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February 17, 1981

Anselmo and Jacqueline DIMA et al., Plaintiffs,
Frank J. MACCHIAROLA et al., Defendants

The opinion of the court was delivered by: COSTANTINO


The plaintiffs, parents and guardians of handicapped students formerly attending The Harlyn School ("Harlyn"), filed this action and alleged an improper transfer of Harlyn Students to other schools in violation of the Education of All Handicapped Children Act of 1975 ("EHA"), 20 U.S.C. § 1401 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Civil Rights Act, 42 U.S.C. § 1983, and various provisions of the New York Education Law ("N.Y.Educ.L.").

The defendants herein are as follows: Frank J. Macchiarola, the Chancellor of the New York City Board of Education ("Board"); Jerry C. Gross, the Board's Executive Director of the Division of Special Education; Gordon M. Ambach, the Commissioner of the Education Department of the State of New York ("State Education Department"); Louis Grumet, the State Education Department's Assistant Commissioner for the Education of Children with Handicapping Conditions; and Harlyn.

 Plaintiffs seek both preliminary and permanent injunctive relief to allow these handicapped students to remain at Harlyn pending due process hearings which plaintiffs contend should be held pursuant to Section 1415 of the EHA and Sections 4402(1)(b)(1) and 4404 of the N.Y.Educ.L. These statutes permit parties under certain circumstances to question, in a due process forum, the transfer of any handicapped student from one facility to another while allowing the student subject to such transfer to remain in the same facility until the due process procedures are exhausted. Further, the plaintiffs request the following additional relief: that Harlyn be approved by the State Education Department as a facility for the placement of handicapped children; that the preliminary audit by the Board which led to the Board's refusal to contract with Harlyn for the 1980-81 school year be set aside as improper; and, that Harlyn be publicly funded by the Board and the State Education Department while plaintiffs are pursuing their due process remedies. For reasons stated below, the entire suit is dismissed for failure to state a claim upon which relief can be granted and for failure to exhaust administrative remedies.


 Pursuant to the requirements set forth in the EHA, 20 U.S.C. § 1401 et seq., local school districts must apply to the federal government for funds to educate the handicapped, and as a condition for receiving such funds, they are obliged to provide "free appropriate public education" to the handicapped which meets the unique needs of all handicapped children. 20 U.S.C. §§ 1401(18), 1412. *fn1" See S.Rep.No.94-168, 94th Cong., 1st Sess. 26 (1975), reprinted in (1975) U.S.Code Cong. & Admin.News pp. 1425, 1450. To this end, local school districts like the Board contract with non-public educational institutions to educate these students when they are unable to provide an "appropriate" educational placement for each handicapped child. N.Y.Educ.L. §§ 4401(2) and 4402(2). *fn2" Both the Board and the State Education Department receive federal assistance under 20 U.S.C. § 1401 et seq., and consequently must comply with the mandates of the EHA.

 Since 1973, Harlyn has been certified by the State Education Department as an approved private institution for the placement and education of handicapped children. In August of 1973 and October of 1976, Harlyn and the State Education Department agreed that Harlyn would provide instruction for handicapped students during the 1973-74 school year and subsequent school years. The Board and Harlyn then entered into two similar enrollment agreements in December, 1976 and in May, 1978. Since that time, the students placed by the Board accounted for the lion's share of those enrolled at Harlyn. The school thus depended upon the tuition generated from these students to remain in existence. The Board's decision not to offer a contract to Harlyn for the 1980-81 school year affected approximately 160 handicapped students, including approximately 120 students placed at Harlyn by the Board.

 On or about July 8, 1980, the Board completed a preliminary audit of Harlyn's finances and educational programs for the school years 1977-78 and 1978-79. This audit allegedly revealed mismanagement by Harlyn of large sums of public monies and serious educational deficiencies in the programs offered. In addition, the audit indicated that monies were due and owing to both the State and the Board for past overpayments to Harlyn. After evaluating the facts revealed in the audit, the Board resolved not to sign a contract with Harlyn for the 1980-81 school year. The State Education Department, aware that Harlyn could not reopen without obtaining public funds through a contract with the Board, also terminated its enrollment agreement on July 30, 1980; the State assured Harlyn, however, that if Harlyn guaranteed that it could provide special education services for the 1980-81 year, it would be willing to negotiate a contract for the current year. Since Harlyn failed to reach an agreement with the Board, the funds necessary for Harlyn's operation were unavailable and the school never opened for classes in September, 1980. The State Education Department thereafter removed Harlyn from the list of private schools it approved for the education of handicapped children. In essence, the State thought it imprudent to retain a school on the approved list which neither appeared likely to open for that year nor was currently operating, and which could not insure prompt repayment of the amounts owed to the State. (See Grumet Aff.)

