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July 1, 1980

James RILEY and Loretta Riley, on behalf of themselves and John M. Riley, their minor child; et al., Plaintiffs,
Gordon M. AMBACH, as Commissioner of Education of the State of New York; et al., Defendants

The opinion of the court was delivered by: SIFTON


This action, brought by eighteen handicapped children and their parents on behalf of themselves and a class of persons similarly situated, seeks to enjoin the enforcement of certain regulations and policies of New York's Commissioner of Education with respect to the education of learning disabled children. The defendants initially named in this action were Gordon M. Ambach, Commissioner of Education of the State of New York; the State of New York; and nine school districts located within the Eastern District of New York. Stipulations of discontinuance have been filed with respect to all the named school districts. On October 29, 1979, plaintiffs applied for preliminary injunctive relief, and the Court scheduled an evidentiary hearing. At the close of the hearing, on January 31, 1980, the parties agreed that the hearing be deemed a trial on the merits with respect to the claims addressed during the hearing. In addition, the parties stipulated that affidavits previously submitted could be considered by this Court as evidence taken at the hearing. Accordingly, the hearing has been treated as having been consolidated with the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2) on three of the claims stated in the complaint. *fn1"

 Plaintiffs challenge the following actions of defendant Ambach: (1) his promulgation of a regulation requiring that a learning disabled child "exhibit a discrepancy of 50% or more between expected achievement based on . . . intellectual ability and actual achievement" in order to qualify as a handicapped child within the meaning of the applicable federal and state statutes relating to the education of such children, 8 NYCRR 200.1(d)(4); (2) his removal of all residential schools treating learning disabled children from a list of schools approved by the Commissioner of Education for the treatment of handicapped children, thereby allegedly eliminating such schools as options for the placement of learning disabled children pursuant to applicable federal and state statutes; and (3) his issuance of an advisory memorandum stating that any school district serving learning disabled children in excess of 2% of the total population of school children would be subjected to an annual site visit, thereby allegedly inhibiting the local school districts from classifying children as learning disabled.

 Plaintiffs base their challenge to the actions of defendant Ambach primarily on federal statutory and constitutional grounds. The statutes allegedly violated are the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. and 794, and the Education of All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. Plaintiffs also assert, pursuant to 42 U.S.C. § 1983, that defendants have violated their 14th amendment rights to due process and equal protection. In addition, plaintiffs claim that the actions of defendant Ambach violate sections 4402 and 4403 of the Education Law of New York. As a result of this Court's disposition of this case on federal statutory grounds, it need not, with one exception, *fn2" reach the constitutional issues raised by plaintiffs. See, e.g., Davis v. Southeastern Community College, 574 F.2d 1158, 1163 (4th Cir. 1978), reversed and remanded on other grounds, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979); Halderman v. Pennhurst State School, 612 F.2d 84, 94 (3d Cir. 1979); Gurmankin v. Costanzo, 556 F.2d 184, 186 (3d Cir. 1977). Nor indeed have plaintiffs briefed and argued the constitutional issues, preferring to rely on their statutory claims. The Court also need not and does not decide the pendent state claims alleging violations of the Education Law of New York, sections 4401 et seq.

 Before discussing plaintiffs' statutory claims, it will be useful to survey briefly the legislative history of federal assistance for handicapped children. The federal government first directed its attention to the needs of handicapped individuals in the 1970's. The primary legislative manifestations of this concern were section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibited discrimination against the handicapped in programs receiving federal financial assistance, and the Education for All Handicapped Children Act of 1975 ("EHA"), 20 U.S.C. § 1401 et seq., which established an elaborate federal-state program to secure a "free appropriate public education" for all handicapped children and expanded federal funding of state educational efforts for this purpose. Of special relevance to this case is the fact that EHA amended the definition of handicapped children to include children with specific learning disabilities as one of eleven categories of disabilities covered by the Act. 20 U.S.C. § 1401(15). The statute defines "children with specific learning disabilities" as follows:

"The term "children with specific learning disabilities' means those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage."

