N.J. (m) v. State of New York et al

Filing 29

ORDER: SO ORDERED that the Court notes that in addition to addressing the specific question posed by the Court, both the State Defts and the District argued that the Court should reverse its ruling because: (I) the Court lacks subject-matter jurisdi ction over the Plaintiffs' federal claims and (2) the doctrine of res judicata bars the Plaintiffs claims based on the consent order entered into in National Law Center on Homelessness and Poverty v. State of New York, No. 04-CV -705 (E.D.N.Y. M ar. 31, 2006) (Spatt, J.). These issues were first raised in the State Defts' motion to dismiss filed on December 9, 2011, the day of the hearing. The Plaintiffs did not have an opportunity to respond to either objection at the hearing. Furtherm ore, on December 27, 2011, the parties entered into a stipulation extending the Plaintiffs time to respond to the motion to dismiss until January 9, 2012. In light of the complexity of these issues, the Court will reserve decision on its subject-matter jurisdiction, and the applicability of the res judicata doctrine until after they have been fully briefed by the parties. Ordered by Senior Judge Arthur D. Spatt on 1/9/2012. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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N.J .• individually, and as parent and natural guardian of N.J.
and A.J., minor children, individually,

ORDER
11-CV -5935 (ADS) (AKT)

Plaintiffs,
-againstSTATE OF NEW YORK, NEW YORK STATE
EDUCATION DEPARTMENT and MALVERNE UNION
FREE SCHOOL DISTRICT,
Defendants.

.J),fJ 0 9 2012

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*

LONG ISLAND OFFICE
APPEARANCES:
DLA Piper US LLP
Attorneys for the Plaintiffs
1251 Avenue of the Americas, 27'h Floor
New York, NY 10020
By: Stephen P. Davidson, Esq.
Mark Deckman, Esq., Of Counsel
Eric T. Schneiderman, New York Attorney General
Attorneys for the State ofNew York and the New York State Education Department
200 Old Country Road, Suite 460
Mineola, NY 11501
By: Dorothy 0. Nese, Assistant Attorney General
Frazer & Feldman, LLP
Attorneys for the Malverne Union Free School District
1415 Kellum Place
Garden City, NY 11530
By: Joseph W. Carbonaro, Esq., Of Counsel
SPATT, District Judge.

On December 6, 2011, N.J., individually and as parent and natural guardian ofN.J.(m)
and A.J. ("the plaintiff children" and collectively "the Plaintiffs") commenced the instant action
against the State of New York ("the State"), the New York State Education Department
("NYSED" and together with the State "the State Defendants"), and the Malverne Union Free

School District ("the District" and together with the State Defendants "the Defendants") alleging
violations of the federal McKinney-Vento Act, 42 U.S.C. § 11431, et seq., New York Education
Law§ 3209, and 42 U.S.C. § 1983. In addition, by order to show cause, the Plaintiffs filed an
application for a Temporary Restraining Order and Preliminary Injunction, seeking to enjoin the
Defendants from disenrolling the plaintiff children from the District schools pending the
resolution of their New York Education Law§ 310 appeal ("section 310 appeal") to the NYSED.
On December 9, 2011, the Court held a hearing on the Plaintiffs' motion for a Temporary
Restraining Order and Preliminary Injunction. The main issue disputed by the parties was
whether the Plaintiffs were required to show a likelihood of success on their contention that they
were homeless in order to obtain a preliminary injunction. As stated on the record and in a
written decision dated December 13, 2011, the Court found that for the purposes of determining
whether the Court should grant a preliminary injunction, the relevant inquiry was not whether the
Plaintiffs were homeless, but rather "whether the Plaintiffs are likely to succeed in showing that
the Defendants, in promulgating the state law, denying the stay application, and attempting to
disenroll the plaintiff children, have violated the McKinney-Vento Act and the Plaintiffs' rights
thereunder." (Order at 13.)
Weighing the relevant factors, the Court found that the Plaintiffs satisfied their burden
and rendered a decision granting the Plaintiffs' motion for a preliminary injunction: (I)
enjoining the Defendants from disenrolling the plaintiff children from the District schools
pending the resolution of their section 310 appeal to the NY SED and (2) requiring the District to
arrange for transportation for N .J .(m) and A.J. to their respective schools within the District
consistent with the District's obligations under the McKinney-Vento Act and New York
Education Law§ 3209.

