The opinion of the court was delivered by: CON. G. CHOLAKIS
Infant plaintiff Carly Snyder and her mother Roseanne Snyder filed this action pursuant to 42 U.S.C. § 1983, alleging their civil rights were violated during hearings held pursuant to New York Education Law § 3214(3)(c) concerning Carly's suspension from school for allegedly possessing a handgun. Plaintiffs commenced this action by the filing of a complaint and request for an order to show cause seeking a temporary restraining order prohibiting defendant school district from enforcing its determination following such hearings to suspend Carly from school for one year.
The hearing commenced on June 30, 1995. Carly's hearing was apparently the second hearing held on that date. Complaint, PP 14, 15. Two witnesses were called by counsel for Carly, with a total of seven witnesses apparently testifying at the hearing. Defendant's Memorandum of Law, p.3.
Plaintiff was notified by letter dated August 9, 1995, that the charge against Carly of possessing a handgun had been established for purposes of recommending discipline under New York Education Law § 3214, and in accordance with the School Board Policy numbers 7470 and 7471, and the recommendation of the hearing officer, Carly was suspended for a period of one year, with home schooling to be arranged during that period. Complaint, Ex.C.
Plaintiffs allege that Carly's due process rights were violated by certain procedural errors in the hearing process, and as such the school district should be enjoined from enforcing the determination to suspend Carly from school. By Order to Show Cause returnable this date, the court granted plaintiffs and defendant an opportunity to demonstrate whether a temporary restraining order should issue prohibiting defendant from enforcing the suspension order against plaintiff Carly Snyder.
The standard for a temporary restraining order under Fed.R.Civ.P. 65 is similar to that for a preliminary injunction. Faced with a request for a preliminary injunction the Court must determine whether the party seeking the injunction has shown:
(1) irreparable harm; and
(a) the likelihood of success on the merits, or
(b) sufficiently serious questions going to the merits, and a balance of hardships tipping decidedly toward the party seeking the injunctive relief.
Bourne v. Tower Records, Inc., 976 F.2d 99, 101 (2d Cir. 1992); Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 916 (2d Cir. 1986).
Although defendant argues there has been no showing of irreparable harm, it has been recognized by at least one court that home schooling for disciplinary purposes can result in the type of irreparable harm necessary to justify issuance of an injunction. Ross v. DiSare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977). This court agrees, removing Carly from school and placing her in a home schooling environment could certainly constitute sufficient irreparable harm to justify issuance of a temporary restraining order. Thus assuming irreparable harm, the question becomes one of likelihood of success on the merits.
Once provided a right to a public education under state law, such right may not be taken away without appropriate due process, including notice and an opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975). Thus the issue presently before the court is whether plaintiffs have alleged sufficient violations of their due process rights to demonstrate likelihood of success on the merits, or sufficiently serious questions going to the merits to justify issuance of a temporary restraining order.
Plaintiffs assert that the impartial hearing officer, Steven Buchyn could not be impartial, as he practices law with his father, Joseph Buchyn, who serves as legal counsel to the school district, and served in such capacity throughout the period of these hearings. Plaintiffs fail however, to make specific allegations concerning any facts of which the hearing officer was made aware concerning the case, or any showing of bias or personal interest in the case which directly impacted upon the outcome of the proceedings. Absent such a showing, the type of relationship alleged by plaintiffs is insufficient to constitute a violation of due process. See, Matter of Gioe v. Board of Education, 126 A.D.2d 723, 511 N.Y.S.2d 129 (2d Dep't. 1987) (Impartial hearing officer also served as attorney for school district). Plaintiffs having failed to provide any evidence of actual bias or partiality on the hearing officers part, there is no basis for ...