UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
N o 09-CV-1718 (JFB) (W DW )
KALLIOPE R., A MINOR CHILD, BY HER PARENTS, DR. IRENE D. AND DR. GEORGE R.; SPIRIDONNA D., A MINOR CHILD, BY HER PARENTS, DR. IRENE D., AND DR. GEORGE R.; PETER JOHN S., A MINOR CHILD, BY HIS FATHER, PETER S.; ANDREW M., A MINOR CHILD, BY HIS PARENTS, DOROTHY M. AND LOUIS M.; AND SCHOOL FOR LANGUAGE AND COMMUNICATION DEVELOPMENT,
Plaintiffs,
VERSUS
NEW YORK STATE DEPARTMENT OF EDUCATION,
Defendant.
M EM ORANDUM AND ORDER June 1, 2010
JOSEPH F. BIANCO , District Judge: Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs’ claims. For the reasons set forth in Plaintiffs, parents suing on behalf of four the following memorandum and order, the minor children and the special education Court denies the motion in its entirety. school the children attend, bring this action pursuant to the Individuals with Disabilities I. BACKGROUND Education Act (“IDEA”) and the Rehabilitation Act of 1973. They seek a A. Factual Allegations declaratory judgment that defendant, the New York State Education Department The following facts are taken from the (“NYSED”), has unlawfully promulgated a complaint (“Compl.”), which the Court policy prohibiting the use of a particular assumes to be true for the purposes of student-teacher ratio. They also seek to deciding this motion and construes in the light permanently enjoin NYSED from carrying out most favorable to plaintiffs, the non-moving this alleged policy, as well as attorneys’ fees party. and costs. NYSED has moved under Federal
Plaintiff School for Language and “12:2:2” or “6:1:1S” class.1 (Compl. ¶¶ 58- Communication Development (“SLCD”) 61.) In 1994, SLCD requested that NYSED operates non-profit, private schools serving approve use of the 12:2:2 class ratio for children with handicapping conditions. SLCD’s school-age program. (Compl. ¶ 63.) (Compl. ¶ 17.) An SLCD school for pre- According to plaintiffs, David A. Payton, an school through eighth graders is located in NYSED official, responded in a letter that Glen Cove, New York, and a school for sixth NYSED approval was not required. through twelfth graders is in Woodside, New Specifically, the letter stated York. (Compl. ¶ 18.) Plaintiffs Dr. Irene D. and Dr. George R.; Peter S.; and Dorothy M. [T]here is flexibility within existing and Louis M. (“the individual plaintiffs”) regulations and your approved 6:1:1 bring this action on behalf of their children student/staff option to implement a with disabilities, each of whom attends SLCD. 12:2:2 instructional model by simply (Compl. ¶¶ 2; 14-16.) combining two 6:1:1 classes into a 12:2:2 instructional configuration. Defendant, the New York State Local Committees on Special Department of Education (“NYSED” or Education (CSE) would [need to] “defendant”), is responsible overseeing the recommend on the student’s provision of educational services to disabled Individualized Education Program school-age students in New York State. (IEP) at 6:1:1 class with the IEP (Compl. ¶ 19.) annotated to indicate that two 6:1:1 classes would be combined for As will be discussed in detail infra, the instructional purposes appropriate to Individuals with Disabilities Education Act the individual needs of the students in (“IDEA”) entitles disabled children, such as the class. If a student’s IEP the children of the individual plaintiffs, to a recommended a 12:2:2 student/staff “free and appropriate public education.” (See ratio, there would be no disruption in Compl. ¶ 2). Pursuant to IDEA and SLCD’s program. Students would be implementing New York state statutes, a referred back to the CSE and remain Committee on Special Education (“CSE”) in their current class pending the develops an Individualized Education amendment of the IEPs . . . . There is Program (“IEP”) for a disabled child to ensure no further approval necessary from the that the child receives such an education. Department [of Education]. (Compl. ¶¶ 21, 23-26.) (Compl. ¶¶ 64-65.) In accordance with In 1985, SLCD’s pre-school program Payton’s guidance, parents of disabled began combing two groups of students with a children and disabled children’s CSEs have “6:1:1” student-teacher staffing ratio— “routinely recommended,” as part of the IEP meaning a class with six students, one teacher, development process, that children be placed and one teacher’s aide. (See Compl. ¶¶ 58- in 12:2:2 classes at SLCD. (Compl. ¶ 66.) 59.) The combined class is known as a
