uncomfortable with this idea and, moreover, did not want
Georgianna to receive services which would interfere with her
regular schooling. Consequently, Mrs. Buffolino offered to
obtain these services privately at her own expense.
On June 18, 1986, the CSE meeting was held. Although Mrs.
Buffolino never gave written permission to have Georgianna
evaluated by the CSE, she attended and participated in the
meeting nevertheless by submitting the psychological report
and discussing her daughter's case. Once again, she stated her
objection to having her daughter classified as a handicapped
child and she offered to pay for private services at home
after school hours. The CSE unanimously classified Georgianna
as speech impaired, and assigned her to a regular class for
the following school year to be supplemented by privately
administered speech services which would be paid for by
plaintiffs. The CSE made this determination in the absence of
a medical and social history.
Sometime after this meeting, Mrs. Buffolino received a
letter from Mr. DeSantolo, the School District's Assistant
Superintendent for Pupil Personnel Services and Chairman of
the Committee on Special Education, in which he advised her of
her right to an impartial hearing. In later mailings he also
sent her two comprehensive guides written in layperson's
terms. These publications give detailed descriptions of the
substantive rights of both handicapped children and their
parents, as well as the procedural safeguards available to
them in special education proceedings.
In early August, 1986, Mrs. Buffolino sent a letter to Mr.
DeSantolo requesting an impartial hearing. At Mr. DeSantolo's
suggestion, Mrs. Buffolino met with him personally later that
month. They discussed her objection to having Georgianna
categorized as a handicapped child and Mr. DeSantolo
recommended that retesting Georgianna might lead to a change
in her classification. Mrs. Buffolino implied she would turn
over an updated evaluation of Georgianna to the CSE. She also
notified Mr. DeSantolo that Georgianna would be attending
parochial school beginning in September 1986. Finally, after
Mrs. Buffolino reiterated her request for an impartial
hearing, Mr. DeSantolo scheduled the hearing for October 6,
1986, which hearing was subsequently adjourned twice until
October 28, 1986.
In the interim, the School District received the updated
re-evaluation of Georgianna and a special CSE meeting was held
to review Georgianna's classification and placement. Mrs.
Buffolino attended this meeting as well. However, when Mr.
DeSantolo discovered that Mrs. Buffolino never signed a
written form consenting to the CSE's evaluation of her
daughter, the meeting was adjourned immediately. Three days
later Mr. DeSantolo sent Mrs. Buffolino a letter declaring all
prior CSE actions null and void. He told her that he would
destroy Georgianna's file if she so desired and included a
form for her to fill out along with a self-addressed stamped
envelope. In addition, he recommended the cancellation of the
upcoming impartial hearing and encouraged her to contact him if
she wished to discuss the matter any further.
Mrs. Buffolino "didn't like" Mr. DeSantolo's letter,
apparently due to the explanation in the letter that all
previous actions by the CSE were deemed null and void on the
ground that Mrs. Buffalino never consented to the evaluation,
and not on the ground that Georgianna did not possess a
handicapping condition. Thus, Mrs. Buffalino never returned
the form sent to her and Mr. DeSantolo subsequently destroyed
The impartial hearing officer also sent Mrs. Buffolino a
letter in which he stated that he set aside the impartial
hearing under the assumption that the matter had been resolved
according to her wishes. He further stated that he would not
reschedule an impartial hearing date unless she informed him
to do so.
Mrs. Buffolino never contacted the hearing officer for a new
date. In fact, she filed a complaint with the New York
Regional Office for Civil Rights of the United States
Department of Education ("OCR"),
which determined that the School District violated § 504 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et
seq., because it incorrectly evaluated and classified
Georgianna without parental consent. Furthermore, the OCR's
investigation revealed that the CSE failed to conduct its
evaluation in a timely manner and based its findings on
insufficient data. Lastly, the OCR determined that the School
District destroyed Georgianna's file without her parents'
On August 10, 1988, plaintiffs filed this lawsuit. The Court
will first address defendant's motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure,
which is based on the following grounds: (A) plaintiffs'
failure to exhaust the available administrative remedies; (B)
that the statute of limitations bars plaintiffs' claims; and
(C) for the failure of the complaint to state a claim upon
which relief can be granted. Since the Court finds summary
judgment to be appropriate for defendants on the ground that
plaintiffs have failed to exhaust necessary administrative
procedures as a prerequisite to filing this action, the Court
need not reach the remaining two issues concerning the statute
of limitations and the sufficiency of the complaint, nor for
that matter plaintiffs' motion for partial summary judgment on
II. Exhaustion of Administrative Remedies Under the EHA
In accordance with the Education to All Handicapped Act
("EHA"), 20 U.S.C. § 1400 et seq., a state will receive federal
funds as long as it provides handicapped children with "a free
appropriate public education which emphasizes special education
and related services designed to meet their unique needs, . . .
