
    Daniel Hoffman, Respondent, v Board of Education of the City of New York, Appellant.
    Argued November 19,1979;
    decided December 17, 1979
    
      POINTS OF COUNSEL
    
      Allen G. Schwartz, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant.
    I. The record does not establish malpractice by Dr. Gottsegen nor a basis for imposing tort liability upon a school board for not retesting plaintiff’s IQ pursuant to the policy then in effect, when it was the judgmental evaluation of plaintiff’s teachers not to recommend a formal retest of his IQ. Nor is there any basis for a finding that plaintiff would have done better on a retest, or, with his massive speech problems, done better in a regular class. (Fein v Board of Educ., 305 NY 611; Clark v Board of Educ., 304 NY 488.) II. There is no basis for liability upon any claim of professional negligence or malpractice by Dr. Gottsegen. (Pike v Honsinger, 155 NY 201; Ford v McAdoo, 231 NY 155; Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191.) III. There is no basis for liability on account of defendant’s policy of retesting the IQ’s only in selected cases. (Donohue v Copiague Union Free School Dist., 64 AD2d 29; James v Board of Educ., 42 NY2d 357.) IV. There is no basis for tort liability for the decision of plaintiff’s teachers, without exception, in the exercise of their professional judgment, not to recommend a retest of his IQ. (Ferrucci v State of New York, 42 AD2d 359; Cruz v State of New York, 63 AD2d 862; Bellows v State of New York, 37 AD2d 342; Dennison v State of New York, 28 AD2d 608; Yong v State of New York, 40 AD2d 730; Pratt v Robinson, 39 NY2d 554; Centano v City of New York, 48 AD2d 812, 40 NY2d 932; Donohue v Copaigue Union Free School Dist, 64 AD2d 29.) V. Under the board’s pre-1968 policy,
    
      
      Perry Pazer and Helen B. Stoller for respondent.
    I. Plaintiff made out a prima facie case and the verdict was support by the evidence. (Swensson v New York, Albany Desp. Co., 309 NY 497; Dunham v Village of Canisteo, 303 NY 498; Betzag v Gulf Oil Corp., 298 NY 358; Ingersoll v Liberty Bank of Buffalo, 278 NY 1; Cole v New York Racing Assn., 24 AD2d 933, 17 NY2d 761; Schuster v City of New York, 5 NY2d 75; McCrink v City of New York, 296 NY 99; Fischer v City of Elmira, 75 Misc 2d 510; Alexander v Central School Dist. No. 1, 28 AD2d 641; Shaw v Village of Hempstead, 20 AD2d 663.) II. The verdict was not excessive and should be restored to the $750,000 granted by the jury. (Griffin v United States, 351 F Supp 10; Foley v State of New York, 265 App Div 682, 294 NY 275; Couser v City of Mechanicville, 274 App Div 736, 300 NY 574; Triggs v Advance Trucking Corp., 23 AD2d 777; Rapant v Ogsbury, 279 App Div 298.)
   OPINION OF THE COURT

Jasen, J.

The significant issue presented on this appeal is whether considerations of public policy preclude recovery for an alleged failure to properly evaluate the intellectual capacity of a student.

The facts in this case may be briefly stated. Plaintiff Daniel Hoffman entered kindergarten in the New York City school system in September, 1956. Shortly thereafter, plaintiff was examined by Monroe Gottsegen, a certified clinical psychologist in the school system, who determined that plaintiff had an intelligence quotient (IQ) of 74 and recommended that he be placed in a class for Children with Retarded Mental Development (CRMD). Dr. Gottsegen was, however, not certain of his findings. The apparent reason for this uncertainty was that plaintiff suffered from a severe speech defect which had manifested itself long before plaintiff entered the school system. Plaintiff’s inability to communicate verbally made it difficult to assess his mental ability by means of the primarily verbal Stanford-Binet Intelligence Test administered by Dr. Gottsegen. As a result, Dr. Gottsegen recommended that plaintiff’s intelligence "be re-evaluated within a two-year period so that a more accurate estimation of his abilities can be made.”

Pursuant to Dr. Gottsegen’s recommendations, plaintiff was placed in a CRMD program. While enrolled in the program, plaintiff’s academic progress was constantly monitored through the observation of his teachers and by the use of academic "achievement tests” given twice a year. Although in 1959 and 1960 plaintiff received a "90 percentile” rating as to "reading readiness”, indicating that his potential for learning to read was higher than average, the results of his achievement tests consistently indicated that he possessed extremely limited reading and mathematical skills. As a result of plaintiff’s poor performance on the standardized achievement tests and, presumably, because his teacher’s daily observations confirmed his lack of progress, plaintiff’s intelligence was not retested on an examination designed specifically for that purpose.

In 1968, plaintiff was transferred to the Queens Occupational Training Center (OTC), a manual and shop training center for retarded youths. The following year plaintiff’s mother requested, for the first time, that plaintiff’s intelligence be retested. Plaintiff was administered the Wechsler Intelligence Scale for Adults (WAIS). The results of the test indicated that plaintiff had a "verbal” IQ of 85 and a "performance” IQ of 107 for a "full scale” IQ of 94. In other words, plaintiff’s combined score on the WAIS test indicated that he was not retarded. Inasmuch as his course of study at the OTC was designed specifically for retarded youths, plaintiff was no longer qualified to be enrolled. As a result, plaintiff was allowed to complete the spring semester of 1969, but was not allowed to return in the fall.

