September 22, 1997

United States Court of Appeals for the Second Circuit
U.S. Courthouse
Foley Square
New York, NY 10007

Re: Russman v. Board of Education of Watervliet,
No. 95-7756

Your Honors:

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:

"The bill would clarify current law by explicitly adopting the Department's view that States and school districts are required to use only a proportionate amount of Federal funds to provide special education services to children whose parents voluntarily placed them in private schools. (Unlike services under Title I of the ESEA, which are fully paid for by the Federal Government, the Department provides only about 8 percent of the cost of providing special education.) The inclusion of this language should dispose of a number of conflicting Federal appellate court decisions, three of which are awaiting possible Supreme Court review, in which parents assert that the IDEA makes public schools responsible for the full costs of special education for children whose parents choose to have them attend private schools." U.S. Department of Education, Summary of Key Changes to the IDEA Made by the Bill, at 2 (June 19, 1997).

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):

"(10) CHILDREN IN PRIVATE SCHOOLS.

"(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS.

"(i) IN GENERAL -- To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements . . . :

"(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.

"(II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.

"(ii) CHILD-FIND REQUIREMENT -- The requirements of paragraph (3) of this subsection (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools."

"(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY.

"(1) IN GENERAL -- Subject to subparagraph (A), this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility."

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:

"Most services required by an IEP must be provided during school hours to be effective. For example, a teaching consultant cannot benefit a disabled student in a private school if available only outside her school and divorced from her curriculum. If public school authorities may freely refuse to provide such benefits at private schools, therefore, disabled students must either forgo the IDEA benefits, bear their cost, or transfer to the public schools. This result, however, seems to be precisely what the statute and regulations seek to preclude."

The Tenth Circuit made a similar point in Fowler, supra, 107 F.3d at 806:

"[C]ertain special education services can easily and effectively be provided to private school students at public school sites after school. The student receivesthe benefit of the services, and the school incurs no added cost because it makes the service available in the same setting it would were the child enrolled in the public school. Other services, however, such as the sign language interpreter at issue in this case, cannot be effectively provided to a private school student anywhere other than the private school site, because they confer no benefit unless they accompany the child throughout his or her educational day."

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.

DZ/cb

cc: Nancy Maurer, Esq., counsel for plaintiff-appellee Russman
Jay Worona, Esq., counsel for defendant-appellant Board of Education of Watervliet