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January 21, 1983

BRIAN SMRCKA, a minor, by his parents and next friends, RICHARD and KATHLEEN SMRCKA; and RICHARD and KATHLEEN SMRCKA, Plaintiffs,

The opinion of the court was delivered by: PLATT



 Brian Smrcka, by his parents and next friends, and his parents, have sued the Board of Education of the Tuckahoe Common School District (District), the New York State Department of Education (Department), and the State Commissioner of Education, Gordon M. Ambach (Commissioner), to recover tuition and costs incurred during the year and a half he spent at a private school in Maine. In addition to reimbursement, the plaintiffs seek compensatory and punitive damages from the three defendants, and injunctive and declaratory relief.

 The defendants now move for an order dismissing all counts for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).


 Brian Smrcka is an emotionally disturbed teenager. In January 1980, after examination and evaluation by District staff, Brian was placed at a private residential school in New York State. After his expulsion the following September, he returned to the District for about four months of home tutoring. At that point, apparently having concluded that none of the defendants could (or had made a good-faith effort to) place Brian, his parents sent him to a private school in Maine, from which he was graduated in June, 1982, two months after his eighteenth birthday. The Maine School is not on the Commissioner's list of approved facilities for out-of-state educational placement. Thus, while the Hearing Officer and the Commissioner found the program not to be inappropriate, plaintiffs' claim was denied at both levels of administrative review. This lawsuit followed.

 The plaintiffs contend that the Department's decision violated their "rights to a free appropriate public education" (Complaint, para. 23) and thereby generated causes of action under the Fifth and Fourteenth Amendments to the United States Constitution, the Education for All Handicapped Children Act (EHA), 20 U.S.C. § 1401 et seq. (1978 & Supp. 1982), 42 U.S.C. § 1983 (1981), the Due Process and Equal Protection Clauses of the New York State Constitution, and N.Y. Educ. Law § 4401 et seq. (McKinney 1981 & Supp. 1982). Jurisdiction is allegedly based, inter alia, on 28 U.S.C. § 1331 (1982), 28 U.S.C. § 1343 (1981) and 20 U.S.C. § 1415(e) (1978).

 As noted above, defendants seek an order dismissing all counts for failure to state a claim upon which relief can be granted. The State defendants also contend that the EHA claim is barred by the statute of limitations, and all federal claims by the Eleventh Amendment. Since the parties have submitted affidavits or exhibits, we will treat this as a summary judgment motion. Fed.R.Civ.P. 12(c). All sides appear to concede, however, that no material issue of fact exists. In addition, because Brian Smrcka no longer is enrolled in the Maine program, and because his parents have not requested an additional referral, the issue of declaratory and injunctive relief is now moot. Therefore, the discussion that follows will consider only the question of damages.


 Brian Smrcka, born April 12, 1964, was adopted by his parents at the age of eight months. He spent his early years in the Port Washington public school system, and grades four through eight in two parochial schools. After his parents moved to the Tuckahoe Common School District, he was enrolled as a tuition student at Southampton High School. During the fall of his freshman year, after he exhibited physically aggressive and verbally abusive behavior at home, and experienced academic and drug-related problems in school, Brian's parents and high school staff jointly requested that he undergo psychological evaluation. As a result of two sessions with Brian, on November 21, 1978 and December 14, 1978, District Psychologist Harmon N. Cohen, Ph.D., concluded that the boy was "a highly manipulative, impulsive, potentially explosive adolescent", and recommended that he be examined by Psychiatric Consultant Richard P. Perrault, M.D., of the Student Consultation Services, Board of Cooperative Educational Services (BOCES) I. In addition, Dr. Cohen urged the Smrckas "to file a PINS [Person In Need of Supervision] petition in Family Court in order to locate a residential setting for Brian which is therapeutically oriented." Complaint Exhibit A. They did not act on the latter recommendation. *fn1"

 Dr. Perrault evaluated Brian on January 23, 1979, concluded that he "present[ed] signs, symptoms, and history of a seriously disturbed emotional disorder," and recommended to the Southampton public school system's Committee on the Handicapped (COH) *fn2" that he promptly receive "further evaluation and treatment in a residential treatment facility."

 Pursuant to Dr. Perrault's recommendation, on May 1, 1979 Brian was temporarily placed at the Sagamore Children's Center, a New York State Office of Mental Health facility, for further testing and evaluation. In a June 1, 1979 progress report, Social Worker Shirley Wallach recommended that, to solidify the gains made at Sagamore, Brian be placed in a residential treatment center rather than returned to Southampton High School. A June 2, 1979 letter to Dr. Cohen from Unit Chief Olga J.A. Asar, M.D., listed two such facilities, the Anderson School, Staatsburg, New York, and the George Jr. Republic, Freeville, New York. Complaint, Exhibit C. After being diagnosed as having a "Behavior disorder of Adolescence, Unsocialized Aggressive Reaction," Brian was discharged from Sagamore late in June, 1979 so that he could spend another season at summer camp.

 The local COH apparently encountered difficulty placing the boy, for it was not until January 9, 1980 that he was accepted by a suitable residential program -- the Anderson School. Plaintiffs contend that Brian made considerable progress during his first semester there; however, administrative and personnel changes that occurred during the summer "proved disastrous" for him. Complaint, para. 14. On September 24, 1980, after engaging in "drug and alcohol use on campus, sporadic episodes of violence, and both on and off campus burglaries" (Decision of Commissioner Ambach [April 21, 1982] at 2), Brian was expelled from the Anderson School.

 At this point the chronology becomes less certain. Apparently sometime in October, 1980, the District and the Smrckas agreed that, on an interim basis, Brian would receive about 10 hours a week of home tutoring at public expense until a suitable placement could be found. According to plaintiffs, "for more than a year, the COH . . . contacted virtually every school on the list approved by the New York State Education Department," and every one of those schools rejected him "on the grounds that they were inappropriate to his special needs." *fn3" Complaint, para. 15. On behalf of the COH, Dr. Cohen contacted Regional Associate Steven Morse of the Department and Diane A. Norris of the Downstate Component of the New York State Council on Children and Families to seek their help in placing Brian. Although it seems that Mr. Morse was not able to offer any suggestions, Ms. Norris presented two: an out-patient alcoholic rehabilitation center in Garden City, New York, and the Samaritan Halfway House in Ellenville, New York. Plaintiffs contend that they contacted the first center and were told that it was "totally inappropriate" for their son, and that Mr. Smrcka visited the second and agreed with staff there that this facility also was inappropriate. Complaint, paras. 16, 18. Although in a February 3, 1981 letter to plaintiffs, Ms. Norris implied that plaintiffs flatly rejected a proffered interview with the director of the ...

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