Thereafter, plaintiff commenced this action against the Board of Education of the City of New York, alleging that the board was negligent in its original assessment of his intellectual ability and that the board negligently failed to retest him pursuant to Dr. Gottsegen’s earlier recommendation. Plaintiff claimed that these negligent acts and omissions caused him to be misclassified and improperly enrolled in the CRMD program which allegedly resulted in severe injury to plaintiffs intellectual and emotional well-being and reduced his ability to obtain employment. At trial, the jury awarded plaintiff damages in the amount of $750,000. The Appellate Division affirmed this judgment, two Justices dissenting, as to liability, but would have reversed this judgment and required plaintiff to retry the issue of damages had he not consented to a reduction in the amount of the verdict from $750,000 to $500,000. The Appellate Division predicated its affirmance upon defendants’ failure to administer a second intelligence test to plaintiff pursuant to Dr. Gottsegen’s recommendation to "re-evaluate” plaintiffs intelligence within two years. The court characterized defendants’ failure to retest plaintiff as an affirmative act of negligence, actionable under New York law. There should be a reversal.

At the outset, it should be stated that although plaintiffs complaint does not expressly so state, his cause of action sounds in ’’educational malpractice”. Plaintiffs recitation of specific acts of negligence is, in essence, an attack upon the professional judgment of the board of education grounded upon the board’s alleged failure to properly interpret and act upon Dr. Gottsegen’s recommendations and its alleged failure to properly assess plaintiffs intellectual status thereafter. As we have recently stated in Donohue v Copiague Union Free School Dist. (47 NY2d 440), such a cause of action, although quite possibly cognizable under traditional notions of tort law, should not, as a matter of public policy, be entertained by the courts of this State. (47 NY2d, at p 444.)

In Donohue, this court noted that "[c]ontrol and management of educational affairs is vested in the Board of Regents and the Commissioner of Education (NY Const, art V, § 4; art XI, § 2; Education Law, §§ 207, 305; see Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 116; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 23 NY2d 483, 485).” (47 NY2d, at p 444.) In that case, the court was invited to undertake a review not only of broad educational policy, but of the day-to-day implementation of that policy as well. We declined, however, to accept that invitation and we see no reason to depart from that holding today. We had thought it well settled that the courts of this State may not substitute their judgment, or the judgment of a jury, for the professional judgment of educators and government officials actually engaged in the complex and often delicate process of educating the many thousands of children in our schools. (Donohue v Copiague Union Free School Dist., 47 NY2d 440, 444, supra; James v Board of Educ., 42 NY2d 357, 366.) Indeed, we have previously stated that the courts will intervene in the administration of the public school system only in the most exceptional circumstances involving "gross violations of defined public policy”. (Donohue v Copiague Union Free School Dist., 47 NY2d 440, 445, supra; Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 121, supra.) Clearly, no such circumstances are present here. Therefore, in our opinion, this court’s decision in Donohue is dispositive of this appeal.

The court below distinguished Donohue upon the ground that the negligence alleged in that case was a failure to educate properly or nonfeasance, whereas, in that court’s view, the present case involves an affirmative act of misfeasance. At the outset, we would note that both Donohue and the present case involved allegations of various negligent acts and omissions. Furthermore, even if we were to accept the distinction drawn by the court below, and argued by plaintiff on appeal, we would not reach a contrary result. The policy considerations which prompted our decision in Donohue apply with equal force to "educational malpractice” actions based upon allegations of educational misfeasance and nonfeasance.

Our decision in Donohue was grounded upon the principle that courts ought not interfere with the professional judgment of those charged by the Constitution and by statute with the responsibility for the administration of the schools of this State. In the present case, the decision of the school officials and educators who classified plaintiff as retarded and continued his enrollment in CRMD classes was based upon the results of a recognized intelligence test administered by a qualified psychologist and the daily observation of plaintiff’s teachers. In order to affirm a finding of liability in these circumstances, this court would be required to allow the finder of fact to substitute its judgment for the professional judgment of the board of education as to the type of psychometric devices to be used and the frequency with which such tests are to be given. Such a decision would also allow a court or a jury to second-guess the determinations of each of plaintiff’s teachers. To do so would open the door to an examination of the propriety of each of the procedures used in the education of every student in our school system. Clearly, each and every time a student fails to progress academically, it can be argued that he or she would have done better and received a greater benefit if another educational approach or diagnostic tool had been utilized. Similarly, whenever there was a failure to implement a recommendation made by any person in the school system with respect to the evaluation of a pupil or his or her educational program, it could be said, as here, that liability could be predicated on misfeasance. However, the court system is not the proper forum to test the validity of the educational decision to place a particular student in one of the many educational programs offered by the schools of this State. In our view, any dispute concerning the proper placement of a child in a particular educational program can best be resolved by seeking review of such professional educational judgment through the administrative processes provided by statute. (See Education Law, § 310, subd 7.)

Accordingly, the order of the Appellate Division should be reversed and the complaint dismissed.

Meyer, J.

(dissenting). I agree with Mr. Justice Irwin Shapiro, on the analysis spelled out in his well-reasoned decision at the Appellate Division (64 AD2d 369), that this case involves not "educational malpractice” as the majority in this court suggests (pp 125, 126) but discernible affirmative negligence on the part of the board of education in failing to carry out the recommendation for re-evaluation within a period of two years which was an integral part of the procedure by which plaintiff was placed in a CRMD class, and thus readily identifiable as the proximate cause of plaintiff’s damages. I, therefore dissent.

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Jasen; Judge Meyer dissents and votes to affirm in a memorandum in which Judges Wachtler and Fuchsberg concur.

Order reversed, with costs, and complaint dismissed.  