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LIH EX REL. LH v. NEW YORK CITY BD. OF EDUC.

July 17, 2000

LIH, BY AND ON BEHALF OF HER MINOR SON, LH ET AL., PLAINTIFFS,
V.
NEW YORK CITY BOARD OF EDUCATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior District Judge.

MEMORANDUM AND ORDER

Plaintiffs LIH, by and on behalf of her minor son, LH; LM, by and on behalf of her minor son, MV; OL, by and on behalf of her minor son, ML; LR, by and on behalf of her minor daughter, MS; and JW, by and on behalf of her minor daughter AW, individually and on behalf of others similarly situated, bring this action against defendants the New York City Board of Education ("Board") and Harold Levy, Chancellor of the New York City public schools. Plaintiffs allege that defendants' policy governing the suspension of disabled children attending summer school within the New York City public school system deprives those children of their rights under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., the Due Process Clause of the Fourteenth Amendment, Section 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794, New York State Education Law, and Chancellor's Regulation A-445.*fn1 Currently before the Court is plaintiffs' application for a preliminary injunction preventing defendants from implementing the Board's policy governing the suspension of students with disabilities attending summer school during the year 2000 summer session.

For the reasons set forth below, plaintiffs' application for a preliminary injunction is granted in accordance with the separate order filed herewith. What follows sets forth the findings of fact and conclusions of law on which the decision to grant a preliminary injunction is based, as required by Rules 64 and 65 of the Federal Rules of Civil Procedure.

BACKGROUND

The following facts are taken from the submissions of the parties in connection with the instant applications. Since the underlying facts are essentially undisputed, no evidentiary hearing is required. See Brown v. Giuliani, 158 F.R.D. 251, 254 (E.D.N.Y. 1994). That is not to say that the parties do not dispute the inferences to be drawn from some of those underlying facts. The resolution of those differing inferences is, however, a matter of argument and, the parties agree, would not be assisted by an evidentiary hearing. See Drywall Tapers & Pointers of Greater New York, Local 1974 v. Operative Plasterers' & Cement Masons' Int'l Ass'n of U.S. & Canada, 537 F.2d 669, 674 (2d Cir. 1976).

Plaintiff LIH brings this action on behalf of her son, LH, a seventh grade student in the New York City public school system who suffers from attention deficit disorder and central auditory processing disorder.*fn3 LH, as a student with a disability eligible for special education services under the IDEA and Section 504, currently receives speech therapy, counseling, and assistance from a paraprofessional on how to modify his behavior. During the regular school year, he attends a Modified Instructional Setting ("MIS") class, a class of similarly situated students in which the regular curriculum is modified to meet the students' particular disabilities. LH has been suspended from school five times since October 1998. During the 1999 summer school session, LH was suspended after several days and was not allowed to return. LH was scheduled to begin summer school on July 5, 2000, and his promotion to the eighth grade as a practical matter hinges upon the successful completion of the summer school program. During the summer term, however, LH will not receive paraprofessional or other support services,*fn4 and if he does not behave he runs the risk of not completing summer school.

Plaintiff LM brings this action on behalf of her son, MV, an eight-year-old second grade student in the New York City public school system. MV, as a student with a disability eligible for special education services under the IDEA and Section 504, currently receives small group "resource room" instruction to help him maintain his reading abilities, which suffer due to his learning disability. On July 5, 2000, MV was scheduled to begin summer school, and his promotion to the third grade is as a practical matter contingent upon the successful completion of summer school.

Plaintiff LR brings this action on behalf of her daughter, MS, a fifth grade student in the New York City public school system. MS, as a student with a disability eligible for special education services under the IDEA and 29 U.S.C. § 794, currently receives resource room instruction to help her cope with her learning disability. On July 5, 2000, MS will begin summer school, and her promotion to the sixth grade is as a practical matter contingent upon the successful completion of summer school.

Plaintiff OL brings this action on behalf of her son, ML, a fourteen-year-old ninth grade student in the New York City public school system.*fn5 ML has been diagnosed as an emotionally disturbed student and is receiving special education services under the IDEA and Section 504, including an MIS class. During the regular school year, he attends a class of twelve students, supervised by both a teacher and a para-professional. He also receives counseling at school to help him achieve his emotional and behavioral goals. ML's IEP states that he is at times unable to accept the consequences of his actions and has difficulty accepting direction from authority. ML has been suspended at least two times in the past year, for a total of approximately nine days. He has been mandated to attend summer school this summer to make up credits without which he will not be promoted to the tenth grade. ML will receive none of these special services during the summer.