1 For brevity’s sake, the Court will hereinafter refer to this class size as “12:2:2.”
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In April 2007, Bruce Schachter, an SED violated IDEA and the Rehabilitation Act. Regional Associate, wrote a letter to SLCD They seek a declaratory judgment, permanent that appeared to tell SLCD that it could not injunctions, costs, and attorneys’ fees. use 12:2:2 classes at its Glen Cove school. (Compl. ¶ ¶ 69-70.) SLCD appealed the In May 2009, defendant notified the Court April 2007 letter to the Commissioner of the that it intended to move to dismiss the Department of Education. (Compl. ¶ 71.) complaint. The Court set a briefing schedule, The appeal was dismissed for lack of and both sides fully briefed the motion. jurisdiction. (Compl. ¶ 72.) In May 2007, Defendants argue that plaintiffs (1) have failed however, Schachter wrote back to SLCD and to exhaust their administrative remedies; (2) stated that, “as long as” a student’s IEP have failed to state a claim under IDEA; (3) indicated that two 6:1:1 classes could be lack standing under the Rehabilitation Act; combined for instructional purposes, the and (4) have failed to state a claim under the school could continue “‘to combine 6:1:1 Rehabilitation Act. classes on an individual basis.’” (Compl. ¶ 75.) Thereafter, the scheduled oral argument on the motion was adjourned several times based A few months after SLCD received on the Court’s schedule and on the parties’ Schachter’s letter, NYSED began contacting representations that they were attempting to children’s CSEs and told them to stop placing settle the matter. (See Docket 14-17.) These students, including the children of the negotiations were unsuccessful, and oral individual plaintiffs in this case, in 12:2:2 argument took place on May 26, 2010. classes. (Compl. ¶ 77.) Additionally, NYSED Regional Associate Susan Bandini II. STANDARD OF REVIEW told SLCD that each 6:1:1 class would require its own classroom and that 6:1:1 classes could Defendant has moved to dismiss under not be combined with each other for the entire Federal Rule of Civil Procedure 12(b)(6). In school day. (Compl. ¶¶ 77-78, 83-84.) To reviewing a motion to dismiss pursuant to provide each 6:1:1 class with its own Rule 12(b)(6), the court must accept the classroom, SLCD would need to spend no less factual allegations set forth in the complaint as than $600,000.00 modifying its buildings. true and draw all reasonable inferences in (Compl. ¶ 80.) favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. B. Procedural History 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). “In order to Plaintiffs filed the complaint in this action survive a motion to dismiss under Rule on April 27, 2009. Each of the individual 12(b)(6), a complaint must allege a plausible plaintiffs alleges that their children’s IEP’s set of facts sufficient ‘to raise a right to relief recommended a 12:2:2 class size and/or that above the speculative level.’” Operating they were assured by their children’s CSEs Local 649 Annuity Trust Fund v. Smith that the children would be educated in a Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d 12:2:2 class. (See Compl. ¶¶ 99-101; 106-08; Cir. 2010) (quoting Bell Atl. Corp. v. 113-15; 120-21). Plaintiffs claim that Twombly, 550 U.S. 544, 555 (2007)). This defendants, by promulgating a policy standard does not require “heightened fact prohibiting use of the 12:2:2 class size, pleading of specifics, but only enough facts to
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state a claim to relief that is plausible on its The purpose of IDEA is to provide face.” Twombly, 550 U.S. at 570. children with disabilities access to a “free appropriate public education.” 20 U.S.C. §§ The Supreme Court recently clarified the 1400(c), (d). In passing IDEA, “Congress appropriate pleading standard in Ashcroft v. sought primarily to identify and evaluate Iqbal, 129 S. Ct. 1937 (2009), setting forth a handicapped children, and to provide them two-pronged approach for courts deciding a with access to a free public education.” Bd. of motion to dismiss. The Court instructed Educ. of the Hendrick Hudson Cent. Sch. district courts to first “identify[ ] pleadings Dist., Westchester County v. Rowley, 458 U.S. that, because they are no more than 176, 200 (1982). “Under the educational conclusions, are not entitled to the assumption scheme of the IDEA (previously known as the of truth.” 129 S. Ct. at 1950. Though “legal Education of the Handicapped Act), parents of conclusions can provide the framework of a students with disabling conditions are complaint, they must be supported by factual guaranteed both an opportunity for meaningful allegations.” Id. Second, if a complaint input into all decisions affecting their child’s contains “well-pleaded factual allegations, a education and the right to seek review of any court should assume their veracity and then decisions they think inappropriate. Parents are determine whether they plausibly give rise to specifically entitled to request a due process an entitlement to relief.” Id. “A claim has hearing in order to present complaints as to facial plausibility when the plaintiff pleads any matter relating to the identification, factual content that allows the court to draw evaluation, or educational placement of the the reasonable inference that the defendant is child, or the provision of a free appropriate liable for the misconduct alleged. The public education.” Cave v. E. Meadow Union plausibility standard is not akin to a Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. ‘probability requirement,’ but it asks for more 2008) (citation and quotations omitted). The than a sheer possibility that a defendant has primary mechanism of the statute is the design acted unlawfully.” Id. at 1949 (quoting and and implementation of an Individualized citing Twombly, 550 U.S. at 556-57) (internal Education Plan (“IEP”) to address each citations omitted). student’s particular disabilities. 