23, 1996, this court heard additional evidence concerning the Westchester programs Three witnesses testified: Mary Ellen Herzog, Director of Stepping Stones at Union Child Daycare Center in White Plains, Frank Zollo, Director of the Early Intervention Program for the New York State Department of Health, and Susanne Kaplan, Director of Services for Children with Disabilities with the Westchester County Department of Health. Plaintiff then requested judgment on the record before the court and, in the alternative, moved for preliminary injunctive relief. H. 102-03. Defendants opposed plaintiff's request for judgment on the record, and requested a trial to present additional evidence. H. 107. Accordingly, this court considers only plaintiff's motion for a preliminary injunction at this time.
II. CONCLUSIONS OF LAW
A. The Record
IDEA provides that after a final administrative decision from a hearing officer, an aggrieved party may seek judicial review in state or federal court. The court reviews the administrative record, hears additional evidence upon the request of either party, and grants any relief it deems appropriate. 20 U.S.C. see. 1415(e)(2).
The record of an impartial hearing held pursuant to IDEA is to be given "due weight," and district courts must be "careful to avoid imposing [their] view of preferable educational methods." Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). This court is to make an independent ruling on the merits of the plaintiff's claim based on a preponderance of the evidence, with "the source of the evidence generally . . . the administrative record." Town of Burlington v. Dep't of Education for the Commonwealth of Mass., 736 F.2d 773, 790 (1st Cir. 1984), affirmed, 471 U.S. 359 (1985). Accordingly, on the instant motion for a preliminary injunction, this court considers both the administrative record and additional evidence presented on January 23, 1996 concerning the Westchester programs.
B. Standard For Preliminary Injunction
Plaintiff is seeking preliminary injunctive relief. Usually, a party seeking to obtain a preliminary injunction must establish that it will suffer irreparable harm in the absence of an injunction and demonstrate either "a likelihood of success on the merits" or "sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of the hardships tipping decidedly" in favor of the movant. Jolly v. Coughlin, et al., 76 F.3d 468, 1996 U.S. App. LEXIS 1757, *10, , 1996 WL 49162, at *4 (2d Cir. 1996); Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-80 (2d Cir. 1994); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir. 1982).
A heightened standard applies when the injunction sought will alter, rather than maintain, the status quo -- that is, a "mandatory" rather than "prohibitory" injunction. Jolly, 1996 U.S. App. LEXIS 1757, at *11, 1996 WL 49162, at *4 (citing Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). In such cases, the movant must make a "dear" or "substantial" showing of a likelihood of success, id., and a strong showing of irreparable harm. Doe v. New York University, 666 F.2d 761, 773 (2d Cir. 1981).
Because plaintiff in the instant case seek to compel defendants to provide MM with 40 hours per week of ABA services, as well as incidental monetary reimbursement, he seeks mandatory rather than prohibitory relief. A mandatory injunction should issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief" Tom Doherty, 60 F.3d at 34. We find that plaintiff has met this heightened standard.
C. Irreparable Harm
A showing of probable irreparable harm is "the single most important prerequisite for the issuance of a preliminary injunction." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (citations omitted). Plaintiffs must demonstrate that such injury is "imminent, not remote or speculative," Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989), and that the alleged injury cannot be hilly remedied by monetary damages. See id.; Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir. 1986). The law in this Circuit requires a strong showing of irreparable injury where mandatory injunctive relief is sought, Doe, 666 F.2d at 773; Pazer v. N.Y. State Board of Law Examiners, 849 F. Supp. 284, 287 (S.D.N.Y. 1994), and a sufficient showing in any case. Reuters, 903 F.2d at 907.
This court finds that plaintiff has made this strong showing. In the absence of injunctive relief, his son will be deprived of his rights under IDEA. Compelling evidence has been presented to support the contention that, specifically in cases of autistic children, adequate education must be provided as early in life as possible. Defendants have not disputed this. Thus defendants' ongoing denial of MM's right to free appropriate education seriously jeopardises MM's future development. See infra sec. II(D). And although plaintiff has so far paid for MM's ABA therapy himself, he and his wife are school teachers and at risk of running out of money. Thus this court concludes that the injury plaintiff faces in the absence of an award of injunctive relief is imminent damage to his son's personal and mental development. It is difficult to imagine more grave harm.
D. Substantial Likelihood of Success on the Merits
IDEA requires states, as a condition of accepting federal finding, to provide "a free and appropriate public education" to all children with disabilities. Congress' express purpose in enacting IDEA was to:
assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of children with disabilities and their parents or guardians are protected . . . and to assess and assure the effectiveness of efforts to educate children with disabilities.