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RABINOWITZ v. NEW JERSEY STATE BD. OF EDUC.

October 29, 1982

ABBY RABINOWITZ, Plaintiff,
v.
NEW JERSEY STATE BOARD OF EDUCATION: FRED G. BURKE, Commissioner of Education of the State of New Jersey; BOARD OF EDUCATION OF THE BOROUGH OF HAMBURG, SUSSEX COUNTY; Defendants



The opinion of the court was delivered by: SAROKIN

 There are few events more tragic than the birth of a physically handicapped or mentally retarded child. To some parents the anguish is even greater than that caused by the death of a child itself.

 For centuries the handicapped and retarded have been treated with neglect and too often with abuse. Belatedly such persons have been accorded the respect, dignity and assistance to which they are entitled. Our humanity mandates that they be afforded the opportunity to attain their maximum potential in the same measure that we offer it to the specially gifted child. It is a tribute to our democracy that legislation finally has been enacted to develop the potential of such children.

 The federal legislation which is implicated in this action recognizes the needs and rights of the handicapped. This case is before the court because of territorial technicalities of the most tortuous type. The great states of New Jersey and New York each in an outpouring of bureaucratic compassion, have rejected plaintiff's request for an education as provided by the act on the ground that the other is responsible for providing it.

 New York insists that New Jersey is responsible because the child has lived here since shortly after birth; *fn1" New Jersey insists that New York is responsible because that is where the child's parents live. Each charges that its own rules of eligibility apply. If correct, then the child would be deprived of the educational opportunity the federal law mandates. Obviously, this court will not permit such a result.

 For reasons which will be set forth in detail below, the court concludes that the plaintiff's child is entitled to be educated in New Jersey where she has resided her entire life. The suggestion made by the defendants that it is just as convenient for her to be educated in New York ignores the human factors involved and the emotional ties which would be affected by such an upheaval.

 The ultimate financial responsibility for such education as between New York and New Jersey is not before the court and need not be resolved in this litigation. A child who is entitled to be educated need not await the end of bureaucratic wrangling in order for such education to commence. If New Jersey is entitled to be reimbursed by New York, that issue can be resolved at a later date in a proceeding to which New York is a party. The battle over the Hudson will have to wait, while the important education of Abby Rabinowitz proceeds.

 FACTS

 Abby Rabinowitz is an eleven-year old child with Down's Syndrome. She is severely retarded. Her IQ is approximately 20; she weighs approximately 35 pounds; and she has the height of a five or six-year old child. Before entering into the public school system as directed by this court, she was evaluated with the following results: Abby's fine and gross motor activities were extremely limited; she threw and caught a ball in a rudimentary fashion, like an 18 to 24-month old child, and scribbled with a fisted pencil grasp when offered a pencil. When examined by learning disability experts she had no speech except for a repeated sound of "g-g-g". If given a book to read she held it three to four inches from her face and stared at it cross-eyed. Her eye contact with people was fleeting; she often squinted or averted her gaze when confronted. She frequently grimaced and postured and had a preoccupation with her right hand; and she often stared at the hand, which is palsied, misshapen, and much bigger than the left, as a form of escape and satisfaction. Abby's head is symmetrical and small and is the size of that of a two-year old child.

 Abby's parents are Victor and Joanne Rabinowitz. Her father who is 71 and her mother who is 52 live in New York City. Abby's parents provide financial support for her. Abby has one older brother, Mark, who is about 13 years old. Shortly after Abby's birth her parents decided that, in part because of their advanced age, they would not be able to provide Abby with the care she required. They applied to various public and private agencies to obtain lists of persons and institutions with foster home accommodations. After visiting some of the homes and institutions they decided upon one, the home of Mrs. Margaret McVeigh in Elmwood Park, New Jersey. From 1971, when she was two-months old, until 1975, Abby lived with Mrs. McVeigh. In 1975, Mrs. McVeigh moved and decided that she no longer could be a foster parent to Abby. Abby's parents again contacted social agencies to help find Abby a home. Another home was found in New Jersey, this time with Mrs. Virginia Nicolai of Hamburg.

 The move from one home to another was traumatic for Abby. She regressed in her ability to communicate with others and there was virtually no sign of her usual cheerful and outgoing disposition. In her new home Abby was at first markedly withdrawn and her ability to walk also regressed. The effects of the trauma from the uprooting lasted for about one year.

 Abby has now been living with Mrs. Nicolai for over seven years and her progress has been remarkable. When Abby was examined by one expert it was noted that only Mrs. Nicolai could get Abby to perform tasks that she would not perform for others. Mrs. Nicolai has taken a strong yet caring approach in rearing Abby. The child's behavior is imitative of Mrs. Nicolai's. She follows her foster mother around the house, loads and unloads the dishwasher, and feeds herself with a spoon. Abby also dresses herself and can take off her socks and shoes. She uses the sink to wash her hands and sleeps in a crib.

