November 22, 1994, the Court extended the TRO to December 6, 1994 and modified it to require the parties to cooperate to develop a new IEP. On December 12, 1994, after defendants consented to a further extension of the TRO, the TRO expired and the parties reported to the Court that they had indeed cooperated to develop a new IEP. The new IEP, however, does not implement all of the recommendations of the Mount Sinai Report and, therefore, plaintiffs maintain that this action remains viable, notwithstanding the fact that they have admitted that they have not exhausted IDEA's administrative procedures. See supra n.6.
A. IDEA's Exhaustion Requirement
IDEA's exhaustion requirement permits states and local agencies to employ their educational expertise, "affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children." Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1303 (9th Cir. 1992) (citing McKart v. United States, 395 U.S. 185, 193-95, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969)); see also Heldman, 962 F.2d at 159 ("The exhaustion doctrine prevents courts from undermining the administrative process and permits an agency to bring its expertise to bear on a problem as well as to correct its own mistakes").
The failure to exhaust such administrative procedures deprives the court of subject matter jurisdiction. Hoeft, 967 F.2d at 1302 ("the district court granted the motion to dismiss [for lack of subject matter jurisdiction], and . . . we affirm"); Jacky W. v. New York City Board of Educ., 848 F. Supp. 358, 360 (E.D.N.Y. 1994) ("Jurisdiction to review claims for violation of IDEA is vested in district courts only upon the exhaustion of available state administrative review"); Stellato v. Board of Educ., 842 F. Supp. 1512, 1515 (N.D.N.Y. 1994) ("Simply stated, unless plaintiffs first exhaust available state administrative remedies [under IDEA], the federal courts are without jurisdiction to hear the case"); Moss v. Smith, 794 F. Supp. 11, 12-15 (D.D.C. 1992) (where the plaintiffs failed to exhaust IDEA's administrative procedures prior to seeking a TRO, the court stated: "The Court sua sponte dismisses the case for lack of subject matter jurisdiction"); Vander Malle v. Ambach, 667 F. Supp. 1015, 1029 (S.D.N.Y. 1987) ("Unless plaintiff has exhausted the administrative remedy, the federal courts lack jurisdiction to hear the case").
B. Application Of IDEA's Exhaustion Requirement To Plaintiffs' Federal Claims
1. The Section 1983 And Section 2000d Claims
As noted above, section 1415(f), which was enacted in 1986, prohibits actions under statutes other than IDEA for relief that IDEA could provide if the plaintiff has failed to exhaust IDEA's administrative procedures. There exists no doubt that section 1415(f) applies to claims asserted under Section 1983 and Section 2000d.
First, the legislative history to section 1415(f) expressly states that the provision will apply to claims asserted under Section 1983: "It is the conferees' intent that actions brought under 42 U.S.C. § 1983 are governed by this [section 1415(f)] provision." H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1807. Second, a number of courts have dismissed Section 1983 claims for failure to comply with section 1415(f)'s exhaustion requirement. See, e.g., Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987) (IDEA's "remedies must be exhausted prior to instituting a civil action in federal court pursuant to . . . § 1983"); Association for Comm. Living in Colo. v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993) ("A plaintiff must exhaust these same [IDEA] remedies before bringing a 42 U.S.C. § 1983 action for relief that is also available under the IDEA"); Buffolino v. Board of Educ., 729 F. Supp. 240, 244-45 (E.D.N.Y. 1990) (same). Third, both statutes existed long prior to enactment of section 1415(f) and, therefore, Congress had ample opportunity to exempt these statutes from section 1415(f)'s reach if it so desired. Finally, Section 2000d shares the same remedies as and should be construed consistently with title V of the Rehabilitation Act of 1973 -- a provision specifically cited to in section 1415(f) as plainly within its reach. 20 U.S.C. § 1415(f); 29 U.S.C. § 794a ("The remedies, procedures, and rights set forth in [Section 2000d] shall be available to any person aggrieved . . . under [section 504 of the Rehabilitation Act of 1973]").
