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ROWLEY v. BOARD OF EDUC.

January 15, 1980

AMY ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley, and Clifford and Nancy Rowley, in their own right, Plaintiff,
v.
THE BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Westchester County, and THE COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, Defendants.



The opinion of the court was delivered by: BRODERICK

I.

Eight-year old Amy Rowley and her parents have brought this action under The Education for all Handicapped Children Act of 1975 ("the Act"), 20 U.S.C. § 1401 et seq., to review the decision of the New York State Commissioner of Education upholding the denial by the board of education of the Hendrick Hudson Central School District of their request that Amy, who is deaf, be provided with the services of a sign language interpreter in the classroom. *fn1" A hearing was held before this court on September 26, 27, 28 and October 4, 1979 on plaintiffs' motion for a preliminary injunction. At the conclusion of the hearing the parties stipulated that the hearing would take the place of a trial on the merits. I issued an order dated December 28, 1979 directing that a sign language interpreter be provided for Amy. This opinion contains my findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P.

 The central issue is whether the refusal to provide Amy with a sign language interpreter in the classroom, made by the school district and sustained by the commissioner, deprives her of the "appropriate education" required by law. For the reasons which follow, I find that the plaintiffs have established by a preponderance of the evidence Amy's right to a sign language interpreter in the classroom.

 II.

 The following constitute my findings of fact in this case:

 Amy Rowley is a deaf child and therefore "handicapped" within the meaning of the Act. Like most deaf individuals, she has some residual hearing. Amy's residual hearing is particularly good in the lower frequencies, where vowel sounds are distinguished. Since vowel sounds are particularly hard to lipread, this gives her a substantial advantage over deaf children who do not have the same residual hearing.

 Amy's parents are both deaf. Since the time that they discovered her deafness, not long after she was born, they have raised Amy with the use of total communication. "Total communication" is a relatively new system of deaf education which entails the flexible use of a wide range of communication methods mouthing words, amplification, signing, touching, and visual cues. Its hallmark is its emphasis on communicating with a deaf person by simultaneously mouthing words and signing them. Total communication has gained increasing acceptance among deaf educators since the release of studies indicating that deaf children raised in deaf households where total communication is used fare better academically and emotionally than other deaf children.

 Amy's parents, concerned with helping her accommodate to her handicap, and with her total intellectual and emotional well-being, trained her as a very young child in receptive and communicative techniques. Largely as a result of their work with her, Amy entered school with a much better ability to communicate and receive information and to establish social contact than most deaf children. At present, in the second grade, she is an excellent lipreader and uses amplification to make optimal use of her residual hearing. Amy's mother spends at least one hour a day going over school work with her. In addition, Amy's tutor for the deaf, who spends one hour with her each day, prepares her for upcoming classes so that she can participate with a slight advantage over the other students.

 In the year before Amy was due to enter kindergarten, her parents approached the administrators of the Furnace Woods School, a public school where their son, a child with normal hearing, was already enrolled, to alert them to her hearing handicap. The principal of the school, Joseph Zavarella, and the other school administrators and teachers involved in Amy's case responded very constructively to the challenge they faced. A number of them took a mini-course in sign language interpretation. A teletype phone was installed in the principal's office to facilitate communication with the Rowleys at home. They conferred with Amy's parents to work out a program for Amy.

 According to an agreement reached between the Rowleys and the school, Amy's kindergarten year began with a data-gathering trial period during which she was placed in a regular kindergarten class without any support services. At the end of the trial period it was decided to provide her with an FM wireless hearing aid.

 In February of the kindergarten year a sign language interpreter, Jack Janik, was placed in Amy's class full-time for a two-week trial period. At the end of that period, Mr. Janik submitted a report which concluded that Amy did not need his services for that kindergarten class. His conclusion was based on the extraordinary sensitivity of Amy's kindergarten teacher to her needs and on Amy's resistance to the interpretive services. It is clear from the report, however, and from a subsequent affidavit filed by Mr. Janik in connection with these proceedings, that his recommendation was strictly limited to the particular class for which he had rendered the service, and did not rule out the necessity of interpretation in other classes or in subsequent academic years.

 Federal law requires that an individualized education program ("IEP") be established or revised annually for every handicapped child, 20 U.S.C. § 1414(a)(5), and that the parents of the child participate in the development of such a plan, 20 U.S.C. § 1401(19). In the fall of Amy's first grade year, the school district set out to draw up such a plan. *fn2" The first stage in that process was to obtain a recommendation from the school district's Committee on the Handicapped ("COH"). *fn3" The COH received expert evidence offered by the Rowleys to the effect that the services of a sign language interpreter are important in the education of a deaf child, visited a class for the deaf, and heard testimony from school teachers and other personnel familiar with Amy regarding her academic and social progress. The COH recommended that Amy be provided with: a) continued use of the FM wireless hearing aid; b) the services of a tutor for the deaf for one class hour every day; and c) the services of a speech therapist for three hour-long sessions per week. The COH concluded that Amy did not need the services of an interpreter at that time.

 That recommendation was forwarded to the Furnace Woods School where it was incorporated in the IEP being drafted by Amy's teacher. Amy's teacher never met or conferred with the Rowleys in developing the draft IEP. The balance of the IEP contained a summary of Amy's academic progress and a statement of academic goals.

 On December 6, 1978, school personnel met with Amy's parents to discuss the draft IEP. The Rowleys concurred with the program in all respects but one: they insisted that their daughter needed the services of a sign language interpreter for her academic classes. The IEP was sent back to the COH for review. The COH ...


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