UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------x JESUS FUENTES, as a Parent of a Disabled Child, MEMORANDUM AND ORDER Plaintiff, Case No. 10-CV-1587 (FB)(MDG) -against-
NEW YORK CITY DEPARTMENT OF EDUCATION, BARRY MASTELLONE, Administrator of the HHVI of the New York City Department of Education, and DENISE WASHINGTON, Chief Administrator of Impartial Hearing Office of the New York City Department of Education,
Defendants. -------------------------------------------------------------x
Appearances: For the Defendant: For the Plaintiff: JANICE CASEY SILVERBERG, ESQ. JESUS FUENTES, pro se New York City Law Department #98-A-4737 Office of the Corporation Counsel Clinton Correctional Facility 100 Church Street 1156 Rt. 374 Room 2-170 P.O. Box 2002 New York, NY 10007-2601 Dannemora, NY 12929-2002
BLOCK, Senior District Judge:
Pro se plaintiff Jesus Fuentes is the non-custodial parent of a disabled son, M.F.
Fuentes brings this action against the New York City Department of Education (“DOE”) and two
DOE administrators, Barry Mastellone and Denise Washington (collectively, “defendants”).
Fuentes contends that New York State’s implementation of two portions of the Individuals with
Disabilities Education Improvement Act, 20 U.S.C. §§ 1400 et seq. (“IDEIA”) – § 1401(23), defining
“parent,” and § 1415(b), listing “procedural safeguards” that are guaranteed for parents of
disabled children – deprives him of due process and equal protection under the Fourteenth
Amendment.1
I
Section 1401(23) defines “parent” as “a natural, adoptive, or foster parent of a
child,” “a guardian” or “an individual acting in the place of a natural or adoptive parent . . . with
whom the child lives, or an individual who is legally responsible for the child’s welfare.” 20
U.S.C. § 1401(23)(A)-(C). Section 1415 lists procedural safeguards that educational agencies must
provide, including “[a]n opportunity for the parents of a child with a disability to examine all
records relating to such child and to participate in meetings with respect to the identification,
evaluation, and educational placement of the child, and the provision of a free appropriate
public education to such child, and to obtain an independent educational evaluation of the
child.” 20 U.S.C. § 1415(b)(1).
IDEIA leaves the clarification of terms like “parent” to the states, and New York
State has defined “parent” to exclude non-custodial parents. See Fuentes v. Bd. of Educ., et. al.,
12 N.Y. 3d 309, 314 (2009); Taylor v. Vermont Dept. of Educ., 313 F. 3d 768, 777 (2d Cir. 2002)
(holding that “Congress drew the procedural and substantive contours of education for disabled
children, but left the shading and tinting of the details largely to the states. States are responsible
for filling in the numerous interstices within the federal Act through their own statutes and
regulations.”).
Liberally construed, Fuentes’s papers argue that New York’s definition of “parent”
1 The original complaint alleged violations of Fuentes’s Fourteenth Amendment rights. Fuentes later amended the complaint to assert claims under the Fifth Amendment instead. The Fifth Amendment applies only to claims against the federal government, which is not a defendant here. In light of Fuentes’s pro se status, and because the substantive analysis is the same for the Fifth and Fourteenth Amendments, the Court will consider Fuentes’s claims under the Fourteenth Amendment.
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has deprived him of an opportunity to challenge the DOE’s alleged failure to provide his
disabled son with a free appropriate public education (“FAPE”). He seeks a declaratory
judgment and an injunction prohibiting unconstitutional application of IDEIA as well as any
other available remedies, including compensatory education for his son. Defendants move to
dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. For the reasons below, defendants’ motion to dismiss is granted.
II
Fuentes’s disapproval of the public education received by M.F., who is visually
impaired, has already been voiced in state and federal court. Fuentes first requested that DOE
evaluate M.F. for additional special education services in 2000. In June 2000, Mastellone
provided Fuentes with a “Notice of Request for Review of Individualized Education Program
[“IEP”].” Two months later, Mastellone advised Fuentes that M.F. had been evaluated by a
school social worker, a school psychologist and an education evaluator, and that the group
concluded that M.F. did not need additional services. When Fuentes sought review of that
decision, Washington informed him that his request could not be processed because Fuentes
was not M.F.’s custodial parent. Fuentes filed an action in federal court contending that this
violated his rights under the Fourteenth Amendment and IDEIA. The Court dismissed the
action for lack of standing because New York law does not give non-custodial parents the right
to make educational decisions for their children.