2. The ADA Claim
A question arises, however, regarding the applicability of IDEA's exhaustion requirement to claims asserted under the ADA. Two sources give rise to this question: First, the ADA was enacted after enactment of section 1415(f) and, second, a Department of Justice ("DOJ") regulation implementing title II of the ADA provides that a complainant may "at any time" file a private lawsuit without first exhausting the ADA's administrative procedures. 28 C.F.R. § 35.172; see also 28 C.F.R. § 35.172, App. A ("Because the [ADA] does not require exhaustion of administrative remedies, the complainant may elect to proceed with a private suit at any time"). The Court answers the question by ascertaining Congressional intent through review of the plain language of section 1415(f), examination of cases interpreting section 1415(f) as it relates to claims under the ADA, comparison of the ADA to title V of the Rehabilitation Act of 1973 (the "Rehabilitation Act") and application of fundamental principles of statutory construction. The Court concludes that the ADA in fact is bound by IDEA's exhaustion requirement for claims seeking relief available under IDEA.
The Court notes at the outset that the plain language of section 1415(f) speaks to all federal statutes which may offer relief available under IDEA. The section contains no exceptions on its face and the Court could find, on that basis alone, that section 1415(f) applies to claims asserted under the ADA. The Court also notes that since Congress enacted the ADA without expressly exempting it from the reach of section 1415(f), an inference may be drawn that Congress did not intend to permit claims under the ADA to bypass IDEA's exhaustion requirement.
The Court need not rely solely on the plain language of section 1415(f), however, in order to reach its conclusion because at least one court within this circuit has also reached the same result. In W.G. v. Senatore, 18 F.3d 60, 62-63 (2d Cir. 1994), the Second Circuit, in describing the procedural posture of the case, recounted that the court below (D. Conn.) dismissed for lack of subject matter jurisdiction ADA (and Section 1983) claims on the ground that plaintiffs failed to comply with section 1415(f)'s exhaustion requirement. See also Nagle v. Wilson School Dist., 1994 U.S. Dist. LEXIS 13927, 1994 WL 534813 (E.D. Pa. Sept. 26, 1994) (quoting section 1415(f)'s exhaustion requirement and stating that the plaintiffs' ADA, Section 1983 and other claims "are clearly pre-empted by § 1415(f)").
Further support is found by examining the relationship between the ADA and the Rehabilitation Act. Section 504 of the Rehabilitation Act prohibits discrimination on the basis of a disability "under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. Actions brought under section 504 do not generally require exhaustion of administrative remedies, see Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465, 471 (6th Cir. 1993) ("Every court of appeals which has considered the issue of whether to apply the exhaustion requirement to non-federal employees under [section 504] has decided not to apply the requirement"); Henchey v. Town of North Greenbush, 831 F. Supp. 960, 968 (N.D.N.Y. 1993) ("A majority of courts addressing this issue have [sic] declined to require the exhaustion of administrative remedies"), except in cases seeking relief available under IDEA. See 20 U.S.C. § 1415(f) (specifically citing to the Rehabilitation Act as an example of a federal statute bound by IDEA's exhaustion requirement).
Title II of the ADA simply extends section 504 to all programs and services provided by state and local governments:
The first purpose [of title II of the ADA] is to make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 303, 367 (1990). In fact, the enforcement provision of title II of the ADA actually incorporates the enforcement provision of the Rehabilitation Act. 42 U.S.C. § 12133 ("The remedies, procedures, and rights set forth in [the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability"). The regulations implementing title II of the ADA likewise confirm the uniformity of interpretation between the ADA and the Rehabilitation Act: "This part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to that title." 28 C.F.R. § 35.103. Even plaintiffs urge that the Court construe the ADA and the Rehabilitation Act consistently. See Plaintiffs' Brief In Support of Motion for Preliminary Injunction at 6 ("As the ADA incorporates the remedies of the Rehabilitation Act by reference, it follows that the caselaw applicable to § 504 claims is directly relevant"). Since claims under the Rehabilitation Act are bound by IDEA's exhaustion requirement, a fortiori, claims under the ADA should be likewise bound.
