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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,
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.
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."
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
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 ...