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RUSSMAN v. BOARD OF ED. OF THE ENLARGED CITY SCHOO

June 30, 1995

IN THE MATTER OF THE APPEAL OF COLLEEN RUSSMAN, A CHILD WITH DISABILITIES, BY HER PARENTS, PATRICIA AND PAUL RUSSMAN, Plaintiffs, -against- BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF WATERVLIET, Defendant.


The opinion of the court was delivered by: CHOLAKIS

 The IEP developed by the CSE provided for the services of a consultant teacher and a teaching aide *fn1" , as well as on-site speech and occupational therapy. The parties agree that such an inclusion program is appropriate for Colleen and that, in order for this program to be successful, the services set forth in the IEP must be provided. Nevertheless, the provision of the consultant teacher and teaching aide *fn2" at a sectarian location was ultimately denied by the CSE, based upon its determination that such services would violate the Establishment Clause of the First Amendment to the U.S. Constitution.

 As a result, plaintiff commenced the instant action, claiming that this denial of services violates: (1) Section 1413 of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. ; (2) New York Education Law § 3602-C; and (3) the Free Exercise Clause of the First Amendment to the U.S. Constitution. Both parties consented to proceed before Magistrate Judge Ralph W. Smith (with an election to appeal to the district judge) and an Order of Reference was signed and filed by this Court on April 18, 1994. Subsequently, by Memorandum-Decision and Order dated June 22, 1994 ("MDO"), Magistrate Judge Smith denied plaintiff's motion for summary judgment and granted defendant's motion for summary judgment -- finding that the provision of the services of a consultant teacher and a teaching aide at St. Brigid's would violate both federal law, i.e., 34 C.F.R. § 76.532(a)(1) *fn3" , and the Establishment Clause. Presently before this Court is plaintiff's appeal of the judgment entered in accordance with this MDO.

 "The standard applied by a reviewing court to determine whether summary judgment was properly granted is the same as that applied by the [lower] court initially under Rule 56(c)." *fn4" Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir. 1983)(citing C. Wright, A. Miller & M. Kane, 10 Fed.Prac. & Proc. § 2716 (2d ed.1983)).

 One of the basic tenets of this standard is that "credibility determinations, the weighing of evidence and the drawing of legitimate inferences from the facts are jury functions [or the trier-of-fact at trial], not those of a judge ... ruling on a motion for summary judgment[.] Anderson, 477 U.S. at 255. In reaching his decision, however, Magistrate Judge Smith made numerous findings of fact material to the law as he applied it.

 Regarding his determination that federal law would be violated, the Magistrate Judge found that "the evidence does not support [plaintiff's] assertion that 'religious themes are specifically addressed only in a separate religion class[,] [and] there is no religious content to any of the courses or activities for which Colleen requires assistance pursuant to her IEP[;] [but] rather, it is clear from the transcripts and exhibits submitted that religious instruction is included in the various academic classes at St. Brigid's. MDO, p.5 (quoting plaintiff's Rule 10(j) Statement at P20) (emphasis added). In reaching this conclusion, he found "incredible" the testimony of St. Brigid's principal, Ms. Ana Yeomans, "that there is no religious aspect to teaching courses other than religion," id. at 6, and found further that her "contradictory" and "inconsistent" testimony did not warrant a denial of summary judgment due to an issue of material fact. Id. at 7. However, although the evidence may overwhelmingly favor a finding that religious instruction is included in the various academic classes at St.Brigid's, Yeomans' testimony did create a factual dispute material to the law as applied by Magistrate Judge Smith.

 Moreover, in finding that the Establishment Clause would be violated, he found that

 
here we are dealing with a teacher and a teaching aide who have to modify the content of the academic classes for Colleen. I do not agree with plaintiffs' characterization of the consultant teacher and the aide as mere interpreters of the course materials.

 Id. at 12 (first emphasis in original, other emphasis added).

 These findings supported his further determination that "by requiring the consultant teacher to modify the academic classes for Colleen, and by requiring the teaching aide to give direct individual teaching support to Colleen in subjects which have religious content, they would be furthering the religious mission of the school." Id. at 13.

 However, the resolution of the underlying factual disputes which support such a determination is not a function of a judge on a motion for summary judgment. Accordingly, the summary judgment in favor of defendant must be reversed.

 In addition, this Court is not in agreement with the Magistrate Judge's interpretation of the applicable law: under a recent Supreme Court decision, the finding that religious instruction is included in academic course of St Brigid's is irrelevant to the present Establishment Clause issue. That decision, relied on by both parties to support their opposing opinions, and the case upon which Magistrate Judge Smith based his decision regarding the Establishment Clause, was issued in the recent Supreme Court case of Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462, 125 L. Ed. 2d 1 (1993). *fn5" In Zobrest the Supreme Court held that a public school district did not violate the Establishment Clause by providing a sign-language interpreter under the IDEA to a deaf student in a parochial school "in order to facilitate his education." Id., 113 S. Ct. at 2469.

 In reaching this holding, the Supreme Court first recognized that it had "consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an establishment clause challenge just because sectarian institutions may also receive an attenuated benefit." Id., 113 S. Ct. at 2466. Two factors support such a holding: (1) the program's benefits are "'made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited[,]'" id. at 2467 (quoting Witters v. Washington Dep't of Services for Blind, 474 U.S. 481, 487, 88 L. Ed. 2d 846, 106 S. Ct. 748 (1986) *fn6" ; and (2) "'any aid provided under [a] program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choice of ...


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