asking about the status of the decision; (2) on November 4, 1999,
roughly a month and a half after Alpert's decision was due, the
School District amended a pending complaint against Alpert under
8 N.Y.C.R.R. 220.21 to include her failure to issue a timely
decision; (3) on January 25, 2000, nearly three months after the
School District filed its amended complaint, the SED admonished
Alpert for her failure to adhere to the parties' deadline and
ordered her to issue a decision immediately; (4) on February 14,
2000, in response to Plaintiff's own 200.21 complaint dated January 31,
2000, Defendant Levay recommended that Plaintiff file a Section 310
appeal seeking an order from the Commissioner that Alpert issue an
immediate decision; (5) on March 8, 2000, the School District sent Levay
a letter informing her that Alpert as of that date had still not
rendered a decision; Levay responded by letter dated March 28, 2000
recommending that the School District file a joint Section 310 appeal
with Plaintiff; (6) on April 17, 2000, the School District sent
Plaintiff a letter inquiring as to her willingness to join in such
appeal; (7) on April 27, 2000, the School District filed a Section 310
appeal on its own, which was decided in a June 12, 2000 order from the
Commissioner that Alpert issue a decision in 10 days; and (8) on June 28,
2000, after Alpert failed to do so, the Commissioner issued an order
revoking Alpert's IHO certification.
These responses were insufficient for the SED to fulfill its
responsibility to Plaintiff and Jacqueline under the IDEA. The SED took
approximately three months to respond to the School District's 200.21
complaint. And even assuming arguendo that this passage of time could be
deemed not to have violated Plaintiff's rights under the IDEA, I
conclude, like Judge Parker in Evans, that an unenforceable
"admonishment," such as the Commissioner issued to Alpert pursuant to 8
N YC.R.R. 200.21, was inadequate for the SED to live up to its
affirmative duty to ensure a timely decision from Alpert. The State's
subsequent responses were similarly deficient. In doing nothing more
than advising Plaintiff and the School District to undertake an
administrative appeal, the SED did precisely what
34 C.F.R. § 500.311(a) and the case law prohibit — i.e.,
reassigned the burden of ensuring a timely decision from itself to
Finally, Plaintiff claims that the SED violated the IDEA's due
process requirements by "denying [Plaintiff] notice of prior and
pending complaints regarding the competence of the appointed hearing
officer." (Am. Cplt. ¶ 36.) Plaintiff appears to have abandoned this
argument, as she has not addressed it in her Memorandum of Law in
Opposition to Summary Judgment. In any event, she has not identified
any provision in the IDEA or Department of Education regulations
incorporating such a notice requirement into the Act's due process
safeguards. This contention is therefore dismissed.
For the above reasons, Plaintiff is granted summary judgment, and
her request for a declaratory judgment that the SED violated her and
Jacqueline's due process rights under the IDEA is granted.
"The IDEA broadly authorizes a district court to `grant such relief as
the court determines is appropriate.'" Muller v. Committee on Special
Education of the East Islip Union Free Sch. Dist., 145 F.3d 95, 104 (2d
Cir. 1998) (quoting 20 U.S.C. § 1415(e)(2) (now §
1415(i)(2)(B)(iii)). Accordingly, I order the SED to ensure that an IHO
renders a decision on Plaintiff's complaint regarding Jacqueline's
1998-99 IEP within 10 business days of this memorandum decision.
(b) Systemic Violation Plaintiff also asks the Court for a judgment
declaring that the State's administrative review procedures are
generally inadequate, on a system-wide basis, to satisfy the State's
obligations under the IDEA to see that IHO decisions are rendered in a
timely fashion. Plaintiff has submitted affidavits from three parents
administrative delays similar to those established by Plaintiff,
as well as six decisions from the Commissioner under Section
310, with dates ranging from March to December 1999, ordering IHOs who
had violated the 45-day rule to render immediate decisions.*fn2
While I sympathize greatly with the frustration of these parents at
what is, in their cases, an appalling administrative shortcoming,
Plaintiff's evidence, which consists of a small number of procedural
violations over the span of only nine months, is nowhere near sufficient
to support the sweeping finding that she requests. Though it is clear
that the State has failed to provide due process to Jacqueline under the
IDEA, I cannot conclude on the record before me that the SED's
procedural framework violates the statutory due process rights of every
child in every IDEA due process hearing conducted before the SED.
However, Plaintiff's claim of systemic failure is appropriately brought,
and Plaintiff, as a party aggrieved by the SED's procedures, is a proper
plaintiff to bring it if she wishes to do so as a class representative.
