Transcript

IN THE SUPREME COURT OF THE UNITED STATES

BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, WESTCHESTER COUNTY, ET AL. Petitioners, v. AMY ROWLEY, BY HER PARENTS AND NATURAL GUARDIANS, CLIFFORD AND NANCY ROWLEY, ETC.

No. 80-1002

March 23, 1982

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:10 o'clock a.m.

APPEARANCES:

RAYMOND G. KUNTZ, ESQ., Bedford Village, N.Y.; on behalf of the Petitioners.

MICHAEL A. CHATOFF, ESQ., Floral Park, N.Y.; on behalf of the Respondent.

ELLIOTT SCHULDER, ESQ., Washington, D.C.; on behalf of United States as amicus curiae

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in Board of Education of the Hendrick Hudson Central School District against Amy Rowley, by her parents.

Mr. Kuntz, you may proceed whenever you're ready.

ORAL ARGUMENT OF RAYMOND G. KUNTZ, ESQ. ON BEHALF OF PETITIONERS

MR. KUNTZ: Mr. Chief Justice and may it please the Court:

The principal issue before the Court this morning is: Did the Hendrick Hudson Central School District meet the requirements of Public Law 94-142, the Education of All Handicapped Children Act of 1975, when it provided Amy Rowley with an educational program which resulted in outstanding academic achievement and social success, although it did not comply with her parents' wishes that a sign language interpreter be placed in her classroom.

In one respect the case that's before you is an age-old problem that confronts every public school board. It's not unusual in the course of any child's education that the parents disagree with the program prescribed or dictated by the local school board. And the question before you then becomes, how does this Act handle a disagreement with a program or a placement developed by a local school district by the parents when the parents are the parents of a handicapped child.

According to the Respondent's position in this case, if they are able to persuade a court that they have a rational basis for the program that they advocate -- that it's a slightly better program, if it results in somewhat improved performance -- it's their claim that the Act allows them to go to court and to have the court dictate to the local educational institution that better program.

Now, this is not a case where no services were provided to Amy Rowley. As a matter of fact, extraordinary care was taken to ensure benefit from the placement that was developed for her by the local school district.

Before Amy Rowley enrolled in the Hendrick Hudson School District, plans were made for her arrival in this particular school. The school district has several elementary schools and in this particular elementary school this was the first time that this elementary school was to educate a deaf child. And the first determination made by the school district prior to the entry of Amy into the classroom was that she would not be sent to a school for the deaf, but that the school would make an effort, an attempt to educate her in a regular classroom.

Now, having made that determination, the school then prepared to receive her. The teachers in the school took a sign language course, because they knew that Amy was somewhat familiar with sign language and they wanted to be able to communicate with Amy. They did not know Amy, but they wanted to do everything that they thought they could to prepare themselves for her arrival at the school.

The school district purchased a teletype machine which they installed in the office of the principal. Amy's parents are both deaf, they have a teletype machine, and consequently the school and the parents can communicate visually by means of the teletype machine.

The school then went a little bit further. They hand-picked Amy's teacher. They gave her a teacher that they thought would be responsive to the problems provided by a deaf child. They put her in a small classroom. They made that classroom visually oriented, so that instead of ringing bells they flashed lights. They seated Amy -- they gave her a preferential seating so that she was in a position to see everything that went on; in other words, to make use of her natural facilities to enable her to understand what was going on in that classroom.

Then they agreed with the parents that an experimental program would be conducted. That is, during the first year, the kindergarten year, would be a time of trial where various methods would be experimented with to see what was appropriate for Amy.

The first thing they did was to do nothing, so that they could have some base data upon which to compare the results of the other experiments. Then they tried a variety of hearing aids to see what kind of hearing, supplemental electronic hearing, worked best.

They tested Amy. They had her hearing tested. They discovered that she had significant residual hearings in the lower frequencies. That means that the vowel sounds are audible to Amy, and that when her hearing is electronically supplemented she can understand a good portion of what's spoken to her.

They tried a sign language interpreter in her kindergarten classroom. They put the sign language interpreter in for a two-week trial period to see what effect this would have upon the educational program. At the conclusion of the two-week period everybody who participated in that experiment, including the sign language interpreter, determined that it was not a useful service for Amy and as a matter of fact it might be a distraction for Amy.

QUESTION: Were there other children in the classroom while these experiments were going on?

MR. KUNTZ: Yes.

QUESTION: A full classroom?

MR. KUNTZ: A full classroom.

There was also a constant monitoring of her program, not only by her teachers but by the school principal, who visited her classroom almost daily to make sure that her educational program was progressing satisfactorily.

Now, the results of this program were quite satisfactory to the school district. When Amy entered the first grade there was a determination made by the committee on the handicapped, and it's that determination which is ultimately before you today. She was classified as a handicapped child and she was classified as severely deaf.

The committee on the handicapped conducted an investigation of what was an appropriate placement for Amy in first grade. They visited other classrooms. They sent one of their members to see Amy in her first grade classroom setting and to see how she was doing there with the services that had been provided in kindergarten.

The committee on the handicapped dispatched several of its members to visit other classrooms in other school districts, to visit a school for the deaf, to visit a board of cooperative educational classroom where deaf children were taught as a group. They consulted experts on the education of the deaf. They read articles and gathered professional materials and expert opinions.

