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BUFFOLINO v. BD. OF EDUC. OF SACHEM

January 23, 1990

ELIZABETH BUFFOLINO, ETC., ET AL., PLAINTIFFS,
v.
BOARD OF EDUCATION OF SACHEM CENTRAL SCHOOL DISTRICT AT HOLBROOK, DEFENDANT.



The opinion of the court was delivered by: Wexler, District Judge.

  MEMORANDUM AND ORDER

In this lawsuit, plaintiffs Elizabeth and Vincent Buffolino ("plaintiffs") allege that defendant Sachem Central School District ("defendant") failed to provide their daughter Georgianna with a free and appropriate education as provided by section 504 of the Rehabilitation Act of 1973 ("section 504"), as amended, 29 U.S.C. § 794 et seq., and the Education of All Handicapped Children Act ("EHA"), 20 U.S.C. § 1400 et seq. Moreover, plaintiffs contend that defendant violated Georgianna's equal protection and due process rights, pursuant to the Fourteenth Amendment to the United States Constitution. Based on these allegations, plaintiffs seek damages and attorneys' fees under 42 U.S.C. § 1981, 1983 and 1985. Presently before the Court are defendant's motion for summary judgment and plaintiffs' motion for partial summary judgment, both pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is granted.

I. Background

Soon after Georgianna began kindergarten at the Cayuga Elementary School in the defendant Sachem Central School District, she took a series of tests along with her classmates in September, 1985. Because Georgianna performed poorly on the psychological and auditory portions of the Dallas Screening Test, her scores were reported to the District Committee on Special Education ("CSE"). After obtaining Mrs. Buffolino's written consent, the school provided Georgianna with weekly speech and language services.

On October 2, 1985, the school psychologist, the speech and language teacher, and Georgianna's kindergarten teacher initiated a "building referral" to the CSE in order to determine whether Georgianna was a handicapped child. However, school officials instituted this referral process without obtaining the requisite written consent of Georgianna's parents. In fact, when the CSE later learned that Mrs. Buffolino had not consented to an evaluation by the CSE of Georgianna, it nullified all of its prior recommendations and proceedings concerning Georgianna's classification as a handicapped child.

Toward the end of 1985, the school's speech teacher notified Mrs. Buffolino that Georgianna needed to undergo more testing by the school so that the CSE could properly evaluate her. However, Mrs. Buffolino refused to permit the school to test her daughter and instead decided to have Georgianna tested at her own expense by a psychologist in private practice. At Mrs. Buffolino's own request, the results of these tests were submitted to the School District in May.

On June 9, 1986, Mrs. Buffolino met with the school's psychologist and speech teacher, and was informed that their evaluation of her daughter indicated that Georgianna was in need of special services. They also informed Mrs. Buffolino that the CSE would have to classify Georgianna as a handicapped child in order for her to receive these services. Mrs. Buffolino was uncomfortable with this idea and, moreover, did not want Georgianna to receive services which would interfere with her regular schooling. Consequently, Mrs. Buffolino offered to obtain these services privately at her own expense.

On June 18, 1986, the CSE meeting was held. Although Mrs. Buffolino never gave written permission to have Georgianna evaluated by the CSE, she attended and participated in the meeting nevertheless by submitting the psychological report and discussing her daughter's case. Once again, she stated her objection to having her daughter classified as a handicapped child and she offered to pay for private services at home after school hours. The CSE unanimously classified Georgianna as speech impaired, and assigned her to a regular class for the following school year to be supplemented by privately administered speech services which would be paid for by plaintiffs. The CSE made this determination in the absence of a medical and social history.

Sometime after this meeting, Mrs. Buffolino received a letter from Mr. DeSantolo, the School District's Assistant Superintendent for Pupil Personnel Services and Chairman of the Committee on Special Education, in which he advised her of her right to an impartial hearing. In later mailings he also sent her two comprehensive guides written in layperson's terms. These publications give detailed descriptions of the substantive rights of both handicapped children and their parents, as well as the procedural safeguards available to them in special education proceedings.

In early August, 1986, Mrs. Buffolino sent a letter to Mr. DeSantolo requesting an impartial hearing. At Mr. DeSantolo's suggestion, Mrs. Buffolino met with him personally later that month. They discussed her objection to having Georgianna categorized as a handicapped child and Mr. DeSantolo recommended that retesting Georgianna might lead to a change in her classification. Mrs. Buffolino implied she would turn over an updated evaluation of Georgianna to the CSE. She also notified Mr. DeSantolo that Georgianna would be attending parochial school beginning in September 1986. Finally, after Mrs. Buffolino reiterated her request for an impartial hearing, Mr. DeSantolo scheduled the hearing for October 6, 1986, which hearing was subsequently adjourned twice until October 28, 1986.

In the interim, the School District received the updated re-evaluation of Georgianna and a special CSE meeting was held to review Georgianna's classification and placement. Mrs. Buffolino attended this meeting as well. However, when Mr. DeSantolo discovered that Mrs. Buffolino never signed a written form consenting to the CSE's evaluation of her daughter, the meeting was adjourned immediately. Three days later Mr. DeSantolo sent Mrs. Buffolino a letter declaring all prior CSE actions null and void. He told her that he would destroy Georgianna's file if she so desired and included a form for her to fill out along with a self-addressed stamped envelope. In addition, he recommended the cancellation of the upcoming impartial hearing and encouraged her to contact him if she wished to discuss the matter any further.

Mrs. Buffolino "didn't like" Mr. DeSantolo's letter, apparently due to the explanation in the letter that all previous actions by the CSE were deemed null and void on the ground that Mrs. Buffalino never consented to the evaluation, and not on the ground that Georgianna did not possess a handicapping condition. Thus, Mrs. Buffalino never returned the form sent to her and Mr. DeSantolo subsequently destroyed Georgianna's file.

The impartial hearing officer also sent Mrs. Buffolino a letter in which he stated that he set aside the impartial hearing under the assumption that the matter had been resolved according to her wishes. He further stated that he would not reschedule an impartial hearing date unless she informed him to do so.


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