[and ensures] that the rights of handicapped children and their
parents or guardians are protected." 20 U.S.C. § 1400(c); Honig
v. Doe, 484 U.S. 305, 309, 108 S.Ct. 592, 596-97, 98 L.Ed.2d
686 (1988). To carry out these objectives, the EHA sets forth a
sweeping scheme of particular procedural protections which
permits parental involvement in all matters concerning the
child's educational program, and allows parents to obtain
administrative and judicial review of decisions they deem
unsatisfactory or inappropriate. Honig, 484 U.S. at 311-12, 108
S.Ct. at 597-98.
The procedural protections enumerated in the EHA consist of
[T]he right to examine all relevant records
pertaining to the identification, evaluation, and
educational placement of their child; prior
written notice whenever the responsible
educational agency proposes (or refuses) to
change the child's placement or program; an
opportunity to present complaints concerning any
aspect of the local agency's provision of a free
appropriate public education; and an opportunity
for an "impartial due process hearing" with respect
to any such complaints.
Honig, 484 U.S. at 312, 108 S.Ct. at 598 (emphasis added)
(citing 20 U.S.C. § 1415(b)(1), (2)).
In the event that a party is dissatisfied with or aggrieved
by the results of the impartial hearing, that party may obtain
additional administrative review by the state educational
agency. 20 U.S.C. § 1415(c). If a party has exhausted both of
these administrative remedies, namely the impartial hearing and
the administrative appeal, and that party remains aggrieved, a
civil lawsuit may be commenced in either state court or federal
district court to contest the evaluation and placement of the
handicapped child. 20 U.S.C. § 1415(e)(2); Honig, 484 U.S. 312,
327, 108 S.Ct. at 598, 606; Mrs. W. v. Tirozzi, 832 F.2d 748,
756 (2d Cir. 1987); Riley v. Ambach, 668 F.2d 635, 638 (2d
Cir. 1981). See also N.Y. Educ. Law § 4404 (McKinney 1990).
It is to be noted that the parent or guardian of a
handicapped child is not limited to an action pursuant to the
EHA in challenging the action or inaction of an educational
agency. Congress has specifically provided that aggrieved
parties may seek redress under § 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794, 42 U.S.C. § 1983 and the Constitution
as well. 20 U.S.C. § 1415(f); Tirozzi, 832 F.2d at 755
(citations omitted). Nevertheless, if the action is brought
under these other laws, plaintiffs "are first required to
exhaust the EHA's remedies to the same extent as if the suit
had been filed originally under the EHA's provisions."
Tirozzi, 832 F.2d at 756 (citations omitted). Therefore,
plaintiffs must pursue an impartial hearing and an
administrative appeal before filing suit under section 504, §
1983 and the Constitution if the action could have been brought
under the EHA. Id.
However, the Second Circuit has maintained that the
exhaustion doctrine "is not an inflexible rule." Id.;
Quackenbush v. Johnson City School District, 716 F.2d 141,
147-48 (2d Cir. 1983), cert. denied, 465 U.S. 1071, 104 S.Ct.
1426, 79 L.Ed.2d 750 (1984). The utilization of the
administrative procedural safeguards listed in the EHA is not
required in certain instances where:
(1) it would be futile to use due process
procedures . . .;
(2) an agency has adopted a policy or pursued a
practice of general applicability that is
contrary to the law;
(3) it is improbable that adequate relief can be
obtained by pursuing administrative remedies
(e.g., the hearing officer lacks the
authority to grant the relief sought). . . .
Tirozzi, 832 F.2d at 756 (citations omitted); see also J.G. v.
