school year in that much time.
S.S.'s father testified that he had witnessed tremendous progress made over the course of the year
at Stephen Gaynor. JA 35. S.S.'s reading ability had improved, and he loved to read, his
handwriting was now neatly on the line, and he could write using script. JA 35-36. In the
social/emotional area, S.S. had friends from school, and no longer found it necessary to crawl into
his parents' bed, but could sleep alone. JA 36.
B. Procedural History
This case originated as a due process impartial hearing to challenge a board of education's
educational plan for a gifted child with special needs. The decision of the impartial hearing officer
was first appealed to the State Review Officer of the New York State Education Department, then to
the United States District Court of the Southern District of New York by M.S., and then by the
Board of Education to the Court of Appeals.
The impartial hearing officer initially found that the Board of Education had provided the
child, S.S., with an appropriate education, that the program at the private school chosen by the
parents was inappropriate, and denied the parents tuition reimbursement for the private placement.
App. B. at 59a.
On appeal, the state review officer held that the Individualized Education Program designed
by the Board of Education did not adequately describe the extent of the child's disability, and that
the computer generated statements in that document did not include "adequate objective data to
establish a baseline from which the child's progress could be measured" during the coming school
year, and that the annual goals were too vague to afford the child's teacher with direction regarding
the Committee on Special Education's expectations; however, though he found that the Board of
Education had therefore not proved the appropriateness of its educational program, he also held that
the parents had not demonstrated the appropriateness of the private school, and applying the
requirement that disabled children be placed (by public educational agencies) in the least restrictive
educational environment, denied the parents tuition reimbursement for the private special education
placement . App. C at 43a-46a.
The parents appealed the decision of the state review officer to the United States District
Court, Southern District of New York, pursuant to 28 U.S.C. § 1331. United States District Judge
Barrington D. Parker, Jr., concurred with the state review officer's finding that the Committee on
Special Education of the Board of Education of the City School District of the City of Yonkers had
not drafted an Individualized Education Program that was reasonably calculated to confer
educational benefit on the child, S.S., and overruled the state review officer by holding that an
"appropriate private placement is not disqualified because it is a more restrictive environment than
that of the public placement," thus the test for the parents' private unilateral educational placement
was not perfection. App. B at 28a-32a. Judge Parker, Jr., ultimately decided that the parents'
unilateral placement of the child in the Stephen Gaynor School had addressed the child's special
needs, and may have well been "the least-restrictive environment necessary to provide S.S. with a
meaningful education and not just trivial advancement" and awarded the parents tuition
reimbursement for the 1997/1998 school year. App. B at 32a.
The Board of Education appealed to the United States Court of Appeals for the Second
Circuit. On October 26, the Court of Appeals reviewed the case de novo, declined to disturb the
state review officer's finding that the Board of Education had not sustained its burden of proving
that their I.E.P. was "reasonably calculated" to deliver "educational benefits" to S.S. and upheld
the decision of the district court in that regard. The Court of Appeals further found, however, that
an assessment of educational progress is a judgement best left to the state review officer's expertise,
and therefore upheld the state review officer's decision regarding the appropriateness of the private
school, and reversed the district court, declining to award the parent tuition reimbursement, despite
the failure of the Board of Education to offer a free and appropriate education to S.S.
REASONS FOR GRANTING THE WRIT
I. THE LAW REGARDING THE DEGREE OF DEFERENCE TO BE ACCORDED AN
ADMINISTRATIVE DETERMINATION IS UNCLEAR AS THE DECISION OF THE
COURT OF APPEALS CONFLICTS WITH DECISIONS OF THE OTHER CIRCUITS,
AS WELL AS THE LAW OF NEW YORK STATE.
While the I.D.E.A. is clear that a court charged with reviewing the findings of administrative
proceedings under that act must base its decision on the preponderance of the evidence, this Court
further established that the due weight must be accorded to the administrative proceedings. Board
of Educ. v. Rowley, 457 U.S. 176, 206 (1982). In Rowley, the Court, concerned with the
choice between education methodologies for a deaf student, warned courts that the preponderance
of evidence standard was "by no means an invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities" and directed courts to give due weight
to the results of administrative process. 458 U.S. 176, 205-07 (1982). The implication of the
Court's decision is that a court should defer to education or school authorities when reviewing
decisions regarding whether an educational methodology is appropriate for a child, or which
educational materials are necessary to enable the child to make meaningful progress.
It is not clear whether this Court intended that the Rowley holding be extended to all
decisions regarding educational matters. After reviewing the decisions following Rowley, the only
thing clear about the degree of deference and when it is to be accorded to a decision of a
administrative law judge/state review officer, is that the timing and degree of deference is very much
unclear, ambiguous, and the outcome of an appeal will likely depend upon the circuit or court in
which it was filed.