20 U.S.C. § 1414. The IEP sets forth (1) a statement of the III. DISCUSSION child’s present levels of academic achievement and functional performance; (2) Defendant asserts that the complaint must a statement of measurable annual goals; (3) a be dismissed because plaintiffs have failed to description of how the child’s progress toward exhaust their administrative remedies, have meeting the annual goals will be measured; (4) failed to state a claim for which relief can be a statement of the educational services to be granted, and, for their Rehabilitation Act provided; (5) an explanation of the extent, if claim, lack standing. As set forth below, the any, to which the child will not participate Court disagrees. with nondisabled children in the regular class; (6) a statement of any individual A. IDEA Claim accommodations necessary to measure the child’s performance on standardized 1. The IDEA Statute assessments (or an explanation of why the child cannot participate in the assessments); (7) the projected date for the implementation
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of services, as well as the anticipated plaintiffs must exhaust all available frequency, location, and duration of the administrative procedures. See 20 U.S.C. § services; and (8) a plan for achieving post- 1415(i)(2); § 1415(l).2 In the State of New secondary school goals and provisions for York, these include an impartial hearing and transitional services. 20 U.S.C. § an appeal of the hearing officer’s decision to 1414(d)(1)(A). The IEP is developed by a a state review officer. 20 U.S.C. §§ 1415(f), team that includes the child’s parents, (g); 8 N.Y.C.R.R. § 200.5. Parents may teachers, and representatives of the local request a hearing to present complaints education agency. 20 U.S.C. § 1414(d)(1)(B). relating to the “identification, evaluation, or In New York State, this team is known as a educational placement of the child, or the Committee on Special Education (“CSE”). provision of a free appropriate public See N.Y. Educ. Law § 4410-b(1)(c). As a education to the child.” 20 U.S.C. § general rule, IDEA requires that, at least once 1415(b)(6)(A). a year, the CSE review the IEP and make any necessary revisions. See 20 U.S.C. § “[T]he primary reason for an exhaustion 1414(d)(4)(A)(i). In order to receive federal requirement is to utilize the expertise of funding, a state educational agency, such as administrators” who are familiar with defendant here, must implement a policy to resolving issues relating to the education of assure that children with disabilities receive a disabled students. SJB v. N.Y.C. Dep’t of FAPE. See 20 U.S.C. § 1412(a)(1). Educ., No. 03-CV-6653 (NRB), 2004 U.S. Dist. LEXIS 13227, at *14 (S.D.N.Y. July 14, 2. Failure to Exhaust 2004) (citing Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d Defendant argues that the plaintiffs’ IDEA 478, 487) (2d Cir. 2002)) (“The IDEA’s claim must be dismissed because, inter alia, exhaustion requirement was intended to plaintiffs have failed to exhaust their channel disputes related to the education of administrative remedies. Defendants also disabled children into an administrative argue that plaintiffs’ Rehabilitation Act claim process that could apply administrator’s [sic] is subject to the IDEA exhaustion requirement. Although exhaustion is generally required under IDEA and the 2 In Coleman v. Newburgh Enlarged City School plaintiffs’ Rehabilitation Act claim in fact also District, 503 F.3d 198 (2d Cir. 2007), the court falls within the IDEA exhaustion requirement, noted that Second Circuit precedent had, until the Court concludes that plaintiffs allege the recently, described the exhaustion requirement as kind of systemic violations for which jurisdictional. The court explained that more exhaustion is deemed futile, and, thus, recent Second Circuit decisions had, in light of dismissal on this ground is unwarranted. Supreme Court case law, become “equivocal” as to whether exhaustion was a jurisdictional a. IDEA Exhaustion Generally requirement or an affirmative defense. See 503 F.3d at 203-04. The court declined to decide the Defendants argue that the complaint issue. See id. But see id. at 207 (Straub, J. concurring) (contending that exhaustion should be dismissed because plaintiffs have requirement is jurisdictional). Here, the parties do failed to exhaust their administrative not appear to dispute that the exhaustion issue is remedies. It is well settled that, prior to properly raised in a Rule 12(b)(6)—as opposed to bringing a suit in federal court under IDEA, Rule 12(b)(1)—motion.