At the conclusion of that process they came back in early October and determined that what they would do for Amy was to place her in a regular -- to allow her to remain placed in a regular first grade classroom, to supplement her hearing with an FM wireless system which amplifies the sound spoken into the sending unit, thereby blocking out all other sounds. The receiving units pick up only what's sent; consequently, it doesn't amplify everything and background noise is thereby eliminated.

It decided that what they would do is give her the services of a speech therapist three times a week; that she would receive the services of a certified teacher of the deaf an hour a day, who would serve as a tutor for Amy during the regular school day.

She was again placed in a small classroom. It was again very visually oriented. Her teacher was again hand-picked so that the teacher would be responsive to Amy's needs.

Now, the result of this placement was outstanding academic and social success for Amy. She went into the first grade as a non-reader, a typical thing for a child entering the first grade. When she left the first grade she was a reader. She had high standardized test scores developed for non-deaf norms. She had an equivalent class rank. In other words, Amy placed in her class exactly as you would expect her to place, given her IQ, in terms of how that IQ compared with everybody else in that particular class.

She had excellent peer relationships and she had excellent rapport with her teachers.

This program shows on the part of the Hendrick Hudson School District a deep caring for Amy Rowley. The school district believes that it has an objective view as to what is the best program for Amy. It believes that the sign language interpreter is a disservice.

The school district has built bridges of meaning to Amy, and the court dismantled those bridges and substituted a different program based upon what we contend is an inaccurate view of the purpose of the Act and its requirements.

It's our contention that the Act is a funding statute and that as a funding statute the provision of free appropriate public education is a goal; that it requires no specific services; that the Act could have described specific services and it did not. We believe that education is a state matter and that the provision of services and the determination of the content of the education is left to the states under the Constitution.

QUESTION: Mr. Kuntz, perhaps you mentioned it, but were is Amy now?

MR. KUNTZ: Amy's in the fourth grade. I did not mention it, Your Honor. She's in the fourth grade at the Hendrick Hudson School District.

QUESTION: And has she maintained her place with the others?

MR. KUNTZ: Yes. As a result of the affirmance by the Second Circuit of the District Court decision, a sign language interpreter was placed in her classroom early in the third grade.

Our review of the progress of Amy indicates that she has continued as one would expect her to continue, that she's made the same progress with the sign language interpreter that she made without the sign language interpreter. We see no significant difference.

While she has made some increase in her spelling skills, her mathematics skills declined somewhat, but not precipitously in either case and we find that her progress has continued on the same upward satisfactory level that it did prior to the time that the sign language interpreter was placed in her classroom.

QUESTION: That's not in the record, is it?

MR. KUNTZ: No, it's not, Your Honor.

QUESTION: Thank you.

MR. KUNTZ: Because that happened all post the record.

QUESTION: I just want to get it straight.

MR. KUNTZ: We feel that there's a presumption that Congress passed the Act in accord with traditional principles. We feel there's nothing in the Act or its history that points to an intention of Congress to act in derogation of the principles.

We believe that the specifics of a free appropriate public education are limited by the state plans submitted to the Secretary of Education under the Act, particularly to each class of disability. We believe that this view is consistent with the description and purposes of a state plan as mandated by the Act.

QUESTION: Counsel, I take it that under the state plan in question it's your position that the school district could have furnished an interpreter, but was not required to?

MR. KUNTZ: Yes, Your Honor, that's our position.

It's the contention of the Respondents that the state and the local educational agency, in acceding to the provisions of Section 1315 of the Act, that is that they will guarantee procedural safeguards with respect to the provision of free and appropriate public education, lets in through the back door what Congress declined to let in through the front door; in other words, that each court can determine a particular educational program under the remedial sections of the Act.

And we --

QUESTION: Is it your contention that the review in the civil action provided for in the federal district court in 1415 is to guarantee only the procedural safeguards in the previous administrative proceeding?

MR. KUNTZ: Yes, we believe that, Your Honor. We believe that the court has the power to send it back. We don't believe that the court has the power to simply set aside the state plan and substitute a different methodology of education.

QUESTION: The section does provide for de novo review, doesn't it?

MR. KUNTZ: Not in those words. It provides that the court shall receive the proceedings of the administrative agency, at the request of either party shall receive new evidence, and taking all of that into consideration make its determination based upon the preponderance of the evidence, granting such remedy as it deems appropriate.

But we say even if it --

QUESTION: That's pretty de novo, isn't it?

MR. KUNTZ: Yes, I suppose it's as de novo as you can get. But it does require the receipt of the administrative records and the prior determinations. If it was totally de novo, I would think that the requirement to receive those records would not be found in the statute.

QUESTION: Well then, there are really inconsistencies on cross-currents in the statute, are there not?

MR. KUNTZ: Yes, there are.

QUESTION: Because certainly if it were a substantive determination that the judge were to make, you would expect that Congress would have provided for some deference to the administrative record.

MR. KUNTZ: I would have thought so. And we believe that the proper way to reconcile those differences is to look at 1415 as remedial only. The Respondents look at it, and some of the amici and frankly many if the circuits look upon it, as a statute granting them absolute authority to write a new substantive program without regard to the state plan and without regard to the cost of whatever program they devise.

