The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
Plaintiff, Dunbar Elliot ("Dell") Catlin, is a 13 year old child who was born in New York City on April 22, 1973. Shortly after Dell was born, his parents Daniel and Dundeen Catlin learned that Dell had been born with Down's Syndrome. After several consultations, the Catlins decided to place Dell in a family home with Samuel and Elizabeth Conde ("the Condes") in Edmeston, New York. Dell went to Edmeston directly from the hospital and has lived there continuously since that time. He has never resided with his natural parents and has never even visited their home.
The Catlins pay for the cost of Dell's care in Edmeston and no part of those costs is paid by any social service agency. It is not controverted that the Catlins have always intended that Dell reside with the Condes. The center of Dell's civic, social, religious and family life is in Edmeston, New York. The Condes' is the only home Dell has ever known and the people with whom he resides are his "family." Dell refers to the Condes as "Mama" and "Dad" and has longstanding, extended family relationships with two of the Condes' natural children who reside in the area.
Dell shares a room with another child, one year younger than he, who, like Dell, has lived in Edmeston since shortly after his birth. The relationship between Dell and his roommate is brotherly; they attend school together and have become virtually inseparable over the years. Both the Catlins and the Condes believe that it would be extremely harmful for Dell to leave Edmeston and the setting the Condes have provided him.
The Condes are completely responsible for day-to-day decisions regarding Dell's care and supervision. Dell goes with the Condes to the doctor, dentist, barber, etc. He is part of the Edmeston community and knows the neighbors, doctor, dentist, postman, barber, etc. Dell is friendly with his schoolmates and teachers and has attended school in the same building and with the same classmates ever since he reached school age.
Selection of schools was not a factor in choosing to place Dell in Edmeston with the Condes. Since 1978, when he came of school age, Dell has attended the BOCES-Mt. Vision School in Edmeston, based upon the recommendation of the Edmeston School District Committee of the Handicapped. The placement has been reviewed each year and has been reaffirmed on each of those occasions. The Catlins never attended any of the meetings related to Dell's placement; the school district has dealt solely with the Condes on all matters related to Dell and his education.
Up to mid-1985, the Catlins resided in New York State, within the Bedford Central School District. From the time the child started attending school through 1985, the Bedford Central School District assumed financial responsibility for his tuition and paid that tuition to the Edmeston Central School District.
In the summer of 1985 the Catlins moved from their home in Bedford to the State of Massachusetts. The Bedford Central School District advised the Nantucket Public School System that "now that the family has moved to Nantucket, we are no longer responsible for tuition and the burden of Dunbar's education falls on your school district." Letter by Dr. Melvin S. Schwager, Director of Special Services, Bedford Central School District, October 4, 1985, Exhibit No. 21, Answer of Defendant Holdorf and Board of Education. The Bedford Central School District also informed the Edmeston Central School District that Bedford would no longer pay Dell's tuition.
The Edmeston Board of Education notified Dell's parents that he could no longer attend the public schools in that district unless the Catlins or their new district of residence assumed financial responsibility for Dell's education. The school district took the position that Dell was not a resident of the Edmeston School District for educational purposes. The Catlins appealed the Board's decision to the Commissioner of Education or the State of New York. In a decision dated January 14, 1986, the Commissioner affirmed the decision of the Edmeston School District, based on his conclusion that Dell was not a resident or the Edmeston School District because his natural parents resided elsewhere, and because they exercised parental control and were financially responsible for the child.
Massachusetts officials have informally indicated that that state would not be willing to pay the tuition in question. Plaintiffs did not pursue this recourse any further.
On February 27, 1986, the Catlins filed their complaint in this court, alleging that the New York residency statute, as interpreted by the Commissioner and enforced by the Board is constitutionally infirm in that it violates the Equal Protection and Due Process Clauses of the Fourteenth Amendments as well as the Privileges and Immunities Clause. Damages are sought under 42 U.S.C. § 1983, the Education for All Handicapped Children (EHA), 20 U.S.C. §§ 1400 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 794.
The Board moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. Pro., and for summary judgment under Rule 56. At plaintiffs' request, the court scheduled a factual hearing on the question of Dell's residence on July 1, 1986. Daniel Catlin and Elizabeth Conde testified on behalf of plaintiffs. The defendants presented no witnesses. At the close of the hearing, plaintiffs cross-moved for summary judgment. The Commissioner also moved for summary judgment.
Dell's schooling has not been interrupted at any time during these proceedings.
Before reaching the merits of this case the court must address two jurisdictional issues raised by the defendants. Based on Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984), both defendants claim this action is based on the EHA, 20 U.S.C. § 1400 et seq. and that EHA is the exclusive remedy for claims on matters involving a handicapped student. Indeed, in Robinson the Court stated that "Congress intended the EHA to be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education." Id. at 1009. Plaintiff claims that the only issue is the State's determination of Dell's residence, and that EHA is only ...