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expertise in the area and promptly resolve Section 1415(l) of the IDEA is sufficiently grievances.”)) and Taylor v. Vt. Dep’t of broad and encompasses complaints asserted Educ., 313 F.3d 768, 791 (2d Cir. 2002)). under any federal statute, as long as they seek Even in instances where an administrative relief available under the IDEA.” (emphasis in hearing and appeal are unsuccessful in original)); Hope v. Cortines, 872 F. Supp. 14, resolving a dispute, such procedures “will at 17 (E.D.N.Y.), aff’d, 69 F.3d 687, 688 (2d least have produced a helpful record because Cir. 1995) (holding that ADA, Section 1983 administrators versed in the relevant issues and Section 2000d claims are subject to were able to probe and illuminate those issues IDEA’s exhaustion requirement). for the federal court.” J.S. v. Attica Cent. Sch., 386 F.3d 107, 112-13 (2d Cir. 2004) In this case, plaintiffs bring both a claim (citing Riley v. Ambach, 668 F.2d 635, 640 under IDEA and a claim under the (2d Cir. 1981)). Rehabilitation Act. Both claims are based on NYSED’s allegedly depriving the individual Furthermore, the IDEA statute requires plaintiffs’ children of their right to free and plaintiffs with any claims related to the appropriate public education. Additionally, education of disabled children, whether the Rehabilitation Act claim seeks relief— brought under IDEA or another statute (e.g., specifically equitable relief, attorneys’ fees, the Rehabilitation Act), to exhaust the and costs—that is also available under IDEA. administrative remedies available under IDEA See 20 U.S.C. § 1415(i)(2)(C)(iii) (in action prior to initiating a federal lawsuit. 20 U.S.C. brought under IDEA, court “shall grant relief § 1415(l) (“Nothing in this chapter shall be as the court determines is appropriate”); 20 construed to restrict or limit the rights, U.S.C. § 1415(i)(3)(B)(i) (in action brought procedures, and remedies available under the under IDEA, court “may award reasonable Constitution, the Americans with Disabilities attorneys’ fees as part of the costs” to a Act of 1990 [42 U.S.C.A. § 12101 et seq.], prevailing party); Cave, 514 F.3d at 246-47 title V of the Rehabilitation Act of 1973 [29 (finding claims brought under Rehabilitation U.S.C.A. § 791 et seq.], or other Federal laws Act, Americans with Disabilities Act, and 42 protecting the rights of children with U.S.C. § 1983 subject to IDEA’s exhaustion disabilities, except that before the filing of a requirements where those claims sought, inter civil action under such laws seeking relief that alia, injunctive relief, attorneys’ fees, and is also available under this subchapter, the court costs); J.S., 386 F.3d at 112 (“As the procedures under subsections (f) and (g) shall district court correctly noted, the students be exhausted to the same extent as would be asserted a section 504 Rehabilitation Act required had the action been brought under claim and a section 1983 claim that both seek this subchapter.” (citations omitted)); Polera, to ensure a free appropriate public education, 288 F.3d at 481 (“[P]otential plaintiffs with thus subjecting both to the IDEA exhaustion grievances related to the education of disabled requirement.”); Polera, 288 F.3d at 486 children generally must exhaust their (stating that claims for declaratory and administrative remedies before filing suit in injunctive relief and attorneys’ fees federal court, even if their claims are “appear[ed] to be available under the IDEA”). formulated under a statute other than the Thus, because the Rehabilitation Act claim IDEA (such as the ADA or the Rehabilitation relates to the children’s education and seeks Act).”); accord J.S., 386 F.3d at 112; see also relief available under IDEA, it too is subject to Cave, 514 F.3d at 248 (“The language of IDEA’s exhaustion requirement.
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b. Futility Exception to Exhaustion argument on the second potential basis for Requirement futility: that defendants have engaged in systemic violations that administrative (1) Standard procedures cannot remedy. (See Compl. ¶¶ 125-33; Pls.’ Opp., at 9-16). However, a party may be excused from the IDEA’s exhaustion requirement where The systemic violations exception applies exhaustion would be futile because the where a plaintiff challenges “the framework administrative procedures available do not and procedures for assessing and placing provide adequate remedies. Polera, 288 F.3d students in appropriate educational programs at 488; Heldman v. Sobol, 962 F.2d 148, 158- . . . or [where the] nature and volume of 59 (2d Cir. 1992). Plaintiffs bear the burden complaints [are] incapable of correction by the of proving that it would have been futile for administrative hearing process.” J.S., 386 them to pursue relief through administrative F.3d at 114. For example, in J.S., the procedures. J.S., 386 F.3d at 112 (“The complaint alleged, that the defendant school students bear the burden of proof that district, inter alia, failed to “perform timely exhaustion would be futile.”). evaluations and reevaluations of disabled children”; failed “to provide parents with On the basis of the complaint, the Court required procedural safeguards regarding must determine whether plaintiffs’ claims identification, evaluation, and accommodation