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July 24, 1995

LYNNE SCHLUDE, parent of a handicapped child, MARCUS O., Plaintiff, against NORTHEAST CENTRAL SCHOOL DISTRICT, Defendant.

William C. Conner, Sr. United States District Judge

The opinion of the court was delivered by: WILLIAM C. CONNER

CONNER, Senior D.J.:

 Plaintiff Lynne Schlude, the parent of a learning disabled child, has brought this action against defendant Northeast Central School District under 42 U.S.C. § 1983 and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Defendant has made a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), on the ground that this court lacks subject matter jurisdiction because plaintiff has failed to exhaust her state administrative remedies. For the reasons set forth below, defendant's motion to dismiss is granted.


 A. The IDEA

 The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing handicapped children with a "free appropriate public education." 20 U.S.C. § 1400(c); Mrs. W v. Tirozzi, 832 F.2d 748, 750 (2d Cir. 1987). To safeguard the right to a free appropriate public education, the IDEA imposes elaborate procedural requirements to which states receiving federal financial assistance must adhere. See 20 U.S.C. § 1415. The handicapped child's parents and teachers and a representative of the school district must work together to formulate an individual education program ("IEP") tailored to the needs of the student. See 20 U.S.C. §§ 1401(a)(19), 1414(a)(5), 1415(b). The IEP must be reviewed at least annually. See 20 U.S.C. § 1414(a)(5).

 B. Facts

 Against this statutory backdrop, we turn to the circumstances of this particular case. Treating the allegations in the complaint as true, as we must in considering a motion to dismiss, the plaintiff in this action is the mother of a 14-year-old child, Marcus, who has been classified as learning disabled under the IDEA and corresponding New York state laws. In 1992, when plaintiff resided in the Dover Union Free School District, Marcus was evaluated by Dr. Leonore Rivera, who recommended that Marcus receive language training from a teacher trained in the Orton-Gillingham method to remediate the reading and writing difficulties caused by his dyslexia. Marcus thereafter received Orton-Gillingham instruction in the Dover School District.

 In early February 1994, plaintiff moved into the Northeast Central School District (the "District") where she and Marcus currently reside. On March 10, 1994, the District's Committee on Special Education (the "CSE") met to consider Marcus's placement. The written IEP that the CSE offered to Marcus did not mention Orton-Gillingham instruction. Nevertheless, Marcus continued to receive Orton-Gillingham tutoring at his new school in the District.

 On September 6, 1994, the CSE met to consider Marcus's IEP for the 1994-95 school year. Plaintiff was informed that the District would no longer provide Orton-Gillingham instruction for Marcus, because the District's only teacher trained in that method was going on maternity leave. On September 12, 1994, plaintiff requested an impartial hearing to contest the CSE's decision and to determine an appropriate placement for Marcus. Plaintiff also requested that the Orton-Gillingham tutoring, which she contended was part of Marcus's then current placement, be restored during the pendency of the review proceedings. On September 26, 1994, the CSE chairperson refused to reinstate the Orton-Gillingham sessions on the ground that they were not part of Marcus's then current placement because they were not written into his IEP.

 On November 4, 1994, the impartial hearing convened. The impartial hearing officer (the "IHO") first addressed the parties' preliminary disagreement concerning Marcus's then current placement. The IHO ruled that he did not have jurisdiction over questions of pendency placement. Plaintiff requested an adjournment of the proceeding to seek review of that determination.

 Plaintiff filed suit in this court on January 19, 1995, seeking immediate relief on the issue of Marcus's placement during the pendency of the state administrative proceeding challenging his 1994-95 IEP. In late February 1995, plaintiff and the District agreed to request an independent recommendation for Marcus's placement from Dr. Judith R. Birsch. Pursuant to that agreement, both the federal court and state administrative proceedings were stayed until Dr. Birsch completed her evaluation. During the entire 1994-95 school year, therefore, Marcus received no Orton-Gillingham instruction. Plaintiff alleges that throughout that time Marcus's academic performance and attitude deteriorated.

 On June 12, 1995, Dr. Birsch issued her report, which recommended that Marcus be enrolled in the Kildonan School for at least two of his remaining years of high school. Kildonan is a local private school that specializes in teaching learning disabled children and would provide Marcus with intensive Orton-Gillingham instruction. Failing enrollment in Kildonan, Dr. Birsch recommended that Marcus receive private language instruction during the summer and made suggestions for improving the effectiveness of his public school education. The District rejected Dr. Birsch's recommendations on June 27, 1995.

 Plaintiff then filed an amended complaint seeking injunctive and declaratory relief under 42 U.S.C. § 1983 and the IDEA, 20 U.S.C. § 1400 et seq. Plaintiff asks us, inter alia, to declare that the District's refusal to provide Marcus with Orton-Gillingham instruction violated 20 U.S.C. § 1415(e)(3) by failing to maintain Marcus in his then current placement. Plaintiff also requests that we issue a preliminary injunction ordering the ...

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