UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X GEFFREY WAXMAN, Individually and : NOT FOR PUBLICATION as Parent and Natural Guardian of : Richard Waxman, GAIL WAXMAN, : MEMORANDUM & ORDER Individually and as Parent and : Natural Guardian of Richard Waxman, : 01-CV-7445(CBA) and RICHARD WAXMAN, :
Plaintiffs, :
-against- :
ROSLYN UNION FREE SCHOOL DISTRICT, : BOARD OF EDUCATION OF THE ROSLYN : UNION FREE SCHOOL DISTRICT, FRANK : TASSONE, MADALYN McGOVERN, JACK : PALMADESSO, ROBERT GRECO, ERIC : LOBELIA, and DONALD INGEGNO, :
Defendants. : -------------------------------------X AMON, UNITED STATES DISTRICT JUDGE:
BACKGROUND
Plaintiffs Geffrey and Gail Waxman, as parents and natural
guardians of Richard Waxman, and Plaintiff Richard Waxman
(“Richard”) bring this action alleging inter alia violations of
Richard’s right to a free appropriate public education. On March
9, 2004, defendants made motion for summary judgment, which the
Court granted in part and denied in part in an Order dated March
31, 2005. That Order left undecided one cause of action, brought
pursuant to 42 U.S.C. § 1983 to enforce rights established by the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §
1400 et seq. (1997), which the Court was unable to resolve in
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view of plaintiffs’ inadequate development of the legal and
factual bases for this claim. Plaintiffs were granted leave to
amplify the basis for their claim that temporary deficiencies in
Richard’s home instruction violated the guarantee to a free and
appropriate public education provided by § 1412(a)(1)(A) of the
IDEA. Plaintiffs timely filed papers in accordance with the
Court’s Order on April 21, 2005, and defendants responded on May
2, 2005. Familiarity with facts of the case is assumed for
purposes of this Order.
DISCUSSION
Section 1412(a)(1)(A) of the IDEA provides that “[a] free
appropriate public education is available to all children with
disabilities . . . between the ages of 3 and 21, inclusive,
including children with disabilities who have been suspended or
expelled from school.” 20 U.S.C. § 1412(a)(1)(A). The “IDEA
does not itself articulate any specific level of educational
benefits that must be provided.” Walczak v. Florida Union Free
School Dist., 142 F.3d 119, 130 (2d Cir. 1998). Indeed, the IDEA
relies on state standards for the meaning of the term “free
appropriate public education.” See 20 U.S.C. § 1401(9) (“The
term ‘free appropriate public education’ means special education
and related services that . . . meet the standards of the State
educational agency.”). However, federal regulations require each
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state to have a policy in place to give effect to § 1412(a)(1)(A)
of the IDEA. See 34 C.F.R. § 300.121. Rights established by the
IDEA can be enforced by way of an action brought pursuant to 42
U.S.C. § 1983. See Polera v. Board of Education of Newburgh
Enlarged City School District, 288 F.3d 478, 483 n.5 (2d Cir.
2002).
New York state regulations provide that “[d]uring any period
of suspension, a student with a disability shall be provided
services to the extent required under the provisions of the
Individuals with Disabilities Education Act . . . , 34 C.F.R.
section 300.121 . . . and paragraph (e) of subdivision 3 of
section 3214 of the Education Law.” N.Y. Comp. Codes R. & Regs.
tit. 8, § 201.10. The cited section of the New York Education
Law requires that “[w]here a pupil has been suspended . . . and
said pupil is of compulsory attendance age, immediate steps shall
be taken for his or her attendance upon instruction elsewhere . .
. . ” N.Y. Education Law § 3214(3)(e) (McKinney 2003). “[T]he
term ‘immediately’ does not mean ‘instantaneously’, but it does
mean that the educators should act reasonably promptly, with due
regard for the nature and circumstances of the particular case.”
Turner v. Kowalski, 49 A.D.2d 943, 944 (N.Y. App. Div. 1975).
The Commissioner of Education has found that a delay of as little
as four days is unreasonable within the meaning of the Education
Law. See, e.g., Appeal of McMahon, Decision No. 13,976, at 12
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(July 30, 1998); Appeal of Bridges, Decision No. 13,291, at 2
(Nov. 22, 1994). In a case where a student was suspended for a
period of several months, the Commissioner found it unacceptable
that tutoring did not begin until three weeks into the suspension
and that full tutoring in all core subjects was not in place
until the second month. See Appeal of Sandra L., Decision No.
13,841, at 1-2 (Oct. 10, 1997).
Plaintiffs contend that Richard’s home instruction was “non-
existent for a period of time and not provided in certain
subjects at other times.” (Pl.’s Letter of Apr. 21, 2005, at 3.)