Fuentes appealed and the Second Circuit, finding that there was no controlling
authority on whether a non-custodial parent has standing to challenge the FAPE received by
their child under IDEIA, certified that question to the New York State Court of Appeals. The
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New York Court of Appeals held that “unless the custody order expressly permits joint decision-
making authority or designates particular authority with respect to the child’s education, a non-
custodial parent has no right to ‘control’ such decisions. This authority properly belongs to the
custodial parent.” Fuentes, 12 N.Y. 3d at 314. The Second Circuit then affirmed the dismissal.
Displeased with the outcome of his original action, Fuentes filed this action in April 2010.
III
Fuentes is pro se. Because “most pro se plaintiffs lack familiarity with the formalities
of pleading requirements, we must construe pro se complaints liberally, applying a more flexible
standard to evaluate their sufficiency than we would when reviewing a complaint submitted by
counsel.” Lerman v. Bd. of Elections, 232 F. 3d 135, 140 (2d Cir. 2000).
As a preliminary matter, to the extent Fuentes asserts claims on behalf of his son,
those claims must be dismissed because “a non-attorney parent must be represented by counsel
in bringing an action on behalf of his. . . child.” Cheung v. Youth Orchestra Found., 906 F. 2d 59,
61 (2d Cir. 1990). Accordingly, the following analysis addresses only the claims that Fuentes
brings on his own behalf.
Defendants initially argue that Fuentes is precluded from bringing this action
under the doctrines of res judicata and collateral estoppel.
First, “dismissal for lack of subject matter jurisdiction is not an adjudication of the
merits, and hence has no res judicata effect.” St. Pierre v. Dyer, 208 F. 3d 394, 400 (2d Cir. 2000).
The dismissal of Fuentes’s original case was a dismissal for lack of standing, and consequently
his current claim is not barred on the grounds of res judicata.
Second, collateral estoppel, which is applied “to establish the preclusive effect of
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a prior federal judgment, require[s] that (1) the identical issue was raised in a previous
proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the
party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.” Ball v. A. O. Smith Corp., 451 F.
3d 66, 69 (2d Cir. 2009) (internal quotation marks omitted). The present case raises a different
issue from the one raised in the previous proceeding. In that proceeding Fuentes claimed that
the state violated IDEIA by denying him the opportunity to challenge his son’s educational
program. Fuentes now challenges the validity of the New York State Court of Appeals
determination regarding who qualifies as a “parent” under IDEIA.
Generally, federal courts should avoid reaching constitutional questions where
there are other, non-constitutional, grounds on which to decide a case. See Allstate Ins. Co. v.
Serio, 261 F. 3d 143, 149-50 (2d Cir. 2001). Because Fuentes’s claims cannot be dismissed on the
grounds of claim preclusion, however, the Court will consider Fuentes’s challenge to the
constitutionality of New York’s definition of “parent.”
IV
Fuentes contends that his rights under the Equal Protection Clause were violated
by New York State’s implementation of IDEIA, which distinguishes between custodial and non-
custodial parents.
A. Standard of Review
The first step in analyzing Fuentes’s claim is to determine the applicable
standard of review. Defendants contend that Fuentes’s equal protection claim is subject to the
rational basis test, which applies to classifications “neither involving fundamental rights nor
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proceeding along suspect lines.”2 Heller v. Doe, 509 U.S. 312, 319 (1993). Such a classification
will be “accorded a strong presumption of validity” and “cannot run afoul of the Equal
Protection Clause if there is a rational relationship between the disparity of treatment and
some legitimate governmental purpose.” Id. As a preliminary matter, the Court must
determine whether the right Fuentes asserts – the right, as a biological but non-custodial
parent, to receive the extensive parental benefits outlined in IDEIA– is “fundamental,” and
whether non-custodial parents are a suspect class.
