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