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December 29, 1999


The opinion of the court was delivered by: Larimer, Chief Judge.

Twenty-two year old student sued school district under Individuals with Disabilities Education Act (IDEA), seeking compensatory education. On plaintiffs motion for preliminary injunctive relief, the District Court, Larimer, Chief Judge, held that plaintiff was entitled to preliminary injunction requiring school district to pay for private residential placement.

Motion granted.


Plaintiffs, Aaron Sabatini ("Aaron") and his mother, Sharon Sabatini ("Mrs.Sabatini"), commenced this action under 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 Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 1983, alleging that defendant, Corning—Painted Post Area School District ("the District"), has denied Aaron his right to a Free Appropriate Public Education ("FAPE"), as guaranteed to him by IDEA. Plaintiffs have moved for a preliminary injunction directing the District to pay Aaron's tuition at an educational institution in Connecticut.


Aaron, who was born on February 26, 1978, resides in the Corning—Painted Post Area School District. He has been diagnosed with generalized anxiety disorder, depressive disorder, and a nonverbal learning disability. He is classified as multiply disabled by the District's Committee on Special Education ("CSE").

On May 28, 1998, the CSE met to consider plaintiffs' request that Aaron receive a FAPE in a residential placement. The CSE agreed and recommended that Aaron receive schooling at a residential facility. On June 22, 1998, however, the District's Board of Education ("the Board") rejected the CSE's recommendation and appointed a new CSE to consider plaintiffs' request. On July 14, 1998, the new CSE again recommended a residential placement, but the Board rejected that recommendation as well.

On August 11, 1998, plaintiffs requested an impartial hearing under IDEA, alleging that Aaron had been denied a FAPE since the 1994— 1995 school year. The parties later entered into a settlement agreement, under the terms of which the District agreed to "actively engage in a search for a residential placement" for Aaron, and to "provide an appropriate educational program for Aaron during the 1998-99, 1999— 2000, and 2000— 2001 school years or until such time as Aaron receives a high school diploma, whichever comes first." Defendant's Answer Ex. A.

The District alleges that it attempted, but was unable to find any residential placement that would accept Aaron. In February 1999, however, Mrs. Sabatini requested expense money to visit Mitchell College in Connecticut. Mitchell has a Learning Resource Center ("LRC") designed to provide services to students with disabilities. The District agreed to pay Mrs. Sabatini's travel expenses.

On April 8, 1999, Aaron was accepted at Mitchell. The District alleges that it then sought approval for Aaron's placement at Mitchell from the New York State Department of Education ("the Department") so that Aaron's tuition and costs could be paid for by the District. Under New York Education Law § 4402(2)(b)(2), all contracts with schools to provide educational services for a child with a disability are subject to the approval of the Commissioner of Education ("the Commissioner"). The Department responded that Mitchell was a post-secondary school and not listed as an approved secondary special education school. The District therefore refused to place Aaron at Mitchell. The District alleges that it has been unable to find any other residential placement for Aaron.

On May 20, 1999, plaintiffs requested an impartial hearing, alleging that the District had failed to abide by the terms of the December 1998 settlement agreement by its failure to place Aaron at Mitchell and had failed to provide a FAPE for Aaron. The hearing was held on August 12, 1999, and on September 24, 1999, the Impartial Hearing Officer ("IHO") issued a decision in plaintiffs' favor. Specifically, the IHO found that: Aaron's placement in a nonapproved private residential placement was authorized by IDEA; the District had not met its burden of proof that it had provided Aaron with a FAPE; plaintiffs met their burden of proving that Mitchell is an appropriate educational placement for Aaron; compensatory education, i.e., public education beyond the age of twenty-one to compensate for education to which a child was entitled, but of which he was deprived prior to reaching that age, was an authorized form of relief under IDEA; and the IHO had authority to grant compensatory education to Aaron. The IHO concluded that"[e]quity demands that the District place A[aron] at Mitchell in accordance with the parties' written [settlement] agreement." Complaint Ex. A. In support of her decision, the IHO also noted that the District itself had conceded at the hearing that it had not provided Aaron with a FAPE; the District's attorney had stated to the IHO, "[W]e cannot say to you that we can provide a free appropriate public educational program for Aaron. We can't." Impartial Hearing Transcript ("IHT") at 13.

On October 19, 1999, the District filed an appeal of the IHO's decision to the State Review Officer ("SRO"), who is employed by the Department of Education. N YEduc.L. § 4404(2). Although federal regulations implementing IDEA provide that such an appeal is to be decided within thirty days after the request for review was made, 34 C.F.R. § 300.511 (b)(1), there is no dispute that the SRO has not yet issued a decision, more than two months after the District filed its appeal.

Plaintiffs filed the complaint in this action on November 3, 1999. The First Claim for Relief alleges that the District's actions deny Aaron his right to a FAPE under IDEA and N.Y.Educ.L. Art. 89. The Second Claim for Relief alleges that the District has discriminated against Aaron in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In the Third Claim for Relief, plaintiffs allege that the District has denied Aaron his rights under the ADA by depriving him of appropriate accessibility to essential services and programming. The Fourth Claim for Relief alleges that defendant has denied plaintiffs their rights to due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution. Plaintiffs seek declaratory and injunctive relief, $500,000 in compensatory damages, and their costs and attorney's fees.

Plaintiffs' motion for a preliminary injunction requests an order: (1) that the court assume and retain jurisdiction; (2) requiring defendant to implement the IHO's September 24, 1999 decision; and (3) enjoining defendant from pursuing an administrative appeal of the IHO's decision, pending an expedited trial or hearing on plaintiffs' motion for a preliminary injunction, during which time Aaron would be placed at Mitchell, or in the alternative, ordering defendant to place Aaron at Mitchell during the pendency of the administrative appeal.


I. Exhaustion of Administrative Remedies

In general, a plaintiff seeking to bring an action under IDEA must first exhaust his administrative remedies. See Blackmon ex rel. Blackmon v. Springfield R—XII School Dist., 198 F.3d 648, 655 (8th Cir. 1999); Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995). The same is true of suits under the Rehabilitation Act, see Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. ...

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