Defendant New York City Board of Education ("Board") is the local official body charged with developing policies concerning the administration and operation of the public schools in the City of New York. See N.Y. Educ. Law §§ 2590, 2590-g. The Board is a recipient of federal financial assistance and constitutes the "local educational agency" ("LEA") for New York City as defined in IDEA. See 20 U.S.C. § 1401. Defendant Harold Levy is sued in his capacity as the Chancellor of the New York City public schools. The Chancellor is required, inter alia, to control and operate all special education programs and services mandated by the Board. See N.Y. Educ. Law § 2590-h.

Defendants recently instituted a new promotional policy under which all children must meet certain promotional criteria to be promoted to the next grade, or face being "held over."*fn6 The new policy requires teachers to make a professional judgment about a student's readiness to be promoted to the next grade based on three criteria: (1) coursework, as evidenced by classwork, teacher observation, and term grades; (2) attendance; and (3) standardized test performance. Promotion decisions are based on a consideration of these three criteria together, and no single criterion is determinative. (Chaifetz Reply Aff. Ex. A at 3-4.) Those students not meeting the promotional criteria at the end of the regular school year are sent notices instructing them to attend a "mandated" summer school program.*fn7 The summer program began on July 5, 2000, and is a 100-hour, five- to six-week program. Summer school is mandated for some of the children in the putative class because they failed to meet the new citywide promotional standards.

Defendants assert that attendance at summer school is not technically required for promotion to the next grade since promotion is contingent only upon the student's score on a standardized test administered at the end of the summer that all "held-over" students are permitted to take, regardless of their attendance at summer school. Defendants characterize summer school as an "optional" remedial program. It is clear, however, that defendants have decided that summer school instruction for held-over students is of vital educational importance and crucial to these students' potential for promotion. The Chancellor's Summer School Status Report 2000, issued on May 3, 2000, states that summer school is an "integral part of the Board Promotion Policy." (Chaifetz Reply Aff. Ex. A at 16.) The report explains:

Successful completion of Summer School 2000 will, for many students, be the critical factor in determining their promotion. The fact that attendance in summer school will have a direct impact upon whether students are promoted to the next level of achievement makes the tracking and follow up of their attendance an important component of the overall program.

(Chaifetz Reply Aff. Ex. A at 10.)*fn8 Under the "Guidelines for Determining Promotion Criteria for Students with Disabilities Receiving Special Education Services" promulgated by defendants, only students who have had their IEPs revised between November 1999 and January 31, 2000, to reflect whether the new promotional criteria will apply to them will be held to the new criteria and be required to attend summer school. (See Chaifetz Aff. Ex. A.) Plaintiffs aver, however, that "hundreds if not thousands" of students throughout the city are being "held over" for grade promotion pending mandatory attendance at summer school who should not be because their IEPs were not revised in time. (Chaifetz Aff. ¶ 16.) Other children have been offered the opportunity to attend summer school voluntarily because they are not meeting the general promotional criteria, but the criteria do not yet apply to them under the guidelines.

For the upcoming summer school session, which commenced on July 5, 2000, defendants plan to disregard A-445 and implement an alternative plan (the "summer policy") for the suspension of students with disabilities. In general under the summer policy, local principals or site supervisors will have discretion to impose disciplinary action, and students will have no right to an appeal of their decisions. The discipline policy for students in summer school was disseminated by memorandum dated April 3, 2000, from Francine Goldstein, Supervising Superintendent, and John Musico, Superintendent for Promotional Policy, to all superintendents. In relevant part, the policy states:

1. School staff, students and parents must be advised that the standards of conduct (but not the dispositions) set forth in the Discipline Code apply to students who attend summer school . . .
2. When an incident of misbehavior occurs, the principal, site supervisor or designee shall conduct an investigation (interview witnesses to and participants in the incident, including the accused, and ask them to provide signed written statements) in order to determine what occurred and what, if any, disciplinary action should be taken. The principal or site supervisor may elect to impose any of the following disciplinary actions: reprimand the student, impose in-school disciplinary action, seek restitution, refer the student for counseling or other services, have a conference with the student and/or parent, remove the student from the program for up to two days or expel the student from the summer program.
3. Students who are removed for up to two days or expelled from the program must be afforded an appropriate level of due process, i.e., written notice to the student and parent of the misbehavior and the opportunity to discuss the matter with an appropriate school official at an expedited guidance conference.
4. In imposing any level of discipline, the principal must consider the student's age, maturity and prior disciplinary record as well as the circumstances surrounding the incident.
5. If the student is subjected to short-term removal or expulsion and is attending summer school in order to achieve a passing score on the standardized tests to be administered at the end of the program, the student will be permitted to take the tests, though not necessarily at the school he/she attended.
6. There shall be no appeal*fn10 of any decision to discipline a student during summer school, including short-term removal or expulsion. Students who are ...

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