As a matter of fact, I believe the Seventh Circuit has explicitly ruled that cost is no consideration when the court makes its determination as to what is an appropriate remedy. That circuit also said that it included as a subset of appropriate remedy an appropriate education, holding that when it had the power to devise an appropriate remedy that included within that power was the power to devise an appropriate education.

QUESTION: Did you take the same position as you're now expressing in the Court of Appeals?

MR. KUNTZ: Yes, we did, Your Honor. In our brief and our reply brief, we specifically set forth the portions of our brief where we made those arguments.

QUESTION: Mr. Kuntz, may I ask, is it your view that a federal judge may merely require compliance with the procedures specified in the Act and that there is no substantive standard that the federal judge may apply to define what is a free appropriate public education?

Say you're -- in this case, I know it is not the case. But supposing what you did is have a teacher with a loud voice and nothing more, or something like that, that most people would say was clearly not sufficient. Could the federal judge correct anything at all substantively?

MR. KUNTZ: I would think that in that particular situation, that the first thing that would occur is a finding that the procedure had not been followed. I seriously doubt whether a proper view of the child -- that is, the Act requires the local school district to plan for the unique needs of that child. I think that's a procedural requirement.

I think that once there's an explanation of what those needs are and once there is some rational relationship developed between the response to those needs and the program that's provided, that in most cases the local school district will come out with an adequate and acceptable program.

I tend to think in your situation that, in your example, that you would find so many procedural errors in arriving at that determination that there would be no need to get into a substantive determination.

QUESTION: Well, supposing the board had a meeting and said, we really can't afford to buy the FM wireless and we can't afford to have our teachers take the time off to take sign language training, as you did, and we can't afford any of these things. We're just going to do the best we can, which is to select the teacher we think would have the best rapport and has the best diction, but did very little other than that, for reasons that very well might make good sense for a board that has a tight budget.

MR. KUNTZ: I would hate to think that there would be no situation where the court couldn't step in and cure a totally arbitrary and capricious act.

QUESTION: The problem I have with the case is, as soon as you acknowledge that there's some substantive review, then what's the stopping point?

MR. KUNTZ: I totally agree with you. I feel that there is that: Once you grant one case, then every other case follows behind it, and it's only a question of degree. But I truly believe that Congress did not in this particular statute move in and determine for each local school district that ultimately what is to be the governing philosophy in that particular school district is what a court, federal or state, tells the agency. And I'm afraid that's what happens when you carry the logic to its extreme on the other side.

QUESTION: Is it your view that this school board has done more than they were required to do?

MR. KUNTZ: Yes, they did. They not only complied with the state plan as it specifies services for deaf children whose audiological loss is within the range that Amy's is, but they provided extra services far over and beyond what they were required to do.

I think critical to the school district's position is that program that they developed worked, and that the program that the court substituted does not particularly appear to the school district to be that much better. As a matter of fact, the school district believes that ultimately in the long run it does Amy a disservice, because it does not take advantage, so to speak, of her residual skills. It does not take advantage and promote use of her residual hearing, of her excellent ability to lip read. And those skills will atrophy.

And to come back to Justice Marshall's point before, while it's not in the record because the developments occurred post the trial, it's the school district's finding that that's what's occurring in Amy's situation.

QUESTION: But this Court of Appeals limited its decision to the facts in this case.

MR. KUNTZ: Yes, I think because they --

QUESTION: So it wasn't any broad, general sweep like you're talking about, was it? It said that you were wrong in this case for the facts that were before it at that time. What's wrong with that? Isn't that the normal way to decide a case?

MR. KUNTZ: Then it becomes a case about Amy, as the court said in its opening sentence: "This is a case about Amy." It's also a case about the law, and every case that's decided by the Court of Appeals is precedent. I simply don't know how any court is going to distinguish Amy's case from the case of any other deaf child. Amy's situation is not an unusual situation.

QUESTION: Well, aren't all constitutional rights individual?

MR. KUNTZ: Yes, I believe that they have to adhere in the individual in order to be effective. But also, I would say that all decisions of the Court of Appeals become precedent for all other factual situations which are similar in content and nature to the one addressed by the court, and consequently that court can't simply invoke a rule which has no purpose in this particular situation and attempt to limit its application.

QUESTION: What rule are you talking about?

MR. KUNTZ: Well, they attempt to invoke Rule 23 of their local rules, which is designed to limit the effectiveness of rulings from the bench that are made in the course of -- or at the conclusion of arguments. They cannot be cited as precedent before the Second Circuit.

The Second Circuit attempted to invoke its rule in this case despite the fact that there was a published opinion and a substantial decision by Judge Mansfield.

QUESTION: Do you think they were afraid of it as a precedent?

MR. KUNTZ: I think they were, and I think the implication of that rule reveals, to me anyway, that they were somewhat leery of the precedent that they were creating and that they were attempting to limit it. I don't think that they were deciding on the law. I think they were deciding on the facts of this particular case and out of sympathy to Amy.

QUESTION: Counsel, I suppose it's arguable that there is under the Act a substantive right to a free appropriate education, but that what the free appropriate education would consist of would be those things spelled out in the statute and the regulations, namely an individual education program in conformity with a state plan which has been approved.

