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FENNELL v. CORTINES

January 5, 1995

LLOYD HOPE and CONSTANCE FENNELL, individually and as parents and lawful guardians of MOYO HOPE, a minor, and MOYO HOPE, Plaintiffs, against RAMON CORTINES, INDIVIDUALLY AND AS CHANCELLOR OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK and BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendants.

FREDERIC BLOCK, United States District Judge


The opinion of the court was delivered by: FREDERIC BLOCK

BLOCK, District Judge:

 I.

 STATUTORY AND REGULATORY BACKGROUND

 The federal government ensures that students with disabilities receive a "free appropriate public education" through IDEA. *fn4" IDEA creates a comprehensive educational scheme requiring each state that receives federal education funds to design an individualized education program ("IEP") for each disabled child. See Honig v. Doe, 484 U.S. 305, 310, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). The IEP is a written statement that sets forth, inter alia, the child's present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals. 20 U.S.C. § 1401(a)(20). Federal funding is conditioned upon state compliance with IDEA's extensive substantive and procedural requirements. 8 U.S.C. § 1412; see also Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1300 (9th Cir. 1992).

 In Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992), the Second Circuit described Congress' rationale for this "unconventional approach":

 
Rather than detailing the precise substantive rights applicable to all affected children, Congress opted for individually tailored programs -- programs crafted by parents and educators working together to determine what is appropriate for each child. Congress recognized that such an unconventional approach would require extensive procedural safeguards to protect the educational rights of children with disabling conditions.

 Id. at 150; see also 20 U.S.C. § 1414(a)(5) (requiring the development of IEPs, which must be reviewed annually). Primary among the procedural safeguards employed by IDEA is the requirement that states provide parents of disabled students the right to seek review of any decision concerning their children's education. Thus, parents have the right to file complaints about "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1)(E). Parents must initially seek review through an "impartial due process hearing" conducted by either the local school district or state. Id. § 1415(b)(2). If the hearing is conducted by a local school district, they may appeal the decision to the state educational agency. Id. § 1415(c). Only after exhaustion of these procedures may parents seek review in federal or state court. Id. § 1415(e)(2). New York receives federal education funds and, accordingly, has adopted the IDEA's procedures. *fn5"

 Critical to the issues presented in this case is the reach of IDEA's section 1415(f). Section 1415(f) reads in full:

 
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [ 29 U.S.C. § 790 et seq.], or other Federal statutes protecting the rights of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

 20 U.S.C. § 1415(f) (emphasis added). Thus, section 1415(f) contains two substantive components, the first conditioned on the second. First, it provides that IDEA is not the exclusive avenue by which parents may enforce the rights of disabled children and, therefore, they may invoke other federal statutes to accomplish the same goals. This right to pursue remedies through other federal statutes is conditioned, however, upon section 1415(f)'s second component, which requires exhaustion of IDEA's administrative procedures prior to commencement of the lawsuit if the relief sought is also available under IDEA.

 II.

 ISSUES

 The initial issue presented is whether claims asserted under the ADA, Section 1983 and Section 2000d are subject to section 1415(f)'s requirement that litigants first exhaust IDEA's administrative procedures before bringing suit to obtain relief available under IDEA. If such claims are subject to IDEA's exhaustion requirement, the Court must determine whether plaintiffs seek relief available under IDEA. Finally, if plaintiffs do seek relief available under IDEA, the Court must determine whether any exceptions to the exhaustion requirement apply.

 Because the Court concludes that (i) ADA, Section 1983 and Section 2000d claims are subject to IDEA's exhaustion requirement, (ii) plaintiffs seek relief available under IDEA and (iii) no exception to exhaustion applies, and because there exists no dispute that plaintiffs have failed to exhaust IDEA's administrative procedures, *fn6" the Court holds that it lacks subject matter jurisdiction over plaintiffs' federal claims and, therefore, sua sponte dismisses the suit. See Fed. R. Civ. Pro. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). Plaintiffs thus cannot escape IDEA's exhaustion requirement by drafting a complaint artfully avoiding an IDEA claim where IDEA offers plaintiffs the very relief they seek.

 III.

 FACTS AND PROCEDURAL HISTORY

 Plaintiffs enrolled Moyo in a private school for Moyo's third and fourth grades which provided special services for dyslexic students. Plaintiffs sought and received funds from defendants for busing Moyo to and from the private school, which defendants provided after a Committee on Special Education ("CSE") conducted an evaluation of Moyo and concluded that he had a learning disability requiring special education. In the fifth grade, Moyo attended, under the umbrella of the school district's special education program, the Astral Program for Gifted Children, a New York public school. Early in the sixth grade, the CSE conducted an annual review of Moyo and, relying in part upon a psychological report prepared at plaintiffs' request, developed an IEP which provided that Moyo would receive certain modifications in taking tests. ...


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