Michael M. v. Bd. of Educ. of NYC School Dist.

• Decision Date: 27 May 1988
• Docket Number: 87 CV 0531 (JBW).,No. 87 CV 0528 (JBW),87 CV 0528 (JBW)
• Citation: 686 F. Supp. 995
• Parties: MICHAEL M. and Janice M., Plaintiffs, v. BOARD OF EDUCATION OF the NEW YORK CITY SCHOOL DISTRICT, Thomas Sobel, as Commissioner of Education of the State of New York, Defendants. HARRY O. and Sue O., Plaintiffs, v. BOARD OF EDUCATION OF the NEW YORK CITY SCHOOL DISTRICT, Thomas Sobel, as Commissioner of Education of the State of New York, Defendants.
• Court: U.S. District Court — Eastern District of New York

686 F. Supp. 995

MICHAEL M. and Janice M., Plaintiffs, v. BOARD OF EDUCATION OF the NEW YORK CITY SCHOOL DISTRICT, Thomas Sobel, as Commissioner of Education of the State of New York, Defendants.

HARRY O. and Sue O., Plaintiffs, v. BOARD OF EDUCATION OF the NEW YORK CITY SCHOOL DISTRICT, Thomas Sobel, as Commissioner of Education of the State of New York, Defendants.

Nos. 87 CV 0528 (JBW), 87 CV 0531 (JBW).

United States District Court, E.D. New York.

May 27, 1988.

Rebell & Katzive by Marion C. Katzive, New York City, for plaintiffs.

Robert Abrams, Atty. Gen. of State of N.Y. by Martha O. Shoemaker, Asst. Atty. Gen., New York City, Peter L. Zimroth, Corp. Counsel for City of N.Y. by Suzanne L. Bailey, Asst. Corp. Counsel, New York City, for defendants.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

In each of these actions the plaintiffs are parents of a handicapped child. They were successful in procuring educational relief at the administrative level pursuant to the applicable provisions of the Education of All Handicapped Children Act (EHA). 20 U.S.C. §§ 1401, et seq. They now seek payment of attorney's fees incurred in the administrative proceedings from both defendant Board of Education and defendant Commissioner of Education, pursuant to EHA amendments made by the Handicapped Children's Protection Act of 1986 (HCPA). Pub.L. No. 99-372, 100 Stat. 796-98 (1986).

Defendant Commissioner of Education moves to dismiss on the grounds that 1) the actions are time barred by a four month short-statute of limitations; 2) the Eleventh Amendment to the United States Constitution bars a federal court from ordering recovery from a state; and 3) the Commissioner is not a proper party to these proceedings.

Only the last of these contentions has merit. Plaintiffs' actions are timely; they are governed by a three year statute of limitations, not the four month statute defendant claims should apply. The Eleventh Amendment does not bar plaintiffs' actions against the Commissioner for attorney's fees; Congress has effectively abrogated the sovereign immunity of the states in suits of this nature in federal court pursuant to its powers under the Fourteenth Amendment. Since the Commissioner of Education is not a proper party to this action his motion to dismiss must be granted.

The Education of All Handicapped Children Act and The Handicapped Children's Protection Act of 1986

The EHA represents "an ambitious federal effort to promote the education of handicapped children...." Board of Educ. of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). It was enacted

in recognition of the facts that millions of handicapped children were not receiving appropriate educational services in public schools, that state and local educational agencies have both the ability and the responsibility to provide appropriate educational services for all handicapped children, but lack the financial resources to fulfill that duty, and that it is in the national interest for the federal government to assist state and local agencies' efforts to educate handicapped children.

Riley v. Ambach, 668 F.2d 635, 636-637 (2d Cir.1981) (citation omitted).

Passed by Congress in 1975, the EHA provides federal money to assist state and local agencies in educating handicapped children. Funding is conditioned upon a state's compliance with extensive goals and procedures of the EHA designed to ensure that handicapped children are given access to public education. Private parties such as the parents may sue to enforce EHA rights. Moore v. District of Columbia, 666 F.Supp. 263, 264 (D.D.C.1987).

In July of 1984, the Supreme Court held that an award of reasonable attorney's fees was not available to the prevailing party in an action brought under the EHA. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Acting "swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent," Fontenot v. Louisiana Bd. of Elementary and Secondary Education, 805 F.2d 1222, 1223 (5th Cir.1986), Congress passed the HCPA in August, 1986. The HCPA overturned the Supreme Court's holding in Smith v. Robinson by explicitly providing for the recovery of attorney's fees for plaintiffs asserting claims to enforce rights that arise under the EHA. It reads:

In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.

20 U.S.C. § 1415(e)(4)(B). The act was made retroactive to permit recovery of fees for actions brought before the date of the Smith decision which was pending on that date as well as for any action brought after the decision was issued. Pub.L. 99-372 § 5, 100 Stat. 796, 798 (1986).

