The opinion of the court was delivered by: SEYBERT
In the present case, plaintiffs Brian Ross Berkowitz, Michael Andrew DiGuardia, Joseph Horan, and Christopher Saperstein, all minor autistic children enrolled in the New York City public school system, by their respective parents and guardians, seek injunctive relief and monetary damages against defendants The New York City Board of Education [the "Board"] and The New York State Education Department [the "SED"], pursuant to the following statutes: (i) the Individuals with Disabilities Education Act ["IDEA"], 20 U.S.C. § 1400 et seq., (ii) section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, (iii) 42 U.S.C. § 1983, and (iv) section 4401 et seq. of the New York Education Law. The plaintiffs contend that the defendants violated their due process rights by failing to conduct impartial hearings concerning their placements in the New York City public schools. Specifically, the plaintiffs allege that the defendants violated their procedural rights in the following ways: (i) by failing to assign impartial hearing officers pursuant to a rotational system; (ii) by failing to maintain the original handwritten decisions issued by the impartial hearing officers retained by the Board; (iii) by permitting payment to be made to impartial hearing officers retained by the Board; and (iv) as a result of the Board's requirement that each impartial hearing officer be an attorney. The plaintiffs have fashioned their complaint as a putative class action which purports to assert claims on behalf of similarly situated persons.
Pending before the Court are two separate motions to dismiss the complaint that have been filed by the Board and the SED. The Board's motion is unopposed by the plaintiffs. In addition, the plaintiffs, among other things, have improperly served the SED, and fail to address the SED's contention that the statute of limitations has expired.
The plaintiffs are preschool-age autistic children, residing in the City of New York, who are in need of special education, to which they are entitled under IDEA, and the New York Education Law. See Compl. PP 5-8. The Board's Committee on Preschool Education ["CPSE"] recommended placements for these children with which their parents disagreed. See id. P 32.
The respective plaintiffs appealed the CPSE's recommendations of placement to the Board's Impartial Hearing Office. See id. P 35. In each instance, the attorney for the plaintiffs requested that a "truly impartial hearing officer be appointed to conduct the hearing and that the hearing officer be appointed pursuant to the New York Code of Rules and Regulations, specifically an Emergency Rule implemented September 28, 1993." Id. P 35. The plaintiffs allege that as of the date of the filing of their complaint in this action, the Board has not responded to their request that impartial hearing officers ["IHOs"] be assigned on a "rotational" basis. See id. P 36.
The plaintiffs appealed the IHO's decision not to recuse herself to the SED. By decision dated July 28, 1994, the State Review Officer, Daniel W. Szetela, affirmed the IHO's decision not to recuse herself. See id. P 3. The State Review Officer found that the method used by the defendant Board to select impartial hearing officers did not violate § 4404(1) of the New York Education Law, did not violate plaintiffs' due process rights under the IDEA, and that the hearing officer was impartial. See Pls.' Mem. of Law, Ex. 2, at 6-8 (No. 94-14, decision of State Review Officer Daniel W. Szetela dated July 28, 1994). The State Review Officer did not address the issue of the legality of the requirement that IHOs be attorneys, as he found that this issue was not appropriately raised in the petition or preserved for review. See id. at 3-4. Accordingly, both defendants concede that the plaintiffs have exhausted their administrative remedies, except for their claims concerning the requirement that IHOs be attorneys.
In their complaint, the plaintiffs allege that both the Board and the SED violated their due process rights as a result of four separate Board policies or practices. First, plaintiffs assert that the Board's system of selecting IHOs violates state law and IDEA's guarantee of due process in the educational placement of children with disabilities. See Compl. PP 32-40. Second, plaintiffs complain that Board employees, after typing up IHO decisions from handwritten originals, sign the typed decisions after the IHOs review them and then destroy the originals. See id. PP 42-52. Third, plaintiffs contend that because the IHOs are paid by the Board, they are de facto "employees" of the Board, and therefore are prohibited from conducting such hearings by 20 U.S.C. § 1415(b)(2).
See Compl. PP 54-62. Fourth, plaintiffs assail the Board's requirement that IHOs be attorneys. See id. PP 64-65. In addition to asserting claims under IDEA and the New York Education Law, the plaintiffs further contend that the above four claims also give rise to separate causes of action, and remedies, under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. See Compl. PP 66-67 (Rehabilitation Act claim), 68-69 (§ 1983 claim).
I. Standards Governing Motion to Dismiss
A district court should grant a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. Id. at 249, 109 S. Ct. at 2906; see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (citing Fed. R. Civ. P. 8(a)(2) to demonstrate liberal system of 'notice pleading' employed by the Federal Rules of Civil Procedure).
II. Defendant Board's Motion to Dismiss the Complaint
Defendant New York City Board of Education moves to dismiss the plaintiffs' complaint in its entirety, and asserts six separate grounds therefor. This motion is unopposed by the plaintiffs, and a review of the Court file reveals that the plaintiffs repeatedly have been informed by each of the defendants of their failure to serve a response to this motion. Because the plaintiffs are represented by counsel, and have received ample notice of the pendency of the Board's motion against them, the Court hereby GRANTS by default the Board's motion to dismiss the ...