In June 1996, a federal appeals court issued a major decision that could have important ramifications for special education services in yeshivas.

Affirming a lower court ruling, a three-judge panel of the U.S. Second Circuit Court of Appeals in Russman v. Sobol rejected an upstate New York school district's argument that providing federally funded special education services at a parochial school would violate the First Amendment's Establishment Clause mandating the separation of church and state. The court further interpreted the federal Individuals with Disabilities Education Act (IDEA) statute as generally requiring school districts to provide onsite special education services to nonpublic school children on an equivalent basis to children in public schools.

The case arose from a dispute between the parents of Colleen Russman, a mentally retarded student, and the Watervliet, New York school board. Colleen's parents wanted the school district to apply her IEP (individualized education program), which called for a full-time aide and a part-time instructor, at a Catholic school. The Watervliet district contended that the federal statute didn't require such services to be provided to nonpublic school children, and that the constitution affirmatively prohibited the provision of such services on religious school premises.

The Second Circuit disagreed. Citing the U.S. Supreme Court's 1993 decision in Zobrest v. Catalina Foothills School District, in which the justices ruled that a public school may provide an aide to a disabled parochial school student, the Second Circuit said that the Constitution permits service to disabled students in religious schools if:

• The services are provided in a neutral manner without regard to religion;

• The services are provided only as a result of a request by the individuals who will be utilizing the services, and

• The funds do not financially benefit the private school

With respect to the federal IDEA statute, the Second Circuit acknowledged the U.S. Seventh Circuit Court of Appeals ruling in K.R. v. Anderson Community School Corporation, that said a district may restrict services to private school students but the Second Circuit disagreed with its sister court. School districts, according to the Second Circuit, do not have broad discretion to deny services to private school students, especially when the services would not be more expensive than providing them in a public setting. "The principal purpose of the statutory and regulatory commands appears to make a child's disability irrelevant to the family's choice of school, at least where differences in cost of provision do not exist."

The Second Circuit Court of Appeals has jurisdiction over New York, Connecticut and Vermont. Its rulings are binding on those three states, and are considered persuasive precedent throughout the United States.

The Watervliet district is expected to seek a rehearing before the full Second Circuit, and eventually the matter may be brought before the Supreme Court.

For now, though, the Second Circuit decision is on the books and gives the yeshiva community a tremendous opportunity. In New York, Agudath Israel has already contacted the State Education Department, and the New York City Board of Education and we hope to be working with them in developing a mechanism for servicing students in yeshivas and other parochial schools.

We would recommend that, in light of this extremely favorable decision, yeshivas should inform parents of handicapped children to have their children evaluated by their local committees on special education and request that services identified in their individual education program (IEP) be provided on-site at the yeshiva. Yeshivas located in New York and Connecticut, which are under the direct jurisdiction of the Second Circuit, are especially encouraged to have parents of handicapped students insist upon on-site special education services.

This ruling is relevant to children who are in private school settings.