Parents have a well-established fundamental constitutional right to direct the
upbringing and education of their children. See, e.g. Meyer v. Nebraska, 262 U.S. 390 (1923)
(invalidating a law forbidding foreign language instruction in schools); Pierce v. Society of
Sisters, 268 U.S. 510 (1925) (invalidating a law requiring children to attend public school). That
right is a qualified one, however, and the right asserted by Fuentes falls well outside the scope
of the fundamental right set forth in Meyer, Pierce and the cases that follow them. See Leebaert
v. Harrington, 332 F. 3d 134, 141 (2d Cir. 2003) (holding that there is no “fundamental right of
every parent to tell a public school” what his child will be taught because this would “make
it difficult or impossible for any public school authority to administer school curricula
responsive to the overall educational needs of the community and its children.”).
A Seventh Circuit case, in which a non-custodial father claimed that the state
violated a fundamental constitutional right by denying him the opportunity to participate in
2 Because it was not addressed in their initial papers, the Court asked defendants to submit additional briefing in response to Fuentes’s constitutional arguments. Fuentes was given until March 30, 2012 to file a reply to defendants’ supplemental memorandum, but as of the date of this opinion had not filed a response.
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his child’s education, provides conceptual guidance. See Crowley v. McKinney, 400 F. 3d 965,
968 (7th Cir. 2005) (finding that “we greatly doubt that a non-custodial divorced parent has
a federal constitutional right to participate in his child’s education at the level of detail
claimed by the plaintiff”). The non-custodial father in Crowley demanded and was denied
access to all documents sent by the school to custodial parents, the opportunity to serve as a
playground monitor in order to supervise the school’s handling of bullies, and permission to
attend a school book fair. The Seventh Circuit found that the non-custodial parent’s claim
asserted a “weaker” right than the fundamental rights established in cases like Meyer and
Pierce because (1) “the challenge is only to one parent’s control, the other’s remaining
unimpaired,” and (2) “the state interest is stronger. . . [because it] is difficult for a school to
accommodate the demands of parents when they are divorced.” Id. at 969.
The Seventh Circuit’s reasoning is persuasive. Congress took great care, in
drafting IDEIA, to safeguard parents’ fundamental interest in their children’s education by
including statutory provisions that give parents an enforceable right to oversee the manner
in which the school provides their child’s education. The challenged state action does not
negate this. New York State’s definition of parent excludes only those parents who, according
to a state court judgment, have no custodial rights.
To hold that the right asserted by Fuentes qualifies as fundamental would place
an additional hurdle in the path of school administrators already tasked with the difficult goal
of providing disabled children with a FAPE by requiring educators to question the decisions
of custodial parents and to navigate potential disputes between divorced parents. “Schools
have valid interests in limiting the parental presence” in situations where that presence could
interfere with their educational mission. Id. at 969-70.
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In addition, non-custodial parents are not a suspect class. “The suspect or quasi-
suspect classes that are entitled to heightened scrutiny have been limited to groups generally
defined by their status, such as race, national ancestry or ethnic origin, alienage, gender and
illegitimacy.” Able v. U.S., 155 F. 3d 628, 632 (2d Cir. 1998). Non-custodial status is not an
“immutable characteristic”that would entitle a group to greater protection. See e.g. Lyng v.
Castillo, 477 U.S. 635, 638 (1986) (“close relatives” were not a suspect class because “they do
not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete
group”).
B. Analysis
Applying the rational basis test, it is next necessary to determine a “legitimate
state interest” to which the challenged state action has a rational relationship. According to
the statute, “[i]mproving educational results for children with disabilities is an essential
element of our national policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C.
§ 1400(c)(1). The state interest in providing a quality education for disabled children, and in
ensuring meaningful parental participation in the state’s provision of public education, is
certainly legitimate.
Under rational basis review, it is very difficult for individuals challenging a
legislative judgment to “overcome the strong presumption of rationality that attaches to a
statute.” Beatie, 123 F. 3d at 711 (2d Cir. 1997). The burden is on the plaintiff to negate “every
conceivable basis which might support the challenged law.” Price v. N.Y. State Bd. of Elections,
540 F. 3d 101, 108 (2d Cir. 2008) (internal quotation marks omitted). Review under this
standard “is not a license for courts to judge the wisdom, fairness, or logic of legislative
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choices. . . [C]ourts are compelled under rational basis review to accept a legislature’s
generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S.
at 319-21.
