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May 28, 1986


The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 Plaintiffs Eugene and Kathe B. bring this action on behalf of their minor child, Eugene B., Jr. ("Gene") pursuant to the Education of the Handicapped Act, as amended by the Education for All Handicapped Children Act of 1975 ("EAHCA" or "Act"), 20 U.S.C. §§ 1401-1461, the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-796, and the Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendant Great Neck Union Free School District ("District"). Plaintiffs seek to recover private school tuition payments for the 1981-82 and 1982-83 school years, and costs and attorneys fees incurred in connection with this lawsuit. Plaintiffs have moved for summary judgment under Fed. R. Civ. P. 56(a). Defendant opposes plaintiffs' motion, and cross-moves for summary judgment in its favor under Fed. R. Civ. P. 56(b), and for joinder of the New York State Commissioner of Education ("Commissioner") pursuant to Fed. R. Civ. P. 19(a). Plaintiffs by reply oppose joinder of the Commissioner.


 Eugene B., Jr. was born on October 1, 1968 and entered public school in the Great Neck Union Free School District at kindergarten level. During Gene's year in kindergarten, it became clear that he was not progressing at the pace of most other children and that he had difficulty learning in an ordinary classroom setting. Accordingly, the District placed Gene in a special education program in which specially qualified instructors using specially developed materials taught small groups of children apart from the mainstream of students.

 I.Q. tests administered to Gene by the District indicated low normal to average intelligence with particular deficits in verbal performance. Gene was also examined by school psychologists, who diagnosed him as emotionally disturbed and tended to attribute his learning difficulties to his emotional problems. The I.Q. tests and psychological interviews were the full extent of the District's effort to evaluate and diagnose Gene's learning difficulties. At various times from the early 1970's onward, plaintiffs privately obtained both individual and family counseling for Gene.

 Gene attended the Great Neck North Middle School for the 1980-81 school year, where, for the first time, he spent a significant part of his school day in mainstream classes. Specifically, Gene spent sixty percent of his day learning academic subjects in an individual development class and forty percent of his day with the mainstream of students in music, art, shop, home arts, and gym classes.

 By the end of the 1980-81 school year, Mr. and Mrs. B. had concluded that the mainstream experience was not beneficial for Gene. He had not been able to accomplish many of the required tasks in his mainstream classes, his academic work in his special education classes was suffering, and he might have been experiencing ridicule from other students. In May of 1981, Mrs. B. requested funding for a summer camp program for Gene. The District's Committee on the Handicapped ("COH") held a meeting, at which plaintiffs were not present, to address the reque-t. At the meeting, the COH considered Gene's individualized educational program ("IEP") *fn1" and reclassified him as emotionally disturbed. The COH failed to specify his placement for the coming school year, thus leaving Gene in his current school placement by default. At no time prior to the meeting did the District inform plaintiffs that Gene's IEP would be evaluated at that time.

 When Mrs. B. received the revised IEP, she called the chairperson of the COH to discuss Gene's situation and ask for a COH review of his classification and placement. She was particularly unhappy that Gene's classification had been changed from neurologically impaired to emotionally disturbed. The COH chairperson informed Mrs. B. that reconsideration of the classification and placement necessitated additional testing that the District was not able to perform and advised Mrs. B. to have the testing done privately. The chairperson also stated that a COH meeting to address these issues could not be held before the fall.

 Over the summer of 1981, plaintiffs had Gene tested at the Child Development and Learning Center of the Long Island Jewish Hillsdale Medical Center (Hillsdale Center). Briefly summarized, the Hillsdale Center's evaluation concluded that Gene's ability to learn was impaired by neurological deficits and that the mainstreaming experience was traumatic and emotionally disturbing for him. The evaluation recommended that Gene not be placed in any mainstream classes, but remain exclusively in a small, structured class with pupils of similar ability. The Hillsdale Center recommended that Gene be enrolled in the state-approved Lowell School.

 On September 16, 1981, shortly after the beginning of the 1981-82 school year, the COH met to reconsider Gene's classification and placement. The Hillsdale Center's evaluation and recommendations were presented to the committee. The COH issued a new IEP for Gene, reclassifying him as neurologically impaired. While recognizing that mainstreaming traumatized Gene and that the District lacked any programs that did not include mainstreaming, the IEP nevertheless recommended Gene's continued placement in the Great Neck North Middle School program, with the notation that special support would be Provided during mainstreaming.

 On September 18, 1981, in a unilateral action, plaintiffs enrolled Gene in the Lowell School. They then challenged the IEP by requesting a review proceeding before an impartial hearing officer. A hearing was initially scheduled for November 18, 1981, but was adjourned at plaintiffs' request for further testing of Gene. Some difficulties ensued over release of certain reports by the Hillsdale Center and transmittal of data from defense counsel to the District. In the meantime, a June 1982 meeting of the COH resulted in no change in Gene's IEP or recommended placement. Finally, on September 24, 1982, the hearing was held.

 On January 31, 1983, the hearing officer issued a written decision holding that the District's IEP was inadequate and unsupported by the evidence presented to the COH, and directed the COH to prepare a new and adequate IEP within thirty days. *fn2" Nonetheless, the hearing officer denied plaintiffs' request for tuition reimbursement for the 1981-82 and 1982-83 school years at the Lowell School. In the Matter of the Application of a Handicapped Child, by his Parents, for Review of a Recommendation of the Committee on the Handicapped of the Great Neck Free School District Relating to the Provision of Educational Services (Impartial Hearing Officer Robert S. Zeif, N.Y., N.Y., Jan. 31, 1983) (Plaintiffs' Exhibit C).

 Plaintiffs appealed the denial of tuition reimbursement to the New York State Commissioner of Education. On May 11, 1983, the Commissioner issued an opinion upholding the hearing officer's denial of tuition reimbursement. The Commissioner, however, also addressed the issue of Gene's IEP and COH's actions concerning the educational placement of the child. In a stronger statement than that of the hearing officer, the Commissioner concluded that the recommended placement in the Great ...

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