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YAMEN v. BOARD OF EDUC. OF THE ARLINGTON CENT. SCH

January 3, 1996

MICHAEL YAMEN, by his parents and legal guardians, William and Nancy Yamen, Plaintiffs, against THE BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT, DONALD ROTHMAN, as Superintendent of the Arlington Central School District, THOMAS SOBOL, 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: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 BACKGROUND

 This action for violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232-g, the Civil Rights Act, 42 U.S.C. § 1983, and the Fourteenth Amendment of the United States Constitution is before this Court on the motion of the New York State Department of Education and Thomas Sobol ("the State defendants") to dismiss, pursuant to Rules 12(b)(1), 12(b)(6), 12(h)(3) and 21 of the Federal Rules of Civil Procedure. The State defendants have also moved pursuant to Rules 12(b)(1), 12(b)(6) and 12(h)(3) of the Federal Rules of Civil Procedure, to dismiss the "counterclaims" (as opposed to "cross-claims") against them.

 FACTS

 The facts as alleged in the complaint are as follows: Michael Yamen is a 20-year old disabled resident of the Arlington School District. He has been classified as multiply handicapped. Plaintiffs William and Nancy Yamen are the parents and legal guardians of Michael and have brought this action against the Board of Education of the Arlington School District ("the District"), Donald Rothman, the Superintendent of the Arlington School District, the New York State Department of Education ("the State") and Thomas Sobol, the Commissioner of Education ("the Commissioner"). (The State and the Commissioner are collectively "the State Defendants").

 Michael attended the District's North Campus High School during the school years 1991-92 and 1992-93. The Yamens allege that the individualized educational program ("IEP") developed for Michael for the school years 1991 through 1995 by the District's Committee on Special Education were inadequate for a variety of reasons, including the Committee's failure to include a transition plan, to take into account diagnostic vocational evaluations performed on Michael in 1992 and 1993, and to perform an evaluation before making significant placement and programmatic changes.

 In the summer of 1993, the Yamens enrolled Michael in a summer program at the Maplebrook School. Observing growth in Michael's academic and daily living skills that summer, the Yamens enrolled him at the Maplebrook School for the 1993-94 school year. The District denied the Yamens' request that it declare Michael's placement at the Maplebrook School appropriate, and that it provide tuition and transportation to the Maplebrook School for the 1993-94 school year. Although the complaint alleges that the Maplebrook School is in compliance with IDEA requirements, it is not on the New York State list of approved private schools.

 In March of 1994, the Yamens requested an impartial hearing based upon the District's proffering of inappropriate IEPs and its refusal to recommend placement at the Maplebrook School and pay tuition. The District appointed an impartial hearing officer from a list established by the State and the hearing was held between May 12, 1994 and June 16, 1994. In a decision, dated August 18, 1994, the hearing officer held that the Committee's placement of Michael at the North Campus High School, as the least restrictive environment, was appropriate.

 The Yamens appealed to the State Review Officer, who issued a decision, dated November 2, 1994, in which he found the District's placement inappropriate. The State Review Officer, however, also upheld the denial of tuition reimbursement for the Yamens' private placement at the Maplebrook School because it found that the Yamens had failed to demonstrate that it was appropriate. On January 23, 1995, the Yamens filed the complaint in this action, alleging that they had exhausted all administrative remedies and seeking monetary, declaratory and injunctive relief. On March 20, 1995, defendants Board of Education and Rothman filed an answer and counterclaim, appealing that portion of the State Review Officer's decision which found the District's recommended program for the 1993-94 school year inappropriate.

 DISCUSSION

 The State defendants have moved to dismiss the claims against them for failure to state a claim on the grounds that the Yamens do not have standing to challenge an alleged State policy of refusing to reimburse school districts for tuition paid to a parent who unilaterally placed a child in an nonapproved school, that they are not proper parties to this action and that pursuant to the Eleventh Amendment this Court lacks subject matter jurisdiction over the § 1983, Fourteenth Amendment and state law claims.

 The Yamens allege that the District's denial of funds for the Maplebrook placement was attributable to a memorandum, attached to the complaint as Exhibit I, from the State to local school districts explaining that the State would not reimburse school districts for a parent's placement of a child in a nonapproved school. The State defendants argue that the Yamens do not have standing to challenge this alleged policy.

 To have standing, a plaintiff must (1) allege personal injury (2) fairly traceable to the defendant's allegedly unlawful conduct and (3) likely to be redressed by the requested relief. See Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984). Here, the complaint fails to allege that the ...


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