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
REPORT AND RECOMMENDATION
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 ...