Would you concede that that certainly would appear at least to be within the framework of the statute?

MR. KUNTZ: I would say that if a substantive right has been created at all, that's where it's created. It's created in the submission of the state plan to the then Commissioner and now, under the amendments to the law, to the Secretary of Education. And that's the only place, if at all, that a substantive right appears.

I think there are substantive rights insofar as a right to the procedure is concerned. But I think that's the only right of substance that was enacted by the statute.

QUESTION: Mr. Kuntz, is the New York plan part of the record?

MR. KUNTZ: I'm sorry, Your Honor?

QUESTION: Is the New York plan part of the record? Was it introduced?

MR. KUNTZ: No, it wasn't, Your Honor, and the reason why that occurred is that when the school district made a motion to dismiss the complaint on the ground that the educational program provided to Amy was in conformity with the state plan, on the hearing of that motion the Respondents admitted that the plan had been developed, that the plan had been accepted by the then Commissioner of Education, that the school district was in compliance with the plan, but that that was irrelevant.

And consequently the plan never became a part of the record, because it was never at issue. We felt that the District Court should have dismissed the case at that point, but it did not. It did not address itself to that issue in its decision on that motion.

QUESTION: Did the Court of Appeals adopt the District Court's standard, the full potential standard?

MR. KUNTZ: We believe that it did.

QUESTION: Suppose -- I think, if I understand your argument, you say that even if that's the standard you don't need a sign language interpreter to reach that standard.

MR. KUNTZ: That's correct, Your Honor.

QUESTION: What if it were quite clear that it was necessary to have a sign language interpreter to realize a person's full potential. Do you disagree with that standard?

MR. KUNTZ: We would disagree with the standard. We feel that the full potential standard is something that's beyond the power of the local school district.

QUESTION: So you would say that the state need not, under this Act, live up to that standard?

MR. KUNTZ: We say that we feel that there are standards in the Act. We think the Act defines free appropriate public education. We think that as part of that definition the definition is constrained by the state plan submitted.

QUESTION: I take it that the -- I take it that the Respondents suggest that you conceded in the Court of Appeals that you did not disagree with Judge Broderick's statement?

MR. KUNTZ: They contended that, but that's inaccurate. We did not make that concession.

I have reserved --

QUESTION: Don't you necessarily have to attack the standard, because you do have the District Court and the Court of Appeals both agreeing, as I understand it, that as a matter of fact the sign language interpreter was required to satisfy the full potential standard? It's difficult for us to go behind two courts who agree on a matter of fact.

MR. KUNTZ: We agree that -- we contend, rather -- excuse me -- that the District Court standard is not an appropriate standard. We've written four briefs to this Court specifically with that allegation, and I think we've analyzed the full potential standard and shown two things:

One, that that's not a requirement that can be fulfilled by any school district. The full potential standard is an impossible standard. The tests devised by Judge Broderick to determine whether the full potential had been met are simply unworkable tests. There are no measurements to gauge what the potential -- the fulfillment of that potential would be. There are no tests to gauge the shortfall, and no tests to gauge the comparison, as he suggested, between the shortfall experienced by normal children and the shortfall experienced by handicapped children. We think that that standard is simply impossible.

QUESTION: Is there any place in the record to show why this case didn't originally go to the state board and the Board of Regents?

MR. KUNTZ: It did go.

QUESTION: It did.

MR. KUNTZ: It did go to the Commissioner of Education and the Commissioner of Education made a finding, and that finding is in the record.

QUESTION: Thank you.

MR. KUNTZ: I'm reserving my time for rebuttal, Your Honor.

CHIEF JUSTICE BURGER: Very well. Mr. Chatoff, you may proceed whenever you're ready.

ORAL ARGUMENT OF MICHAEL A. CHATOFF, ESQ. ON BEHALF OF RESPONDENTS

MR. CHATOFF: Mr. Chief Justice and may it please the Court:

The primary issue in this case is this: Has a school district that receives funds under the Education of the Handicapped Act upon, its commitment to provide each handicapped child with a free appropriate public education fulfilled that obligation when it fails to provide a specific deaf child with the services necessary for that child to receive an educational opportunity equivalent to the educational opportunity provided to other children?

The Respondents in this case are Amy Rowley, who is deaf -- she is now ten years old and in fourth grade -- and her parents Clifford and Nancy Rowley. This is not your typical everyday family. Clifford and Nancy Rowley are deaf, too.

Upon learning of Amy's deafness, they began training Amy in the use of total communication, the mode of communication used in their home. Total communication is a flexible mode of communication using lip reading, amplification of residual hearing, if any, sign language, finger spelling, and visual cues.

The lower court found that relying upon lip reading and amplification only Amy does not have access to more than two-thirds of all communications. The lower court found that relying upon total communication Amy has access to 100 percent of all all communications. Therefore, the lower court found that a program relying upon lip reading and amplification only would not be appropriate for Amy Rowley.

Recipients of funds under the Education of the Handicapped Act commit themselves to provide each handicapped child within its borders with a free appropriate public education. A free appropriate public education is specially designed instruction to meet the handicapped child's unique needs in order to provide that child with an equal educational opportunity.

