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December 30, 1983

Wendy STANTON, an infant, by her mother and next friend, Judy STANTON, Jonathan Bowles, an infant, by his guardian and next friend, Joyce Clark, on behalf of themselves and all other persons similarly situated, Plaintiffs,
BOARD OF EDUCATION OF the NORWICH CENTRAL SCHOOL DISTRICT, Robert L. Cleveland, Superintendent of the Norwich Central School District, and Gordon Ambach, Commissioner of the New York State Education Department, Defendants.

The opinion of the court was delivered by: MINER


MINER, District Judge.


 This action involves the provision of educational services in New York State to handicapped school-age children with special educational needs. Plaintiffs assert claims pursuant to the Education for all Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., § 504 of the Rehabilitation Act of 1973 29 U.S.C. § 794, the due process and equal protection clauses of the fourteenth amendment to the United States Constitution, and Article 89 of the N.Y. Education Law. Jurisdiction is asserted pursuant to 28 U.S.C. §§ 1331 and 1343, as well as 20 U.S.C. § 1415 and the doctrine of pendent jurisdicction. Defendant Ambach now moves to dismiss the complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1), and the "Norwich" defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Also before the Court is plaintiffs' motion pursuant to Fed.R.Civ.P. 23 for class certification.


 Plaintiff Wendy Stanton is an eight year old autistic child requiring special educational services. During the 1981-82 and 1982-83 ten month school years, Wendy attended an education program at the Children's Unit of the Department of Psychology at the State University of New York at Binghamton. Wendy was placed in that program by the Norwich Central School District Committee on the Handicapped. In the summer of 1982, Wendy attended a program which was run by the Broome Developmental Services in Norwich, New York.

 Plaintiff Jonathan Bowles is a nine year old hyperactive and neurologically impaired child. He has severe problems with his speech and his gross motor skills.Jonathan also had attended the Binghamton program during the ten month school year for the past two years. Unfortunately, Jonathan was unable to locate a summer program in 1982 and, as a result, apparently lost much of the progress he achieved during the previous ten month school year.

 On July 1, 1983, this Court heard oral argument on plaintiff's motion for a preliminary injunction requiring "defendants to immediately provide and/or ensure the provision of appropriate special education and related services to plaintiffs during the summer months of July and August." A hearing then was scheduled for July 5, 1983 to determine whether plaintiffs could establish the irreparable harm required for the granting of preliminary injunctive relief. Fed.R.Civ.P. 65; see, e.g., Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42 at 45 (2d Cir.1983). However, on the 5th of July, plaintiffs informed the Court that summer placements had been secured for each of the named infant plaintiffs, and that plaintiffs' motion for a preliminary injunction was withdrawn.

 In light of plaintiffs having obtained summer placements, defendants now move to dismiss the complaint, contending there presently is no case or controversy before the Court. Additionally, the Norwich defendants maintain that the complaint fails to state a claim upon which relief can be granted, since they have not refused to provide, or arrange for, special educational services for these plaintiffs on a twelve month basis, and since the statutes upon which plaintiffs rely do not require the provision of a twelve month program for all handicapped children.


 Essentially, the contention advanced by defendants in support of their motions to dismiss the complaint is that plaintiffs, having obtained summer placements in 1983, may not seek declaratory or injunctive relief from this Court concerning New York's scheme for the funding of summer education programs for handicapped children.In other words, defendants maintain that no case or controversy presently exists between these parties. However, apart from this bald assertion, defendants have furnished not one scintilla of authority in support of their motions to dismiss this action.

 In opposition to these motions, plaintiffs claim this action falls within the well established doctrine that a case will not be considered moot when "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Securities and Exchange Commission v. Sloan, 436 U.S. 103, 109, 98 S. Ct. 1702, 1707, 56 L. Ed. 2d 148 (1978) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975)) (emphasis by the Court). See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-75, 98 S. Ct. 1407, 1414, 55 L. Ed. 2d 707 (1978); Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S. Ct. 854, 861, 43 L. Ed. 2d 54 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 712, 35 L. Ed. 2d 147 (1973). However, plaintiffs' contention that this action falls into this narrow class of cases, also referred to as "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911), must be viewed in light of the recent Supreme Court decision in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (U.S. 1983).

 In Lyons, plaintiff sued the City of Los Angeles, alleging that after being stopped for a traffic violation, and notwithstanding plaintiffs' lack of resistance, city police officers placed plaintiff in a "chokehold" which rendered him unconscious and caused damage to his larynx. Leaving intact Lyons' claim for damages, the Court held there was no case or controversy before it with respect to plaintiff's claims for prospective injunctive and declaratory relief. In this regard, the Court stated:

 In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner.

 Id. at , 103 S. Ct. 1667 (emphasis in original).

 The Lyons Court also relied, in part, on its earlier decision in O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). In O'Shea, a class action was brought in which plaintiffs alleged they had been subjected to discriminatory enforcement of the criminal law. Again, plaintiffs' claims for prospective relief were found insufficient to establish an article III case or controversy. The court rejected plaintiffs' claim of standing, since plaintiffs would not be subjected to the alleged discriminatory enforcement again unless they "proceed[ed] to violate an unchallenged law and if they were charged, held to answer, and tried in any proceedings before [defendants]." Id. at 497, 94 S. Ct. at 676 (emphasis in original). The Court assumed "that [plaintiffs would] conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct. . . ." Id. Notwithstanding this restrictive approach to standing and justiciability when prospective relief is sought, this Court concludes that, in the case at bar, a justiciable case or controversy is presented.