To the extent that one could interpret the DOJ regulation to conflict with section 1415(f), the Court applies the fundamental principle of statutory construction that courts shall "not interpret an agency regulation to thwart a statutory mandate." Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir. 1983); see also Foster v. Celani, 849 F.2d 91, 92 (2d Cir. 1988) ("Regulations that contravene congressional intent cannot be upheld"); Robbins v. Bentsen, 41 F.3d 1195, 1994 WL 683319, at *4 (7th Cir. Dec. 8, 1994) ("Regulations cannot trump the plain language of statutes, and we will not read the two to conflict where such a reading is unnecessary"). The Court thus interprets the DOJ regulation providing that a complainant need not exhaust administrative procedures prior to filing an ADA claim to apply only to those administrative procedures implemented under the ADA; it does not apply to thwart section 1415(f)'s explicit statutory mandate that IDEA's administrative procedures must be exhausted for claims seeking relief available under IDEA.
The conclusion is thus inescapable: The ADA is bound by IDEA's exhaustion requirement for claims seeking relief available under IDEA despite the fact that a plaintiff generally need not exhaust administrative remedies before pursuing an ADA claim unrelated to IDEA. Assuming, but not deciding, that plaintiffs state a claim under the ADA (or under Section 1983 or Section 2000d) -- a view observed in the light most favorable to plaintiffs -- they may maintain their suit only if they establish that (i) the relief they seek is not available under IDEA or (ii) an exception to the exhaustion requirement applies.
C. The Relief Plaintiffs' Seek is Available Under IDEA
Plaintiffs request for temporary and permanent injunctive relief imposing upon defendants the requirement to provide the services and accommodations identified in the Mount Sinai Report indisputably raises issues addressable under IDEA. Plaintiffs in substance challenge the adequacy of the IEP created for Moyo and seek imposition of their own more expansive IEP. This is precisely the type of remedy best fashioned by the educational experts skilled in developing such programs and provides a textbook example of the types of cases justifying administrative exhaustion.
At the Court's suggestion, counsel for plaintiffs submitted a supplemental brief addressing section 1415(f)'s exhaustion requirement. In an apparent attempt to circumvent section 1415(f), the supplemental brief asserts -- despite the complaint's allegations detailing the extensive history of special education services sought for and received by Moyo -- that "plaintiff does not need nor desire special education." Plaintiffs Supplemental Brief at 6 (Dec. 12, 1994). Rather, according to plaintiffs, Moyo is a "gifted, mainstream child in need of services designed to address the problem of dyslexia." Id. at 1. From this, plaintiffs claim that the relief they seek is beyond the bounds of IDEA.
Dyslexia is specifically listed in IDEA as a "learning disability." 20 U.S.C. § 1401(a)(15); see also 8 N.Y.C.R.R. § 200.1(mm)(6). Plaintiffs plead as much in their complaint. Compl. P 34 ("Moyo Hope was tested . . . and determined to have dyslexia, a learning disability"). The Mount Sinai Report also concluded that Moyo "has learning disabilities." Mount Sinai Report at 1. In addition, plaintiffs have participated with the CSE in developing IEPs for Moyo -- each of which has classified Moyo as learning disabled -- and they have not objected to such classifications. Importantly, Moyo would not be eligible for any of the services and accommodations he previously received and currently receives -- albeit less than those sought by plaintiffs -- if he were not disabled.
Plaintiffs do not seem to dispute that lawsuits challenging the educational services and accommodations provided to dyslexic students generally would fall within the ambit of IDEA. Rather, they distinguish Moyo from those students on the ground that, in addition to being dyslexic, he is "gifted." The Court holds that such a distinguishment is a difference without legal significance. Even as a "gifted" student with dyslexia, any challenge to the educational services and accommodations provided to Moyo would seem to fall squarely and more properly within the expertise of education professionals than in federal court. The Court is not unsympathetic to plaintiffs' alleged plight, but is mindful of the consequences of opening the door to litigants dissatisfied with educational placement without first affording educators the opportunity to correct any alleged errors.
D. No Exception To IDEA's Exhaustion Requirement Applies In This Case
IDEA's exhaustion requirement is not without its exceptions. The legislative history identifies three:
There are certain situations in which it is not appropriate to require the use of due process and review procedures set out in [ 20 U.S.C. § 1415(b) and (c)] of the [IDEA] before filing a law suit. These include complaints that: (1) it would be futile to use the due process procedures . . .; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; [and] (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).