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December 14, 1982

ROBERT L. MATTHEWS and GEORGIA R. MATTHEWS, Individually and as the parents of Peter D. Matthews, an infant, Plaintiffs,
GORDON M. AMBACH, as the Commissioner of Education of the State of New York, and BLOOMFIELD CENTRAL SCHOOL DISTRICT, Defendants

The opinion of the court was delivered by: ELFVIN


 Plaintiffs commenced this action under the Education of All Handicapped Children Act ("the EAHCA"), 20 U.S.C. § 1401 et seq., on behalf of Peter, their 17 year-old deaf son. They seek to compel their local school district (defendant Bloomfield Central School District) and the New York State Commissioner of Education ("the Commissioner") to pay the expense of Peter's education at the Clarke School for the Deaf ("Clarke") in Massachusetts. They claim that defendants' failure to bear such expense deprives Peter of a free appropriate public education in violation of the EAHCA. Defendants have moved to dismiss the Complaint on various grounds, and plaintiffs have cross-moved for summary judgment based on the record of administrative proceedings conducted by the school district and the Commissioner.

 Clarke is a residential school located in a rural environment similar to that of Peter's home town, Holcomb, N.Y. *fn1" Clarke takes a totally oral approach to the teaching of deaf students. All classes are taught orally without the use of sign language, and students are also expected to communicate in the residential setting by speaking rather than by signs. Peter began attending Clarke in the 1973-74 school year and continues to do so. To date, plaintiffs have paid all of the expenses of Peter's education at Clarke.

 In 1977 plaintiffs requested the school district's Committee on the Handicapped ("COH") to evaluate Peter and to recommend his placement at Clarke. On June 11, 1979 *fn2" the COH recommended that Peter be enrolled in a state-approved oral school for the deaf. Because the COH did not recommend any specific placement, plaintiffs requested that a hearing be conducted before an impartial officer. A hearing was held June 25, 1979 and the hearing officer determined that the COH's recommendation was appropriate. Plaintiffs appealed this determination to the Commissioner, who issued a decision November 5, 1979 that the appeal was premature because plaintiffs had not then sought an appointment for Peter in a state-approved oral school for the deaf.

 In April, 1980 plaintiffs visited the Lexington School ("Lexington") in Queens County, N.Y. in order to determine whether Peter could and/or should be enrolled there. Peter was approved for placement in Lexington by both the school and New York's Department of Education. Nevertheless, plaintiffs were opposed to enrolling Peter at Lexington because of the school's urban setting, its lack of residential facilities on the weekend and the fact that students are permitted to communicate by sign language outside of the classroom. The school district's COH determined May 11, 1980 that "Peter should definitely continue at the Clarke School" and plaintiffs were notified of this determination June 2, 1980. The school district's Board of Education rejected the COH's recommendation June 18, 1980 on the grounds that Clarke is not a New York-approved school for the deaf and so notified plaintiffs in a letter dated June 24, 1980. Instead, the school district indicated that Lexington would be an appropriate placement. Upon plaintiffs' request, a second impartial hearing was conducted August 22, 1980. In a decision dated September 16, 1980 the hearing officer concluded that Clarke "qualifies with an appropriate program in the 'oral' method, for Peter, and also qualifies as least restrictive." (Emphasis added.) However, the hearing officer also indicated his belief that he could "not recommend attendance of a handicapped child at a school not approved by the [New York] State Education Department" and therefore concluded that the Board of Education's decision to reject Peter's placement at Clarke was proper.

 Plaintiffs appealed these findings to the Commissioner, who issued a written decision December 23, 1980. The Commissioner's decision is rather ambiguous and states that the plaintiffs' appeal would be "sustained in part." Essentially, the Commissioner determined that, if Peter in fact requires a residential placement, Lexington would offer an appropriate program for him. In this regard, the Commissioner stated there is "no real difference" between "the programmatic features" of Lexington and Clarke. However, the Commissioner also concluded that the school district had failed to demonstrate that placement at Lexington would meet Peter's educational needs because "those needs were not detailed and because almost no consideration was given [at the hearing] to the program at [Lexington]." Therefore, the Commissioner directed the school district (at plaintiffs' request) to "reconvene its [COH] for the purpose of specifically identifying [Peter's] needs and the corresponding program components which would meet those needs, and recommending an appropriate program * * *." This decision forms the basis for the current action.

 It should also be noted that Clarke has applied to the Commissioner for placement on New York's list of private schools which are approved for reimbursement for educating handicapped children. In a letter dated December 21, 1978 Assistant Commissioner Lou Grumet informed Clarke that its application for such approval had been denied because the "least restrictive environment" for education of a handicapped child would be the "environment closest to the child's home." The letter implicitly suggests that a placement in New York would always be less restrictive than a placement outside New York because the in-state placement would be closest to the student's home. Clarke re-applied for approval by the Education Department in August, 1980. This application was also denied in a letter dated September 22, 1980 from Grumet which stated in part:

"* * * New York State has taken seriously the federal mandates that children with handicapping conditions be placed in the least restrictive environment. This environment is the one closest to the child's home.
"While this does not preclude out-of-state placements, I believe that New York State's excellent and comprehensive school system for deaf and blind children provides appropriate places for New York children within the least restrictive environment. Consequently, I think that as a practical matter there would be few if any recommendations for placements of deaf children out of New York State. * * *"

 In his decision of December 23, 1980 the Commissioner stated that neither the impartial hearing nor the appeal to the Commissioner was a proper forum for determining whether Clarke should be approved by the Education Department.

 The EAHCA provides federal grants-in-aid to support education of the handicapped by the states. In order to qualify for such assistance, a state must meet a number of requirements. The most basic requirement is that the state maintain "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). The determination whether an individual is handicapped and the development of an "individualized education program" for such individual is left, as an initial matter, to the local educational agency. 20 U.S.C. §§ 1401(19), 1412(4), 1414(a)(5). *fn3" The state must provide an opportunity to the parents to present complaints about "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1)(E). The EAHCA also requires that the parent be given an opportunity to have an impartial hearing with respect to such complaints. 20 U.S.C. § 1415(b)(2). If the hearing is held by the local educational agency, an appeal to the state educational agency must be available. 20 U.S.C. § 1415(c). An action to review a final administrative decision may be brought in federal district court. 20 U.S.C. § 1415(e)(2).

 In New York a child is classified and his individualized educational program is developed by the COH established in the local school district. Education Law § 4402.1. A parent who is dissatisfied with the recommendation of the COH may obtain a hearing before a hearing officer appointed by the Board of Education. Education Law § 4404.1. A decision of the Board of Education made pursuant to such a hearing may be appealed to the Commissioner. Education Law § 4404.2. *fn4"

 The EAHCA defines a "free appropriate public education" as:

"* * * special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided ...

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