Private School Sues New York for Funding

ALBANY, N.Y. (CN) - A private school for disabled students, most of them Jewish, claims New York won't approve its request for public funding, in the mistaken belief that it promotes a religious curriculum.

Kulanu Academy sued the New York State Education Department and its former Commissioner David Steiner in Albany County Supreme Court. Kulanu asks the court to find the state's decision arbitrary and capricious, and order the agency to approve the school's application for public funding.

"Such eligibility is crucial if Kulanu is to achieve its goal of providing high-quality, special educational services to its students," the complaint states. "Absent state funding, Kulanu must rely on tuition and fund-raising to pay for the exorbitant cost of providing education to its highly disabled population."

Kulanu Academy, in Cedarhurst, Long Island, not far from John F. Kennedy International Airport, serves students with "significant to severe disabilities," according to its complaint. It provides individualized educational programs and vocational and life skills training to students in middle school through age 21.

It says it has been trying fruitlessly for more than 7 years to secure state approval as a private program eligible for public money.

Its most recent application, in February 2011, was rebuffed in May this year. The Education Department listed "four purported reasons for denying the application," but "we believe the real motivation for the denial was SED's [state Education Department] mistaken belief that the religious identity of the student body precluded approval," the complaint states.

Students at the school "are, like the population of the neighborhood Kulanu serves, predominantly Jewish and predominantly Orthodox," according to the complaint. "But it is not exclusively so. Kulanu teaches students of varying religions and faiths. It accommodates the needs of all of its children."

Kulanu, which is Hebrew for "all of us," says it "does not teach religion, promote religion or engage in religious activity." But it does recognize "the cultural background of its students," and has wall charts that teach the Hebrew alphabet, since many of its students "are called by Hebrew names and are familiar with the Hebrew language." Kulanu claims this "mak(es)these highly disabled students ... more comfortable in their school environment."

"SED has apparently confused Kulanu's accommodation of its students' ethnic and cultural needs with religious promotion," the complaint states. "This confusion - which we do not here allege is made with any malign intent - is nevertheless repugnant to constitutional principles and the First Amendment. SED's refusal to approve Kulanu because of the population that it serves is therefore arbitrary and capricious."

In its complaint, Kulanu rebuts other objections raised by the Education Department:

That Kulanu did not demonstrate that its students' disabilities require that they be educated in a separate facility, away from other students. ("The nature and severity of the disabilities of the children at Kulanu are such that they cannot be educated appropriately in general education classes even with supplemental aides and supports.")

That Kulanu did not establish a regional need for its program. ("Because the very stakeholders who are charged by SED to determine need [local school superintendents] have opined that a need exists, there is no issue as to the need for Kulanu's approval.")

That Kulanu does not meet the minimum daily school hours or annual school days. ("This is incorrect.")

"SED had denied Kulanu's application because of its concern that Kulanu is engaged in religious education or promotion," the complaint states. "In fact, Kulanu has taken great care to ensure that its curriculum, instruction and practices are entirely secular."

Disabled students are entitled to a free, appropriate public education under federal law. New York's Education Department oversees implementation of the federal law and companion state regulations. The department also monitors all public and private school in New York that serve students with disabilities, and in that role decides what programs are eligible to receive public money.

Kulanu is represented by Martin Bienstock, with Wilson, Elser, Moskowitz, Edelman & Dicker, of Albany.

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