The United States Court of Appeals for the Second Circuit takes a conservative approach to
the issue of deference. In deciding whether a state agency had offered a child an appropriate
educational program, the United States Court of Appeals for the Second Circuit stated that
"[d]eference is owed to state and local agencies having expertise in the formulation of educational
programs for the handicapped." Briggs v. Board of Educ., 882 F.2d 688, 693 (1989). As the
Court of Appeals later held when again deciding the appropriateness of a district's educational
program, "[t]wo issues are relevant to a federal court's review of a challenged I.E.P.: (1) whether
the state complied with the procedural requirements of IDEA and (2) whether the challenged I.E.P.
was 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2nd Cir. 1998) (quoting Rowley, 458 U.S. at
206-07 (1982)). The Court of Appeals held that the reviewing judge must give "due weight" to the
administrative proceeding, as "the judiciary generally lack[s] the specialized knowledge and
experience necessary to decide persistent and difficult questions of educational policy." Walczak,
142 F.3d at 129 (internal quotation marks and citation omitted).
The United States Court of Appeals for the First Circuit has held that appropriate review is
more than an appraisal for clear error, but falls short of a complete de novo review of the state
educational program. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993). This
circuit appears to vary the weight accorded to the issue addressed, that is a greater degree of
deference is due for policy issues than for factual issues. See Doe v. Anrig, 692 F.2d 800 (1st Cir.
1982).
The United States Court of Appeals for the Fifth Circuit has limited the due deference to be
given to administrative law decisions, by holding that "due weight" does not require the district
court to defer to the administrative law judge when that fact finder had "erroneously assessed the
facts or erroneously applied the law to the facts." Teague Independent Sch. Dist. v. Todd L., 999
F.2d 127, 131 (5th Cir. 1993).
The United States Court of Appeals for the Sixth Circuit has interpreted the Rowley
standard to mean that a greater deference is due to the state's placement decision if the I.D.E.A.'s
procedural requirements have been met. Roncker ex. rel. Roncker v. Walter, 700 F.2d 1058, 1062
(6th Cir. 1983), cert. denied 464 U.S. 864 (1983)(emphasis added). That court has stated that the
district court should not merely adopt the state administrative findings without independently
examining the evidence and that "due weight" does not mean that a district court cannot disagree
with a hearing officer's findings. Doe v. Metropolitan Nashville Public Sch., 133 F.3d 384, 387
(6th Cir. 1998) cert. denied 119 S. Ct. 47 (1998); see also Peck v. Lansing Sch. Dist.,148 F.3d 619
(6th Cir. 1998). The Circuit has utilized a modified de novo review. Burilovich v. Board. Of Educ.
of the Lincoln Consol. Sch. Sys., 208 F.3d 560, 565 (6th Cir. 2000)(citations omitted).
[A]dministrative findings in an IDEA case may be set aside only if the evidence
before the court is more likely than not to preclude the administrative decision from
being justified based on the agency's presumed educational expertise, a fair estimate
of the worth of the testimony, or both. A court should defer to the administrative
findings only when educational expertise is relevant to those findings and the
decision is reasonable. By so deferring, "due weight" will have been given to the
state administrative proceedings.
Burilovich v. Board Of Educ. of the Lincoln Consol. Sch. Sys., 208 F.3d 560, 567 (6th Cir. 2000).
District courts are apparently advised to perform a de novo review, except as to those issues
requiring educational expertise.
The United States Court for the Seventh District has stated that Rowley does not require the
abdication of judicial function, but that review under the I.D.E.A. requires a judge to independently
and critically review the evidence before him, while being mindful that choices between competing
theories and methods are best left to those with educational expertise who have considered the facts
and then made a reasonable decision. See Morton Community Unit Sch. Dist. No. 709 v. J.M., 152
F.3d 583, 588 (7th Cir. 1998) cert. denied, 526 U.S. 1004 (1999).
The Fourth, Ninth, and Eleventh Circuits appear to take a more flexible approach. The
United States Court of Appeals for the Fourth Circuit has held that due weight must be accorded to
the hearing officer, because local educators deserve attitude in choosing the educational program
appropriate for a child with a disability. Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996,
1001 (4th Cir. 1997), cert. denied 522 U.S. 1046 (1998)(emphasis added). The court need not
heed the administrative findings, but if not following the hearing officer's findings of fact, the court
must explain why. Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991).
