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SABUR v. BROSNAN

May 8, 2002

ALIA SABUR, BY HER MOTHER AND NATURAL GUARDIAN JULIE KESSLER A/K/A JULIE SABUR, AND HER FATHER AND NATURAL GUARDIAN, MOHAMMED SABUR, FOR ALIA SABUR AND FOR THEMSELVES, PLAINTIFFS,
V.
WILLIAM BROSNAN, EVELYN ABRUZZO, GARY BURNS, DOLLY NARAIN, NORTHPORT-EAST NORTHPORT BOARD OF EDUCATION AND NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge.

    MEMORANDUM OF DECISION AND ORDER
The plaintiffs Julie Sabur and Mohammed Sabur (collectively, the "Saburs") bring this action on behalf of their daughter Alia Sabur ("Alia") alleging that the defendants William Brosnan ("Brosnan"), Evelyn Abruzzo ("Abruzzo"), Gary Burns ("Burns"), Dolly Narain ("Narain"), the East Northport Board of Education (the "Northport BOA") and the East Northport Union Free School District (the "Northport School District") (collectively, the "School District") failed to provide Alia with appropriate educational services in violation of the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. § 1983 and Article XI, § 1 of the New York State Constitution. Presently before the Court is a motion by the School District to dismiss seven of the eight counts in the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
I. BACKGROUND
The facts are taken from the amended complaint unless otherwise stated. Alia is a twelve year old girl who has advanced skills in, among other things, mathematics, music, reading and science. In the fall of 1995, Alia enrolled in the Dickinson Avenue Elementary School ("Dickinson"), which is part of the School District.
For the 1995-1996 school year, the School District provided Alia with an individually-tailored curriculum, which placed her in the first grade with children her own age for art, physical education, music and lunch, while allowing her to spend time with older students in the areas of reading and mathematics. In addition, the School District provided Alia with individual instruction in computer science.
For the 1996-1997 school year, Alia entered the second grade and continued with her individually-tailored curriculum. In particular, the School District provided Alia with individual instruction in mathematics and computer science while she remained with her second grade classmates for half of the day. In June of 1997, the Saburs requested that the School District provide Alia with a long-term education plan.
For the 1997-1998 school year, Alia entered the third grade. During this school year, Alia took a class in physical science at the Northport middle school. There, Alia encountered older students who occasionally ridiculed and harassed her. Also, Alia continued to receive individual instruction at Dickinson. By the fall of 1998, the School District offered the Saburs a choice: either agree to have Alia take math and science in a ninth grade class or have Alia remain in a fourth grade class for these subjects. The Saburs chose to keep Alia in the fourth grade for the 1998-1999 school year.
In November of 1998, the Saburs filed a request for a hearing before an Impartial Hearing Officer ("IHO") to investigate the status of an alleged referral in 1997 by the School District to the Committee on Special Education ("CSE") to evaluate Alia's educational needs and to determine the appropriate accommodations for Alia's special needs. A hearing was set for December 23, 1998. On that date, the Saburs, accompanied by counsel, appeared before the IHO with a private camera crew hired by the Saburs to record the hearing. The IHO refused to proceed with the hearing unless the Saburs waived their request to record the proceedings. The Saburs refused to waive their request and the hearing was adjourned for a ruling from the State Education Commissioner's Office (the "Commissioner") on the issue of whether the IHO must permit the hearing to be recorded.
Shortly thereafter, the Commissioner informed the IHO that the decision whether to permit the recording of the hearing is within his discretion. The IHO adhered to his earlier decision to prohibit video recording and re-scheduled the hearing for January 13, 1999. On January 12, 1999, the Saburs filed a written request that the IHO recuse himself claiming that he could not render a fair decision in this matter.
On January 13, 1999, the Saburs again requested that the IHO recuse himself citing his alleged bias in favor of the School District. After affording their counsel and the Saburs themselves an opportunity to note their reasons for the recusal request, the IHO denied the request and stated that the hearing will proceed with or without the Saburs. The Saburs then chose to leave and not participate in the hearing. The IHO continued the proceedings in the absence of the Saburs.
On January 22, 1999, the IHO issued a decision remanding the case back to the CSE. In the Matter of A.S. Mr. and Mrs. S., Impartial Hearing, Northport-East Northport Union Free District School (Jan. 22, 1999) is annexed as Exhibit I to the Affidavit of Warren H. Richmond sworn to in November of 2000 (the "Richmond Affidavit"). In particular, the IHO stated "[i]t is the parent's responsibility to follow the process, as explained in 200.4 of the Commissioner's regulations, to go through the necessary testing, health evaluation, social evaluation, and educational evaluation necessary to comply with the Commissioner's regulations." Id.
On January 29, 1999, the School District sent the Saburs consent forms for educational and psychological evaluations to enable the CSE to make determinations with respect to Alia's classification and placement. Richmond Affidavit ¶ 14. The Saburs did not return the consent forms to the School District. Id. On March 10, 1999, the CSE met with respect to Alia and concluded:
Minutes of CSE, Northport-East Northport, dated March 10, 1999 annexed as Exhibit M to the Richmond Affidavit. The Saburs did not submit an Independent Educational Evaluation to the School District. Instead, the Saburs enrolled Alia as a student at the State University of New York, Stony Brook, where she currently maintains a 3.95 grade point average.
On May 11, 2000, the Saburs commenced this action against the School District and the New York State Department of Education alleging, among other things, that the defendants failed to provide Alia with appropriate educational services. On July 23, 2001, this Court dismissed all of the claims which arose out of the allegation that Alia was not provided an appropriate education because the Saburs failed to exhaust their administrative remedies. Sabur v. Brosnan, No. 00-2660, slip op. (E.D.N.Y. July 23, 2001). In addition, the Court dismissed the remaining claims, except for one involving the First Amendment, for failure to state a claim upon which relief can be granted. Id. at 17. Finally, the Court granted the Saburs permission to file an amended complaint within thirty days of its decision. Id.
On August 23, 2001, the Saburs filed an amended complaint in which they assert seven causes of action. Counts one through four allege violations under 28 U.S.C. § 1983 for the failure to provide Alia with appropriate educational services. Count five charges a violation under the First Amendment for hindering the Saburs' right to speak publicly concerning Alia. Count six alleges a violation under the IDEA for the failure to provide Alia with appropriate educational services. Count seven alleges a violation of Article XI, § 1 of the New York State Constitution for the failure to provide Alia with appropriate educational services.

Presently before the Court is a motion by the School District to dismiss all of the counts in the amended complaint, except count five, pursuant to Rules 12(b)(1) and ...


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