The opinion of the court was delivered by: CURTIN
On February 28, 1983, plaintiffs filed a motion for a preliminary injunction, which seeks an order directing defendants to immediately implement a decision of the Commissioner of the New York State Education Department [Commissioner] requiring defendants to identify Brian Blazejewski as a handicapped student and to arrange for the provision of special education instruction in a learning disabilities resource room.
This court has jurisdiction under the Education for All Handicapped Children Act, 20 U.S.C. § 1415(e)(4). At this time, plaintiff Brian Blazejewski is a 17-year-old student in the eleventh grade.
After this action was instituted in 1981 with a request for injunctive relief, the court required the parties to exhaust administrative remedies. Thereafter, the Hearing Officer's September, 1981, decision was appealed to the Commissioner, who noted on April 30, 1982, that:
(1) Allegany had not performed a proper educational evaluation of Brian, since it was relying upon classroom performance and group tests, as opposed to individual testing results, as required by federal and state law; (2) an appropriate educational placement for Brian must be provided in the least restrictive environment; and (3) Allegany should consider providing Brian with special education resource room instruction, which should include a daily reading component as well as instruction in cursive writing and math.
He remanded to the defendant Allegany School Board, with instruction to perform an adequate evaluation of the plaintiff's education needs and to develop a proper Phase I Individualized Education Plan [IEP]. In spite of the Commissioner's urging, Allegany's Committee on the Handicapped [COH] decided to declassify Brian as learning disabled, and found that special support services provided at the discretion of the classroom teacher would be adequate.
Another impartial hearing was requested and held in September of 1982 before Dr. G. Susan Gray. Dr. Gray concluded that the plaintiff is learning disabled, and she ordered Allegany to provide him with a special education program.
The Board's appeal to the Commissioner was dismissed. The Commissioner found, on January 6, 1983:
In view of this child's age, grade and assessed ability, those skills which the tests identified to be at and below a fifth grade level clearly indicate that the child has a specific learning disability in written expression and word recognition. . . .
Petitioner contends that the impartial hearing officer's decision should be set aside on the ground that the student is achieving passing grades and is advancing from grade to grade. . . .
It is clear from the record before me that this child has a specific learning disability. While the child may not require special class placement in a BOCES program, resource room services are necessary to remediate the learning disability problems which have been identified. . . .
In January, 1983, plaintiffs' attorney wrote to the defendant Board requesting that the COH schedule a meeting as soon as possible to discuss the service to be provided to the plaintiff. On February 3, 1983, the Board's attorney replied, stating that the Board intended to commence an Article 78 proceeding within four months of the Commissioner's decision and that in view of the status quo provision of the New York Education Law, it would be inappropriate to begin implementation of the Commissioner's decision until all proceedings are completed. The attorney held out the hope that perhaps the parents and the Board could consent to a change in Brian's program. When the Board took no action to implement the Commissioner's direction, this motion for a preliminary injunction followed. Plaintiffs urge that under the standards of the Second Circuit, set forth in Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978), plaintiffs are entitled to preliminary injunctive relief at this time.
In response to the motion, defendants have filed an affidavit of Austin Leahy, Jr., Superintendent of Schools of Allegany Central School. Plaintiffs' counsel has supplied the court with copies of correspondence between the Superintendent and Commissioner Ambach in early February. It is clear from the content and tenor of Mr. Leahy's letter that the school district does not intend to implement the order of the Commissioner at this time. Defendants argue that the Hearing Officer and the Commissioner gave undue weight to individual testing ". . . while ignoring the assessment of teachers who have daily worked with this youngster over a period of years. . . ." Defendants insist they have a right to challenge the Commissioner's findings and oppose the plaintiffs' motion in an Article 78 proceeding.
Although the Leahy affidavit focuses on Brian's school performance, it appeared to the court at oral argument that defendants are primarily concerned with expanding state procedural due process for school boards. Of course, the Superintendent is free to challenge the procedures used by the Commissioner to review decisions of the Boards of Education, but this may easily be done in an action for declaratory judgment, without interfering with the Commissioner's direction in this case. Fishman v. Ambach, No. 82-898, at p.5 (W.D.N.Y. Feb. 11, 1983) (order denying injunctive relief), citing Aubin v. Biggane, 51 A.D.2d 1054, 381 N.Y.S.2d 533 (1976); Sacolick v. Cagliostro, 50 A.D.2d 875, 377 N.Y.S.2d 153 (1975), aff'd, 42 N.Y.2d 861, 366 N.E.2d 878, 397 N.Y.S.2d 791 (1977). In view of this alternative, the immediate unfairness to Brian is obvious when this unnecessary delay will compromise the decision of the Commissioner, the wishes of the parents, and the educational betterment of the student.
Plaintiffs have adequately shown that irreparable injury will result if the designated services are withheld. If relief is not afforded at this time, the order of the Commissioner will be frustrated, Brian's present reading deficiency will be left without special assistance, and he will continue with deficient communication skills. It is not necessary to find that Brian will become functionally illiterate; it is enough to recognize that the Hearing Officer's report indicates that the special services will improve Brian's literacy problem. Therefore, on the record ...