Plaintiff has twenty (20) days to amend her complaint to assert
class-wide claims if she wishes to do so. Assuming that she chooses to
pursue her claims on behalf of a class, the Court will order expedited
discovery and a swift adjudication of this issue of importance to
thousands of children.
(3) Tuition Reimbursement Plaintiff asks this Court to order the
School District to reimburse her for tuition she has expended for
Jacqueline's placement at the Kildonan School beginning in January 1999
and running through the pendency of this action. Under § 1415(e)(2)
(now § 1415(i)(2)(B)(iii)), district courts have the power "to order
school authorities to reimburse parents for their expenditures on
private special education for a child, if the court determines that such
placement, rather than the school district's proposed IEP, is proper."
Muller, 145 F.3d at 104. This determination requires a court to consider
(1) whether the school district's placement pursuant to its IEP is
inappropriate, and (2) whether the private placement desired by the
parents is appropriate. See id. at 105.
The School District has moved to dismiss this claim for failure to
exhaust administrative remedies. Technically, the District is correct.
Under § 1415 of the IDEA, courts sit to review administrative
decisions. Here, there is no decision to review. Moreover, neither party
has provided the Court with any information on the antecedent questions
of the appropriateness of the School District's IEP or Jacqueline's
placement at Kildonan. Thus, I cannot make a determination on
However, I decline to dismiss this claim. If the IHO does not make
a decision within ten days, each side has ten days to supplement the
record with whatever information may be pertinent to Plaintiff's
appeal and I will decide the matter in the first instance, on the
ground that it would be futile to await further developments.
(4) Defendants Mills and Levay — Procedural Due Process Violation
Plaintiff's third claim is asserted solely under 42 U.S.C. § 1983 for
violation of Plaintiff's and Jacqueline's right to procedural due
process under the Fourteenth Amendment. It is well settled, however,
that a plaintiff asserting a constitutionally based § 1983 claim for
procedural violations of the IDEA must establish a constitutional
violation "outside the scope of the IDEA." See Evans, 930 F. Supp. at
102-03 (citing Bonar v. Ambach, 771 F.2d 14, 18 (2d Cir. 1985)). In
other words, a plaintiff cannot prevail on a § 1983 claim for
of procedural due process under the Fourteenth Amendment if the
violations for which she seeks redress are actionable under the IDEA.
Here, Plaintiff has neither articulated nor established a denial of
any process due to her that does not already fall within the ambit of
§ 1415 of the IDEA. Accordingly, her § 1983 claims against the
individual Defendants must be dismissed. I therefore need not address
the State Defendants' remaining arguments that Plaintiff's § 1983
claims are barred under the Eleventh Amendment and that Mills and
Levay are qualifiedly immune.
(5) Attorneys' Fees Plaintiff also seeks an award of attorneys'
fees under 20 U.S.C. § 1415(i)(3)(B), which provides:
In any action or proceeding brought under this
section, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to
the parent of a child with a disability who is the
20 U.S.C. § 1515(i)(3)(B). Plaintiffs may be considered
"prevailing parties" under this subsection if they "succeed on any
significant issue in litigation which achieves some of the benefit the
parties sought in bringing the suit." See G.M. v. New Britain Bd. of
Educ., 173 F.3d 77, 81 (2d Cir. 1999) (quoting Texas State Teachers
Assoc. v. Garland Independent Sch. Dist., 489 U.S. 782 (1989)).
Additionally, an "action or proceeding" for which counsel fees are
recoverable includes both administrative and judicial actions. See Brown
v. Griggsville Community Unit Sch. Dist. No. 4, 12 F.3d 681, 684 (7th
Here, Plaintiff has prevailed on her central claim by securing from
this Court a declaration that her procedural rights under the IDEA were
violated, and an order that the State provide her with a decision on
Jacqueline's IEP in short order. Accordingly, Plaintiff is entitled to
reimbursement from the State for attorneys' fees expended on SED
administrative proceedings and this litigation.
(1) Plaintiff's application for a declaratory judgment that the SED
violated IDEA due process requirements as to Plaintiff and her daughter
is granted, and the SED is hereby ordered to ensure that a decision is
issued on Plaintiff's objection to Jacqueline's 1998-99 IEP within 10
days of this decision.
(2) Plaintiff's application for attorneys' fees in connection with
the administrative proceedings below and this action is granted.
(3) Plaintiff's IDEA claim against the School District regarding the
adequacy of Jacqueline's 1998-99 IEP and for tuition reimbursement, as
well as the School District's motion for summary judgment on that claim,
is held in abeyance.
(4) The State Defendants' motion for summary judgment is denied with
respect to so much of Plaintiff's second claim as alleges a system-wide
IDEA violation, and granted as to the entirety of Plaintiff's third