In this case, the plaintiff has presented sufficient evidence
to survive summary judgment with respect to his claim for
compensatory damages under the Rehabilitation Act. The plaintiff
has presented evidence that the defendant school officials failed
to develop IEP's for the plaintiff, developed several IEP's that
were determined to be inappropriate for his educational needs,
and failed to provide him with certain special education
services. Such conduct, if proven, may constitute deliberate
indifference to the strong likelihood that plaintiff's rights
were being violated.
The Second Circuit has not yet decided whether punitive damages
are available under § 504. However, "several Courts of Appeal
have held that the Supreme Court's decision in Franklin v.
Gwinnett County Public Schools [503 U.S. 60], 112 S.Ct. 1028
(1992), implies that the [Rehabilitation] Act should be read as
authorizing all traditional legal and equitable remedies."
Zaffino v. Surles, No. 91 CIV. 1637(MGC), 1995 WL 146207, at *
2 (S.D.N.Y. March 31, 1995). Thus, several courts have determined
that, pursuant to Franklin, punitive damages are included in
the full panoply of remedies available under the Rehabilitation
Act, absent clear direction from Congress. See id.; see also
DeLeo v. City of Stamford, 919 F. Supp. 70, 73 (D.Conn. 1995);
Kedra v. Nazareth Hosp., 868 F. Supp. 733 (E.D.Pa. 1994); Howe
v. Hull, 873 F. Supp. 72 (N.D.Ohio 1994). In light of these
authorities, plaintiff may be entitled to recover punitive
damages from the individual defendants pursuant to § 504.*fn5
E. Qualified Immunity
The doctrine of qualified immunity "shields government
officials performing discretionary functions from being held
liable for civil damages arising from their actions which do `not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" P.C. v.
McLaughlin, 913 F.2d 1033, 1039 (2d Cir. 1990) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982)). Qualified immunity "affords protection to a government
official only from suits in his individual capacity." Id. A
decision in favor of a public official based on qualified
immunity is appropriate if: (1) the conduct attributed to him is
not prohibited by federal law; or (2) if such conduct is so
prohibited but the plaintiff's right not to be subjected to such
conduct was not clearly established at the time of the
defendant's actions; or (3) if it was not objectively reasonable
for the official to know that his conduct violated that right.
See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir.
To defeat a qualified immunity defense in an IDEA case alleging
the right to a free appropriate public education, a plaintiff
must show that the right to a free appropriate education "was
`clearly established' in more than just a general sense; that is,
it must be demonstrated that the particular actions taken by
defendants were impermissible under law established at the time."
McLaughlin, 913 F.2d at 1040. With respect to § 504
Rehabilitation Act claims, "the `clearly established law'
concerning § 504 indicates that its central purpose is to assure
that handicapped individuals receive evenhanded treatment in
relation to the nonhandicapped." Id. at 1041. (citations
omitted) (internal quotations omitted).
At the time of the defendants' action, IDEA clearly established
a requirement that an IEP addressing the specific needs of the
particular child must be developed and implemented. See
20 U.S.C. § 1414. The Rehabilitation Act's prohibition against
discrimination based upon disability was also clearly
established. See 29 U.S.C. § 794. Further, it was not
reasonable for the defendants to believe that failing to develop
IEP's which contained the required information and disciplining
the plaintiff for behavior related to his disability did not
violate his statutory rights. Therefore, the individual
defendants in this case are not entitled to qualified immunity.
FERPA provides that:
No funds shall be made available under any applicable
program to any educational agency or institution
which has a policy of denying, or which effectively
prevents, the parents of students who are or have
been in attendance at a school of such agency or at
such institution . . . the right to inspect and
review the education records of their children.
§ 1232g(a)(1)(A) (emphasis added). Plaintiff's complaint alleges
that he, through his mother, Mrs. Askew, requested access to all
of his educational records as well as a copy of defendants'
policies and procedures regarding access to and keeping of
student records, which defendant failed to provide. (See Compl.
¶¶ 82, 83.) However, these claims belong to Mrs. Askew, not the
plaintiff. As she is not a party to this lawsuit, plaintiff's
FERPA claim must be dismissed.
G. State Law Claims
The defendants argue that there is no legally recognizable
claim of breach of contract or educational malpractice with
respect to educational services. Plaintiff failed to assert any
opposition regarding these issues. Therefore, plaintiff's sixth
and eighth causes of action for breach of contract and
educational malpractice must also be dismissed.*fn6
To sum up, questions of fact exist which preclude dismissal of
plaintiff's claims for compensatory education under the IDEA from
the State Reviewing Officer's decision of November 4, 1997, and
for compensatory and punitive damages under § 1983 and § 504 of
the Rehabilitation Act. However, plaintiff cannot recover
compensatory or punitive damages under the IDEA, and therefore,
that claim must be dismissed. Finally, plaintiff's FERPA and
state law claims must also be dismissed. Defendants' remaining
arguments have been considered and rejected.
Based upon the foregoing, it is
1. Defendants' motion for summary judgment is GRANTED in part
and DENIED in part;
2. Defendants' motion is granted to the extent that
a. Plaintiff's claim for damages under the IDEA from
the January 9, 1995 hearing officer's decision is
b. Plaintiff's claims for compensatory and punitive
damages under the IDEA are dismissed;
c. Plaintiff's FERPA claim is dismissed; and