New York State Education Law

Primary responsibility for education has traditionally been, and still is, left to the states. To understand the facts of this case a brief exposition of New York State procedures for evaluation and placement of handicapped children, and for appealing those decisions, is necessary.

In New York "a person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition." N.Y. Educ.Law § 3202(1). A person eligible to receive public school education under section 3202(1) is deemed a child or pupil "with a handicapping condition" when, for mental, physical, or emotional reasons, he can receive appropriate educational opportunities only from a program of special education. N.Y.Educ.Law § 4401(1); N.Y. Comp.Codes R. & Regs., Tit. 8, § 200.1(cc) (1987) (Commissioner's Regulations) (hereinafter 8 N.Y.C.R.R.).

Programs of special education include those in New York public schools, as well as those provided through contracts with private schools within and outside the state. N.Y.Educ.Law § 4401(2)(a)-(h); 8 N.Y.C.R.R. § 200.1(hh). A child with a handicapping condition is only eligible for placement in a private school if no appropriate public school placement is available. Matter of Handicapped Child, 23 Educ. Dept.Rep. 18, 21 (1983); 8 N.Y.C.R.R. § 200.6(h)(1)(iii) and (h)(3)(i).

The mechanics for placement of a child in such non-public programs are as follows: A Committee on the Handicapped (COH) is established by the board of education of each school district. N.Y.Educ.Law § 4402(1)(b)(1). It is responsible for evaluating the individual needs of each child. Id., § 4402(1)(b)(3)(a). The COH must recommend to the board an appropriate program of special education, including, if necessary, private placement. Id., § 4402(1)(b)(3)(b); 8 N.Y.C.R.R. § 200.4(c).

Before a private school can be used for placements it must be approved by the Commissioner of Education. Lombardi v. Nyquist, 63 A.D.2d 1058, 1059, 406 N.Y.S. 2d 148, 150 (3d Dept.1978), lv. to app. den., 45 N.Y.2d 710, 409 N.Y.S.2d 1029, 381 N.E. 2d 616 (1978); N.Y.Educ.Law §§ 4401(2)(e)-(h) and 4402(2)(b)(2); 8 N.Y.C. R.R. § 200.7(a). If the recommendation is for a private in-state school, and the school is on the Commissioner's approved list, then the Board of Education is empowered to contract with the school for the child's placement. See N.Y.C.R.R. § 200.7(a). This contract is subject to final approval by the Commissioner of Education.

When the Board, following the recommendation of the COH, cannot secure an appropriate program of special education within the state, an out-of-state placement may be considered. The State Education Department maintains a register of such approved educational facilities. Only the Commissioner and his representatives can enter into a contract with an out of state facility. "The school district is powerless to effectuate his placement in any out of State facility ... while the Education Department is empowered to enter into contracts with public educational facilities outside this State for the education of handicapped children." Dubner v. Ambach, 74 A.D.2d 949, 950, 426 N.Y.S.2d 164, 166 (3d Dept.1980), aff'd, 52 N.Y.2d 910, 437 N.Y.S.2d 659, 419 N.E.2d 337 (1981); N.Y.Educ.Law. §§ 4407(1) and (4). Placement in a private out-of-state school may be terminated only by the Commissioner. Matter of Four Handicapped Children, 21 Educ.Dept.Rep. 514 (1982).

If parents of a handicapped child are dissatisfied with any aspect of their child's classification or placement, the Board of Education, upon notice, appoints an impartial hearing officer to hear the appeal and make recommendations. An appeal from this hearing officer's decision may be taken to the Commissioner of Education. N.Y. Educ.Law § 4404(1). If dissatisfied by the decision of the Commissioner, the parents may seek judicial review in New York Supreme Court pursuant to Article 78 of the N.Y.C.P.L.R. or in federal district court under the EHA. N.Y.Educ.Law § 4404(3); 20 U.S.C. § 1415(e)(2).

Facts

RYAN M.

Plaintiffs Michael and Janice M. are the parents of Ryan M., a handicapped child born in October, 1979. In August 1984 the Committee on the Handicapped in Ryan's local school district classified Ryan as Multiply Handicapped (Emotionally Disturbed/Neurologically Impaired/Speech Impaired), and developed an Individualized Education Program ("IEP") for him. The IEP prescribed an appropriate student/teacher ratio, as well as speech and language therapy, and bore the notation "NPSA," "no public school appropriate." Following the recommendation of the COH, the Board of Education applied to the Commissioner of the State Education Department for approval of Ryan's placement in a non-public school at public expense. See 8 N.Y.C.R.R. § 200.6(h)(2).

In a letter dated September 21, 1984, the Commissioner's Regional Associate notified the Board of Education that non-public...