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August 18, 1981

ZVI D., by his mother and next friend, Shirley D., individually and on behalf of all others similarly situated, Plaintiffs,
Gordon AMBACH, Individually and as Commissioner of Education of the State of New York; Board of Education of the City School District of the City of New York; Frank Macchiarola, Individually and as Chancellor of the New York City Board of Education; Christy Cugina, Individually and as Executive Director of the Division of Special Education of the New York City Board of Education; Patricia Vitacco, Individually and as Chairperson of the District 20 Sub-Committee of the Committee on the Handicapped of the New York City Board of Education, Defendants

The opinion of the court was delivered by: NICKERSON


Plaintiff Zvi D., by his mother, Shirley D., brought this action against the New York State Commissioner of Education, the New York City Board of Education, its Chancellor and its Executive Director of the Division of Special Education, and the Chairperson of the District 20 Subcommittee of the Board of Education's Committee on the Handicapped. Plaintiff has moved for an order preliminarily enjoining defendants from transferring him to a public school program for the handicapped until they conduct an evaluation of his private placement and find it to be inappropriate to his educational needs. He also seeks an order directing reimbursement to Shirley D. for the cost of her son Zvi's education at The Alternative School beginning with the 1980-81 school year and continuing until the completion of all judicial proceedings. Plaintiff also requests a determination that this action may properly be maintained as a class action and seeks certification of a class of plaintiffs.

The papers submitted on the motion were supplemented by testimony by Yitzchak Kasnett, Dean of Students of The Alternative School, given at a hearing on July 16, 1981. On consideration of all the evidence the court concludes that the motion should be denied.


 Zvi, born on September 12, 1964, has a minimal brain dysfunction. He attended public school until the third grade and then was placed in Ber Shmud Yeshiva. His mother was not satisfied with his progress at the Yeshiva, and in the fall of 1977 he was brought for evaluation to the Interborough Developmental and Consultation Center, Inc., which recommended that he enter a slow-learning class and expressed approval of The Alternative School as a day treatment center for learning disabled boys. On December 5, 1977 his mother enrolled him in The Alternative School, where he has since continued. At the time of his enrollment the District 20 Committee on the Handicapped (the Committee) had not evaluated him or made a placement recommendation.

 On April 17, 1978 the Committee's Evaluation and Placement Unit classified him as having a minimal brain dysfunction and recommended placement in a Health Conservation 30 (HC-30) class. The Committee later recommended that he be placed in such a class at JHS 223, a New York City public school. His mother requested an impartial hearing to contest the recommendation. Before the hearing was held the matter was settled by letter agreement dated November 27, 1978. This agreement provided that the Committee would fund his placement in The Alternative School for the 1978-79 school year but not for the 1977-78 school year. The agreement also provided:

This funding is being provided with the stipulation that a review of Zvi's classification will be conducted at the end of the current year with a view toward placing him in an appropriate public program in September, 1979.

 In May 1979 the Committee re-evaluated Zvi for the 1979-80 school year and recommended he be placed in an HC-30 class at New Utrecht High School. On August 29, 1979 his mother challenged this on the grounds that the agreement dated November 27, 1978 placed him in the "Riley Reid" and "Kelly" classes of children, whom the Commissioner of Education had ordered not transferred from their existing private placements unless those placements were found inappropriate. See In the Matter of Riley Reid, 17 Ed.Dept.Rep. 127 (October 12, 1977); Matter of Kelly, 15 Ed.Dept.Rep. 427 (April 6, 1976). On September 28, 1978 Hearing Officer Scott J. Burnham found that Zvi was not a member of the "Riley Reid" or "Kelly" classes.

 Hearings were thereafter held commencing April 16, 1980 to determine whether Zvi's classification and placement as recommended by the Committee were suitable. On July 9, 1980 Impartial Hearing Officer Harry Weintraub found that Zvi was properly classified as having minimal brain dysfunction and that placement in the HC-30 class at New Utrecht High School was appropriate. However, the Hearing Officer also found that the Committee had violated a ruling of the Commissioner of Education by failing to have a physician present at the conference on May 29, 1979 at which Zvi's classification was determined. Because of this error, the Hearing Officer granted funding for the school year 1979-80 to The Alternative School. He also ordered that the case be remanded to the Committee to re-evaluate Zvi and recommend an appropriate classification and placement for the 1980-81 school year.

 The Committee re-evaluated him and on July 17, 1980 recommended he be placed in the HC-30 class at New Utrecht High School with counseling as a supportive service. His mother objected and requested review at an impartial hearing. This was held before Hearing Officer Weintraub, who on December 17, 1980 upheld the recommendation and ordered that public funding at The Alternative School be denied for the school year 1980-81. The New York State Commissioner of Education (the Commissioner) dismissed the appeal on April 6, 1981. This suit followed.


 Under the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., a state wishing to qualify for federal funds must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public school education." 20 U.S.C. § 1412(1). The state must also establish "procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(5)(B).

 A parent challenging the placement of a child is entitled to an impartial due process hearing by the state or local educational agency. 20 U.S.C. § 1415(b) (2). If the hearing is conducted by a local educational agency, a parent aggrieved by the decision may appeal to the state educational agency. 20 U.S.C. § 1415(c). If the decision remains adverse, the parent may bring action in any state court of competent jurisdiction or in a United States District Court, and the court must review the proceedings, basing its decision on the preponderance of the evidence. 20 U.S.C. § 1415(e)(2).

 To prevail in his motion for a preliminary injunction, Zvi must make "a showing of possible irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Caulfield v. Board of Education of City of New York, 583 F.2d 605, 610 (2d Cir. 1978) (emphasis in original).

 He contends that the Hearing Officer and Commissioner erred in finding appropriate his placement in the HC-30 class at New Utrecht High School. He relies on the fact that his rate of truancy had fallen markedly while a student at The Alternative School from 49 percent in 1977-78 to 33 percent in 1978-79 to 12 percent in 1979-80 and up to 21 percent in 1980-81. Dean Kasnett was of the opinion that the procedures used by New Utrecht High School to cope with truancy calling home and, if there is no response, sending a truancy officer would be ineffective as to Zvi because three or four weeks may pass before the truancy officer would come by and compel his return.

 Kasnett also described Zvi's progress at The Alternative School. He has improved significantly in academic achievement since coming to the school in 1977. When he first entered he was a non-verbal gesturing child on the periphery of social and classroom events. He now gets along successfully within the school but still tends not to socialize outside his family. Based upon Zvi's problems with truancy and relationship with others, Kasnett gave his opinion that it ...

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