Rochester City School District Board of Education,
830 F.2d 444, 447 (2d Cir. 1987); Vander Malle v. Ambach, 667 F. Supp. 1015,
1029 (S.D.N.Y. 1987) (citing Riley, 668 F.2d at 640-641).
Therefore, the parents or guardians of a disabled child may
institute a civil action pursuant to the EHA without an
impartial hearing or an administrative appeal where the state
is to blame for the failure of plaintiffs to exhaust their
administrative remedies because it somehow deprived them of
their right to proper notice and a hearing in accordance with
due process. J.G., 830 F.2d at 447 (citing Quackenbush, 716
F.2d at 147-48). Plaintiffs are also excused from the
exhaustion requirement where sufficient remedies are not
reasonably ascertainable, J.G., 830 F.2d at 447 (citing Jose P.
v. Ambach, 669 F.2d 865, 869 (2d Cir. 1982)), or where the
allegations would not or could not have been resolved through
an administrative proceeding. J.G., 830 F.2d at 337 (citing
McNeese v. Board of Education, 373 U.S. 668, 674-75, 83 S.Ct.
1433, 1437-38, 10 L.Ed.2d 622).
With these principles in mind, the Court now turns to the
case at bar.
As stated earlier, defendant School District seeks an order
granting summary judgment on the ground that plaintiffs failed
to exhaust available administrative remedies. More
specifically, defendant argues that plaintiffs cannot maintain
a civil action in this court due to their failure to procure
an impartial hearing pursuant to 20 U.S.C. § 1415(b)(2). Honig,
484 U.S. at 326-27, 108 S.Ct. at 605-06; Tirozzi, 832 F.2d at
Although plaintiffs concede that there is an exhaustion
requirement, they contend that they are excused from
instituting administrative remedies on the grounds that: (1)
the School District's alleged violations of procedural
protections as guaranteed by the EHA rendered administrative
review all but meaningless, and (2) plaintiffs could not
obtain adequate relief in an impartial hearing or a subsequent
administrative appeal. Honig, 484 U.S. at 327, 108 S.Ct. at 606
(citations omitted); Quackenbush v. Johnson City School
District, 716 F.2d 141, 147-48 (2d Cir. 1983), cert. denied,
465 U.S. 1071, 104 S.Ct. 1426, 79 L.Ed.2d 750 (1984); J.G., 830
F.2d at 447; Tirozzi, 832 F.2d at 756 (citations omitted).
Plaintiffs further contend that their constitutional claims of
equal protection and due process violations are not subject to
the exhaustion requirement. For the reasons that follow, the
Court disagrees and finds that plaintiffs were required to
exhaust the available administrative remedies before attempting
to maintain a civil action in this Court.
Essentially, plaintiffs blame defendant School District for
the failure to obtain an impartial hearing or an
appeal. In particular, they claim that the School District
violated certain procedural safeguards listed in 20 U.S.C. § 1415.
First, plaintiffs claim that they were never "fully
informed," as required under 20 U.S.C. § 1415(b)(1)(D), that
they could seek an impartial hearing to determine whether the
School District violated Georgianna's due process rights and
improperly classified her as a handicapped child, despite the
CSE's determination on October 3, 1986 that all previous
actions were deemed "null and void." Plaintiffs assert that
neither the CSE chairman nor the impartial hearing officer ever
expressly communicated the right to an impartial hearing.
Tirozzi, 832 F.2d at 756 (citing Cain v. Yukon Pub. Schools,
775 F.2d 15, 20 (10th Cir. 1985)); Hall v. Vance County Bd. of
Educ., 774 F.2d 629, 634 (4th Cir. 1985) (both noting
importance of notification requirements). Due to the nature of
the evidence at hand, the Court finds that the School District
fully informed plaintiffs of their right to continue with an
Firstly, the School District sent Mrs. Buffolino two
guidebooks, Committee on the Handicapped Guidebook and A
Parent's Guide to Special Education, which fully informed
plaintiffs of their right to pursue an impartial hearing. Both
publications list, describe and explain in concise laypersons'
terms the substantive and procedural due process rights of
disabled children and their parents or guardian. More
specifically, A Parent's Guide to Special Education gives a
comprehensive definition of an impartial hearing, lists the
parties involved and their respective roles, advises parents of
their right to counsel and reminds parents to maintain all
copies of documents pertaining to the child's case. This guide
also enumerates "due process assurances" many times over and
includes checklists and suggestions for parental participation.