The Petitioners and their amicus concede that the goal of the Act is to provide handicapped children with equal educational opportunities. Among the factors to be considered in determining what is a free appropriate public education for each child is the extent of that child's disability and that child's upbringing.

Amy's unique needs are obvious. The shortfall in her comprehension is precisely the deficiency Congress had in mind when it directed recipients to provide for the unique needs of each handicapped child. Amy needs a visual depiction of oral communications. She can't learn if she can't understand, and she can't understand if material is presented to her in a mode of communication that's closed to her.

An interpreter merely provides Amy with access to the same education as available to every other student, no more and no less.

QUESTION: Mr. Chatoff, did the evidence show at the trial court level that the school district had found that having an interpreter present was a distraction to the child, and that she did not need it?

MR. CHATOFF: The trial court found that the school district said that providing an interpreter would be a distraction to Amy. However, relying upon expert evidence and written statements in the record, the trial court determined that an interpreter would not be a distraction for Amy.

Amy is not special because she's deaf. Any has special needs resulting from her deafness. It is those special needs that Congress directed recipients to accommodate in order to fulfil its obligations under the Act. If Amy is special -- and even the witnesses for the Petitioners concede that she is -- she is special because of her intelligence and her creativity and her enthusiasm and her rapport with others.

I don't believe anyone would question the fact that there have been past deficiencies in the education of deaf children. But that's all water under the bridge. We can't correct past deficiencies by providing Amy with anything on a silver platter. This is a tough world. It's going to be as tough for Amy as it will be for every other child. She'll have no preparation for that world if things are handed to her in a silver lining.

But if she is going to compete in this world, she must receive an education equivalent to other children. This court said that education is the principal instrument for preparing the child for later professional training and helping that child to adjust normally to its environment.

Once Amy gets an education, an equivalent education, what she does with that education is up to her. The school district has no obligation to guarantee her any particular level of achievement, only the same opportunity to achieve as everyone else.

The purpose of the Act is to accommodate the unique needs of each handicapped child so that the deficiencies of the past do not reoccur in the future. The Act covers gifted handicapped children, and Amy has the intelligence and the desire --

QUESTION: May I interrupt? Mr. Chatoff, will your interpretation of the statute require every school board to provide a sign language interpreter for every deaf child in the country?

MR. CHATOFF: Definitely not. The statute requires an individual determination of the needs of each handicapped child. The deaf community is not a monolithic entity. Although all deaf children have in common their hearing loss, their other characteristics are all different. Every child is different.

Every child is brought up differently. Some use strictly oral methods of communication. Some use oral speech. Some use the Rochester method. Some use what is known as American sign language. We discussed that in the trial court.

Not every deaf child can be educated in the public school. In fact, very few can. Amy happens to be one of those very few. Children who are educated in special schools or in research rooms have no need for interpreters. Children raised using the oral method have no need for interpreters. It will be only very specific instances.

This case does not establish that any or every other child is entitled to an interpreter. The Commissioner of Education of New York State held -- this decision is the appendix to the brief submitted by the National Association of the Deaf -- that merely because Amy is entitled to an interpreter does not mean that any other deaf child is entitled to an interpreter.

This case involves Amy and only Amy and does not go beyond Amy's particular and individual needs.

QUESTION: Mr. Chatoff, what is there in the Act itself or the accompanying regulations that would yield the precise test that the Court of Appeals applied, the measurement of the potential and determining the shortfall and applying that standard? The language of the Act and the regulations appear to require no more than an individual educational program and in accordance with the state plan.

MR. CHATOFF: The Act requires specific individualized instruction for each handicapped child. The equal educational opportunity standard is set forth in the Senate report and in the Congressional debate accompanying the Act. I think that that should be responsive to your question. I would only add that if Amy receives the proper education she can become a doctor, a lawyer, an engineer. The only occupations that are closed to her would be those of disc jockey and telephone operator. Congress made a legislative determination that each child's opportunities shall not be limited beyond those restrictions inherent in the child's disability.

Thank you.

CHIEF JUSTICE BURGER: Mr. Schulder.

ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

MR. SCHULDER: Mr. Chief Justice and may it please the Court:

In my portion of the argument I would like to address several of Petitioner's contentions that raise fundamental questions about the purpose and intent of Congress in enacting the Education of the Handicapped Act in 1975.

Relying on this Court's recent decision last term in Pennhurst, Petitioners argue that the Act does not entitle individual handicapped children and their parents to claim a substantive right to a free appropriate public education. They also contend that the judicial review provisions of the Act limit review to matters of procedure and do not permit a handicapped child and his or her parents to challenge determinations of state and local school authorities concerning particular services that are to be given to an individual child.

Instead, Petitioners assert that the Act merely requires that the services provided to a child conform to the state plan prepared by the state commissioner of education pursuant to the Act, and that if the individual program complies with the plan there is no further recourse.

These claims are completely contrary to the Congressional intent as reflected in the language and history of the statute. Unlike the state at issue in Pennhurst, the Education of the Handicapped Act requires as a condition for receipt of federal funds that each recipient state have in effect a policy that assures all handicapped children the right to a free appropriate public education.

