mutually agreeable IEP for the 1995-96 school year without lengthy administrative proceedings. Plaintiff contends that it may take many months even to obtain a ruling at the state level on Marcus's pendency placement. Therefore, even if that ruling is favorable, plaintiff fears that most of the 1995-96 school year could pass before Marcus receives the type of instruction that she feels is crucial to his academic success.
We certainly appreciate the gravity of Marcus's situation, as plaintiff has described to us the deterioration of his attitude and academic performance over the last year. Nevertheless, there is no demonstrated pattern of inordinate delay by the state administrative officials in this case. Instead, most of the delay has resulted from plaintiff's and the District's agreement to present Marcus's situation to an impartial third party for evaluation--a process that took almost four months to complete. Another two months passed between the plaintiff's request for an adjournment of the state proceedings to seek review of the IHO's ruling and the filing of this suit. Neither party has explained what, if anything, occurred during that period of time. Hence, the delays encountered so far in this case are the result of the parties' attempts to bypass the state procedures, rather than any breakdown in the state's due process mechanism. We see no reason to conclude in this case that the state officials have persistently failed to render expeditious decisions on pendency placement issues. Therefore, the Frutiger Court's observation is inapplicable to this case.
Pursuing an administrative appeal will of course take time. Nevertheless, conclusory allegations that the state procedures are overly cumbersome and ineffective are not sufficient to support a finding of futility. See Vander Malle, 667 F. Supp. at 1032. Plaintiff has provided us with nothing more concrete. On the contrary, in plaintiff's previous pendency placement appeal to the Commissioner, she received a decision less than two months after she filed her notice of intent to appeal. See Appeal of a Student with a Disability, 33 Ed. Dept. Rep. 269 (1993) (notice of intent to appeal filed on September 17, 1993; Commissioner's decision issued on November 10, 1993).
Finally, plaintiff contends that exhaustion is not required where its practical effect would be to deny to the aggrieved party the precise interim relief that she seeks. Although plaintiff cites no cases to support this contention, her argument seems to be based on Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir. 1982). In this case, however, requiring plaintiff to exhaust her state remedies may well result in her obtaining a favorable ruling on Marcus's pendency placement and a restoration of his Orton-Gillingham instruction pending the outcome of her challenge to his IEP. See, e.g. Appeals of Students with Disabilities, 33 Ed. Dept. Rep. 271 (1993) (ordering school district to continue providing resource room services at parochial schools pending determination of whether District's plan to provide resource room services at nearby public schools constituted change in children's programs that parents could challenge). Accordingly, we do not agree with plaintiff that exhausting her administrative remedies would necessarily be futile.
The only remaining ground on which plaintiff's failure to exhaust her administrative remedies might be excused is that any administrative relief she might obtain would be inadequate.
Section 1415(e)(3) of the IDEA and N.Y. Educ. Law § 4404(4) provide that during the pendency of administrative proceedings challenging the placement of a handicapped child, that child shall remain in his or her then current placement, unless the parent and the District agree on an alternative interim placement. As described above, the Commissioner clearly has the authority to determine the then current placement and order it implemented.
When plaintiff originally filed suit, she argued that Marcus's then current placement consisted of the services described in his IEP plus the Orton-Gillingham instruction he had been receiving. Plaintiff has since filed an amended complaint and an amended application for a preliminary injunction contending that, because of the year that Marcus has spent without any Orton-Gillingham tutoring, such a placement would not adequately meet his needs. Instead, plaintiff seeks a pendency placement at the Kildonan School, financed by the District. It may be that the Commissioner does not have the authority to order the relief plaintiff now seeks, which was not by any stretch of the imagination Marcus's current placement at the time his mother commenced the administrative proceedings challenging his IEP. However, plaintiff has failed to convince us that a pendency placement at the Kildonan School is the only adequate interim remedy. We are confident that it is within the power of the Commissioner to order a pendency placement that is adequate under the circumstances. Therefore, we hold that plaintiff does not satisfy any of the exceptions to the IDEA's exhaustion requirement. Accordingly, we lack subject matter jurisdiction over this action.
Finally, plaintiff argues that the District is barred by laches from raising the exhaustion argument at this point in the case. Plaintiff notes that this action has been pending since January 1995, and that the District is now arguing for the first time that it should be dismissed for lack of subject matter jurisdiction. The action was stayed, however, by agreement of both parties pending completion of the mediator's report. The District was not required to take any action during that time. Less than two weeks after rejecting the mediator's recommendations, the District filed this motion to dismiss in lieu of answering the complaint. Under these circumstances, we see no basis for concluding that the District has acted in bad faith.
Plaintiff's counsel has done a fine job of convincing us of the seriousness of Marcus's situation and of the need for swift resolution of his pendency placement. We sincerely hope that, once invoked, the state administrative appeals process will function efficiently and fairly on his behalf. We cannot, however, permit parents, however frustrated and concerned they may be, to circumvent the IDEA's exhaustion requirement absent a clear showing that the exhaustion of available administrative remedies would be futile or inadequate. To do so would "open the door to litigants dissatisfied with educational placement without first affording educators the opportunity to correct any alleged errors." Hope, 872 F. Supp. at 22.
For the foregoing reasons, defendant's motion to dismiss for lack of subject matter jurisdiction is granted.
Date: July 24, 1995
White Plains, New York
William C. Conner
Sr. United States District Judge