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Kf and Af, As Parents On Behalf of Their Infant Daughter Cf v. Monroe Woodbury Central School

April 30, 2012

KF AND AF, AS PARENTS ON BEHALF OF THEIR INFANT DAUGHTER CF, PLAINTIFFS,
v.
MONROE WOODBURY CENTRAL SCHOOL DISTRICT AND DAVID BERNSLEY, HIGH SCHOOL PRINCIPAL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

On March 27, 2012, Plaintiffs filed an Order to Show Cause for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, seeking placement of CF, a student at Monroe-Woodbury High School, in an out-of-district public high school within Orange County.*fn1 Oral argument was held before the Court on April 3, 2012. For the reasons set forth below, Plaintiffs' application for a preliminary injunction is DENIED.

I. FACTUAL BACKGROUND

CF, a fifteen year-old girl, has attended public schools within the Monroe-Woodbury Central School District since she was in kindergarten. (Pls.' Mem. in Supp. of Prelim. Inj. at 1.) In April 2010, when CF was in the eighth grade, she alleges that a male classmate sexually assaulted her in a classroom in the middle school she was attending. (CF Aff. ¶ 7.) CF did not report the incident to any of the middle school's teachers or administrators. (Id.) As a result of the incident, CF alleges that she was subjected to taunting and teasing by other students, which caused her to experience anxiety and to engage in self-harm. (Id. ¶ 8; Pls.' Mem. in Supp. of Prelim. Inj. at 2.)

In September 2010, CF started attending the Monroe-Woodbury High School. (CF Aff. ¶ 10.) Prior to the start of the school year, her mother, KF, met with Guidance Counselor Hogaboom and Assistant Principal Martin to express her concerns about CF's transition to high school.*fn2 (KF Aff. ¶¶ 6, 9; Kleinman Aff. ¶ 12.) Martin assured her that he would speak to the school social worker about CF. (KF Aff. ¶ 8.)

Approximately three months later, in November of her freshman year, CF alleges that another student sexually assaulted her in the hallway while they were changing classes. (CF Aff. ¶ 12; Kleinman Aff. ¶¶ 15-16.) Although she met with District Social Worker Carney on at least two occasions in the fall of 2010,*fn3 CF told no one at the school about the purported sexual assault. (CF Aff. ¶ 13 at 4.)

After the second sexual assault, CF's psychological condition worsened and she began to attend school less frequently. (Pls.' Mem. in Supp. of Prelim. Inj. at 3; CF Aff. ¶ 13 at 4.) In January 2011, CF developed mononucleosis. (Kleinman Aff. ¶ 18.) As a result, she did not attend classes at the high school and the district provided her with home-tutoring for six weeks.

(KF Aff. ¶ 11.) In March 2011, she attempted to begin attending school once again. (Kleinman Aff. ¶ 19.) CF reported that she began to suffer regular migraine headaches, became emotionally overwhelmed, and experienced depression and anxiety while at school. (CF Aff. ¶ 15 at 4.) Eventually, it proved to be too emotionally challenging and CF returned to home-tutoring for the remainder of the 2010-2011 school year. (Id. ¶ 16 at 5.)

CF and KF met with Assistant Principal Martin and Counselor Hogaboom before the start of the 2011-2012 school year to discuss CF's progress. (Kleinman Aff. ¶ 23.) Based on that meeting, it was agreed that CF would attend classes at the high school on a modified schedule. (Id. ¶ 24; CF Aff. ¶ 17 at 5.) The school district also provided CF with an adaptive physical education program, normally offered only to special education students, and offered to place CF in the "Academy," a small-group after school program. (Kleinman Aff. ¶¶ 25-26.) Again, attending the high school regularly caused her to become emotionally overwhelmed and to engage in self-injurious behavior. (CF Aff.¶ 17 at 5.) In September 2011, she was found by a school monitor cutting herself in the school building. (Kleinman Aff. ¶ 27.) The school nurse and social worker met to discuss the issue with her and the school district confirmed that she was receiving private counseling services. (Id. ¶ 28.) After this meeting and at the suggestion of the school social worker, she left the high school and attended a thirty-day Intensive Day Treatment Program. (CF Aff. ¶¶ 17-18 at 5.)

