proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Under § 1415(e)(2), the Court's review is limited to two issues. First, the Court must determine whether the State complied with the procedures set forth in the Act and second, whether the IEP was reasonably calculated to enable the child to receive educational benefits. Briggs, 882 F.2d 688, 693 (2d Cir. 1989) (citing Rowley, 458 U.S. at 206-07).
Recognizing that specialized administrative officers conducting the necessary review are better equipped than federal courts to make determinations as to educational matters, under IDEA the reviewing District Court must give "due weight" to the record of the impartial hearing. Mavis v. Sobol, 839 F. Supp. 968, 986 (N.D.N.Y. 1994) (quoting Rowley, 458 U.S. at 206); see also Briggs, 882 F.2d at 693. By failing to give the proper deference to the determinations made below, courts run the risk of substituting their views of proper educational policy for those of the administrative officers, thus seriously undermining the procedural protections established by Congress. See Rowley, 458 U.S. at 206-07
In support of its motion for summary judgment the defendant advances two arguments. Defendant first contends that plaintiffs failed to exhaust their administrative remedies with respect to their due process claims and second, that plaintiffs failed to make formal objections, pursuant to 20 U.S.C. sec. 1415(b)(1)(E), to the CSE's recommendations for Jocelyn for 1991-92, 1992-93 and 1993-94 in a timely fashion and therefore any claims relating to those years should be barred by the equitable doctrine of laches.
In support of its motion for summary judgment on its counterclaim, defendant submits that the SRO erred in finding the CSE's recommended program for Jocelyn for 1994-95 inappropriate.
In arguing that plaintiffs' due process claims are not properly before this Court because of plaintiffs' failure to exhaust their administrative remedies, defendant misconstrues the exhaustion doctrine. Exhaustion of administrative remedies requires simply that where a statute provides for an administrative remedy, that remedy must be sought before seeking judicial review. McKart v. U.S., 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969); Able v. U.S., 88 F.3d 1280, 1288 (2d Cir. 1996) (citations omitted).
While there is no doubt that there is an exhaustion requirement under IDEA, Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992); Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981), the record indicates that the Phillips brought the issue of due process violations to both the IHO and the SRO and thereby satisfied the exhaustion requirement of the Act.
Consequently, summary judgment on this ground is denied.
While there is no express statute of limitations prescribing the time within which parents must assert claims under IDEA, both the IHO and the SRO denied the plaintiffs' claims (both procedural and substantive) under the Act for the school years 1991-92, 1992-93 and 1993-94 relying on the doctrine of laches. Laches, an equitable defense which may be asserted in situations in which there is no statutory time-bar, occurs when a party, by omission or neglect, fails to assert a right in a timely fashion and that lapse of time causes prejudice to the adverse party. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187 (2d Cir. 1996).
Consistent with the equitable nature of laches, courts typically decline to apply the doctrine when the party against whom it would be applied can show good cause as to why it should not be applied. Id. at 191. In the case at bar, Plaintiffs assert that this good cause exists because (1) they were not properly informed of their rights to have a complaint heard by an IHO as the materials they received from the Board outlining a parent's due process rights under IDEA were inadequate and (2) they were affirmatively misled by the then principal of Furnace Woods as to their due process rights. The Phillips contend that these two factors taken individually or in combination establish good cause for their failure to bring a complaint to the IHO between 1989 and January 1995.
In considering this issue, the SRO concluded that the information regarding due process rights was "adequate to advise them of their right to seek review of any determination by the CSE . . . ." Furthermore, the SRO noted that the Phillips have conceded that they consulted an attorney in 1992 or 1993 about their rights under the Act. Having reviewed the due process materials, including, A Parent's Guide to Special Education for Children Ages 5-21: Your Child's Right to an Education in New York State (July 1992), given to plaintiffs after each IEP was prepared, I concur that they were adequate to provide the Phillips notice of their right to make a formal complaint to an IHO.
Assuming arguendo that the due process notices were insufficient or misleading in some manner, I find that the fact that the Phillips had consulted an attorney familiar with IDEA as early as 1992 or 1993 actually made them, or actually should have made them, aware of their procedural rights under IDEA.
In order to prevail on a defense of laches, a defendant must prove not only untimeliness in asserting a right but also that plaintiff's unreasonable delay prejudiced the defendant. Conopco, 95 F.3d at 192 (2d Cir. 1996); Tri-Star Pictures, Inc. v. Leisure Time Productions, B.V., 17 F.3d 38, 44 (2d Cir.), cert. denied, 130 L. Ed. 2d 396, 115 S. Ct. 484 (1994).
