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BRUSCHINI v. BOARD OF EDUC. OF THE ARLINGTON CENT.

November 3, 1995

JILL BRUSCHINI, a Disabled Student, by her Parent and Legal Guardian, Elizabeth Bruschini, Plaintiff, against THE BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT; DONALD ROTHMAN, (officially as) Superintendent of the Arlington Central School District; THOMAS SOBOL, (officially as) Commissioner of the New York State Department of Education; and, THE NEW YORK STATE DEPARTMENT OF EDUCATION, Defendants.


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Plaintiff is a 20-year-old disabled individual who has been classified as multiply handicapped and lives in the Arlington Central School District (the "District"). In 1978, Plaintiff enrolled in the District's special education programs. From 1980 through the 1987-88 school year, Plaintiff attended the Bishop Dunn School, a private school approved by the State Education Department for such placement. Between 1988 and 1992, she attended the District's Middle School and South Campus High School.

 Plaintiff alleges that the District's Individualized Educational Program ("IEP") for the 1991-92 and 1992-93 school years were inappropriate and as a result her academic skills deteriorated. In the Fall of 1992, Plaintiff's mother unilaterally removed her from the District's school and enrolled her in the Maplebrook School, a private school located in Amenia, New York.

 The District's Committee on Special Education met and proposed an IEP for Plaintiff with placement at the District's North Campus High School. Plaintiff alleged that the District's IEP for the 1993-94 school year was inappropriate because it did not contain a proper transition plan from school life to adult life.

 Plaintiff sought tuition funding from the District for her placement at the Maplebrook School for the 1993-94 school year. On January 19, 1994, the District denied the request, as the District believed it could offer Plaintiff an appropriate public placement in the least restrictive environment. Plaintiff disputes the District's reasons for denial of tuition reimbursement and alleges that the actual reason for the denial was based on an "inappropriate state policy" disallowing funding of private schools which are not on the State's approved list.

 Plaintiff requested an impartial hearing, and the District appointed as hearing officer Earle Warren Zaidins, a person whose name appears on the New York State Education Department's list of impartial hearing officers. The hearing was held on May 16th and May 24th, 1994 and concluded on June 22, 1994. Plaintiff alleges that due process violations occurred during this hearing.

 On September 11, 1994, the impartial hearing officer issued a decision denying funding and concluded that the Maplebrook School did not offer an appropriate program. Plaintiff appealed this decision to the State Review Officer. On November 17, 1994, the State Review Officer issued a decision finding that the District had not met its burden of establishing its program was appropriate and Plaintiff had not carried her burden to establish that Maplebrook's program was appropriate. Under Florence County School District Four et al. v. Carter, U.S. , 114 S. Ct. 361 (1993), the State Review Officer upheld denial of tuition reimbursement for the private placement Plaintiff had selected. The Officer noted the fact that the Maplebrook School was not on a list of approved schools is not dispositive of the petitioner's claims.

 Plaintiff commenced this action pursuant to 20 U.S.C. § 1415(e)(2) of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., challenging the November 17, 1994 decision to the extent it denied tuition reimbursement. The Complaint also asserts violations of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232-g, the Civil Rights Act, 42 U.S.C. § 1983, and state law.

 Plaintiff's Motion for Partial Summary Judgment

 Motions for partial summary judgment are generally disfavored by this court because they lead to orders which are final, but which are unappealable until the entire matter has been adjudicated. Such motions under Fed.R.Civ.P. 56 are permitted but they must be conducive to the conservation of judicial resources and of benefit to the parties. Tilcon Minerals, Inc., v. Orange and Rockland Utilities, Inc., 851 F. Supp. 529, 531 (S.D.N.Y. 1994) ("A series of piecemeal motions for summary judgements would waste resources of both the parties and the court, contrary to the objectives of Fed.R.Civ.P. 1.").

 After a review of the record in the administrative proceeding below, this court finds that ruling on the pending motions would serve the interests of justice consistent with Rule 1 of the Fed.R.Civ.P.

 The criteria for review by this court are set forth in 20 U.S.C. § 1415(e)(2). The section provides, in pertinent part, that the court in reviewing the complaint "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." The Supreme Court in Board of Educ. v. Rowley, 458 U.S. 176, 204-208, 102 S. Ct. 3034, 3049-3051, 73 L. Ed. 2d 690 (1982), held that courts interpreting this provision should not view the requirement that the court review the complaint on the "preponderance of the evidence" as an invitation to "substitute their own notions of sound educational policy for those of the school authorities," 458 U.S. at 206, 102 S. Ct. at 3051, and held that the court's inquiry in suits brought under this section was twofold. "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." 458 U.S. at 206-07, 102 S. Ct. at 3051 (footnotes omitted). The Supreme Court also stated that courts "must be careful to avoid imposing their view of preferable educational methods upon the States," because the "primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." 458 U.S. at 207, 102 S. Ct. at 3051.

 In Adler v. Education Dep't, 760 F.2d 454, 458 (2nd Cir. 1985), our Court of Appeals in interpreting § 1415 and the Rowley decision held that the standard of review "tends to resemble the standard" of review ...


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