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.
A. FAILURE TO EXHAUST
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 hearing
officer may appeal the decision to the state educational
agency.*fn2 Id. at § 1415(g). The parents' final recourse
is to institute a federal claim once the state procedural
process is complete. Id. at § 1415(i)(2).
The IDEA explicitly provides that a plaintiff must seek review
at the state and local agency levels before proceeding to file a
federal claim. Id. at § 1415(i)(2)(A). The purpose of the
requirement is to allow the states and local agencies an
opportunity to exercise their educational expertise and explore
all possible technical educational issues regarding the special
needs of disabled children. Hope, 872 F. Supp. at 19. Moreover,
the requirement promotes judicial efficiency by developing a
complete factual record and allowing the agencies the chance to
correct potential shortcomings in their educational programs for
disabled children. Id.
Plaintiff's claims must be analyzed under the IDEA. In
substance, plaintiff is challenging the adequacy of Melissa's
IEP, specifically her classification as a "special education"
student. Plaintiffs goal is the creation of a more expansive IEP
which includes general education classes with ASL instruction.
AC p. 6 ¶ 3-4. As the Court held in Hope, plaintiffs will not
be allowed to circumvent the IDEA exhaustion requirements by
denying their child's need for "special education". Hope,
872 F. Supp. at 22. Plaintiffs attempts to distinguish Melissa from
other students needing special education on the ground that she
is gifted in addition to being hard-of-hearing are also futile.
This distinction holds no legal significance and does not remove
plaintiffs challenges from within the scope of the IDEA. Id.
Any challenges to the educational services and accommodations
provided to Melissa are "precisely the type of remedy best
fashioned by the educational experts skilled in developing such
provides a textbook example of the type of case justifying
administrative exhaustion". Id. at 21. Thus, plaintiffs claims
will be analyzed under IDEA standards.
In November 1997, plaintiff requested an impartial hearing to
contest his daughter's IEP.*fn3 Between December 1997 and
April 1999, plaintiff actively participated in a series of
impartial hearings in an attempt to design a proper IEP for his
daughter. Final Order of Determination ("FOD")*fn4 p. 8.
However, plaintiff withdrew from the administrative hearing
process during the final stages of negotiations just at the
point where proposed settlements would have yielded the result
he sought, i.e. a bilingual general education curriculum whereby
his daughter would continue in a general education class with
the assistance of an ASL instructor. (Pl. Reply Br. p. 7; FOD p.
Plaintiff's withdrawal from the administrative hearings has
had several effects upon his federal claim. First, the
withdrawal deprived the hearing officer of the opportunity to
reach a final determination. Secondly, plaintiffs actions have
deprived the state and local agency of the opportunity to review
and correct any potential problems with Melissa's IEP before
judicial intervention. D.R. v. Bedford Bd. of Ed., 926 F. Supp. 47
(S.D.N.Y. 1996). Moreover, the withdrawal hindered the
production of a complete factual and legal record necessary to
review any alleged federal violation. Id. at 50. Lastly, and
most importantly, by withdrawing from the administrative
process, plaintiff has failed to meet the IDEA's exhaustion
requirement. Garro v. State of Connecticut, 23 F.3d 734, 737
(2d Cir. 1994). It is clear that exhaustion of administrative
procedures is required before a parent may seek federal or state
judicial review, 20 U.S.C. § 1415(i)(2)(A); Ajala v. New York
City Board of Education, No 97-CV-0469 (RWS), 1997 WL 736699,
*3 (S.D.N.Y. Nov. 28, 1997); Hope v. Cortines, 872 F. Supp. 14
(E.D.N.Y. 1995). Failure to exhaust administrative review
divests the federal court of subject matter jurisdiction. W.G.
v. Senatore, 18 F.3d 60, 62-64 (2d Cir. 1994). Thus, this court
lacks jurisdiction to hear plaintiffs claims since he has failed
to meet the exhaustion requirement.
Assuming arguendo that plaintiff's claims are properly based
on the RA and ADA, plaintiff is still required to meet the IDEA
exhaustion requirement. Section 1415(l) clearly states that RA
and ADA claimants must first seek administrative redress at the
local and state agency levels before proceeding to federal
court, 20 U.S.C. § 1415(l). Congress did not intend to make
the IDEA the sole source of relief for parents who are
unsatisfied with their child's IEP. Nor does the IDEA limit or
prevent parents from seeking federal review under other
applicable federal statutes. However, the IDEA clearly states
that if the relief the parents seek is relief available under
the IDEA, the parents must first exhaust all administrative
review processes before bringing an action in federal court. The
statute specifically states that
Nothing in this chapter shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution, title V of
Rehabilitation Act of 1973, or other Federal statutes
protecting the rights of children and youth with
disabilities, except that before the filing of a
civil action under such laws seeking relief that is
also available under this subchapter, the procedures
under subsections (b)(2) and (c) of this section
shall be exhausted to the same extent as would be
required had the action been brought under this
20 U.S.C. § 1415(l). According to the express language of this
provision, the exhaustion requirement applies to both the ADA
and RA. Thus, plaintiff has failed to exhaust even if this
action is considered an ADA and RA claim and the motion to
dismiss should be granted.