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In the December 13, 2011 order, the Court afforded the parties the opportunity to file
briefs:
addressing this Court's finding that the proper inquiry for
showing a likelihood of success on the merits was not the
Plaintiffs' homelessness, but rather the Plaintiffs likelihood of
showing the state regulation permitting the Commissioner to deny
a stay of disenrollment during the pendency of a section 310
appeal is in conflict with the Pendency Provision of the McKinneyVento Act.
(Order at 16.) On December 16,2011, the State Defendants and the District filed separate briefs
opposing the Court's finding, and the Plaintiffs filed a brief concurring with the Court's analysis.
The Court has reviewed the parties' submissions and finds no basis for reconsidering its
decision to grant the preliminary injunction on the limited issue posed by the Court at this stage
in the proceedings. Although the Court agrees with the District that a determination on the
Plaintiffs' homelessness may be necessary for some of the relief requested in the complaint, the
standard for a preliminary injunction does not require a plaintiff to show a likelihood of success
on all of the causes of action asserted in the complaint.
In their first cause of action, the Plaintiffs challenge, among other things, the Defendants'
compliance with the McKinney-Vento Pendency Provision. McKinney-Vento imposes the
obligation on each "State", not each Local Educational Agency ("LEA") to adopt a dispute
resolution procedure. 42 U.S.C. § 11432(g)(l)(C). In tum, the Pendency Provision requires an
LEA to admit a child to the school in which enrollment is sought pending the resolution of the
dispute as set forth in the State's dispute resolution procedure. See 42 U.S.C. §
11432(g)(3)(E)(i). There is nothing in the statute to suggest that the only portion of the State's
dispute resolution procedure that is subject to the Pendency Provision is the resolution of the
dispute at the LEA level. Here, New York has adopted a dispute resolution procedure pursuant
to McKinney-Vento that includes an initial determination at a meeting-not a hearing-at the
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LEA level, an intermediate determination on the likelihood of success of the appeal by the
Commissioner, and a final review of the LEA's findings of fact by the NYSED.
The Defendants acknowledge that McKinney-Vento requires the continued enrollment of
an alleged homeless child during the pendency of the LEA's initial determination. However, as
the Court stated in its December 13,2011 order, and which neither defendant disputed in its
supplemental brief, the Pendency Provision's requirement of continued enrollment during a
dispute makes no reference to an alleged homeless child's likelihood of success in the dispute.
Thus, even if only during the pendency of the initial LEA determination, McKinney-Vente
protects from disenrollment a non-homeless child that makes a claim ofhomelessness.
Accordingly, the real issue is not whether McKinney-Vente protects an alleged homeless
child from disenrollment during a dispute, but rather how long an alleged homeless child can
avoid disenrollment without having to show a likelihood of success on his or her claim of
homelessness. Thus, the Court adheres to its initial determination that the proper inquiry for the
likelihood of success prong of the Plaintiffs' motion was not whether the Plaintiffs are homeless,
but whether the fact that the State plan permits disenrollment of an alleged homeless child prior
to the NYSED's final determination, based on the Commissioner's intermediate assessment of
the dispute, violates the provisions of McKinney-Vento.
However, the Court notes that in addition to addressing the specific question posed by the
Court, both the State Defendants and the District argued that the Court should reverse its ruling
because: (I) the Court lacks subject-matter jurisdiction over the Plaintiffs' federal claims and (2)
the doctrine of res judicata bars the Plaintiffs claims based on the consent order entered into in
National Law Center on Homelessness and Poverty v. State of New York, No. 04-CV -705
(E.D.N.Y. Mar. 31, 2006) (Spatt, J.). These issues were first raised in the State Defendants'

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motion to dismiss filed on December 9, 2011, the day of the hearing. The Plaintiffs did not have
an opportunity to respond to either objection at the hearing. Furthermore, on December 27,
2011, the parties entered into a stipulation extending the Plaintiffs time to respond to the motion
to dismiss until January 9, 2012. In light of the complexity of these issues, the Court will reserve
decision on its subject-matter jurisdiction, and the applicability of the res judicata doctrine until
after they have been fully briefed by the parties.

SO ORDERED.
Dated: Central Islip, New York
January 9, 2012

Is/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge

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