At some point while in attendance at the Intensive Day Treatment Program, in October 2011, CF revealed to a nurse practitioner and a therapist that she had been sexually assaulted in the eighth and ninth grades by other students. (Kleinman Aff. ¶ 32.) Soon thereafter, for the first time, CF informed school officials of the two sexual assaults.*fn4 Upon learning of the alleged assaults, Vice Principal Martin spoke with the middle school assistant principal about the assault that occurred while CF was in the eighth grade and interviewed the boy alleged to have committed that assault. (Id. ¶ 30.) Martin also confirmed that CF was not in any classes with him. (Id.) Martin did not inform CF's parents of any details of his efforts to investigate the earlier incident, other than that he had called the boy to his office. (KF Aff. ¶ 16.) In addition, Martin determined that the boy alleged to have committed the second sexual assault no longer attended the high school and advised CF and her parents that they could file a police report, which they declined to do. (Kleinman Aff. ¶¶ 36-37.)

At the request of CF's parents, the school district tested CF for special education eligibility in November and December 2011. (Id. ¶¶ 33-34, 38.) At a hearing on December 8, 2011, with CF's parents present, the school district's committee on special education found that CF was ineligible for special education, and ordered a psychiatric evaluation to determine the best course of action for her. (Id. ¶¶ 38-40.) The committee also recommended that CF first attend tutoring at the Harriman Center and later attend an alternative high school environment. (Id. ¶ 41.)

Principal Bernsley met with CF and her parents on December 13, 2011, before the school psychiatrist's evaluation of CF. (KF Aff. ¶ 22.) CF described the two alleged sexual assaults to him, and he stated his intent to look into what options would be available to her going forward. (Id.) The school district provided CF with a psychiatric evaluation on the same day, at which the psychiatrist diagnosed CF with Anxiety Disorder and recommended that she work with a personal therapist towards returning to a traditional school environment. (Kleinman Aff. ¶¶ 44-46.)

On January 12, 2012, the committee on special education met to discuss the results of the psychiatrist's report. (Id. ¶ 48.) CF and her parents were also present at this meeting. (Id.) The committee recommended placing CF in the GO Program, an alternative high school. (Id. ¶ 50.) CF's parents agreed to CF's placement in the GO Program, but CF attended for only one day and felt too uncomfortable there to return. (Id. ¶¶ 50-51.) The school district then resumed providing CF with ten hours of home instruction per week at the Harriman Center. (Id. ¶ 57.)

The school district convened a meeting of its Section 504 Accommodation Team on February 3, 2012, to develop a plan for CF. (Id. ¶ 58.) CF's parents were present. (Id. ¶ 59.) With the goal of placing CF in the least restrictive environment possible, the Accommodation Team considered various options, including placing CF in a tutoring program at the Harriman Center, the assignment of a one-on-one monitor to shadow CF in order to ensure her comfort and safety while at school, additional time for testing, in-school counseling, and the GO Program. (Id. ¶¶ 62-63.) CF's parents rejected each of these recommendations; they insisted that CF be placed in another public high school located outside the district. (Id. ¶¶ 55, 66.)

Principal Bernsley met with CF's parents on February 1, 2012, and he notified them by letter dated February 9, 2012, that they could file a grievance with the school district's Title IX officers. (Id. ¶¶ 53-54.) Her parents did not file a grievance. (Id. ¶ 69.) However, the school district's Title IX officer initiated an investigation shortly after the February 9 letter was sent, by interviewing the two boys alleged to have committed the assaults, as well as school staff members. (Id. ¶¶ 70-78, Ex. E ¶ 4.) Plaintiffs initiated this ...


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