Most importantly, however, this publication actually sets
forth in plain terms the reasons why a parent should request
an impartial hearing. For example, the guide suggests that
impartial hearings are warranted where parents disagree with
a recommendation of the CSE, or where the CSE fails to
evaluate the child within thirty days (i.e. a timely manner).
In fact, plaintiffs assert the very same allegations and in a
letter written to the CSE Chairman on August 2, 1986, Mrs.
Buffolino acknowledged that she received one of the guides.
She also stated that she would soon request an impartial
hearing in accordance with "proper procedures." Therefore, the
Court is persuaded that the School District fully informed
plaintiffs of their right to pursue an impartial hearing and
that plaintiffs knew they should have obtained one under the
circumstances. Vander Malle, 667 F. Supp. at 1031.
Plaintiffs also assert that the School District frustrated
their attempt at having an impartial hearing by unilaterally
cancelling the hearing and wrongfully destroying Georgianna's
file. The Court finds no merit in these assertions. Shortly
after the October 2, 1986, CSE meeting, the CSE Chairman sent
Mrs. Buffolino a letter which stated that all prior CSE
actions were deemed "null and void." Thus, the CSE's
recommendations concerning Georgianna's evaluation,
classification and placement were abolished as if the
findings, suggestions and actions never occurred. Since Mrs.
Buffolino had originally scheduled the impartial hearing
because she objected to the CSE's classification of
Georgianna, the CSE Chairman merely recommended the
cancellation of the impartial hearing, now that Georgianna was
no longer classified as a handicapped child. Presumably he
reasonably thought that there was no longer a need for the
meeting. However, the CSE Chairman specifically stated that
Mrs. Buffolino should contact him if she wished to discuss the
matter further. If Mrs. Buffolino still wished to pursue the
impartial hearing, she should have contacted him thereafter.
The impartial hearing officer also sent Mrs. Buffolino a
letter in which he stated that it was his understanding that
the matter had been resolved and he would not reschedule an
impartial hearing date unless she informed him otherwise. Once
again, plaintiff had a chance to pursue an impartial hearing
and chose not to. Mrs. Buffolino
should have contacted the hearing officer if the matter was
not resolved to her satisfaction.
Although it is not clear from the papers, it appears that
plaintiffs further contend that even if they had been aware of
their right to an impartial hearing, it would have proved
futile because the CSE Chairman egregiously destroyed
Georgianna's file without the consent of her parents. If this
were the case, plaintiffs would be excused from the exhaustion
requirement, and be entitled to maintain this action. See J.G.,
830 F.2d at 446; Quackenbush, 716 F.2d at 147-48. However, this
was not the case. In the same letter which informed Mrs.
Buffolino that all prior CSE proceedings were deemed null and
void, the CSE Chairman notified Mrs. Buffolino that he would
destroy Georgianna's file unless she told him otherwise by
filling out a form and returning it in a self-addressed stamped
envelope. See Letter from R. DeSantolo to plaintiff, dated
October 6, 1986. Stating that she "did not like" the CSE
Chairman's letter, Mrs. Buffolino never responded to it and the
CSE Chairman subsequently destroyed Georgianna's file.
Therefore, it can be reasonably inferred that Georgianna's file
was destroyed due to Mrs. Buffolino's failure to correspond,
and not because the CSE acted egregiously. Consequently, it
would not be fair for plaintiffs to bypass the exhaustion
requirement on this ground.
The Court further notes that although Mrs. Buffolino never
fully executed formal consent to the CSE evaluation of
Georgianna, she clearly participated in the evaluation and
indicated that she intended to comply with the proper
procedures as they were described to her. Upon realizing that
Mrs. Buffolino never actually signed the consent form,
defendant destroyed the findings as if they were never
created. In short, it appears that defendant attempted to act
in the child's best interest, but was powerless to do so
without the consent of plaintiffs. Such a scenario is not one
which should serve as the basis for a violation of section 504
of the Rehabilitation Act. See United States v. University
Hospital of the State University of New York, 575 F. Supp. 607,
614 (E.D.N.Y. 1983), aff'd, 729 F.2d 144 (2d Cir. 1984), aff'd,
sub nom., Bowen v. Amer. Hospital Ass'n, 476 U.S. 610, 106
S.Ct. 2101, 90 L.Ed.2d 584 (1986).