Specifically, plaintiffs claim that Richard received no home
instruction following his initial suspensions from school, that
home instruction did not begin until shortly before Christmas
2001, and that the District failed to supply tutors in certain
subjects for at least one more month thereafter. (Id.) In
addition, plaintiffs claim that during the four and a half years
that Richard has been enjoined from regular school attendance,
there have been times when he has not had any tutoring in a
particular subject and that tutoring sessions routinely commenced
after the beginning of the school year. (Id.) Most notably,
plaintiffs claim that Richard was without a French tutor for
three months of this academic year and without a Math tutor for
three months of his eight grade year. (Id.)
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In support of these allegations, plaintiffs cite a series of
correspondence with school officials and defendants’ counsel, as
well as an interoffice memorandum to District officials and
tutoring service records demonstrating the dates on which
Richard’s tutoring began for the 2003-2004 and 2004-2005 academic
years. (See Pl.’s Ex. 65, as supplemented by Apr. 21, 2005
filing.) In addition, two decisions of the Commissioner of
Education establish that Richard did not receive any home
instruction during his two initial suspensions in the fall of
2000. The first of those suspensions lasted for two days, while
the second lasted for five days. (See Pl.’s Ex. 63.) Although
support in the record is lacking for some of plaintiffs’
allegations,1 the undisputed evidence does demonstrate that at
times there were periods of days, weeks, or months in which
Richard was not provided with tutors in some or all academic
subjects.
Defendants raise two types of challenges to this evidence.
First, defendants argue that the correspondence in question
consists only of conclusory allegations by plaintiffs’ attorney
that are not based on any personal knowledge and therefore not
1 Specifically, the record does not establish that Richard’s home instruction did not begin until shortly before Christmas 2001, that the District failed to supply tutors in certain subjects for at least one more month thereafter, or that Richard was without a French tutor for three months during the current academic year.
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admissible. Even if the letters were per se inadmissible,
presumably plaintiffs themselves could testify to the alleged
deficiencies noted therein. In addition, as stated, the record
contains additional evidence including an interoffice memorandum,
tutoring service records, and decisions of the Commissioner of
Education, each detailing lapses in home instruction. This
evidence is clearly relevant and admissible, not to mention
apparently undisputed. Defendants’ first challenge is therefore
unavailing.
Second, defendants argue that the evidence in question does
not establish failure on the part of the District to provide
Richard with the minimum ten hours per week of instruction to
which he is entitled under Roslyn Board of Education policy.
This argument is belied by evidence demonstrating, for example,
that neither of the tutoring services on record as having
provided tutors for Richard during the 2003-2004 and 2004-2005
academic years provided any services during the first four school
days of the 2003-2004 academic year or the first eight school
days of the 2004-2005 academic year. Tutoring in certain
individual subjects did not begin for another week to ten days
thereafter. (See Pl.’s Ex. 65, as supplemented by Apr. 21, 2005
filing.) Furthermore, correspondence from plaintiffs and their
counsel indicates other periods of time in which tutoring
services lapsed. (See id.) Notably, defendants have not
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introduced any evidence to establish when and for what duration
each day tutoring services were in fact provided.2 Accordingly,
the record does not support defendants’ claim that it is
undisputed that Richard was in fact provided with the required
ten hours of tutoring throughout the period at issue in this
litigation.
Although the Court is sensitive to the difficulties implicit
in providing adequate home instruction throughout a period of
suspension as extensive as that in this case, the undisputed
evidence of material lapses in Richard’s home instruction
precludes a finding that certain defendants are not liable as a
matter of law under § 1412(a)(1)(A) of the IDEA. Defendants’
motion for summary judgment on this claim is therefore denied
except with respect to the Roslyn Union Free School District. As
defendants note, the Court has already determined that the School
District is not liable as a municipal defendant under 42 U.S.C. §
1983 in this case.3 (See Def.’s Letter of May 2, 2005, at 3.)
Plaintiffs’ complaint appears to bring this claim against all
defendants named in the case. Although it occurs to the Court
2 Indeed, for purposes of this motion, defendants accept plaintiffs’ factual assertions concerning deficiencies in home instruction as true. (Def.’s Letter of May 2, 2005, at 1.) 3 Plaintiffs IDEA claim was brought pursuant to § 1983. (See Pl.’s Mem. at i.) Plaintiffs have not argued that the IDEA provides a private right of action against any defendant, individual or municipal.
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that certain named individual defendants may not bear any
responsibility for deficiencies in Richard’s home instruction,
defendants have not argued that any individual defendant is
inappropriately implicated in this claim. Accordingly, at this
stage of the litigation, there is no basis provided for the Court
to dismiss the claim as to any individual defendant, and the
Court declines to do so sua sponte.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary
judgment on plaintiffs’ IDEA claim concerning home instruction is
granted with respect to the Roslyn Union Free School District and
denied as to all other defendants. The Clerk of the Court is
directed to enter judgment in accordance with this Order.
SO ORDERED.
Dated: Brooklyn, New York August 5, 2005
Carol Bagley Amon United States District Judge
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