These standards are satisfied here. It is rational for the state to determine that
only those “legally responsible for the child’s welfare” should be included in the definition
of “parents” entitled to participate in their child’s education under IDEIA. Educators must
have a means of determining who, of the individuals expressing an interest in a child’s
education, should be included in educational decisions. The easiest solution, where a state
court has already given custody and decision-making authority to one parent, is for a school
administrator or teacher to trust that the custodial parent will act on behalf of the child, and
exclude the non-custodial parent from interfering with the custodial parent’s decisionmaking.
The Second Circuit has warned against permitting non-custodial parents to second-guess the
decisions of custodial parents: “The [DOE] could not have intended that there would be a
superfluity of parties able to exercise authority over the child under the regulation [IDEIA]
simultaneously, each of whom may have conflicting ideas with respect to the child’s
education, with no means of choosing between them.” Taylor, 313 F. 3d at 779. The
government’s interference with the parent-child relationship streamlines the process of
providing quality public education to disabled children, and encourages participation by the
guardian who is legally responsible for the disabled child’s welfare.
As Fuentes has emphasized, this results in some unfairness– non-custodial status
does not sever the relationship between biological parent and child, and many non-custodial
parents no doubt have a sincere desire to ensure that their child receive a FAPE. However,
a classification “does not fail rational basis review because it is not made with mathematical
9 nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321. Imperfect
solutions do not violate equal protection so long as there is some rational connection to a
legitimate government purpose.
V
Fuentes also contends that his substantive due process rights were violated
when the state prevented him from receiving the benefits afforded to parents under IDEIA,
including the opportunity to review and challenge the FAPE provided to their child. See
Immediato v. Rye Neck School Dist., 73 F. 3d 454, 460 (2d Cir. 1996) (“[T]he Due Process Clause
of the Fourteenth Amendment embodies a substantive component that protects against
certain government actions regardless of the . . . procedures used to implement them.”). “For
a substantive due process claim “to survive a Rule 12(b)(6) dismissal motion, it must allege
governmental conduct that is so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” Velez v. Levy, 401 F. 3d 75, 93 (2d Cir. 2005) (internal quotation
marks omitted); see also Kaluczky v. City of White Plains, 57 F. 3d 202, 211 (2d Cir. 1995)
(“Substantive due process protects against government action that is arbitrary . . . or
oppressive in a constitutional sense, but not against government action that is incorrect or ill-
advised”) (internal quotation marks omitted). Plainly, that is not the case here. The
challenged state action does not rise to the level of a substantive due process violation.
VI
Finally, to the extent that Fuentes asserts a claim that he was denied procedural
due process, that claim must also be dismissed. “The requirements of procedural due process
apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s
protection of liberty and property.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569
10 (1972) (noting that liberty interests are those “essential to the orderly pursuit of happiness by
free men.”). Fuentes’s procedural due process claim fails because he has not identified any
constitutionally protected liberty or property interest of which he was deprived. Fuentes
refers to a liberty interest in the integrity of his parental rights and his ability to oversee his
son’s education. See e.g. Rivera v. Marcus, 696 F. 2d 1016, 1024-25 (2d Cir. 1982) (finding that
the plaintiff “possesses an important liberty interest in preserving the integrity and stability
of her family”). As is evident from the preceding discussion about parental rights in the
context of equal protection, and from the New York State Court of Appeals decision regarding
the standing of non-custodial parents under IDEIA, such a liberty interest does not exist in
Fuentes’s case; he possesses no constitutional entitlement to participate in the procedures
afforded to custodial parents under IDEIA.3
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is granted, and
Fuentes’s complaint is dismissed in its entirety.
SO ORDERED. s/ Judge Frederic Block
FREDERIC BLOCK Senior United States District Judge Brooklyn, New York March 30, 2012
3 There is no need to reach defendants’ additional claim that the individual defendants are entitled to qualified immunity, because there has been no violation of any constitutional right in this case. See Kerman v. City of N.Y., 374 F. 3d 93, 108 (2d Cir. 2004).
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