Similarly, the United States Court of Appeals for the Ninth Circuit has held that the findings
of the administrative agency must be considered carefully, that an attempt must be made to respond
to the hearing officer's resolution of each issue, and the deference accorded must be reflective of
the thoroughness and completeness of the hearing officer's work, but after that consideration, a
court may accept or reject the hearing officer's findings. Adams v. Oregon, 195 F.3d 1141, 1145
(9th Cir. 1999).
The United States Court of Appeals for the Eleventh Circuit also has a liberal interpretation
of the Rowley standard, and the amount of deference given to an administrative decision in that
circuit is left to the discretion of the district judge, who after considering the administrative findings
is free to accept or reject them. Doe v. Alabama Dep't of Educ., 915 F.2d 853 (11th Cir. 1990);
Jefferson County Bd. of Educ. v. Alabama Dep't of Educ., 853 F.2d 853 (11th Cir. 1988).
In New York State, differences exist in the standard of review even between the federal
district court and the state courts. Pursuant to New York Education Law § 4404(3) and New York
Civil Practice Law and Rules § 7803, state courts apply a substantial evidence rule of review, not a
preponderance of the evidence rule, in contrast to the I.D.E.A. mandate to consider the
preponderance of the evidence. Therefore the basic standard applied to the review of the
administrative decision is greater in the district court than it would be in state court, even before
considering the strict deference to administrative decisions decreed by the Court of Appeals.
Due to the differences in the standard of review applied by the New York State courts, as
well as the different circuit courts, the outcome of the Petitioner's appeal would be determined by
the forum in which it was heard, as opposed to the merits of his argument, a result which is contrary
to the intent of the I.D.E.A.
II. THE QUESTIONS PRESENTED ARE IMPORTANT AS THE DECISION OF THE
COURT OF APPEALS HAS A PARTICULARLY DEBILITATING EFFECT ON THE
RIGHT OF PARENTS TO SEEK THE FULL JUDICIAL REVIEW GRANTED THEM
UNDER THE I.D.E.A.
The effect of the Court of Appeals decision is to make the discretion of the state review
officer unlimited and without boundary. This was not the Congressional intent behind the
procedural safeguards built into the I.D.E.A. In New York State, the state education department is
the agency responsible pursuant to the I.D.E.A., 20 U.S.C. § 1412 and New York Education Law §
4403 for assuring that school districts within the state provide free and appropriate educational
opportunities to all children with disabilities, implementing the requirements of the I.D.E.A. The
impartial hearing officer is an individual who is not employed by a school district, school, or
program serving students with disabilities, and has not been so employed for two years prior to his
appointment, and has, as well, completed a hearing officer training program. N.Y. Educ. Law §
4404 (McKinney's Supp. 2000). The state review officer, an agent and employee of the state
education department, has the responsibility, pursuant to New York Education Law § 4404.2 to
review and modify, to the extent deemed necessary in order to properly effectuate the purposes of
Article 89 of the New York Education Law, any determination of an impartial hearing officer
relating to a special education program provided by a board of education of a school district within
the State of New York. Since the state appoints both the hearing and state review officers, by
awarding complete and total deference to state review officer's decisions, the state is permitted to act
without the specter of judicial oversight. It cannot be in the public interest to allow a state actor,
charged with a federal obligation under the I.D.E.A., to function without risk of judicial review.
Nor can it be in the public interest to force parents to seek redress from the state office originally
charged with providing a free and appropriate education to their child, when that agency has already
failed their child, knowing that the courts cannot disturb the administrative findings of that state
office. The unavailability of full judicial review will necessarily discourage parents from the
exercise of their right to appeal the decision of a state office, as granted by the I.D.E.A.
III. THE COURT OF APPEALS DECISION WAS PREMISED ON AN
INAPPROPRIATE AND FACILE EXTENSION OF THE ROWLEY DECISION.
In those instances where the administrative authority has no special educational expertise,
where the decision to be reviewed requires no special expertise, or where the record below provides
quantitative measures by which to form a rational judgment, it is contrary to the spirit of the
I.D.E.A., and this Court's holding in Rowley for a judge to completely abdicate his responsibility
to review the record and evidence before him, and to defer to the decision of the administrative
authority. The Rowley Court was concerned with decisions regarding methodology and the
placement decision of a school district, specifically the provision of a sign-language interpreter for a
deaf child. The Rowley Court was not addressing the appropriateness of a private school once the
school district's program had been determined to be inappropriate. To defer to the decision of the
administrative authority, where no special educational expertise exists or is necessary to resolve the
matter at issue vitiates the intent of the I.D.E.A. to permit aggrieved parents the right of appeal to a
higher court.
In the present matter, we contend that the decision of the administrative decision maker was
entitled to little or no deference. The administrative decision maker had no special expertise in
matters of educational policy that would make his decision more valid than that of the district judge.