The Act also requires the states, as a condition of receiving funds, to develop a plan setting forth in detail the procedures and policies that it intends to provide in order to assure that a free appropriate public education will be available to all handicapped children within the state within certain periods.

The Act also requires as a condition of receiving funds that the states establish procedures to assure that to the maximum extent appropriate handicapped children receive supplemental aids and services to allow them to be educated together with non-handicapped children.

The legislative history confirms that Congress meant to establish a statutory right of individual handicapped children to a free appropriate public education. For example --

QUESTION: How does one get from there to the standard that apparently the District Court used and that the Court of Appeals was willing to see used in this case, that each handicapped child be given an opportunity to achieve his full potential commensurate with the opportunity provided to other children?

MR. SCHULDER: Your Honor, we do not agree with that particular part of the District Court's opinion.

QUESTION: It came out of the law, didn't it?

MR. SCHULDER: I believe it did. The Court of Appeals, however, did not rely on that part of the District Court's opinion. On page A-6 of the appendix to the petition, the Court of Appeals quoted that part of the District Court's opinion that stated that under the Act the educational authorities involved in this case are required to bring Amy's educational opportunity up to a level of educational opportunity being offered to her non-handicapped peers.

In other words, the emphasis is not on potential or shortfall from potential, but on the making available to handicapped children the same opportunities that are available to non-handicapped children to benefit from the regular educational program that the state or local school authorities provide.

QUESTION: The Petitioners say that that doesn't mean that each individual handicapped child has a right to go to court.

MR. SCHULDER: Excuse me, Your Honor?

QUESTION: The Petitioners say that they don't want each individual handicapped child to litigate his particular problem.

MR. SCHULDER: I understand the Petitioners' contention, but unfortunately for Petitioners the Act specifically provides an express private right of action to every handicapped child and his parents regarding any complaint concerning any matter relating to the provision of a free appropriate public education.

QUESTION: So that if the child says, or the parents, that we have three books and we should have four, we go to court?

MR. SCHULDER: Well, Your Honor, we're only dealing with --

QUESTION: Well, that's my hypothetical. Would you mind dealing with it? Or you can ignore it. It's all right with me.

MR. SCHULDER: No. Well, the statute does provide for a right of access to the court. But I would like to emphasize that only in a very, very small number of cases --

QUESTION: Well, suppose they say, to get closer to this case, if they say you need a number 72865 machine, and they say that's the wrong machine, we need another machine. That would be litigated? Obviously you don't mean that, do you?

MR. SCHULDER: The Act specifically provides for access to courts after the exhaustion of appropriate administrative --

QUESTION: Well, your answer is that that would -- they could go to court on that?

MR. SCHULDER: Theoretically they could, Your Honor.

QUESTION: My question was can they or can't they.

MR. SCHULDER: Yes.

QUESTION: They can?

MR. SCHULDER: Yes.

QUESTION: Thank you.

QUESTION: You haven't answered yet what the standard should be on review. It's not inconsistent with what the Act says, even if it's a de novo hearing, that all the District Court might be allowed to do is to determine whether the school had acted arbitrarily, rather than arriving at some independent judgment about what a --

MR. SCHULDER: Well, the Act provides that the District Court's decision shall be based upon a preponderance of the evidence, and it specifically permits --

QUESTION: About what?

MR. SCHULDER: About any matter relating to the provision of a free appropriate public education.

QUESTION: Well, it doesn't say that.

MR. SCHULDER: Well, the statute provides that the children and their parents have a right to go to court regarding any matter relating to a free appropriate public education.

QUESTION: But what's this court supposed to do? Independently make its own judgment or -- is it inconsistent with the Act of the District Court said, all I'm allowed to do is to decide whether the school acted arbitrarily? Is that inconsistent with the Act?

MR. SCHULDER: I don't believe that would necessarily be inconsistent with the Act, no.

QUESTION: So I'm not going to decide it independently, as though I were writing on a clean slate.

MR. SCHULDER: Absolutely.

QUESTION: Now, is that inconsistent with the Act?

MR. SCHULDER: No, I don't think it would be.

QUESTION: Is that what the District Court did in this case? It is not, is it?

MR. SCHULDER: Well, I'm not sure whether it is or is not. The District Court made specific findings that are not challenged here.

QUESTION: Well, he certainly disagreed with the school, and he didn't say -- their standard certainly wasn't arbitrariness. It was just that this plan doesn't provide for full development of the child.

MR. SCHULDER: No -- well, he may have said that, but the way we view the statute the appropriate test would be whether or not a handicapped child has equal access to the same educational program as non-handicapped children.

QUESTION: To do what? To fulfil --

MR. SCHULDER: We don't talk about potentials here. We're simply talking about access to the same information.

QUESTION: Maybe we need to talk about this potential, because that certainly figured in the case.

MR. SCHULDER: Well, that may have figured in Congress' enactment of the statute.

QUESTION: Don't you think it figured in the decision of the District Court or the Court of Appeals?

MR. SCHULDER: It may have figured as a factor in the decision of the District Court, but I don't believe that the Court of Appeals relied on that aspect of the District Court's decision. And we do not submit that the Court needs to go that far in upholding the judgment of the Court of Appeals in this case.

