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COUNCIL FOR THE HEARING IMPAIRED LONG ISLAND

June 13, 1985

COUNCIL FOR THE HEARING IMPAIRED LONG ISLAND, INC., et al., Plaintiffs, against GORDON M. AMBACH, individually and as Commissioner of Education of the State of New York, et al., Defendants


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Plaintiffs, the State defendants and the Federal defendants, have all moved or cross-moved for summary judgment on plaintiffs' claims concerning alleged salary differentials between teachers in the so-called "4201" schools and the teachers in regular public schools in New York. *fn1" For the reasons that follow, the State defendants' and the Federal defendants' motions for summary judgment dismissing plaintiffs' Education of the Handicapped Act ("EHA") claims are granted. The State defendants' motion for summary judgment dismissing plaintiffs' First and Ninth Amendment claims is granted, as is the State defendants' motion to dismiss plaintiffs' Fourteenth Amendment equal protection claims insofar as those claims challenge a denial of plaintiffs' right to an appropriate free public education. The Federal defendants' motions for summary judgment are granted with respect to all constitutional claims and any claims raised under 42 U.S.C. § 1983. With respect to plaintiffs' claims under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, against both the State and Federal defendants and the related Fourteenth Amendment claims against the State defendants, I find the questions of material fact preclude the grant for summary judgment.

 Background

 This case has been the subject of an extraordinary amount of motion practice during its six year history. It is assumed that the reader is familiar with the underlying facts of this case, which are set forth in an earlier Memorandum and Order of this Court, dated November 21, 1983. To put the present motion into their proper context, I will briefly summarize the recent procedural history of this case.

 In the Memorandum and Order of November 21, 1983, I denied motions brought under Fed.R.Civ.P. 12(b)(6) which raised issues that are essentially identical to many of the issues raised by the present motions. I also granted both the State and Federal defendants' motions to dismiss plaintiffs' motion for class certification.

 Shortly thereafter, plaintiffs moved for leave to amend the complaint to assert an additional claim challenging the State defendants' procedures for designating handicapped children to 4201 schools. At that time, plaintiffs also sought summary judgment on the teachers' salary issue. Leave to amend was granted. The State defendants then cross-moved for summary judgment, asserting essentially the same arguments as were presented on the prior 12(b)(6) motion, without any further development of the underlying facts. At a status conference in May 1984, it was agreed that the parties would prepare and submit a stipulation of the facts necessary to resolve the teachers' salary issue, and that the summary judgment motions would be held in abeyance pending submission of the stipulation. By agreement of the parties, the stipulation and pending summary judgment motions would address only the teachers' salary claims.

 The stipulation of facts was submitted in December 1984. The stipulation speaks for itself in its brevity and vagueness. *fn2" Plaintiffs and the State defendants subsequently renewed their summary judgment motions on the teachers' salary claim, and the Federal defendants moved for summary judgment asserting lack of standing, failure to state a claim, and lack of subject matter jurisdiction.

 It is noteworthy that no significant discovery has taken place in this six year old case. None of the parties submitted affidavits or other appropriate material in support of their motions for summary judgment. *fn3" Thus, the stipulation is the only source of facts outside the pleadings which was made available for my consideration in deciding the pending motions for summary judgment.

 Discussion

 1. The EHA Claims

 The EHA, 20 U.S.C. § 1401, et seq., establishes a comprehensive program for providing Federal funds to assist the States in educating handicapped children. The eligibility requirements for Federal assistance under the EHA provide, inter alia, that the recipient state have a "policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). The Act also requires that the recipient state establish certain procedural safeguards to protect the rights of handicapped children. 20 U.S.C. § 1415.

 The crux of plaintiffs' claims is that, pursuant to certain regulations promulgated by the Commissioner of Education of the State of New York, teachers of privately operated 4201 schools in New York are paid lower salaries than teachers in public schools for the non-handicapped, and that this in turn causes higher rates of staff turnover in 4201 schools than in regular public schools. Amended Complaint PP29,30. The primary regulation in question, popularly known as the Rome Standard, provides as follows:

 
Aidable operating expenses means the necessary expenditures for approved educational programs provided to State-appointed pupils, and shall be determined in ...

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