 Although Abby has made tremendous progress under the care of Mrs. Nicolai, she is still in need of constant attention. Often Abby eats inappropriate materials, such as draperies, plastic, and twigs, and she is resistive to touching, hugging, and kissing. Mrs. Nicolai scrupulously attends to all of Abby's needs and is one of the few persons who can successfully communicate with the child. It is through Mrs. Nicolai's patience that Abby, however slowly, has progressed.

 In 1980, Abby's foster mother and her parents sought to enroll her in a free public education program in Hamburg, New Jersey. The Board of Education of Hamburg denied the child enrollment. In June 1980, Abby, through her father, petitioned the Commissioner of Education of the State of New Jersey for an order enrolling the child as a pupil in the Hamburg schools. The Office of Administrative Law denied plaintiff's request in October 1980. The Administrative Law Judge (ALJ) found that although plaintiff was living in New Jersey for bona fide reasons and not for the purpose of obtaining a free education, she was domiciled in New York where her parents were domiciled and was therefore not entitled to a free public education in New Jersey. After exceptions to the ALJ's decision were filed, the Commissioner of Education, on December 5, 1980, affirmed the ALJ's determination. Plaintiff appealed from the Commissioner's decision to the State Board of Education in January 1981. In April 1981, the Commissioner's decision was affirmed. Suit was subsequently filed in this court. In August 1981, the court issued a preliminary injunction ordering the enrollment of plaintiff in the Hamburg School District for the pendency of this litigation. Plaintiff's parents were required by the order to post bond to cover the costs of the education.

 Since Abby has been in school she has made significant and more rapid than usual progress in many areas. She is better at understanding what is said to her and is better at following directions. Her speech potential has also significantly improved and she is finally attempting to talk. Abby's personal hygiene has also progressed: in the last year she has learned to shower herself and dress herself without any assistance. Abby's teachers are very fond of her and they have told Mrs. Nicolai that Abby's development has been noticeable.

 The court must now decide whether New Jersey has an obligation to continue to provide Abby with an education. Plaintiff claims that the state, by not providing her with an education, has violated her rights under the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1461, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the fourteenth amendment to the United States Constitution. Defendants deny that any of plaintiff's statutory or constitutional rights have been violated and assert as a separate defense that abstention by this court would be appropriate because plaintiff has a right of appeal to the Appellate Division of the Superior Court of New Jersey.

 DISCUSSION OF THE LAW

 The Education of the Handicapped Act, 20 U.S.C. §§ 1400-1461, provides federal money to assist state and local agencies in educating handicapped children. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). The Act is an ambitious congressional attempt to remedy the states' failure to provide appropriate educational services to more than half of the estimated 8 million handicapped children living in the United States at the time of the legislation's enactment. Id. 102 S. Ct. at 3037; 20 U.S.C. § 1400(b) (1), (b) (3).

 Funding under the Act is conditioned upon a state's compliance with the Act's extensive goals and procedures. Rowley, 102 S. Ct. at 3037; 20 U.S.C. § 1412. Section 1412 sets forth the eligibility requirements that a state must meet before receiving federal assistance. One prerequisite to such assistance is that "the state [have] in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). (emphasis supplied). Another prerequisite is that the state identify, locate and evaluate " all children residing in the State who are handicapped. . . ." 20 U.S.C. § 1412(2)(C). (emphasis supplied). This controversy centers on the meaning of these prerequisites.

 Plaintiff contends that if a state accepts financial assistance under the Act, it has an obligation to provide a free public education to all handicapped persons within the state's borders. Defendants, on the other hand, contend that the Act was never intended to interfere with existing state laws defining prerequisites for obtaining a free public education within the state. In particular, defendants argue that because Abby is not technically "domiciled" within the state, she is not entitled to be educated here.

 New Jersey law defines those persons who are entitled to a free public education in the state:

 
Public schools shall be free to the following persons over 5 and under 20 years of age:
 
(a) Any person who is domiciled within the school district;
 
(b) Any person who is kept in the home of another person domiciled within the school district and is supported by such other person gratis as if he were such other person's own child, upon filing by such other person with the secretary of the board of education of the district, if so required by the board, a sworn statement that he is domiciled within the district and is supporting the child gratis and will assume all personal obligations for the child relative to school requirements and that he intends so to keep and support the child gratuitously for a longer time than merely through the school term. . . .
 
(c) Any person whose parents or guardian, even though not domiciled within the district, is residing temporarily therein, but any person who has had or shall have his all-year-around dwelling place within the district for 1 year or longer shall be deemed to ...

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