 20 U.S.C. § 1401(15). In connection with the passage of this legislation, the Senate Labor and Public Welfare Committee stated that "children with specific learning disabilities, who by reason of their disabilities require special education and related services, should be insured a right to education and . . . parents of such children have a right to expect that individually designed instruction to meet their children's specific needs is available." S.Rep.No.94-168, 94 Cong. 1st Sess. (June 2, 1975) at 10, U.S.Code Cong. & Admin.News 1975, pp. 1425, 1430.

 A state may elect to participate in the federal grant-in-aid program established by EHA by meeting the eligibility requirements set forth in 20 U.S.C. § 1412, including a demonstration that it has put into effect "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). As a further prerequisite for the receipt of federal funds, the state must submit a detailed state plan which meets the requirements of the federal statute. 20 U.S.C. § 1413.

 The New York State program, delineated in New York Education Law sections 4401 et seq., is largely implemented by the local educational agencies or school districts. A district which applies for funding to the State Department of Education must provide assurances that it will expend its monies in conformity with federal and state requirements, including the proper identification, location and evaluation of handicapped children, 20 U.S.C. § 1414(a)(1)(A), and the preparation of an individual education program ("IEP") for each child found to be handicapped. 20 U.S.C. § 1412(4). See New York Education Law 4402. In New York, a child is classified and his IEP is developed by the Committee of the Handicapped ("COH") of the local school district. New York Education Law 4402.1(b)(1)-(3).

 An additional federal requirement imposed on participating states is the availability of procedures whereby the evaluation and placement of the child may be challenged and reviewed. 20 U.S.C. § 1415. The procedures in New York include the right to appeal the decision of the COH to an impartial hearing officer; if the hearing officer affirms the recommendation of the COH, the aggrieved party may take a further appeal to the Commissioner of Education. New York Education Law 4404.1-2. Under federal law, a party may challenge the Commissioner's decision in state or federal court. 20 U.S.C. § 1415(e)(2).

 In terms of the education of the handicapped, the regulatory programs established pursuant to the EHA and the Rehabilitation Act are the same. The salient features of EHA are echoed in regulations promulgated by HEW under section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 45 CFR 84.33 et seq. See, e.g., Boxall v. Sequoia, 464 F. Supp. 1104, 1108 (N.D.Cal.1979); Lora v. Bd. of Education of City of New York, 456 F. Supp. 1211, 1228 (E.D.N.Y.1978), aff'd in part, vacated and remanded in part on other grounds, 623 F.2d 248, 587 F. Supp. 1572 (1980). *fn3" Thus, the statutes and regulations promulgated thereunder will be treated together for purposes of this opinion.

 Two significant features of the federal regulatory scheme should be noted. First, there is a clear preference for "mainstreaming," or educating handicapped children with non-handicapped children wherever possible. 20 U.S.C. § 1412(5)(B), 45 CFR 121a.550, 45 CFR 84.34(a). A school district must make available to handicapped children a continuum of alternative placements including regular classes, special classes, private schools, home instruction, and instruction in hospitals and institutions and the child must be placed in the "least restrictive environment" responsive to the child's individual needs. 45 CFR 121a.551; Stuart v. Nappi, 443 F. Supp. 1235, 1242 (D.Conn.1978). Second, an educational program must meet the individual educational needs of each handicapped child. See, e.g., 20 U.S.C. § 1401(16), 45 CFR 121a.14, 121a.552, 45 CFR 84.33(b). The regulations specifically define an "appropriate" education as the provision of "regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met." 45 CFR 84.33(b)(1)(i). This emphasis on individualized treatment is also reflected in the federal requirement that an individual educational program, or IEP, be developed for each handicapped child. 20 U.S.C. §§ 1401(19), 1412(4).

 What follows sets forth the specific statutory violations alleged by plaintiffs. One alleged violation concerns the initial classification of a child as learning disabled, while another involves the appropriate placement of a child already so classified. There is also before the Court a third claim regarding the procedures established by New York to monitor the compliance of the school districts with state and federal law.


