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February 10, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge Page 2



  Plaintiff Ahmed Zahran ("plaintiffs"), on behalf of his minor son, Ibrahim Zahran ("Ibrahim" or "plaintiffs"), a disabled student, brought suit against defendants State of New York Department of Education ("DOE") and Board of Education of the Niskuyana Central School District ("Board" or "District"), alleging five causes of action: failure to perform or improper performance of certain evaluations necessary to develop Ibrahim's individual education plan, resulting in the deprivation of a free and public education, and failure to afford prompt administrative review, all in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., Article 89 of the New York State Education Law, and 42 U.S.C. § 1983 (first, second, and third causes of action); and discrimination on the basis of disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act of 1973, 29 U.S.C. § 794. (fourth and fifth causes of action). The District cross-claimed against the DOE, demanding that the DOE state review officer's decision be partially reversed or modified.

  The DOE has filed a motion to dismiss the complaint and cross-claim pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). Plaintiffs and the Board have opposed. The Board did not file a motion to dismiss. Oral argument was heard on November 14, 2003, in Utica, New York. Decision was reserved.


  Ibrahim is an autistic child with a limited vocabulary and a history of aggressive behavior. After he demonstrated this aggression toward teachers and students in sixth grade at a District middle school, his parents sent him to a private school for children with Page 3 disabilities. Following the school year, the private school rejected the District's recommendation that Ibrahim stay another year, instead agreeing with his parents' wishes that he return to the District middle school for the 2000-01 academic year. During that year he repeated seventh grade at the middle school. His individual education plan ("IEP") for that year provided that he would: attend a special class with a special education teacher and full-time aide for two hours per day; receive one hour per day of speech therapy; participate in adapted physical education; and be gradually mainstreamed into the regular education classroom in certain subjects. Ibrahim performed well academically, but the District contends that his aggressive behavior resurfaced and intensified during May and June of 2001.

  On May 9, 2001, the District's committee on special education ("committee") met to develop lbrahim's IEP for the 2001-02 academic year. The IEP that the committee developed called for an eighth grade program consisting of: two hours per day of special education instruction with an aide; one hour per day of speech therapy; three 30-minute speech consultations per week; five 30-minute team consultations per week; one 60-minute psychological consultation per month; adapted physical education; lunch with the general student population; and gradual mainstreaming in other areas.

  Early in the 2001-02 academic year, lbrahim's aggressive behavior again resurfaced. It was reported that he struck teachers and aides, and was aggressive toward other students on three separate occasions. The District brought in new staff to work with him, including a special education teacher experienced in dealing with children with autism, and a teacher's assistant trained in crisis and violence intervention and behavior management. Despite the change, lbrahim's aggression remained. On December 10, 2001, Page 4 he reportedly punched the middle school principal in the face three times, and struck a teacher in the side three or four times. He was suspended from school that day.

  On December 27, 2001, the committee determined that Ibrahim needed an alternative program, and on January 4, 2002, requested an expedited hearing and determination on a proposed Interim Alternative Education Setting ("IAES"), which would be in effect for 45 days. While the IAES was in effect, the committee, with the help of Ibrahim's parents, would develop a new IEP. Just under a week later, the committee proposed an IAES consisting of: two hours per day of services from a special education teacher and aide at a different District middle school; thirty minutes per day of speech therapy at a different District middle school; consultations by a psychologist and communications specialist with Ibrahim's parents and school staff; a thorough psychological evaluation; and a functional behavioral assessment and development of a behavioral intervention plan.

  On January 23, 2002, the District asked DOE'S hearing officer to immediately decide on the propriety of the proposed IAES so that Ibrahim could have some educational program in effect while his new IEP was being developed. Ibrahim's parents objected to the proposed IAES, citing the need for further evaluations.

  Just under a week later, on January 29, 2002, the hearing officer issued a ruling. Though he agreed that Ibrahim's current placement at the District middle school was likely to result in injury to him and/or others, he found that the District had not made reasonable efforts to minimize that risk, and that two hours per day of instruction was insufficient. The District and parents were each asked to submit a new proposed IAES by February 15, 2002. In the interim, the hearing officer ordered several evaluations, the development of a Page 5 behavioral intervention plan by a trained consultant, and a canvassing of District personnel to find replacements for the staff previously working with Ibrahim.

  On March 12, 2002, the hearing officer issued his second ruling. He found a proper IAES would consist of three hours per day of special education instruction in Ibrahim's local middle school, in a room near the main office that was modified and equipped for safety as well as instruction. Ibrahim was to be accompanied to the school by an aide in a small van. A planning team was to meet in the future to evaluate the IAES and determine whether the daily hours of instruction could be increased. The hearing officer also ordered the District to begin advertising for a special education teacher who could instruct Ibrahim. The IAES was to commence March 18, 2002.

  Ibrahim's parents, however, refused to comply with the IAES because of concerns over the layout of the instruction room and the authorization to physically restrain him if he became violent. On March 27, 2002, after learning of this, the hearing officer visited the instruction room. He found the room to be adequate, but ordered that physical restraint was only to be used as a last resort. He ordered the IAES to be implemented by April 1, 2002.

  On April 24, 2002, Ibrahim's parents appealed to the DOE'S state review officer, claiming that Ibrahim should be provided with a full day of instruction in the regular education classroom, and seeking compensatory education for the entire 2001-02 school year plus attorney's fees and costs incurred in locating a proper program for him. The District cross-appealed, stating that the IAES should have been continued for the full 45-day period. A short time thereafter, Ibrahim and his parents moved to Georgia.

  On May 7, 2003, nearly eighteen months after Ibrahim was first suspended, the state review officer issued his decision. He determined that the IAES ordered by the hearing Page 6 officer was adequate, and that the parents' request that Ibrahim be placed in a regular education classroom was inappropriate because he required close monitoring to assure his and others' safety. However, the state review officer also determined that Ibrahim had been denied a free and public education from December 10, 2001 (the day he was suspended) to April 1, 2002, the equivalent of three months of the three hours per day instruction provided for in the IAES. Because Ibrahim was only fourteen years old at the time of the ruling, however, he determined that it was not a case for compensatory education, instead ordering the District to make up the lost time gradually in future academic years. He also rejected the parents' request for attorney's fees, ...

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