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.
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 ...