 Section 200.1(d)(4) of the Regulations of the New York Commissioner of Education requires that a learning disabled child "exhibit a discrepancy of 50% or more between expected achievement based on . . . intellectual ability and actual achievement" in order to qualify as handicapped for purposes of EHA. Plaintiffs maintain that this rule is inconsistent with the federal regulatory requirement that a learning disabled child exhibit a "severe" discrepancy between achievement and intellectual ability. 45 CFR 121a.541. *fn4" They further contend that the "50% discrepancy" rule violates the federal statutory requirement that all handicapped children be identified, located and evaluated, 20 U.S.C. § 1412(2)(C), since it excludes from identification as handicapped those "severely" learning disabled children who do not meet the 50% cut-off established by defendant Ambach. Finally, they contend that the imposition of a per se quantitative rule on the multidisciplinary teams that comprise the local committees on the handicapped undermines their discretion and prevent them from making appropriate individualized judgments as to which learning disabled children are entitled to the protection of the statute.


 The New York Commissioner of Education is required to maintain a list of private residential and day schools specializing in the treatment of handicapping conditions that are approved for public funding. New York Education Law 4407.4. A handicapped child is eligible for placement in a school on the "approved list" at public expense if no appropriate educational program is available either in the school district, in a neighboring district, or through the area BOCES (Board of Cooperative Educational Services) program. New York Education Law sections 4401.2, 4402.2. On July 1, 1979, defendant Ambach removed from the approved list all residential schools serving children with specific learning disabilities. *fn5" The stated ground for this determination was that a learning disability is a "mild" or "moderate" handicapping condition which does not require residential treatment (Ex. 3, 16; Ex. 2, Grumet Dep. at 81, 105).

 Plaintiffs contend that this action violates several provisions of the federal statutes and regulations. According to EHA, 20 U.S.C. § 1413(a)(4)(B)(i):

"(Handicapped) children in private schools and facilities will be provided special education and related services (in conformance with an individualized educational program as required by this subchapter) at no cost to their parents or guardian, if such children are placed in or referred to such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all handicapped children within such State . . . ."

 In the same vein, the federal regulations state that "if placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child." 45 CFR 121a.302, 45 CFR 84.33(c)(3). Further, federal regulations require that each public agency insure "that a continuum of alternative placements is available to meet the needs of handicapped children for special education and related services;" this continuum must include "instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions." 45 CFR 121a.551.

 Plaintiffs contend that these statutes and regulations explicitly require that residential placement be provided if necessary for a particular child and that defendant Ambach has improperly issued a rule excluding this possibility for learning disabled children. Plaintiffs argue that there are learning disabled children for whom residential placement is necessary and that, in any event, this determination lies within the province of the COH to be based on the individual requirements of the child under consideration for placement.


 In November 1977, the Commissioner of Education circulated an advisory to all school districts in New York informing them that "where the incidence of children with specific learning disabilities served in the district exceeds 2%, the district will be subject to a site visit annually for review of assignment of children and program review by Department staff." Plaintiffs contend that this policy operates to set a limit of 2% on the number of children a district is willing to classify as learning disabled. Thus, the advisory has a "chilling effect" on the readiness of the school districts to provide all eligible learning disabled children with a "free appropriate public education" as mandated by federal law.

 Plaintiffs also contend that the three actions of defendant Ambach referred to above, taken together, indicate that the state regards learning disabilities as a "mild" handicapping condition and has relegated this disability to a low priority, "second-class" status. They argue that this contravenes federal law, which mandates that handicapped children be treated without regard to disability category: "A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." 20 U.S.C. § 1412(2)(C), 45 CFR 84.33(a).

 Plaintiffs request various forms of relief. Initially, they seek class certification pursuant to Federal Rule of Civil Procedure 23. Second, they seek a declaration from this Court that defendants' actions are violative of federal law. Third, they request the following injunctive relief: that defendant Ambach be directed to restore to the approved list all residential schools on that list prior to July 1, 1979; that he cease enforcement of the 50% rule and the 2% site visit policy; and that he inform the school districts and the families of handicapped children of the decision of this Court. Finally, plaintiffs request tuition reimbursement for all parents who placed their children in residential schools for the current school year.

