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June 7, 2000


The opinion of the court was delivered by: Pauley, District Judge.


Plaintiff R.B. filed this action on behalf of her minor child, L.B., against defendants Board of Education of the City of New York ("New York City Board"), Board of Education of the Community School District 6 ("Community Board"), and Committee for Special Education for Community School District 6 ("CSE") (collectively "defendants") alleging violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983"); the Rehabilitation Act of 1973, 29 U.S.C. § 792 et seq. ("Section 504"); the Individuals with Disabilities Education Act, 42 U.S.C. § 1400 et seq. ("IDEA"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); New York Education Law § 4401 et seq.; and New York State Constitution Article XI, § 1. Defendants move to dismiss each of plaintiff's claims pursuant to Fed. R.Civ.P. 12(b)(6) on the following grounds: (1) plaintiff has not exhausted her administrative remedies; (2) money damages are not available under Section 1983 for violations of the IDEA; (3) plaintiff has not pled sufficient facts to state a claim for municipal liability under Section 1983; and (4) plaintiff has failed to allege bad faith or gross misjudgment for purposes of her Section 504 and ADA claims. For the reasons set forth below, defendants' motion to dismiss is denied in its entirety.

Factual Background

The following facts are alleged in plaintiff's complaint and assumed to be true for purposes of defendants' motion to dismiss. R.B. is the parent and natural guardian of L.B., a minor, on whose behalf she has filed this action. L.B. is a fourteen year-old student residing within Community School District 6 in New York City. (Compl. ¶¶ 8, 9) In 1993, L.B. was tested and thereafter classified as speech impaired*fn1 and found to meet the criteria for a disabled child under the IDEA. See 20 U.S.C. § 1401(3). R.B. did not and does not contest this classification. (Compl. ¶ 12)

Under state and federal statutes, the CSE is required to develop, at least annually, an Individualized Education Program ("IEP") for each child classified as disabled in its school district. See 20 U.S.C. § 1414(d); N.Y.Educ.Law § 4402. The IEP must state the child's present functioning level, articulate short and longterm goals and objectives, and identify the special education programs and related services (such as speech, physical and occupational therapy and counseling services) that the child is entitled to receive. See 20 U.S.C. § 1414(d)(1)(A).

In August 1995, CSE developed an IEP for L.B.'s 1995-96 school year. The 1995 IEP provided that L.B. would participate in the Modified Instruction Services I ("MIS-I") program, which would afford him both special education instruction in a self-contained class and opportunities for inclusion in the regular education classroom. The IEP also provided that L.B. would receive speech and language therapy and individual counseling. (Compl. ¶ 15)

During the 1995-96 school year, L.B. became increasingly aggressive in class. On February 6, 1996, L.B.'s teacher recommended that CSE substantially change L.B.'s IEP because she believed L.B. needed a more structured and restrictive environment than that provided by the MIS-I class. (Compl. ¶ 16) Almost two months later, in April 1996, CSE performed psychological and educational evaluations on L.B. in accord with his teacher's recommendation. (Compl. ¶ 17)

Defendants failed to contact any private schools to arrange for L.B.'s placement. (Compl. ¶ 21) During July and August 1996, R.B. called employees of CSE and of the New York City Board to determine the status of L.B.'s placement, but her calls were not returned. (Compl. ¶ 22) When L.B. planned to return to school in September 1996, R.B. was told that there was no private educational placement for her son. (Compl. ¶ 23)

In late September 1996, after the academic school year had commenced, defendants placed L.B. in a Modified Instructional Services II ("MIS-II") program at a public school pending placement in a private facility. However, in drafting the 1996 IEP only a few months earlier, CSE had rejected the MIS-II placement as inappropriate for L.B. (Compl. ¶ 24) After attending only four or five days of the MIS-II program, L.B. was suspended.

On October 31, 1996, CSE reconvened to develop an Interim Service Plan ("ISP") as a temporary measure until L.B. could be placed in a private facility. The ISP provided for two hours of home instruction per day, speech and language therapy, and individualized counseling. R.B. consented to the ISP as a temporary measure only. (Compl. ¶ 27)

Defendants failed to provide services consistent with the ISP. (Compl. ¶ 28) As a result, R.B. requested an impartial hearing pursuant to the IDEA. See 20 U.S.C. ¶ 1415(b)(2). At a January 10, 1997 hearing, CSE admitted that it had not acted properly. (Compl. ¶ 31) The hearing officer found that defendants' conduct was "tantamount to gross neglect" and had adversely impacted L.B.'s "chance of getting any kind of satisfactory education." (Compl. ¶ 30) The hearing officer ordered: (1) that the New York City Board pursue placement of L.B. in a private facility in accord with his 1996 IEP; (2) that the home instruction set forth in the ISP be implemented immediately and increased to four hours per day; and (3) that authorization for provision of related services be issued to L.B. for speech and language therapy and counseling services. (Compl. ¶ 32)

Defendants failed to implement the hearing officer's order. R.B. repeatedly called defendants to arrange for home instruction and provision of related services; defendants did not return her calls or address her concerns. (Compl. ¶ 33) On January 28, 1997, almost three weeks after the hearing, L.B. finally began receiving home instruction. (Compl. ¶ 35) On March 14, 1997, and after intervention of counsel on L.B.'s behalf, defendants authorized L.B. to receive the related services mandated by the hearing officer. (Compl. ¶ 36) Thus, except for the four or five days prior to his suspension, L.B. was excluded from the classroom setting for the entire 1996-97 school year and only received at-home services during the later portion of the 1996-97 school year.

Plaintiff contends that L.B. became a recluse, refused to participate in social activities outside his house, gained substantial weight, and regressed educationally and emotionally as a result of his total exclusion from school caused by defendants' failure to seek a private placement for him in accord with his 1996 IEP. Plaintiff alleges that as a direct result ...

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