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April 20, 2001


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


No objections have been filed to the Report and Recommendation dated March 20, 2001 of Chief Magistrate Judge Joan M. Azrack, which recommends the granting of the Board of Education's motion to dismiss. The Report and Recommendation sets forth the pertinent facts and analyzes the legal principles requiring dismissal for failure to exhaust administrative remedies. The Report and Recommendation is adopted and the complaint is dismissed.



The Honorable Nina Gershon, United States District Judge, referred the above captioned matter to me for a report and recommendation on defendant's motion to dismiss plaintiff Miro Kielbus' ("Kielbus") amended complaint due to this court's lack of subject matter jurisdiction. Plaintiff Miro Kielbus brings this action on behalf of his daughter, Melissa Kielbus ("Melissa") against defendant New York City Board of Education ("BOE"). Plaintiff brings his claims pursuant to Section 504(a) of the Rehabilitation Act ("RA"), 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. For the reasons discussed below, I respectfully recommend that defendant's motion to dismiss be granted.


The plaintiff, Miro Kielbus, is the father of Melissa Kielbus and brings this suit on her behalf. Pl. Reply Br. p. 2. Melissa Kielbus, a fourth grader attending Public School 68Q in Ridgewood, New York, is hard-of-hearing. Amended Complaint ("AC") ¶ 7. Due to her disability, Melissa communicates in American Sign Language ("ASL"). Pl. Reply Br. p. 2. Plaintiff claims that based on BOE's requirements, Melissa is eligible for the Limited English Proficient ("LEP") program. AC ¶ 13-15. According to BOE policies, a child who is determined to have limited English proficiency may be entitled to bilingual education services.*fn1 Def. Reply Br. p. 2 n. 2. BOE uses a two part test to determine whether a child has limited English proficiency. AC ¶ 11. The first part of the test requires the child's parents to complete a Home Language Identification Survey ("HLIS"). AC ¶ 12. Secondly, if the HLIS indicates that a language other than English is spoken in the home, the child is given an English test called the Language Assessment Battery ("LAB"). Id. If the child scores at or below the 40 percentile on the LAB test, the student is defined as LEP and is given bilingual educational instruction. Id.

Plaintiff and his wife, Mary Kielbus, have repeatedly completed the HLIS, indicating that American Sign Language is the primary language spoken at their home. AC ¶ 13. Melissa was given the LAB test when she was 6 years old and she scored in the 16 percentile. AC ¶ 15. Despite meeting the BOE's requirements for eligibility as a LEP student, BOE excluded Melissa from the LEP program and failed to provide her with bilingual education services. AC ¶ 15.

Plaintiff alleges that BOE is violating Section 504 of the 1973 Rehabilitation Act and Title II of the Americans with Disabilities Act by excluding Melissa from participation in the LEP program and denying her equal access to educational opportunities, including general education curriculum, solely by reason of her disability. AC ¶ 16, 20, 22, 24. Specifically, plaintiff alleges that BOE repeatedly provided Melissa with ASL instructors who were not qualified, have poor attendance records and who were not properly trained. AC ¶ 19(a). Additionally, Melissa was removed from BOE's "gifted and talented" program due to her language being ASL and she was excluded from the general education classes at J47 Public School, a special public school for the deaf and hard-of-hearing. AC ¶ 19(b)(c).

Defendant argues that this court lacks subject matter jurisdiction over plaintiffs claims because plaintiff has failed to meet the exhaustion requirement found in the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400-1487 (2000). Def. Br. p. 1. Defendant argues that plaintiff's claims fall within the scope of the IDEA and plaintiff must therefore exhaust all state administrative remedies before bringing a claim under a federal statute. Def. Br. p. 4. Alternatively, defendant argues that the amended complaint must be dismissed because plaintiff failed to state a claim for relief under § 504 of the RA or the ADA.


Plaintiff filed his claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Despite plaintiffs attempts to bring his claims pursuant to those statutes, the conduct giving rise to any possible claims are actually covered by the Individuals with Disabilities Education Act ("IDEA") and must thus be analyzed under IDEA standards. Hope v. Cortines, 872 F. Supp. 14 (E.D.N.Y. 1995) (holding that despite plaintiff's attempts to bring their action pursuant to the ADA and other federal statutes, the court lacked subject matter jurisdiction due to plaintiffs' failure to exhaust the IDEA administrative processes). According to the plain language of the IDEA, plaintiff must first exhaust all administrative procedures required by the IDEA before filing in federal court. Even assuming plaintiff is able to circumvent filing under the IDEA and is allowed to bring his action under the ADA and RA, the IDEA's exhaustion requirement also applies to suits brought pursuant to the ADA and RA. 20 U.S.C. § 1415(l); Hope, 872 F. Supp. at 21. Thus, this court lacks subject matter jurisdiction due to plaintiffs failure to exhaust and the motion to dismiss should be granted. Moreover, defendant's motion to dismiss should also be granted because plaintiff does not meet any of the exceptions to the exhaustion requirement.


The IDEA requires state agencies to provide all children with disabilities a free appropriate public education that emphasizes special education and related services. 20 U.S.C. § 1400(d)(1)(A). Congress has prescribed procedural safeguards to ensure that disabled children receive the appropriate level of educational services. Id. at § 1415(a). Each disabled child is given an individualized educational program ("IEP") specifically tailored to meet her educational needs. Id. at § 1415(d)(2)(A). The disabled child is assessed by a committee of special education experts, teachers and parents who then create an IEP which is designed based on the child's needs and capabilities. If the child's parents are not satisfied with the IEP they can seek review from an impartial hearing officer. Id. at § 1415(b)(6) and (f)(1). Parents who are still discontent with the final determination of the impartial ...

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