 As will be discussed in detail below, the Court declines to certify this action as a class action, to enjoin enforcement of the site inspection provision, or to award tuition reimbursement to plaintiffs. However, based on the findings of fact and conclusions of law set forth herein, a declaratory judgment and an injunction enjoining the use of the 50% discrepancy rule and restoring residential schools to the approved list will issue.

 Before discussing the reasons for the foregoing decision, it is necessary to resolve certain preliminary matters regarding the parties, class certification, jurisdiction, and standing. In this connection, it is appropriate first to describe the situation of each plaintiff as established by the record.


 1. John Riley, age 14, Levittown School District. John was classified as handicapped by the Levittown COH in April 1979. Following another COH meeting on June 12, 1979, the school district recommended that John be placed in the Landmark School, a residential school in Massachusetts formerly on the Commissioner's approved list. Shortly after making this recommendation, the school district was informed by defendant Ambach that Landmark had been removed from the approved list and that John's tuition would not be paid by the State. Therefore, on August 30, the COH recommended placement in the Levittown Memorial Junior High School with special education classes. The parents viewed this placement as unsatisfactory and placed John in Landmark at their own expense for the 1979-80 school year. During the pendency of this action the parents requested a review of John's placement. On January 2, 1980, the COH again recommended local placement with the proviso that, if Landmark were restored to the approved list, it would again recommend Landmark as the most appropriate placement. The Levittown School District has entered into a stipulation with plaintiffs to the effect that should this Court order the restoration of Landmark to the approved list, the COH "will reinstate its original recommendation with respect to John Riley for placement at the said Landmark School."

 2. Charles Antonoff, 15, Half Hollow Hills School District. The COH of Half Hollow Hills School District classified Charles as handicapped by reason of specific learning disabilities in July 1978 and recommended a resource room program in the local school district. The parents placed Charles in Landmark for the 1978-79 school year and requested an administrative hearing. In May 1979, the hearing officer decided that Charles was severely learning disabled and, because of procedural violations committed by the school district, approved funding at Landmark for the 1978-79 school year. He also directed the COH to develop an IEP for Charles and to find him a proper placement within the school district for the 1979-80 school year. The COH failed to make a recommendation for the current school year, and the parents re-registered him at Landmark. On September 26, 1979, the parents demanded an administrative hearing with respect to the school district's failure to make a timely placement recommendation for 1979-80. No hearing was held, but the COH recommended a resource room placement in December 1979. In January 1980, the parents pursued an appeal to the Commissioner. Defendant Ambach's decision, dated February 29, 1980, held that the December recommendation of the COH obviated the need for a hearing, and accordingly, the appeal was dismissed.

 3. Kenneth Antonoff, 13, Half Hollow Hills School District. In July 1978, the COH refused to classify Kenneth as handicapped. The parents placed him in Landmark in September 1978 and requested a fair hearing. On May 29, 1979, the fair hearing officer determined that Kenneth did not meet the 50% discrepancy requirement and denied funding of Kenneth's expenses at Landmark. The parents appealed to the Commissioner. On October 4, 1979, defendant Ambach determined that Kenneth was handicapped by reason of a specific learning disability and ordered that his tuition costs at Landmark for 1978-79 be publicly reimbursed; he also directed that Kenneth's tuition costs continue to be reimbursed until the COH and the school district implemented an appropriate IEP within the local district. The parents requested a rehearing on that portion of the decision mandating that Kenneth be relocated in the home district in the middle of the school year, but this request was denied on December 12, 1979. In December 1979, the COH recommended that Kenneth be placed in the local school district with resource room treatment one period daily. The parents have sought an administrative hearing on this recommendation.

 4. Lawrence Stein, age 13, Plainview-Old Bethpage School District. In January 1978, the COH concluded that Lawrence was handicapped by reason of specific learning disability and commenced a search for placement in the private sector. Meanwhile, he was placed in regular classes with resource room help from a special education teacher. After a COH meeting on June 21, 1979, the parents were assured that a school search would be carried out during the summer months and that the boy would be appropriately placed. By September, the school district had still not recommended a private placement, and the parents placed the child in Pine Ridge School, a school formerly on defendant Ambach's approved list. On December 7, 1979, the parents requested an administrative hearing.