QUESTION: Would it be inconsistent with the Act to believe that as long as there is an individual educational program and plan made for the child which is within the meaning and requirements of the state plan, which has been in turn approved by the appropriate federal official, that that is sufficient?

MR. SCHULDER: No, Your Honor. The state plan is simply a general administrative mechanism for the state to develop to show the Secretary of Education that it's in general compliance with the goals of the statute. The Act provides that the free appropriate public education that is to be provided the handicapped children must meet the unique needs of each child.

QUESTION: Well, perhaps you didn't hear my question. I said, is it inconsistent with the Act to find that the school district has complied with it if it has an individual educational plan for that individual child which is in conformity with the state plan, which in turn has been approved? Is that inconsistent with the Act?

MR. SCHULDER: Is it inconsistent with the Act to find that the particular school district has developed --

QUESTION: If a court is faced with the problem that it was faced with the problem that it was faced with here and it determines that the school district has developed an individual plan for the child, considering the handicap and the requirements, and that the plan, the individual plan, is consistent with the state plan, is that not enough under the Act?

MR. SCHULDER: No, Your Honor. Under the Act, the plan has to provide that the educational program offered and made available to each handicapped child must meet the child's unique needs. That's part of the definition of the appropriate education that, as a condition of receiving funds, the authorities must make available.

QUESTION: Yes, but if the school district says that it's done that by developing its individual plan, why does the court have to go further and measure potential and try to develop shortfall and make other inquiry? Why isn't that enough?

MR. SCHULDER: We don't think the court has to measure potential, but we do believe that the court has to make an independent determination whether, in this particular case, for example, the plan as developed provides the child in question access to the same educational opportunity available to non-handicapped children.

And the legislative history of the Act clearly supports this reading of the statute.

QUESTION: Mr. Schulder, do you know how much federal money New York receives under this Act every year?

MR. SCHULDER: I believe we have a footnote in our brief that states that New York received in fiscal year 1980 $45 million, Your Honor.

QUESTION: Do you know how many children are benefited by that?

MR. SCHULDER: I do not know offhand.

QUESTION: Do you know how many of these cases reach the federal courts every year?

MR. SCHULDER: Well, there is a -- I do know that there's a very minimal number of cases that reach the federal or state courts, Your Honor. In the amicus brief for the Association for Retarded Citizens, at pages 18 to 19 there are two footnotes, 23 and 24, that indicate that very, very few individual cases even get into the state administrative system, and a very, very small number, between 200 and 300 -- excuse me?

QUESTION: Does your office agree with that information?

MR. SCHULDER: Excuse me?

QUESTION: Does your office agree with that information in the amicus brief?

MR. SCHULDER: I do not have any information that confirms that, Your Honor. But I believe that the information was developed from sources, studies made by the Department of Education.

The Act in question here has two basic themes: One is the requirement that to the maximum extent appropriate handicapped children are to be mainstreamed, that is educated together with non-handicapped children. The second theme of the Act is, as I mentioned earlier, providing a full educational opportunity for all handicapped children.

The legislative history, as I said, clearly demonstrates Congress' intent that participating states ensure that handicapped children have an equal educational opportunity. In other words, in this case, that they have access to the same educational program that is available to other non-handicapped children in the particular school.

QUESTION: Is there any recognition whatever in your submission that the degree of disability varies very widely? Sadly, there are some children with IQ's of 40, deaf and dumb. What is a state required to do with respect to such a child?

MR. SCHULDER: Well, Congress realized that there were wide ranges of handicapping conditions anal it did not --

QUESTION: Would it have to set up a special school?

MR. SCHULDER: Congress did not fix into the statute a particular standard.

QUESTION: But this court has prescribed a standard, the Court of Appeals for the Second Circuit.

MR. SCHULDER: Well, the Court of Appeals was dealing with a particular child and, it decided that this particular child has above average intellectual ability, and for her to be receiving an equal educational opportunity --

QUESTION: So it's your position that the standard of the Second Circuit is not a general standard, although you've been using it throughout your argument, but applies only to this case?

MR. SCHULDER: Not that it applies only to this case, but it would apply to cases of children with average or above average intellectual abilities. In other words --

QUESTION: Who determines average or above average ability? A court?

MR. SCHULDER: I think the court would make the ultimate determination, but would clearly rely on -- excuse me?

QUESTION: Excuse me for interrupting you.

MR. SCHULDER: But would rely on information developed by local school authorities and professional experts. In fact, in the development of an individualized education program there are several factors that must be taken into consideration. One is the specific testing and evaluation of the student involved. The other is professional expertise concerning appropriate programs that are available.

QUESTION: And so federal courts would be reviewing decisions of state boards of education in every one of these cases in which the parents chose to bring a suit?

MR. SCHULDER: We're not here to defend the wisdom of the statute, but this is what Congress appears to have enacted, Your Honor. And we feel that, for the reasons that we've stated here and in our briefs, that the decision of the Court of Appeals should be affirmed.

QUESTION: May I ask one follow-up question to what I believe Justice Blackmun asked you about cost. I don't recall the exact figure you gave, but I think there's something in the brief to the effect that this particular district received about $27,000 for I think 140 or 150 handicapped children, which means they get somewhere between $150 and $200 a child.

