453 F.2d 238 (2nd Cir. 1971), 253, Reid v. Board of Ed. of City of New York

Docket Nº:253, 71-1791.
Citation:453 F.2d 238
Party Name:Riley REID, a minor under the age of 21 years, by his mother, Ellen Hoffman, and Benjamin Kennedy, a minor under the age of 21 years, by his mother, Virginia Kennedy, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and Harvey B. Scribner, individually and as Chance
Case Date:December 14, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 238

453 F.2d 238 (2nd Cir. 1971)

Riley REID, a minor under the age of 21 years, by his mother, Ellen Hoffman, and Benjamin Kennedy, a minor under the age of 21 years, by his mother, Virginia Kennedy, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,


The BOARD OF EDUCATION OF the CITY OF NEW YORK, and Harvey B. Scribner, individually and as Chancellor of the Board of Education, Defendants-Appellees.

No. 253, 71-1791.

United States Court of Appeals, Second Circuit.

December 14, 1971

Argued Nov. 9, 1971.

Page 239

Lawrence J. Fox, New York City (Community Action for Legal Services, Inc., New York City, Marttie Louis Thompson, David Rudenstine, New York City, of counsel), for plaintiffs-appellants.

Mary P. Bass, New York City (J. Lee Rankin, Corp. Counsel, Stanley Buchsbaum, New York City, of counsel), for defendants-appellees.

Before KAUFMAN and MANSFIELD, Circuit Judges, and LEVET, District Judge. [*]

IRVING R. KAUFMAN, Circuit Judge:

This dispute centers around the special public school classes provided by the Board of Education of the City of New York for brain-injured and other handicapped children. Ellen Hoffman and Virginia Kennedy appeal on behalf of their respective sons, Riley Reid and Benjamin Kennedy, two unfortunate ten-year-old brain-injured children, from an order of Judge Metzner dismissing their complaint.

The complaint alleged that the Board and Harvey Scribner, as Chancellor of the New York school system, deprived Riley Reid and Benjamin Kennedy of due process of law, the equal protection of the law and the right to a free public education, all in contravention of the fourteenth amendment, by failing to screen applicants for these classes within a reasonable time and by failing to provide special classes for all eligible children. 1

Although the complaint is sparse, the allegations reveal the urgency of appellants' grievances. We are informed that Riley Reid, who has been diagnosed as minimally brain injured by the Child Psychiatric Evaluation Research Unit of the New York State Department of Mental Health, applied for placement in a special class on September 1, 1970. As of February, 1971, Riley had passed the first part of the screening process, but had not yet received a diagnostic evaluation, which comprises the second part. 2 Riley's mother allegedly was told that it would be approximately one year from time of screening (assuming Riley is found eligible) until placement. To the best of our knowledge, Riley's application still has not been fully processed. Thus, at a minimum, Riley will have waited at least 28 months from time of application until placement. During the intervening period, Riley withdrew from regular public school under a medical discharge because he was receiving no benefit and, it was alleged, being "severely injured." He now receives no formal education other than a few hours each week of home instruction, 3 and is falling further behind his peers, while his handicap becomes progressively more difficult to treat.

Benjamin Kennedy was placed on the waiting list in March, 1970. Although found eligible in January of this year, he has yet to be placed in a special class. His mother allegedly has been advised that he may have to wait as long as two years. Benjamin, at the date of the complaint, was attending regular public school.

Appellants brought this action under 42 U.S.C. § 1983, asserting jurisdiction under 28 U.S.C. §§ 1343(3) and (4), on behalf of all brain-injured children eligible for the New York City special classes. According to the complaint, there are more than 400 children who, like Riley Reid, have applied for admission but

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have not been screened, and more than 200 children who have been declared eligible but have not been placed. "If all the children on the waiting list were screened promptly," the complaint tells us, "the inadequacy of the number of classrooms would be even more pronounced."

Appellants sought a preliminary and permanent injunction enjoining defendants "to provide special public school classes with adequate staff and resources for all eligible brain-injured children and to provide proper screening within a reasonable time for plaintiffs and all others similarly situated," as well as a declaratory judgment that defendants had violated the 14th amendment and the constitutional right to a free public education. On June 22, 1971, acting upon appellants' motion for a preliminary injunction and appellees' cross-motion for dismissal under Rule 12(b) (1) or (6), Judge Metzner dismissed the complaint, holding that the facts of the case called for exercising the doctrine of abstention. Although we agree that it was proper for the district court to stay its hand, 4 Judge Metzner should have retained jurisdiction pending the determination of appellants' state law claims in the New York courts.


Although appellants did not append state law claims to their complaint, it appears clearly that they have both a substantial statutory and constitutional claim under New York law. Section 4404, subd. 2 of the New York Education Law (McKinney's Consol.Laws, c. 16, 1970) requires "[t]he board of education of each city . . . to furnish suitable education facilities for handicapped children by means of home-teaching, transportation to school or by special class. . . . Where there are ten or more handicapped children who can be grouped homogeneously in the same classroom for instructional purposes such board shall establish such special classes as may be necessary to provide instruction adapted to the mental attainments and physical conditions of such children." 5 Under section 4401, a "handicapped child" is defined as "one who, because of mental, physical or emotional reasons, cannot be educated in regular classes but can benefit by special services and programs. . . ." We cannot say at this juncture of the case that the New York City Board of Education is not in default of its statutory obligations by not providing prompt screening and placement for all eligible brain-injured children. Moreover, Riley and Benjamin and the members of the class they represent may have been deprived of their rights...

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