 5. Guy Ward, age 16, Locust Valley School District. Guy has consistently been treated as a handicapped child by the school district and has been publicly funded in residential placements since 1974. Guy was placed by the COH in Landmark beginning in 1978-79 and attends that school at the present time. The parents have been informed that as a result of the Commissioner's actions, Guy will not be able to continue in Landmark at public expense in the coming school year.

 6. Keith Griffin, age 17, Rockville Centre School District. In October 1979, the COH classified Keith as a learning disabled child and recommended daily resource room help. The parents have requested an administrative hearing on this placement since they believe residential treatment is appropriate.

 7. Christopher Henry, age 14, Elwood Union Free School District. On May 3, 1979, the COH classified Christopher as handicapped and recommended placement in a resource room for three hours daily. Instead, the parents placed him in Landmark for the 1979-80 school year and appealed the COH recommendation. The hearing officer upheld the COH, and on December 20, 1979, defendant Ambach directed the COH and the local school district to develop a more complete analysis of Christopher's learning problems so that his classification could be more clearly defined and an appropriate placement recommended. The Commissioner disallowed public reimbursement of the child's tuition costs at Landmark for the 1979-80 school year because the school is no longer on the approved list.

 8. Brian Commins, age 16, Mattituck-Cutchogue School District. Brian was classified as handicapped by another school district in June 1977. In September 1979, he entered his present district and was placed in a BOCES program. The parents are dissatisfied with this placement, since they believe residential placement is appropriate, and they have demanded an administrative hearing.

 9. Daniel Commins, age 15, Mattituck-Cutchogue School District. Daniel also entered the school district at the beginning of the current school year and is presently in a regular school room placement. His parents contend he is handicapped and entitled to residential placement.

 10. Michael Commins, age 11, Mattituck-Cutchogue School District. Michael was classified as handicapped by a previous COH on September 29, 1977, and is presently in a regular classroom in the school district. His parents contend he should be placed in a residential facility.

 11. Straty Eoanidis, age 12, Southold Union Free School District. In April 1979, Straty's condition was reviewed by the COH of the Southold School District. The Committee did not determine that Straty was handicapped, but nonetheless prepared an IEP for him in September 1979. Plaintiffs contend that Straty was denied classification as handicapped because he did not meet the 50% discrepancy standard. The parents were dissatisfied with the in-district recommended placement and placed Straty in a private school, Linden Hill School in Northfield, Mass., for the 1979-80 school year. An administrative hearing request was denied as untimely in November 1979. By decision dated January 31, 1980, the Commissioner directed that the school district afford Straty an administrative hearing regarding the appropriateness of the 1979-80 placement, but did not accede to the parents' request that he overturn the failure of the COH to classify Straty as handicapped.

 12. Glen Jacobs, age 9, Southold Union Free School District. The COH declared Glen handicapped on May 11, 1978, and recommended a BOCES placement. His placement was reviewed in May 1979 and September 1979; on both occasions the BOCES recommendation was confirmed. Dissatisfied with the program, the parents placed Glen in the Linden Hill School in September 1979. In October 1979, an impartial hearing officer approved the in-district placement, and this decision was appealed to the Commissioner on December 20, 1979. The Commissioner held that a child with a specific learning disability should be educated within the local school district and that there was no right to tuition reimbursement for children placed in unapproved schools; however, he ordered the COH to make a precise determination of Glen's handicapping condition in order to recommend an appropriate educational placement.

 13. James Pirillo, age 12, Greenport Union Free School District. James was classified as learning disabled by the school district on June 7, 1978. The COH recommended residential placement and initiated a school search. While the search was proceeding, defendant Ambach eliminated residential schools from the approved list. The parents enrolled James in the Greenwood School, Putney, Vermont, a school which has never appeared on the Commissioner's approved list.

 14. Peter Pirillo, age 9, Greenport Union Free School District. Peter currently attends public school. In November 1979, the parents ...

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