 These infant plaintiffs are suffering from severe neurological handicaps. Moreover, there is no indication in the record that the problem encountered by these plaintiffs will not persist. In fact, all indications are to the contrary, as evidenced by plaintiffs' request, albeit premature, for 1984 summer programming.

 Additionally, unlike the alleged unlawful conduct in Lyons and O'Shea, here the propriety of New York's established procedure for obtaining summer education funding for handicapped children *fn1" has been supported by the defendants. This Court has good reason to believe, therefore, that the challenged conduct will continue. In light of these circumstances, this Court finds that plaintiffs present a justiciable controversy over which the Court can exercise its jurisdiction, and defendants' motions in this regard must be denied. Having concluded that plaintiffs present a justiciable controversy, the Court will consider whether plaintiffs have stated a claim under the provisions of the Education for All Handicapped children Act (hereinafter "EHCA") against the Norwich defendants.

 The EHCA provides federal funding to state and local educational agencies in order to ensure the provision of special education services to handicapped children. Any state which satisfies certain eligibility requirements, 20 U.S.C. § 1412, then must submit a detailed State plan assuring compliance with the provisions of the EHCA before it can receive federal funding, 20 U.S.C. § 1413. Similarly, receipt of federal funds by a local educational agency, 20 U.S.C. § 1401(8), *fn2" such as the Norwich Central School District, requires adequate assurances that the objectives of the EHCA will be implemented. 20 U.S.C. § 1414. *fn3" With respect to the instant circumstances, another most significant aspect of the EHCA is the obligation which it imposes upon state and local educational agencies to develop for each child an "individualized education program." 20 U.S.C. § 1401(19). *fn4"

 The Norwich defendants' contention that plaintiffs' claim under the EHCA should be dismissed because defendants have not refused to provide a twelve month education is misplaced. Whether defendants, in fact, have refused to provide a twelve month program is not relevant to the instant motion to dismiss, which is addressed only to the sufficiency of the complaint. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1356 (1969) and cases cited therein.

 Here, plaintiffs allege specifically that, although

 [d]efendants Cleveland and the Board of Education have acknowledged that plaintiffs and all class members require twelve month programming, . . . defendants Cleveland and the Board of Education have failed to provide or arrange for the provision of special educational services for the summer months on behalf of plaintiffs and all class members. Complaint, para. 48. Taking this allegation as true, as it must on a motion addressed only to the sufficiency of the pleadings, Kugler v. Helfant, 421 U.S. 117, 95 S. Ct. 1524, 44 L. Ed. 2d 15 (1975); Fine v. City of New York, 529 F.2d 70 (2d Cir.1975), this Court concludes that plaintiffs have stated a claim under the provisions of the EHCA properly brought before the Court pursuant to 20 U.S.C. § 1415(e)(2). *fn5" See, e.g., Georgia Ass'n of Retarded Citizens v. McDaniel, 52 U.S.L.W. 2245 (11th Cir. Oct. 17, 1983) (state and local officials may not refuse to provide twelve month education program if required by child's particular needs); Crawford v. Pittman, 708 F.2d 1028 (5th Cir.1983); Battle v. Commonwealth of Pennsylvania, 629 F.2d 269 (3d Cir.1980). See, generally, Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). *fn6"

 Finally, plaintiffs move pursuant to Fed.R.Civ.P. 23 for class certification of a class consisting of

 All handicapped school-aged persons residing within the jurisdiction of the Norwich Central School District who require or may require a program of special education and related services in excess of 180 days per year, and the parents or guardians of such persons.

 Affidavit of Joanne Piersma, sworn to Sept. 2, 1983, p. 2. In support of the motion, plaintiffs have attempted to establish compliance with the requirements of Fed.R.Civ.P. 23. Defendants, in opposition to the motion, contend principally that the requirement of numerosity is not satisfied here, since the number of class members is "believed" to be only about 25.

 Although this Court doubts whether the numerosity requirement of Fed.R.Civ.P. 23(a)(1) is satisfied, the Court concludes that class action certification is not warranted in the instant circumstances under this circuit's well established "necessity" doctrine. Galvan v. Levine, 490 F.2d 1255 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974); Ruiz v. Blum, 549 F. Supp. 871, 878 (S.D.N.Y.1982); Domingo v. Toia, No. 77-CV-217, slip op. at 4 (N.D.N.Y. Aug. 24, 1977) (Foley, J.) ("My determination to deny class action certification is in accord with the expressions of District Judge Weinfeld in Feld v. Berger, 424 F. Supp. 1356, 1357 (S.D.N.Y. 1976) that class action designation is superfluous, that the defendants are responsible public officials, and it can be assumed without anxiety that any determination favoring named plaintiffs will apply to all persons similarly situated"); McDonald v. McLucas, 371 F. Supp. 831, 833-34 (S.D.N.Y.) (three-judge court), aff'd mem., 419 U.S. 987, 95 S. Ct. 297, 42 L. Ed. 2d 261 (1974). There has been no suggestion in the case at bar that compliance with this Court's mandate would not be forthcoming should plaintiffs eventually prevail on the merits of their claim. For this reason, class certification is not warranted, and plaintiffs' motion in this regard will be denied.


 For the reasons indicated above, defendant Ambach's motion to dismiss the complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), is denied. The motion of defendants Board of Education of the Norwich Central School District and Robert Cleveland to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), is denied, with leave to renew as to plaintiffs' claims under § 504 of the Rehabilitation Act of 1973, the due process and equal protection clauses of the fourteenth amendment to the United States Constitution, and Article 89 of the N.Y.Educ.Law. *fn7" Plaintiffs' motion for class certification also is denied.

 It is so Ordered.

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