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ROWLEY v. BOARD OF EDUC. OF THE HENDRICK HUDSON CE

January 15, 1980

AMY ROWLEY, by her parents and natural guardians, Clifford and Nancy Rowley, and Clifford and Nancy Rowley, in their own right, Plaintiff, against THE BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Westchester County, and THE COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, Defendants.


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

The facts of this case are set forth in the post-trial opinion filed simultaneously with this memorandum order. The purpose of this memorandum is to deal with two motions made during the course of the proceedings: the motion by the State Commissioner of Education to dismiss for lack of jurisdiction and the plaintiffs' motion to have included in the record affidavits which were attached to their petition to the Commissioner of Education but were apparently not considered by him in reaching his decision.

 For the reasons which follow, I deny the defendant commissioner's motion and grant the plaintiffs' motion.

 Jurisdiction

 Amy Rowley is currently in the second grade of her neighborhood public school, the Furnace Woods School of the Hendrick Hudson Central School District in Peekskill, New York. This is her third year in that school.

 At a meeting held on December 8, 1978, Amy's parents, Clifford and Nancy Rowley, were presented with a draft of the individualized education program ("IEP") drawn up for Amy by her first grade teacher, setting out proposed educational goals and proposed support services for Amy's first grade year. As more fully set forth in the accompanying post-trial opinion, the Rowleys objected to the IEP on the grounds that it failed to provide for a sign language interpreter for Amy. The Rowleys demanded and received a hearing before an independent examiner, and subsequently appealed his adverse decision to the Commissioner of Education, who affirmed.

 By following this procedure, the plaintiffs exhausted all of their administrative remedies concerning the 1978-79 IEP, and thus became entitled to bring this action for review. Before this case went to trial, however, a new school year had begun and a new IEP was due. The plaintiffs, understandably, will not be satisfied with a mere declaration that last year's IEP improperly failed to provide interpretive services; they seek an injunction to compel such services for the current year. In asserting this court's lack of jurisdiction, the commissioner has in essence argued that the plaintiffs may not seek relief applicable to the 1979-80 school year without exhausting their administrative remedies with respect to the 1979-80 IEP. *fn1"

 Defendant commissioner appears to concede that the court has jurisdiction to review the 1978-79 IEP, as to which administrative review procedures were exhausted. Only mootness would strip the court of that jurisdiction. If mootness were accepted as a ground for refusing judicial review, the consequence might be that Amy's IEP would never have such review. Adoption of the 1979-80 IEP, which as of the time of trial had not yet been formulated, a hearing before an independent examiner and disposition of an appeal to the commissioner would have to take place before the matter would once again be ripe for court consideration. The case would not reach court until mid school year at the earliest, and would be moot by the end of the year. Thus the conduct complained of is "capable of repetition, yet evading review," and calls for the invocation of a recognized exception to the mootness doctrine, e.g. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).

 Having found that this court has jurisdiction to review the 1978-79 IEP, there is no need to find jurisdiction over the 1979-80 IEP. In a case in which jurisdiction is properly predicated on 20 U.S.C. § 1415, the court is empowered to grant any "appropriate" relief, 20 U.S.C. § 1415(e)(2), which would include injunctive relief extending beyond the school year at issue. Since the 1978-79 IEP should have contained a provision for a sign language interpreter (see accompanying post-trial opinion) and since Amy needs an interpreter in 1979-80 just as much as (if not more than) she did in 1978-79, I find that an injunction applicable to the 1979-80 school year is an appropriate form of relief.

 Additional Evidence

 At the hearing the plaintiffs moved to introduce affidavits which were attached to their petition to the Commissioner of Education, but which were apparently not considered by him in reaching his decision. *fn2" The defendants objected, contending that the commissioner properly refused to consider the affidavits and that they are not, therefore, a part of the record before this court. *fn3" I denied the plaintiffs' motion but permitted the parties to brief the issues and left open the possibility that my decision might be reopened. I now reverse my earlier decision and grant the plaintiffs' motion.

 The Regulations of the Commissioner of Education, § 279.4, provides that new matter can be filed in connection with the petition for review:

 
Initiation of review. The party seeking review shall file with the Office of Counsel of the State Education Department the petition for review including any written argument, memorandum of law, and additional documentary evidence, and the notice of intention to seek review where required, together with ...

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