 In a letter dated August 29, 1980, the Board notified the parents and guardians of the students scheduled to attend Harlyn that the Board had not signed a contract with Harlyn due to both its fiscal and educational deficiencies, and that each child was or would shortly be offered an alternate education site. Although the parents and guardians were permitted to discuss this decision with the Board in an open meeting held at Harlyn, they were never afforded the full opportunity to question or challenge the Board's decision in a due process forum. This suit was filed when the plaintiffs concluded that the reassigned sites did not provide adequate programs to meet the individual needs of each child, whereas Harlyn educated their children to their satisfaction. In contesting the Board's failure to contract with Harlyn, plaintiffs argued that the Board's reassignment decision was not implemented in accordance with the due process procedures set forth in Section 1415 of the EHA and therefore should be vacated, and that pending any determination concerning the reassignment, the students should be permitted to remain at Harlyn at public expense.


 Section 1415 of the EHA was promulgated by Congress to insure that decisions concerning the education of the handicapped were made fairly and with the appropriate input of parents and guardians. *fn3" See Vogel v. School Board, 491 F. Supp. 989 (W.D.Mo.1980); Eberle v. Board of Pub. Educ., 444 F. Supp. 41 (D.Pa.1977), aff'd 582 F.2d 1274 (3d Cir. 1978). More specifically, it requires that every local educational agency afford a party the following relief prior to the transfer of a student: prior written notice to the child's parents or guardian of a proposed change in the educational placement of a child, 20 U.S.C. § 1415(b)(1)(C); the right to present complaints with respect to any such change, 20 U.S.C. § 1415(b)(1)(E), at an impartial due process hearing, 20 U.S.C. § 1415(b)(2); the right to appeal such decision to the state education agency, 20 U.S.C. § 1415(c), and ultimately to the state or federal court, 20 U.S.C. § 1415(e)(2); and the right to have the child remain in the "then current educational placement" while these proceedings are pending. 20 U.S.C. § 1415(e)(3) ("status quo" provision). *fn4"

 The major question herein is whether the transfer of these handicapped students, caused solely by the Board's refusal to contract with Harlyn, constituted a change in "placement" as set forth in 20 U.S.C. § 1415(b)(1)(C) sufficient to trigger the prior notice and hearing requirements of Section 1415. Drawing on the analysis in a recent decision by the Supreme Court which rejected a similar request in a suit involving the complete transfer of medical assistance recipients from a decertified nursing home, O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980), the action appears to be wholly without merit as the plaintiffs have failed to establish the existence of an injury capable of redress. Mindful that under normal circumstances "a decision to transfer a handicapped child from a special class in a regular school to a special school would involve the sort of fundamental alteration in the child's education requiring prior parental notification under § 1415(b)," Concerned Parents & Citizens For The Continuing Education at Malcolm X (P.S. 79) v. Board of Education ("Malcolm X"), 629 F.2d 751, 754 (2d Cir. 1980), cert. denied, 449 U.S. 1078, 101 S. Ct. 858, 66 L. Ed. 2d 801 (1981), the outright transfer of the students in this instance is not a change in "placement" within the meaning of the statute, and thus, the due process procedures set forth in Section 1415 need not be applied.

 In O'Bannon, the Nursing Center had been certified as a skilled nursing facility by the Department of Health, Education, and Welfare ("HEW") and the Pennsylvania Department of Public Welfare ("DPW"), and as such, became eligible to receive payments from HEW and DPW for the care of persons entitled to Medicare and Medicaid benefits under the Social Security Act. Subsequently, HEW decertified the Nursing Center, informed the facility that no additional payments would be forthcoming, and as a consequence of the decertification, transferred all Medicare and Medicaid residents to a certified facility. In objecting to the transfer, the transferred patients contended that Medicaid regulations granted them the "property right to remain in the home of their choice absent good cause for transfer" and that any transfer "entitle(d) them to a hearing on whether such cause exist(ed)." Id., 447 U.S. at 779-786, 100 S. Ct. at 2472-2476. In holding that the patients have no such right, the O'Bannon court observed that

it is important to remember that this case does not involve the question whether HEW or DPW should, as a matter of administrative efficiency, consult the residents of a nursing home before making a decision to decertify it. Rather the question is whether the patients have an interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing ...

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