B. APPLICABLE EXCEPTIONS
Courts do not invariably enforce the exhaustion requirement
but instead have adopted a flexible approach with two key
exceptions. Mason v. Schenectady City School District,
879 F. Supp. 215, 218 (N.D.N.Y. 1993). The first exception, the
futility exception, provides that the exhaustion requirement
does not have to be met if "exhaustion would be futile because
administrative procedures do not provide adequate remedies."
Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992). Under this
exception, plaintiff is allowed to bypass the state and local
administrative reviews and bring his claim in a federal action.
However, this exception does not apply to the circumstances of
this case. Here, plaintiff has failed to present evidence that
state and local administrative review would be futile. Although
plaintiff claims BOE refuses to provide Melissa with properly
trained ASL instructors, the evidence clearly shows that the BOE
has made several attempts to provide Melissa with the resources
she needs to function and learn in a general education class.
The BOE provided Melissa with bilingual services at Public
School 38 for the 1997/1998 school year. In September 1998,
Melissa was placed in a gifted and talented program that was
part of the general education curriculum and was given a full
time ASL interpreter. FOD p. 22; Pl. Reply Br. p. 6. Between May
1998 and April 1999 while plaintiff and BOE participated in the
impartial hearings, BOE's committee on special education ("CSE")
made several recommendations that Melissa be placed in a general
education class or program, however, plaintiff resisted these
attempts. FOD p. 15, 16, 18, 21.
Moreover, plaintiffs futility argument must fail because one
of the options proposed by BOE during the last phase of the
impartial hearing process was to allow Melissa to attend general
education classes with the assistance of an ASL instructor. FOD
p. 35. Instead of continuing with the hearing process, which
would have resulted in the exact relief plaintiff now seeks from
this court, plaintiff ended the administrative process by
withdrawing his request for an impartial hearing. Id. Thus, any
futility at the administrative level has been caused by
plaintiffs refusal to participate. D.R. v. Bedford Bd. of Ed.,
926 F. Supp. 47, 49 (S.D.N.Y. 1996) (noting that plaintiff's
unilateral withdrawal from the impartial hearing eliminated the
possibility of obtaining adequate relief). Therefore, plaintiff
may not avail himself of the futility exception.
The second exception allows a plaintiff to bypass local and
state administrative review if the relief he seeks is
unavailable under the IDEA. Plaintiff contends that he falls
within this second exception since he is seeking a completely
different remedy through his federal suit under ADA and RA which
is unavailable under the IDEA. According to plaintiff, the
relief available under IDEA is from inappropriate special
educational placement decisions, whereas relief under RA and ADA
is relief from
discrimination. Pl. Reply Br. p. 14. Plaintiff argues that since
his objective in the federal suit is to prevent BOE from
discriminating against his daughter based on her disability his
claims are covered by ADA and RA and only those statutes, as
opposed to the IDEA, are able to provide adequate relief. Id.
Plaintiffs contentions are without merit. Plaintiff is correct
in his assertion that the ADA and RA both address and provide
relief from discriminatory practices whereas IDEA addresses
special education issues. However, plaintiff does not
acknowledge that although the IDEA, ADA and RA may seek to
address different categories of harm, all three statutes are
able to provide the relief plaintiff desires. Plaintiffs
requested relief — bilingual educational services for Melissa
which would consist of her participation in general educational
classes with the assistance of an ASL instructor is available
under the IDEA, as evidenced by BOE's proposed settlement in the
April 1999 impartial hearing. FOD p. 35; Pl. Reply Br. p. 7.
Thus, although each statute addresses different issues, the
necessary relief is available under all three statutes. Since
the relief is available under IDEA plaintiff must first exhaust
all administrative remedies. 20 U.S.C. § 1415(l); Hope,
872 F. Supp. at 21. Therefore, as plaintiffs claims are not covered
by either exception, this court lacks subject matter
jurisdiction and I respectfully recommend that the motion to
dismiss be granted.
For the reasons stated above, I respectfully recommend that
the Board of Education's motion to dismiss be granted.
Any objections to this Report and Recommendation must be filed
with the Clerk of the Court, with a copy to the undersigned,
within ten (10) days of receipt of this Report. Failure to file
objections within the specified time waives the right to appeal
the District Court's order. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e).