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November 5, 1979

JEAN SHERRY, Individually and as Next Friend of her infant child, DELOWEEN SHERRY, Plaintiff,

The opinion of the court was delivered by: CURTIN

Plaintiff's daughter, Deloween Sherry, is fourteen years old. She is legally blind and deaf and she suffers from brain damage and an emotional disorder which makes her self-abusive. There is no question that she is a handicapped individual within the meaning of the Rehabilitation Act of 1973, *fn1" and the Education of the Handicapped Act ("Handicapped Act"). *fn2" In September 1978 Deloween Sherry was enrolled at the New York State School for the Blind in Batavia, New York. *fn3" As a result of injuries resulting from her self-abusive behavior, she was taken back to Olean, New York on November 13, 1978 and hospitalized for medical treatment.

On November 21, 1978, Glenn E. Thompson, Superintendent of the School for the Blind, wrote a letter to Mrs. Sherry stating that the school did not have sufficient staff to supervise her daughter and that a return to the residential program at the school would be impossible until her condition changed or more staff were hired. See Letter of Glenn Thompson, dated November 21, 1978, attached to Plaintiff's Request for Admission. He stated that without a better student-to-staff ratio, the school could not provide the degree of supervision required to prevent Deloween from seriously hurting herself.

A meeting was held at the Olean City School District High School on November 29, 1978. The Olean City District is the school district in which Deloween Sherry resides and is a "local educational agency," as defined in 20 U.S.C. § 1401(8), which receives federal funds for educational programs. This meeting was attended by Mr. Thompson, Mrs. Sherry, representatives of the Olean City School District and its Committee on the Handicapped, a regional associate of the New York State Education Department, the school psychologist from the School for the Blind, and a children's consultant from the New York State Commission for the Visually Handicapped. Superintendent Thompson informed Mrs. Sherry that if she insisted on returning Deloween to the School for the Blind, then the school would suspend her and a suspension hearing would be provided upon request.

 In the meantime, the Olean City School District arranged a temporary program to assist Mrs. Sherry with Deloween's behavior. On December 11 and 15, the school district's Committee on the Handicapped discussed whether the district could provide an alternative education program for her. The Committee concluded that it could not and that the most appropriate program available was at the School for the Blind. It recommended that Deloween return to the day program until such time as she could return to the residential program. The school district discontinued its program of assistance to Mrs. Sherry as of the Christmas holidays in December.

 On December 27, 1978, plaintiff requested through her attorney that her daughter be reinstated in the residential program of the School for the Blind. It also was requested in the letter that she be afforded the procedural protections provided by the Handicapped Act, 20 U.S.C. § 1415. The School for the Blind, consequently, suspended Deloween, effective January 2, 1979. See Letter from Glenn Thompson to Mrs. Sherry, dated December 29, 1978, attached to Plaintiff's Complaint as Exhibit B. This letter informed Mrs. Sherry that the suspension would be revoked whenever "it appears to be in Deloween's and the school's best interests to do so," and that "(Y)ou and Deloween are entitled to a hearing concerning this suspension at which you have the right to representation by counsel."

 On January 11, 1979, this action for injunctive and declaratory relief was commenced, seeking the reinstatement of Deloween Sherry in her educational program at the School for the Blind and the revision of defendants' procedures to comply with 20 U.S.C. § 1415. Superintendent Thompson advised Mrs. Sherry on January 19, 1979 that additional supervisory personnel had been authorized for the school and that Deloween's suspension would be revoked as of January January 22, 1979. Deloween returned to her residential program at the School for the Blind on January 23, 1979.

 In addition to sketching the factual story of what occurred to Deloween Sherry, it is important to set forth certain additional circumstances. As noted above, Mr. Thompson's letter to Mrs. Sherry of January 2, 1979, suspending Deloween, stated that plaintiff was entitled to a hearing. The stipulation entered into by counsel with respect to the motions pending before the court makes reference to this offer. See Stipulations of Counsel Regarding Motion to Dismiss and Cross Motion for Summary Judgment, filed May 8, 1979. Paragraph 15 of the stipulation states that this hearing was offered

in order to comply with the provisions of 8 NYCRR § 200.6(a)(6) that no pupil appointed to a state operated school be suspended for disciplinary reasons without making available due process protections comparable to the provisions of Section 3214 of the NEW YORK EDUCATION LAW.

 Paragraph 18 of the stipulation further states that prior to Thompson's letter of December 29, 1978 suspending Deloween, Mrs. Sherry was not advised of the availability of a hearing pursuant to the provisions of the Handicapped Act to review the actions taken by the school. Moreover, P 19 details the nature of the hearing which the State of New York provides. It states:

The STATE EDUCATION DEPARTMENT does not appoint impartial hearing officers pursuant to the provisions of P.L. 94-142 (Education of the Handicapped Act) at the state agency level and does not provide for hearings before impartial hearing officers pursuant to the provisions of P.L. 94-142 to review matters related to the identification, evaluation, educational placement or provision of a free appropriate public education of students appointed to state-operated or state-supported schools other than as would be made available at the local school district level to review the appropriateness of a placement to such a state school recommended by the local district, the decision from which would be reviewable to the State Commissioner of Education.

 Finally, the defendant New York State Education Department ("Education Department") is a "state educational agency" within the meaning of the Handicapped Act. Stipulation, P 2; 20 U.S.C. § 1401(7). The School for the Blind, run directly by the Education Department, is part of that state educational agency.

 The defendants have made a motion to dismiss the action. The plaintiff has made a cross-motion for summary judgment.



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