meet either of two potential bases for “futility” of otherwise disabled children”; and failed “to that would excuse them from IDEA’s perform legally required responsibilities in a exhaustion requirement. The potential bases timely manner.” Id. at 115. The court found for futility are: (1) that defendants “failed to exhaustion futile because the problems alleged implement services that were specified or did not involve issues concerning individual otherwise clearly stated in an IEP,” Polera, children, “where the remedy is best left to 288 F.3d at 489, or (2) that the problems educational experts.” Id. at 114-15; see also alleged are “systemic violations” that cannot Handberry v. Thompson, 436 F.3d 52, 61 (2d be addressed by the available administrative Cir. 2006) (exhaustion futile because “the procedures. J.S., 386 F.3d at 113 (“[T]his plaintiffs challenge the DOE’s and DOC’s Court has previously excused exhaustion of actions with respect to providing educational administrative remedies in cases that included services to all entitled inmates at Rikers allegations of systemic violations.” (collecting Island”); Heldman, 962 F.2d at 159 cases)). The Second Circuit has also (exhaustion not required where complaint instructed courts “to consider whether based on allegation that state hearing officer administrative review would further the goals selection process “violates the mandate of of developing facts, making use of available IDEA”); Mrs. W. v. Tirozzi, 832 F.2d 748, expertise, and promoting efficiency.” Id. 756-57 (2d Cir. 1987) (finding exhaustion not (citing Hoeft v. Tucson Unified Sch. Dist., 967 required where complaint alleged that school F.2d 1298, 1303 (9th Cir. 1992)). district failed to provide a psychologist and to conduct necessary evaluations); J.G. v. Bd. of (2) Application Educ. of the Rochester City Sch. Dist., 830 F.2d 444, 446 (2d Cir. 1987) (exhaustion not In the instant case, plaintiffs contend that required because “wrongdoing complained of exhaustion is excused. They focus their is inherent in the program . . . and is not
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directed against any specific child”); Scaggs v. of their rightful place in that process. (See id.) N.Y. State Dep’t of Educ., No. 06-CV-0799 Thus, the focus of this case will be on (JFB) (VVP), 2007 U.S. Dist. LEXIS 35860, NYSED’s alleged policy, not whether a at *28 (E.D.N.Y. May 16, 2007) (finding particular IEP is appropriate for a particular exhaustion not required because plaintiffs student. Cf. Bougades v. Pine Plains Cent. alleged “complete inadequacy of the Sch. Dist., No. 09-4037-cv, 2010 WL educational environment at [school]”). But 1838710, at *1 (2d Cir. May 10, 2010) see Riley, 668 F.2d at 641-42 (finding (finding “no basis for deeming the relevant exhaustion required in challenge to state issues unexhausted” when “the record is policies regarding classification of children as replete with discussion of M.B.’s need for “handicapped” and placement of children in homework modification and writing residential schools). In sum, under the intervention”). Additionally, it does not systemic violations exception, exhaustion is appear that the Court will need to speculate as deemed futile when the conduct alleged to to whether the 12:2:2 class size would be have violated IDEA affected all students in a recommended as appropriate for a given child given program. or children. The complaint states that CSEs have already recommended the 12:2:2 Conversely, exhaustion is required when placement for the children of individual the plaintiff’s allegations depend on individual plaintiffs and/or told the plaintiffs that the characteristics, such as the sufficiency of a children were being placed in a 12:2:2 class. child’s IEP. See, e.g., J.S., 386 F.3d at 114 (See Compl. ¶¶ 97-124.) Cf. Riley, 668 F.2d (noting “the importance of exhaustion in at 642 (requiring exhaustion in challenge to ‘textbook’ cases presenting issues involving policy regarding placement in residential individual children . . . .”). For example, in schools because, inter alia, there was no claim Cave v. East Meadow Union Free Sch. Dist., that any plaintiff actually needed residential 514 F.3d 240 (2d Cir. 2008), a CSE refused a placement). Additionally, resolving how the deaf student’s request to bring a service dog to state’s policy comports with IDEA statute will school. See 514 F.3d at 243-44. The not require the specialized educational student’s parents brought suit on his behalf expertise that the administrative process could without exhausting their administrative provide. See J.S., 386 F.3d at 113 (noting remedies. Id. at 244. The Second Circuit held that, in determining whether exhaustion is that exhaustion was required because the futile, courts should consider expertise that complaint involved an individual student’s administrative review would provide); cf. request, and there was no allegation “of a Riley, 668 F.2d at 641 (stating challenge to system-wide violation of IDEA” or a state policy regarding classification of “structurally tainted” administrative process. handicapped children involved an area “where Id. at 250. experts love to revel” and requiring exhaustion). Finally, although the plaintiffs In this case, plaintiffs are not challenging are not claiming to have exhausted their the adequacy of a particular IEP or IEPs. administrative remedies, it is worth noting that Instead, they allege that NYSED has adopted the commissioner of NYSED previously a policy that violates IDEA by circumventing dismissed SLCD’s appeal of this policy in the IEP development process. (See Compl. ¶¶ 2007. This fact further supports plaintiffs’ 136-38.) In particular, plaintiffs contend that argument that the administrative process is the NYSED’s alleged policy deprives parents unable to resolve (and unable to meaningfully
