The opinion of the court was delivered by: ARTHUR D. SPATT
This action, brought by a tenth grade student and his parents, challenges the decisions of public school officials following the student's disciplinary suspension on January 5, 1995. The plaintiff F.N., by his "Next Friends and Parents" D.N. and M.N., brought an order to show cause on May 2, 1995, seeking a temporary restraining order and a preliminary injunction. The plaintiffs moved the Court for an order directing that (1) F.N. be readmitted as a tenth grade pupil at Sachem High School South, (2) the defendants cease and desist from continuing the suspension of F.N. from classes; (3) the defendants provide compensatory educational services to F.N. to the extent that he was denied those services since his suspension on January 5, 1995; (4) the defendants establish a "§ 504 committee" and convene a meeting to ascertain whether F.N. suffers from a disability within the meaning of the Rehabilitation Act, 29 U.S.C. § 794.
On May 12, 1995, the Court rendered an oral decision denying the plaintiffs' motion for a temporary restraining order and preliminary injunction. In order to clarify the Court's oral decision, and because of the legal significance of the issues it addresses, the Court will now render a written opinion formalizing its prior decision.
This action is brought pursuant to 20 U.S.C. § 1400 et seq. (Individuals With Disabilities Education Act) ("IDEA"), 29 U.S.C. § 700 et seq. (The Rehabilitation Act), 42 U.S.C. § 1983 and 42 U.S.C. § 1988, the Fourteenth Amendment and New York State Education Law §§ 3202, 4401, 4404. The complaint alleges that F.N. is a disabled child and/or a handicapped child within the meaning of these laws by reason of emotional disturbance. F.N. is described as a sixteen-year-old tenth grade student, whose history of academic, social and emotional difficulties date back to his kindergarten year. Allegedly the plaintiff had never, prior to a January 5, 1995 incident, manifested misconduct at school that was sufficiently serious to warrant the imposition of discipline.
On January 5, 1995 F.N.'s Spanish teacher reported that while she was alone in the classroom with F.N., he loosened his pants and masturbated, following her around the room and into the hallway, despite her direction that he leave the room. Following this incident, F.N. was suspended from school for a period of five days for inappropriate sexual behavior directed at a female teacher.
The complaint alleges that on January 10, 1995 F.N.'s parents and their former attorney attended a superintendent's disciplinary hearing, pursuant to New York State Education Law, which provides:
no pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf. . . .
N.Y. Educ. Law § 3214(c) (McKinney 1988). It is further alleged that at this hearing the parties agreed that: (1) F.N. would be referred to the Committee on Special Education ("CSE") following psychological, psychiatric and educational evaluations, which would be paid for by the district; (2) home instruction would be provided for F.N. during the evaluation process; (3) the purpose of the referral to the CSE was to determine the appropriate education program for F.N.; and (4) the evaluations would lead to the design of a proposed individually tailored educational program for F.N., with an opportunity for his parents to comment on the plan.
Thereafter, on January 17, 1995 and January 31, 1995, F.N.'s parents wrote to the school, stating objections to F.N.'s continued suspension and to his home instruction, which apparently was not being conducted on a reliable or regular basis for ten hours each week as required. The school's attorney responded by letter dated February 3, 1995 stating that the parents, represented by counsel, had agreed that F.N. would be instructed at home while the evaluations were pending. On February 8, 1995, the plaintiffs' attorney again wrote to the school complaining that comparable instruction had not been provided as agreed upon and as required by IDEA, the Rehabilitation Act and the Americans with Disabilities Act.
On February 15, 1995, the D.N. and M.N. submitted a letter to the school from Dr. Alida Schubert, a psychologist who apparently had known F.N. professionally for more than ten years and who rendered an opinion that (1) F.N. would not endanger himself or those around him, (2) F.N. needed in-school counselling as well as private psychiatric help, and (3) he should be returned to school. An evaluation conducted on February 15, 1995 and February 16, 1995, by school psychologist Louis E. Gray came to the same conclusions and further stated that F.N. should be considered for return to the school. Dr. Khin Latt, M.D., a psychiatrist, issued a report to the same effect as Dr. Gray. The Complaint does not explain whether Dr. Latt examined the plaintiff privately or at the request of the school.
The CSE met with F.N.'s parents on March 6, 1995 and by letter dated March 23, 1995, informed D.N. and C.N. that their son should not be classified as having a handicapping condition and that he was not in need of special services. That letter advised the plaintiffs of their right to an impartial hearing pursuant to N.Y. Educ. Law § 4404, which provides:
if the recommendation of the committee on special education is not acceptable to the parent or person in parental relationship of a child . . . such parents or persons in parental relationship shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and make a determination within such period of time as the commissioner by regulation shall determine.
N.Y. Educ. Law § 4404(1). The plaintiffs did demand an impartial hearing to review that determination, and their appeal is pending. Section 4404 also provides two subsequent layers of review to the parents. The impartial hearing officer's determination is reviewed by a review officer of the state education department. N.Y. Educ. Law § 4404(2). Judicial review of final determinations by the state education department may be obtained through an Article 78 proceeding. N.Y. Educ. Law § 4404(3). Under IDEA, final agency determinations may be appealed to the federal district court or state court. 20 U.S.C. § 1415(e).
The defendants allege that after the CSE found that F.N. did not have a disability pursuant to state and federal law, the school contacted the plaintiffs to reconvene the Superintendent's hearing regarding F.N.'s suspension, pursuant to N.Y. Educ. Law § 3214. It is the defendants' contention that the plaintiffs have refused to attend the hearing and instead threatened to bring suit if F.N. was not allowed to return to school.
By affidavit dated April 25, 1995, submitted in support of this motion, Dr. Khin Latt states that after seven visits with F.N. he has reevaluated his earlier findings, which recommended that F.N. return to the regular classroom. Dr. Latt now concludes that F.N. is an emotionally disturbed student within the meaning of IDEA and the Rehabilitation Act. Dr. Latt also states that F.N. is not a danger to himself or others and that he is suffering an adverse impact from his continued exclusion from school. The plaintiffs state that they commenced this action because F.N. has been continuously excluded from school since January 5, 1995.