Here, the Board asserts that prejudice lies in not being afforded the opportunity -- close in time to the preparation of the IEPs -- to make changes in the program recommended for Jocelyn, such changes which might have obviated the need for her to attend private school, and also in having to defend IEPs developed many years earlier.
The IHO, which the Act itself recognizes is better-situated than this Court to evaluate the work of educational agencies, found that the Board was prejudiced by plaintiffs' delay (32 months with respect to the May 1992 IEP, 31 months with respect to the June 1992 IEP and 17 months with respect to the August 1993 IEP) in making a formal complaint. Construing all facts and making all reasonable inferences in favor of the plaintiffs, see Ramseur, 865 F.2d at 465, and paying the appropriate deference to the administrative officers below, I find no reason to disturb the finding that plaintiffs' claims for reimbursement for 1991-92, 1992-93 and 1993-94 should be denied. Accordingly, defendant's motion for summary judgment is granted on the issue of whether plaintiffs' claims under IDEA are barred for the school years 1991-92, 1992-93 and 1993-94.
Claims for 1994-95
In its counterclaim, defendant asserts that the SRO's conclusion that the Board's recommended program for Jocelyn for 1994-95 was inappropriate should be reversed, and have moved for summary judgment on the claim.
Both the IHO and the SRO found facts sufficient to support a conclusion that the Board failed to provide an appropriate program for Jocelyn for 1994-95. In making that determination, the IHO concluded:
By that time [May 1992, when a IEP was first prepared for Jocelyn] J. was already significantly behind her classmates in reading and spelling and there was no clear method by which her remediation was to be accomplished in the one period per day J. was to spend in [the] Resource Room. I find that less than the required efforts were made by the CSE to determine the specialized individual instruction needs which J. required. I find it noteworthy that no medical assessment appears in the record. Its omission is significant to me in view of the important question as to how J.'s needs should be remediated.
The IEP prepared for Jocelyn for 1994-95 differed only minimally from the one prepared in May 1992 and in terms of "specialized individual instruction" it did not go beyond the recommendation of one period per day in the resource room. It is therefore clear that there are issues of material fact as to whether the deficiencies found by the IHO with respect to the May 1992 IEP were also present in the August 1994 IEP. Therefore, defendant's motion for summary judgment on this issue is denied.
With respect to 1994-95, the Phillips seek a reversal of the SRO's determination that Windward was not the least restrictive appropriate alternative for Jocelyn's education. Once it is determined that a school district has failed to provide an appropriate education for a child as required by the Act, parents may only receive tuition reimbursement for a private school if that placement is found to be appropriate for the child. Carter, 510 U.S. at 15.
In considering whether a placement is appropriate, the strong statutory preference in favor of "mainstreaming" must be respected. Briggs, 882 F.2d at 692. ("While mainstreaming is an important objective, we are mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students.") In reversing the IHO's finding that Windward was an appropriate placement for Jocelyn, the SRO determined, "there is no basis in the record for concluding that . . . [Jocelyn's] needs could not have been met in a less restrictive setting than the Windward School."
While limited evidence was submitted to the IHO on the issue of the appropriateness of Windward for Jocelyn, he concluded, based on the testimony of Dr. Sylvia Epstein, a psychologist who is employed as a consultant to Windward, general descriptive materials about the program offered by Windward, Jocelyn's achievement level before attending Windward and Jocelyn's success at Windward, that there was sufficient evidence to conclude that Windward was an appropriate placement. Although the IHO did not make a specific finding that Windward was the "least restrictive" appropriate placement for Jocelyn, I find no reason to assume that he was not aware of the preference for mainstreaming when he concluded that Windward was an appropriate placement.
Considering the conclusion made by the IHO on the issue of appropriateness of Windward and the fact that the parties have the right to submit additional evidence to this Court, see 20 U.S.C. § 1415(e)(2), I find, giving due weight to the determinations made below, that a motion for summary judgment is an inappropriate vehicle to decide this issue. Because issues of material fact remain as to whether Windward was an appropriate placement, considering the Act's preference for mainstreaming, for Jocelyn, defendant's motion for summary judgment on this issue is denied.
For the reasons stated above, defendant's motion for summary judgment is granted in part and denied in part. The parties are ordered to submit to this Court any additional evidence, see 20 U.S.C. § 1415(e)(2), necessary to the Court's decision regarding substantive and procedural claims for 1994-95 within sixty (60) days of the entry of this order.
Barrington D. Parker, Jr.
Dated: White Plains, NY
January 2, 1997