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assist in resolving) plaintiffs’ claims. v. City Sch. Dist. of New Rochelle, 606 F. Therefore, the Court finds that plaintiffs have Supp. 2d 384, 388 (S.D.N.Y. 2009) (citing established that exhaustion would be futile. Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-58 (6th Cir. 2004)). 3. Failure to State a Claim In Deal, for example, the parents of an Defendant also argues that the complaint autistic child taught the child using a form of should be dismissed for failure to state a claim therapy known as “one-on-one applied for which relief can be granted. As set forth behavioral analysis,” or “ABA.” 392 F.3d at below, the Court disagrees. Plaintiffs’ 845-46. The parents eventually requested that complaint states plausible allegations that the school district, pursuant to IDEA, fund the defendant has violated the procedural and ABA therapy. See id. at 846. The school substantive requirements of IDEA. district repeatedly refused to even discuss the possibility of providing ABA therapy, telling a. Standard the parents that the “powers that be” were not permitting the implementation of such In determining whether a State has therapy. Id. at 855-56. The court found that, deprived children of free and appropriate because the school district never even public education mandated by IDEA, courts considered ABA therapy as a “viable option,” examine whether the State has complied with it deprived the parents of a meaningful IDEA’s procedural and substantive opportunity to participate in the IEP process. requirements. See Grim v. Rhinebeck Cent. Id. at 858-59; see also Berry v. Las Virgenes Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003) Unified School Dist., No. 08-55693, 2010 WL (citing Rowley, 458 U.S. at 206-07). “If these 882866, at *1 (9th Cir. Mar. 11, 2010) requirements are met, the State has complied (affirming district court’s finding of with the obligations imposed by Congress and predetermination where “the decision to the courts can require no more.” Rowley, 458 transfer [student] from his private placement U.S. at 207. to the district had been made before the [IEP] meeting was held.”); T.P. and S.P. v. (1) Procedural Inquiry Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253-54 (2d Cir. 2009) (citing Deal but The procedural inquiry asks if the State has declining to find predetermination because of complied with the procedures set forth in evidence that school district had considered IDEA. See Grim, 346 F.3d at 381. Plaintiffs parents’ recommendations). argue that IDEA’s procedures require that parents have a “meaningful opportunity to (2) Substantive Inquiry participate” in the IEP process and that NYSED’s “predetermination” that 12:2:2 In the substantive inquiry, the Court asks classes could not be used for the full school whether the IEP(s) “‘developed through the day deprived parents of this meaningful Act’s procedures [are] reasonably calculated opportunity. (See Pls.’ Opp. at 19-21 (quoting to enable the child to receive educational Compl. ¶¶ 77-78, 91, 92.)) If an IEP “is benefits.’” Grim, 346 F.3d at 381 (quoting predetermined by the state,” and not based on Rowley, 458 U.S. at 206-07). The state is not an individualized assessment of a given child, required to “furnish ‘every special service “it is procedurally defective.” E.G. and M.G. necessary to maximize each handicapped
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child’s potential.’” Cerra v. Pawling Sch. allegations state a plausible claim that Dist., 427 F.3d 186, 195 (2d Cir. 2005) NYSED’s interference with the IEP process (quoting Rowley, 458 U.S. at 207). A child’s has hampered the progress of the individual IEP, however, must be “‘likely to produce plaintiffs’ children and the other children progress, not regression’” and must “afford[ ] attending SLCD, and thereby substantively the student with an opportunity greater than violated IDEA.3 mere ‘trivial advancement.’” Id. (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1994)). 