Exhaustion of Administrative Remedies
Defendants also contend that the plaintiffs have failed to
exhaust their administrative remedies and thus may not bring
this suit. Under federal law, only when the administrative
remedies provided by the state have been exhausted may a suit
be brought in federal court. 20 U.S.C. § 1415(e)(2) (1988);
Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981). There is no
question that after the IHO decision, the Straubes did not take
the administrative appeal available to them under New York's
Education Law. See N.Y.Educ.Law 4404(c) (McKinney 1981 and
Supp. 1991). In addition, as the Straubes were adversely
affected by the IHO decision, the IHO decision could not be
deemed final, notwithstanding the failure to take the appeal.
Cf. Antkowiak by Antkowiak v. Ambach, 838 F.2d 635, 641 (2d
Cir. 1988) (when parents receive a favorable IHO decision, no
appeal is necessary and the unappealed IHO decision is final),
cert. denied sub nom. Doe by Doe v. Sobol, 488 U.S. 850, 109
S.Ct. 133, 102 L.Ed.2d 105 (1988).
However, the rule that a plaintiff must exhaust state
administrative remedies before bringing a federal suit under
IDEA is bypassed where the exercise of state administrative
remedies would be futile. Riley v. Ambach, 668 F.2d at 640-41.
Futility can take the form of inadequate relief. Honig v. Doe,
484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988).
The relief sought by the Straubes was placement of Jack in a
residential program which offered the same benefits as
Kildonan. Although the IHO noted that the Kildonan program
appeared to be the most appropriate mechanism for addressing
Jack's educational needs, this placement was not possible
because Kildonan was not an "approved" private school.
Defendants contend that the Straubes should have appealed to
the Commissioner because there was a possibility that he would
have found in their favor. See Vander Malle v. Ambach,
673 F.2d 49, 52 (2d Cir. 1982). First of all, under New York law, an
appeal is no longer made to the commissioner; instead, a state
review officer handles the appeal. N.Y.Educ.Law § 4404
(McKinney Supp. 1991); see Louis M. by Velma M. v. Ambach,
714 F. Supp. 1276 (N.D.N.Y. 1989). In addition, however compelling
this case may be, see Riley v. Ambach, 668 F.2d at 642
(requiring exhaustion to see if Commissioner would depart from
a general rule in a "compelling case"), the reviewing officer
is not permitted to order a placement at a school that is not
approved. See Lombardi v. Nyquist, 63 A.D.2d 1058, 406 N.Y.S.2d
148 (3d Dep't), appealed denied by, 45 N.Y.2d 710, 409 N.Y.S.2d
1029, 381 N.E.2d 616 (1978); Schayer v. Ambach, 102 Misc.2d 717,
424 N.Y.S.2d 105, 106 (Sup. 1980). Indeed, there are state
rules and regulations which govern the conditions precedent to
approval of contracts between a private school and a school
district. Moreover, since these regulations place the onus upon
the school needing approval to make application, unless
Kildonan was willing to apply and comply with state
requirements for approval, the review officer could not provide
the Straubes with the relief sought.
We find therefore that an administrative appeal would have
been futile and exhaustion of administrative remedies was not
required under these circumstances.
Sufficiency of the Claim
On a motion pursuant to Federal Rule of Civil Procedure
12(b)(6), the complaint's claims are taken "at face value,"
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972), and
dismissal is warranted only if "it appears beyond doubt that
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Defendants
argue that this court lacks jurisdiction to either require the
District to order placement or reimbursement of tuition at an
unapproved school. If that is the case, the plaintiffs have
failed to state a claim upon which relief can be granted and
dismissal of the complaint would be required.
A federal district court cannot order either placement of a
child in an unapproved school or reimbursement for funds spent
on an unapproved school because
such remedies would violate the Act's requirement that
placement "meet the standards of the State educational agency."
Antkowiak v. Ambach, 838 F.2d at 640; see Tucker v. Bay Shore
Union Free School Dist., 873 F.2d 563 (2d Cir. 1989).*fn2 As
Kildonan was not on the approved list of schools, this court
cannot unilaterally order reimbursement of Jack's tuition to
the Straubes or his placement at Kildonan.
However, plaintiffs claim goes beyond the mere seeking of
tuition reimbursement. They claim that the individualized
educational programs for Jack developed through the Act's
procedures have not been reasonably calculated to enable him to
receive educational benefits. See Rowley, 458 U.S. at 207, 102
S.Ct. at 3051.*fn3 Moreover, they contend that the defendants
have been derelict in their duty to insure that "a continuum of
alternative placements is available to meet the needs of
handicapped children for special education and related
services" pursuant to federal regulations. See
34 C.F.R. § 300.551 (1991). Jack's insufficient educational progress raises
the question of whether the educational agencies have complied
with the IDEA. Thus, a claim has been sufficiently stated to
survive this motion to dismiss.
Our inability to order tuition reimbursement for placement at
an unapproved school does not mean that some remedy for this
difficult problem is not available. The plaintiffs have been
placed in the untenable position of deciding between the
alternatives of an inappropriate IEP for the child or bearing
themselves the expense of appropriate special education. Such
a choice reflects a contravention of the Act's "stated
To assure that all children with disabilities have
available to them . . . a free appropriate public
education which emphasizes special education and
related services designed to meet their unique
needs. . . .
20 U.S.C. § 1400(c) (1990).