Moreover, the decision to be reviewed required no special educational expertise as it involved not a
matter of educational methodology, technology or materials, but whether a review of the testimony
and evidence evinced measurable progress in the private school, proving the private school's
appropriateness for S.S. The issue was not a "persistent and difficult question[] of educational
policy," but whether the testimony of witnesses, standardized test scores, and teacher estimates of
academic ability reflected sufficient educational gains made by S.S. in the private school to find that
placement appropriate. App. A at 10a-13a (quoting Walczak v. Florida Union Free Sch. Dist., 142
F. 3d 119, 129 (2d Cir. 1998) (internal quotation marks and citation omitted)).
One reason given for the deference afforded to agency decisions is "'[b]ecause judges are
not trained educators.'" Dell v. Board of Educ., Tp. High Sch. Dist. 113, 32 F.3d 1053, 1058 (7th
Cir. 1994)(quoting Board of Educ. of Community Consol. Sch. Dist. No. 21 v. Illinois State Bd. of
Educ., 938 F.2d 712, 715 (7th Cir. 1991), cert. denied, 502 U.S. 1066 (1992)). However, in
instances such as the case at bar, there was no information in the record regarding the qualifications
of the state review officer, his expertise, or the basis for awarding his decision the degree of
deference it received. It is unwise to blindly award deference because of a title, in this case, state
review officer. Any party asserting that deference should be paid to any lower authority decision,
should, at the very least, be required to allege and prove the basis for that deference beyond the
existence of a mere job title. A degree in education, time spent making, reviewing or implementing
educational policy are relevant determinants of the value of the decision maker's opinion.
The Court of Appeals was operating under a misapprehension of fact. In New York, the
prerequisites for becoming a state review officer do not mandate expertise in the field of education.
Therefore a state review officer's decision should not necessarily merit the deference that would be
accorded to the decision of a former school superintendent, school psychologist, board of education
member, or the like, unless the officer's qualifications and expertise were previously considered by
the court before giving "due weight" to the officer's decisions. The state review officer in
question does not have any special expertise, experience, or education, that would make him an
expert, or make his judgment superior to that of the district court judge. This state review officer,
while an employee of the state education department, had no degree in education, and his experience
was in supervising the state professional board offices and discipline cases for the professions.
Surely the district court judge was equally qualified to consider the record before him.
IV. THE COURT IS CHARGED WITH FASHIONING A REMEDY FOR THE WRONG
DONE TO THIS CHILD
Each reviewing decision making authority in this case's history has held that the Board of
Education failed to offer this child a free and appropriate public education, from the state review
officer, to the district court judge, and finally to the Court of Appeals. The parent has relied upon
this history of finding that the Board of Education failed to appropriately serve his son, and
continued his appeals in an attempt to find a remedy for the Board of Education's failure to offer
his child an appropriate education. The law denies a parent reimbursement for a private unilateral
placement that has been deemed by the decision making authority to be inappropriate, but in so
doing, it rewards the school district for its failure to serve the students entrusted to its care. The
district is left with no incentive to offer an appropriate educational placement in the future. The
parent is left with no alternative. The district court and the Court of Appeals each had a duty
pursuant to the I.D.E.A. to design a remedy to address this child's unmet educational need. While
the Court of Appeals may have found the District Court's award excessive, it had an obligation to
design an appropriate remedy. See 28 U.S.C. § 1415(i)(2)(B)(iii). One such possibility would
have been an award of compensatory education, or a partial tuition award to reimburse the parent for
those services provided by the school that the court deemed appropriate for the child. See generally
Charter Oak Unified Sch. Dist., No. SN 1157-98, 33 I.D.E.L.R. 202 (California Special Education
Hearing Office, University of the Pacific, McGeorge School of Law, Dec. 6, 1999) (hearing officer
awarded compensatory reimbursement of one-third of tuition expenses due to failure of district to
offer an appropriate education.) Although the Court of Appeals relied upon the educational
expertise of the state review officer, and therefore denied the parent tuition reimbursement, the Court
of Appeals still had a duty to design a remedy for the failure of the Board of Education to offer an
appropriately designed education plan for S.S. Thus, the Court of Appeals failed as well to
appropriately serve this child under the I.D.E.A.
CONCLUSION
Petitioner respectfully requests that his petition for a writ of certiorari be granted to review
this important matter.
Respectfully submitted,
JEFFREY L. SHERNOFF
GREENBERG & SHERNOFF
Counsel of Record
NEAL HOWARD ROSENBERG
LAW OFFICES OF NEAL HOWARD ROSENBERG
Attorneys for Petitioner
9 Murray Street
Suite 4 West
New York, New York 10007
(212)732-9450