3 At oral argument, defendant’s counsel argued that plaintiffs’ claim improperly intrudes on b. Application NYSED’s ability to promulgate policies and standards for the education of children and that a In this case, the complaint alleges that local educational agency—not the state education NYSED instructed CSE members to cease department—is the proper defendant in an IDEA recommending the 12:2:2 class size. (See case. This argument is without merit given the Compl. ¶¶ 77, 82.) Accepting this fact as true, circumstances here. Of course, courts have which the Court must for purposes of a dismissed cases against state educational agencies motion to dismiss, the complaint states a in which plaintiffs sought review of an administrative decision regarding a particular IEP plausible claim that, similar to Deal, the state development process. See, e.g., B.J.S. v. State has promulgated a policy that prevents CSE Education Dept., - - - F. Supp. 2d - - -, 2010 WL members from even considering that a 12:2:2 1172598, at *10 (W.D.N.Y. Mar. 23, 2010) class size might be appropriate in at least (“[T]he controversy over the propriety of the IEP some cases. In particular, plaintiffs may be and whether it deprives the student of an FAPE able to demonstrate that such a policy could remains one between the student, or, as here, the constitute a “predetermination” that is a student’s parents, and the local educational procedural violation of IDEA. Therefore, the agency because, under the Act, the primary complaint states a plausible claim that responsibility for formulation and implementation defendant has failed to comply with IDEA’s of an FAPE and IEP is that of the relevant procedural requirements. educational agency, in this case the School District, not State Defendants.” (collecting cases)); see also C.B. v. Bd. of Educ. of Syosset Additionally, while the gravamen of the School Dist., 96-CV-5752 (FB), 1998 WL complaint concerns NYSED’s interference 273025, at *4 (E.D.N.Y. Jan. 15, 1998) with IDEA’s procedures, the complaint also (explaining that “broad and conclusory alleges that the 12:2:2 student-teacher ratio is allegations” that a state education department “has necessary to allow students “to make a failed to meet its statutory responsibilities do not reasonable rate of progress toward state a claim under the IDEA”). Here, conversely, achievement of the goals on their IEP.” (See the complaint makes particularized allegations Compl. ¶ 137.) The complaint also claims regarding a policy alleged to have been that NYSED has directed CSEs “to change affirmatively promulgated by NYSED. (See, e.g., IEP’s . . . for reasons other than the unique Compl. ¶¶ 77, 82.) Also as noted above, the adequacy of a particular IEP development process needs of children” and that NYSED has is not at issue. Therefore, NYSED is a proper interfered with children’s access to SLCD, defendant in this action, which challenges a even though the CSEs have determined “that NYSED policy that allegedly interferes with the SLCD was the appropriate educational IEP development process for disabled students in placement.” (See Compl. ¶¶ 139-41.) These a systemic manner. See,. e.g., Quatroche v. East
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the disabled and the non-disabled. J.D. v. In sum, plaintiffs have adequately pled a Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. plausible claim that defendant’s actions have 2000); P.C. v. McLaughlin, 913 F.2d 1033, violated IDEA. 1041 (2d Cir. 1990); see also Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998) B. Rehabilitation Act Claim (affirming district court’s grant of summary judgment to defendants on Rehabilitation Act Defendant has also moved to dismiss claim because plaintiff sought “to challenge . plaintiffs’ Rehabilitation Act claim. . . not illegal discrimination against the disabled, but the substance of services Section 504 of the Rehabilitation Act, 29 provided to him . . . .”). U.S.C. § 794, prohibits discrimination against “otherwise qualified” disabled individuals on 1. Standing the basis of a disability. Although Rehabilitation Act claims are often brought in As an initial matter, NYSED argues that, conjunction with IDEA claims, the two to bring a claim under Section 504 of the statutes serve somewhat different purposes. Rehabilitation Act, plaintiff SLCD must IDEA requires states to provide special “assert standing as an individual with a education to qualified students; the disability, which it clearly cannot.” (Def.’s Rehabilitation Act assures equal treatment of Mem. of Law, at 15.). As set forth below, the Court disagrees.
Lyme Bd. of Educ., 604 F. Supp. 2d 403, 412 (D. Although the Rehabilitation Act prohibits Conn. 2009) (“The state education agency is a discrimination against “individual[s] with a proper party to actions involving claims of disability,” see 20 U.S.C. § 794(a), the Act’s systemic violations of the IDEA, as the state remedies extend “to ‘any person aggrieved’ by defendants acknowledge.”); Fetto v. Sergi, 181 F. the discrimination of a person on the basis of Supp. 2d 53, 72 (D. Conn. 2001); see also M.T.V. his or her disability.” Innovative Health Sys., v. Perdue, No. Civ.A. 1:03CV0468-CA, 2004 WL Inc. v. City of White Plains, 117 F.3d 37, 47 3826047, at *10 (N.D. Ga. Feb. 3, 2004) (“The IDEA regulations clearly indicate that where a (2d Cir. 1997), recognized as superseded on state receives funding under the IDEA, both the other grounds by Zervos v. Verizon New York, state and the state educational agency are subject Inc., 252 F.3d 163, 171 (2d Cir. 2001) to the statute’s requirements . . . . However, (quoting 29 U.S.C. § 794a(a)(2)). To have where the action involves an administrative appeal standing, a Rehabilitation Act plaintiff need pursuant to 20 U.S.C. § 1415 and where the ALJ’s only satisfy the Article III standing decision is not based on a particular state policy, requirements of injury-in-fact, causation, and plaintiffs lack standing to join the state, the state redressability. See id. at 46-47; see also educational agency, and their agents and officers Fulton v. Goord, 591 F.3d 37, 42 (2d Cir. in that appeal.”). See generally Jose P. v. 2009) (“[W]e have held that . . . Rehabilitation Ambach, 669 F.2d 865, 870-71 (2d Cir. 1982) Act actions are not subject to any of the (explaining that state education commissioner, in official capacity, could be proper defendant in suit prudential limitations on standing that apply in under predecessor statute to IDEA alleging other contexts.”). Thus, in Innovative Health, procedural deficiencies in system for evaluating the Second Circuit concluded that a drug and and placing disabled children). alcohol treatment center had standing under the Rehabilitation Act because the center
