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JACKY W. v. N.Y.C. BD. OF EDUC.

March 31, 1994

JACKY W., an infant, Plaintiff,
v.
N.Y.C. BOARD OF EDUCATION AND THE N.Y. STATE EDUCATION DEPARTMENT, Defendants.



The opinion of the court was delivered by: JOANNA SEYBERT

 Seybert, D.J.

 This action is brought pursuant to the Individuals with Disabilities Education Act ("IDEA") to contest procedures implemented by The New York City Board of Education ("Board") and The New York State Education Department ("SED"). Plaintiff's amended complaint seeks certification of a class action. The Board and SED have moved for summary judgment, contending that this Court lacks subject matter jurisdiction over the action, because plaintiff has not exhausted state administrative remedies. The SED concedes that plaintiff's claim concerning the propriety of certain state statutes implementing IDEA fits within the futility exception to the exhaustion doctrine. The SED addresses the merits of this claim. Plaintiff responds that genuine issues of fact exist and that the case is ripe for review.

 BACKGROUND

 The uncontested facts are as follows. Plaintiff, an autistic child, was brought before the Board's Committee on Special Education ("CSE") for District 31 (Staten Island) in the spring of 1992. The CSE determined that the child needed special education, and implemented a plan that it believed provided a free appropriate public education ("FAPE") for the child. Plaintiff's mother, seeking the application of a more experimental therapy she believed necessary to target the child's autism, appealed the CSE's decision to the Impartial Hearing Office.

 Upon discovering that the IHOs' salaries were paid by the Board, plaintiff refused to go forward with the appeal, and demanded a truly impartial hearing officer. When the Board refused to provide a substitute hearing officer plaintiff filed this action.

 During the course of discovery it was revealed that clerical employees of the Board assigned to the Impartial Hearing Office re-type the IHOs' decisions. The original drafts appear to be discarded after typing. The clerical employees, with the consent of the IHOs, sign the IHOs' names to the typed opinions, and initial them. The IHOs and the parties then receive copies of the typed opinion.

 DISCUSSION

 Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine issue of fact exists if there is sufficient evidence favoring the non-movant so as to enable a reasonable jury to find in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). The evidence is to be viewed in the light most favorable to the non-movant. See Oxley v. City of New York, 923 F.2d 22, 24 (2d Cir. 1991). The above standards will be applied in deciding this motion.

 Defendants contend that they are entitled to judgment as a matter of law on plaintiff's claims challenging their implementation of IDEA because plaintiff has failed to exhaust state administrative remedies. Plaintiff responds that the exhaustion requirement is inapplicable here because the state administrative remedies could not provide the relief plaintiff seeks. Plaintiff therefore contends that the action falls within the futility exception to the exhaustion doctrine. Accordingly, the first issue the Court must address in deciding this motion is whether review of certain of the plaintiff's claims is barred by the exhaustion doctrine. The Court will then address the merits of any of plaintiff's claims which fall within the futility exception, including those claims the SED concedes fall within this exception.

 Jurisdiction to review claims for violation of IDEA is vested in district courts only upon the exhaustion of available state administrative review. See 20 U.S.C. ยง 1415(e)(2); Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992); Leonard v. McKenzie, 276 U.S. App. D.C. 239, 869 F.2d 1558, 1563 (D.C. Cir. 1989). Plaintiffs must exhaust all state administrative remedies under the Act, including administrative appeals provisions, before bringing a federal action to challenge the evaluation and placement of a child. See id.; see also Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981); Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988). The exhaustion doctrine serves several important purposes, including preventing courts from interrupting the administrative process, permitting the agency to apply its expertise to the problem, and allowing agencies to correct their own mistakes. See Heldman, 962 F.2d at 159 (citing McKart v. United States, 395 U.S. 185, 193-95, 89 S. Ct. 1657, 1662-63, 23 L. Ed. 2d 194 (1969)).

 It is, however, well recognized that the exhaustion requirement will be excused in cases where pursuit of administrative remedies would be futile, because the agency was acting in violation of IDEA or would be unable to remedy the alleged injury. See id. The Second Circuit has held that where a plaintiff challenges state regulations as violative of IDEA, and the administrative agency is bound to uphold these regulations, then exhaustion of administrative remedies would be futile, and the plaintiff could proceed directly to federal court. See Heldman, 962 F.2d at 159. Plaintiff cites Heldman in support of his position that the futility exception to the exhaustion doctrine applies in the instant case.


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