Is that what would be the typical amount of federal support?

MR. SCHULDER: No, Your Honor. Congress was aware that providing educational services for handicapped children would require substantial expenditures. And I believe the estimates that were developed by Congress or at hearings before Congress prior to passage of the Act indicated that the average cost of educating a handicapped child would be approximately 1.9 or 2 percent times the average cost of educating a non-handicapped child.

The brief, the amicus brief of the Cerebral Palsy Association contains statistics that show that the actual average cost that statistics have been prepared for since the Act has been in effect show that the cost has been within the range that Congress had anticipated when it enacted the statute.

QUESTION: That's cost to the state school district. My question really concerned what is the magnitude of the federal support per child. What is the federal contribution?

MR. SCHULDER: I believe that the goal of the Congress was to provide a base of 25 percent of the total cost, but I believe that that percentage was supposed to be increased from year to year, from the beginning. The first year that the Act was to take effect, which was I believe three years --

QUESTION: Are you able to tell me -- and if you're not it's perfectly all right -- how many dollars per handicapped child in this school district Congress actually provided? The federal contribution is based on the number of handicapped children in the district, right?

MR. SCHULDER: That's correct.

QUESTION: Do you know or does the record tell us how much was given to this school district per child? In other words, how much of the burden of paying for the interpreter has the Federal Government assumed, is what I'm trying to find out.

MR. SCHULDER: I am not aware of the particular information. But if the school district believes that it is, as a result of the statute, being placed under an unnecessary burden, it is free to opt out of the program.

QUESTION: The district can, or the state?

MR. SCHULDER: No, the district I believe can, as well as the state, Your Honor.

Thank you.

CHIEF JUSTICE BURGER: Thank you.

Do you have anything further, Mr. Kuntz?

REBUTTAL ARGUMENT OF RAYMOND G. KUNTZ, ESQ. ON BEHALF OF PETITIONERS

MR. KUNTZ: Just a few brief comments in rebuttal.

In answer to two questions raised by Justice Stevens, the Government's brief states that -- I think you have the figures correctly -- around $27,000. Consequently, the cost is about $160 per handicapped child. That does comport with the national average, which is between $150 to $200. And the State of New York received $45 million for approximately 200,000 children. So consequently the statistics show that a significant portion of that burden is not borne by the Federal Government.

The records also show, developed by Congress through the reports submitted to Congress and required by Congress and submitted by the Secretary, that the percentage of funding is on a decreasing level. It's now down to, in this last fiscal year, approximately eight percent of the cost of educating the average child.

I also wanted to deal just for a moment, too, with your question before to counsel for the Respondents about whether the decision requires every child to have a sign language interpreter. The court made, in our view, an unwarranted leap from an audiological test conducted in isolation in a laboratory setting, which found that Amy only could hear 59 percent -- it was a word discrimination test.

The court leapt from that fact to a conclusion which we believe is unwarranted, that is that Amy understands only 59 percent of what transpires in her class. We say that the unrebutted evidence is that she understands nearly all of what transpires in her class.

Now, the court was able to reach the decision it did by adopting the philosophical approach of the Respondents in this case, and that approach was that every deaf child does better with a sign language interpreter in their class. Amy is deaf, consequently she does better. They adopted that syllogism. The rationale for that syllogism was presented by the Respondents' experts at the trial court.

As a matter of fact, when the case was tried before the independent hearing officer the Respondents' case consisted of three witnesses and a total of about 13 pages of testimony. Those witnesses established these facts: Amy is deaf, Amy's parents were deaf, Amy's parents wanted a sign language interpreter in her and class, and written evidence -- that is, expert opinion -- was to the effect that a sign language interpreter was required for every deaf child.

The parents introduced no evidence whatsoever at either the trial before the independent hearing officer or at the trial before the District Court as to how Amy was doing in class, because in their view that consideration was irrelevant because of the philosophical premise adopted by the particular theory of deaf education promulgated by the experts brought to testify on Amy's behalf, none of whom had ever seen Amy in the classroom.

And to the contrary, all of the experts testifying on the district's behalf, all had observed Amy in the classroom. And we refer you to the joint appendix, where we have put the testimony by one of the witnesses at the independent hearing and one of the witnesses before the district court. And we think that that's moving and convincing testimony that Amy understands nearly all of what transpires in her classroom.

Thank you very much.

QUESTION: Mr. Kuntz, where will I find in the record the best statement of the school board's policy on this particular matter?

MR. KUNTZ: If you're referring to what services the school district provided, I believe that --

QUESTION: What is their program? What is their program? Where can I find exactly what they propose to do about handicapped children, specifically deaf children? Is there anyplace I can find it?

MR. KUNTZ: The school district took no philosophical position on what it should do for deaf children as a class. What it did was in this particular case, which it believes it's required to do under the procedure --

QUESTION: Is it on an individual basis?

MR. KUNTZ: It was on an individual basis. It then developed a program in accordance with the state plan, based upon Amy's unique needs. It believes that it met the tests of the state and it believes that it succeeded almost beyond expectation in achieving -- building bridges of understanding and meaning to Amy so that she could succeed in her classroom.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 11:12 a.m., the above-entitled matter was submit ted.)