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alleged it had been injured by discrimination district acts with gross negligence or reckless against its disabled clients. See id. at 46-48. indifference in depriving a child of access to a Similarly, in this case, SLCD contends that it FAPE.”); R.B. ex rel. L.B. v. Bd. of Educ. of has incurred over $22,000.00 in expenses as a City of N.Y., 99 F. Supp. 2d 411, 419 result of the NYSED’s alleged policy. (See (S.D.N.Y. 2000) (“In the special education Compl. ¶ 81.) Therefore, SLCD has standing context, courts have held that a plaintiff must to sue under the Rehabilitation Act. demonstrate more than an incorrect evaluation or substantively faulty IEP to establish 2. Failure to State a Claim liability; a plaintiff must show that defendants acted with bad faith or gross misjudgment.”); Defendant also argues that the complaint Wegner v. Canastota Cent. Sch. Dist., 979 F. fails to state a Rehabilitation Act claim. Supp. 147, 152 (N.D.N.Y. 1997) (“[S]omething more than a mere violation of a. Standard the IDEA is necessary in order to show a violation of [the Rehabilitation Act] in the A prima facie violation of Section 504 of context of educating children with disabilities, the Rehabilitation Act occurs when someone i.e., a plaintiff must demonstrate that a school who is (i) disabled and (ii) “otherwise district acted with bad faith or gross qualified” to participate in an offered activity misjudgment.”). or to enjoy the activity’s benefits (iii) is “excluded from participation or enjoyment b. Application “solely by reason of his or her disability” and (iv) the activity receives federal financial NYSED argues that plaintiffs have not assistance. See 29 U.S.C. § 794; Loeffler v. adequately alleged bad faith or gross Staten Island Univ. Hosp., 582 F.3d 268, 275 misjudgment. As set forth below, the Court (2d Cir. 2009); Romano v. SLS Residential, disagrees. Inc., 246 F.R.D. 432, 440 (S.D.N.Y. 2007). Thus, unlike IDEA, Section 504—by Gross misjudgment or bad faith may be requiring that the plaintiff show exclusion “by found when a defendant takes action to reason of his or her disability”—requires the provide a disabled student with fewer services plaintiff to make some showing of than had previously been deemed necessary. discrimination. See Gabel, 368 F. Supp. 2d at 336 (finding that a school district’s recommendation that a “Since Section 504 relief is conditioned student should be assigned to a program with on a showing of discrimination, it requires an 8:1:1 student-teacher ratio even though the something more than proof of a mere violation student’s CSE had recommend a program with of IDEA—i.e., more than a faulty IEP.” a 12:1:1 ratio “may in itself constitute the type Gabel ex rel. L.G. v. Bd. of Educ. of Hyde of gross negligence or reckless indifference Park Central School Dist., 368 F. Supp. 2d Section 504 is meant to address”); BD v. 313, 334 (S.D.N.Y. 2005). The “something DeBuono, 130 F. Supp. 2d 401, 439 (S.D.N.Y. more” necessary to plead a plausible 2000) (denying summary judgment on discrimination claim can be established by Rehabilitation Act claim because “[p]laintiffs showing bad faith or gross misjudgment by have assembled evidence from which a finder the defendant. See id. (“[I]ntentional of fact could conclude that defendants were discrimination may be inferred when a school aware of the benefits of a larger number of
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hours of ABA therapy and intentionally withheld more than ten hours from those plaintiff children for whom a greater number of hours was a necessity.”). Here, plaintiffs allege that NYSED, despite the fact that students’ CSEs had recommended the 12:2:2 class size, instituted a policy prohibiting use of that class size. (See, e.g., Compl. ¶¶ 82, 99, 106, 113, 120-21.) As such, plaintiffs have stated a plausible claim that NYSED has acted with gross misjudgment, and plaintiffs’ Rehabilitation Act claim survives the motion to dismiss.
IV. CONCLUSION
For the reasons set forth above, defendant’s motion to dismiss is denied in its entirety. The parties shall begin discovery at the direction of Magistrate Judge Lindsay.
SO ORDERED.
JOSEPH F. BIANCO United States District Judge
Dated: June 1, 2010 Central Islip, NY
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The attorneys for plaintiffs are Farrell Fritz, P.C. by James M. Wicks and Jonathan Kashimer, 1320 RXR Plaza, Uniondale, New York 11556. The attorney for defendant is Andrew M. Cuomo, Attorney General of the State of New York, by Susan M. Connolly, 300 Motor Parkway, Suite 205, Hauppauge, New York 11788.
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