In yet another attempt to convince the Court to permit
plaintiffs to bring this suit in spite of their failure to
exhaust administrative remedies, plaintiffs argue that these
administrative proceedings could not have afforded them
appropriate relief, namely monetary damages and attorney's
fees. See Honig, 484 U.S. at 327, 108 S.Ct. at 606; Tirozzi,
832 F.2d at 756-57; J.G., 830 F.2d at 447. Once again, the
Court is unpersuaded. As stated earlier, the Second Circuit has
held that when a suit which could have been brought under the
EHA is instead brought under an alternative law, plaintiffs
must first exhaust the EHA's procedures to the same extent as
though the action had been originally brought under the EHA.
J.G., 830 F.2d at 446; Tirozzi, 832 F.2d at 756 (citations
omitted). Clearly, this point of law is even more applicable in
the case at bar since plaintiffs' claims are brought in
conjunction with the EHA. Instead of filing a complaint with
the OCR which investigated the School District and ultimately
found that the School District was at fault, plaintiffs should
have brought their complaint to an impartial hearing officer,
who could have made findings of fact in a more adjudicative
forum. 20 U.S.C. § 1415(b)(2); see Delamater v. Schweiker,
721 F.2d 50, 53-4 (2d Cir. 1983).
If the Court were to hold that plaintiffs in this case are
excused from exhausting their remedies because adequate relief
could not be obtained, plaintiffs could avoid administrative
procedures merely by asking for relief that administrative
authorities could not grant. Furthermore, the Court would
discourage such tactics in light of the importance of
administrative proceedings. Key reasons for requiring the
exhaustion of administrative remedies are to "[allow] expert
administrators to focus and illuminate the issues to be
considered by the courts and [to provide] the state an
opportunity to correct official abuse without the need to
resort to costly and expensive litigation. . . ."
Malle, 667 F. Supp. at 1029 (citing Riley v. Ambach,
668 F.2d 635 (2d Cir. 1981)). Accord Doe By and Through Doe v. Smith,
879 F.2d 1340, 1343-44 (6th Cir. 1989); Cox v. Jenkins,
878 F.2d 414 (D.C. Cir. 1989).
In sum, this Court holds that plaintiffs inexcusably failed
to exhaust administrative remedies available to them pursuant
to 20 U.S.C. § 1415(b)(2), (c) on the grounds that: (1)
defendants fully informed plaintiffs of their procedural
rights; (2) defendants did not egregiously destroy the child's
file, thereby precluding any meaningful administrative review;
and (3) plaintiffs must exhaust their administrative remedies
to the fullest extent under the EHA, despite having brought
other claims as well. The Court further notes that plaintiffs'
motion for partial summary judgment on the issue of liability
alone is inapposite to a determination that they have failed to
exhaust the available administrative remedies. Consequently,
the Court need not reach the issues addressed in plaintiffs'
It is well established that the Court may grant a motion for
summary judgment only when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Donahue v. Windsor Locks Bd. of Fire Commissioners,
834 F.2d 54, 57 (2d Cir. 1987); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).
When deciding a summary judgment motion, the court must not
"weigh the evidence and determine the truth of the matter."
Winant v. Carefree Pools, 709 F. Supp. 57, 59 (E.D.N.Y. 1989).
Rather, the judge must ascertain whether a genuine triable
issue exists. If the movant establishes its burden of proof
that there is no issue as to any material fact, summary
judgment may be granted. However, in reaching its decision, the
Court must construe all ambiguities and inferences in favor of
the opposing party. Id.
The Court finds that plaintiffs failed to exhaust the
appropriate administrative procedures. Plaintiffs have failed
to raise a genuine issue as to whether they are excused from
the exhaustion requirement. Accordingly, defendant's motion
for summary judgment is granted. The Clerk of the Court is
directed to close the file in this case.
© 1992-2003 VersusLaw Inc.