provided by the school district, the district court has the statutory authority to recompense parents for the costs of those services the school district failed to provide." Anderson, 658 F.2d at 1214.
A second exceptional circumstance would be when a school district acts egregiously and in bad faith by failing to comply with the procedural safeguards set by sections 1415 of the IDEA. See id.; Gerasimou by Gerasimou, 636 F. Supp. at 1511-12. "Those procedural provisions were Congress' way of assuring appropriate programming for handicapped children." See Anderson, 658 F.2d at 1214. If violations of the said section do occur, parents should be given power to unilaterally arrange for appropriate services, and if the parents later prevail in their judicial action, money damages for the cost of these services should be awarded. Id.; Gerasimou by Gerasimou, 636 F. Supp. at 1512.
In the instant case, plaintiffs have failed to sufficiently submit into evidence any facts which would entitle them to monetary relief. There is simply no evidence to show that Rebecca was at any time endangered by the alleged actions of the school district. Furthermore, there is no evidence to show that the school district in any way egregiously failed to comply with the procedural requirements of section 1415 of the IDEA. The record indicates that the ultimate reason for the delay was due to a dispute between the plaintiffs and the school district on how the accommodation expenses for the Yale evaluation was to be covered. Plaintiffs had demanded that they receive a $ 400 cash advance for the trip, but the school district denied the request stating that cash advances were illegal under New York law and against the policy of the Board of Education. Thus, the school district required that plaintiffs be reimbursed upon submission of receipts. Even if the facts are looked at in light most favorable to the plaintiffs, this court fails to see any evidence of bad faith or egregious conduct on the part of the school district. The school district acted in compliance with the policies of the statute, and had given the plaintiffs three options for their reimbursement, none of which plaintiffs accepted. Consequently, plaintiffs have failed to demonstrate that they are indeed entitled to monetary damages under the IDEA, and therefore, the State Review Officer's determination that there was no undue delay by the school district will not be disturbed by this court. The court is mindful of the fact that additional evidence beyond the scope of the records of the state administrative proceedings may be heard by this court at the request of the parties, 20 U.S.C. § 1415(e)(2), but it is concomitantly noted that plaintiffs have failed to submit any such additional evidence into the record in the instant case. Thus, summary judgment would be appropriate here.
Plaintiffs demand for attorney's fees must also be dismissed. In 1986, Congress had amended the IDEA to allow prevailing parents to collect certain attorney's fees under the Act. 20 U.S.C. § 1415(e)(4)(B). This amendment is of no moment to the instant case, however, because the statute gives the parents attorney's fees only if the parents are the "prevailing party." 20 U.S.C. § 1415 (e)(4)(B). The plaintiffs are not the prevailing parties in the instant case, and consequently, they are not entitled to attorney's fees.
Plaintiffs have also brought their claim under 42 U.S.C. § 1983 and section 504 of the Rehabilitation Act. Apart from merely stating that plaintiffs are bringing a § 1983 claim, plaintiffs have not made any allegation pertaining to the said cause of action. Specifically, no constitutional violations have been alleged, and thus, plaintiffs' § 1983 claim is dismissed.
Plaintiff's claim under section 504 of the Rehabilitation Act is also dismissed. This is because plaintiffs' allegations claiming violation of the said Act were made only against the State Review Officer. As earlier stated, plaintiffs have agreed to dismiss the said defendant from this lawsuit, and thus, no cause of action exist under section 504 of the Rehabilitation Act.
For the stated reasons, defendant State Review Officer is dismissed from the instant action, and furthermore, defendant school district's motion for summary judgment is hereby granted.
IT IS SO ORDERED.
DATED: January 29, 1994
Thomas J. McAvoy
Chief U.S. District Judge