United States District Court, Eastern District of New York
May 8, 2002
ALIA SABUR, BY HER MOTHER AND NATURAL GUARDIAN JULIE KESSLER A/K/A JULIE SABUR, AND HER FATHER AND NATURAL GUARDIAN, MOHAMMED SABUR, FOR ALIA SABUR AND FOR THEMSELVES, PLAINTIFFS,
WILLIAM BROSNAN, EVELYN ABRUZZO, GARY BURNS, DOLLY NARAIN, NORTHPORT-EAST NORTHPORT BOARD OF EDUCATION AND NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL DISTRICT, DEFENDANTS.
The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge.
MEMORANDUM OF DECISION AND ORDER
The plaintiffs Julie Sabur and Mohammed Sabur (collectively, the
"Saburs") bring this action on behalf of their daughter Alia Sabur
("Alia") alleging that the defendants William Brosnan ("Brosnan"), Evelyn
Abruzzo ("Abruzzo"), Gary Burns ("Burns"), Dolly Narain ("Narain"), the
East Northport Board of Education (the "Northport BOA") and the East
Northport Union Free School District (the "Northport School District")
(collectively, the "School District") failed to provide Alia with
appropriate educational services in violation of the Individuals with
Disabilities Education Act ("IDEA"), 42 U.S.C. § 1983 and Article
XI, § 1 of the New York State Constitution. Presently before the
Court is a motion by the School District to dismiss seven of the eight
counts in the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure.
The facts are taken from the amended complaint unless otherwise
stated. Alia is a twelve year old girl who has advanced skills in, among
other things, mathematics, music, reading and science. In the fall of
1995, Alia enrolled in the Dickinson Avenue Elementary School
("Dickinson"), which is part of the School District.
For the 1995-1996 school year, the School District provided Alia with
an individually-tailored curriculum, which placed her in the first grade
with children her own age for art, physical education, music and lunch,
while allowing her to spend time with older students in the areas of
reading and mathematics. In addition, the School District provided Alia
with individual instruction in computer science.
For the 1996-1997 school year, Alia entered the second grade and
continued with her individually-tailored curriculum. In particular, the
School District provided Alia with individual instruction in mathematics
and computer science while she remained with her second grade classmates
for half of the day. In June of 1997, the Saburs requested that the
School District provide Alia with a long-term education plan.
For the 1997-1998 school year, Alia entered the third grade. During
this school year, Alia took a class in physical science at the Northport
middle school. There, Alia encountered older students who occasionally
ridiculed and harassed her. Also, Alia continued to receive individual
instruction at Dickinson. By the fall of 1998, the School District
offered the Saburs a choice: either agree to have Alia take math and
science in a ninth grade class or have Alia remain in a fourth grade
class for these subjects. The Saburs chose to keep Alia in the fourth
grade for the 1998-1999 school year.
In November of 1998, the Saburs filed a request for a hearing before an
Impartial Hearing Officer ("IHO") to investigate the status of an alleged
referral in 1997 by the School District to the Committee on Special
Education ("CSE") to evaluate Alia's educational needs and to determine
the appropriate accommodations for Alia's special needs. A hearing was
set for December 23, 1998. On that date, the Saburs, accompanied by
counsel, appeared before the IHO with a private camera crew hired by the
Saburs to record the hearing. The IHO refused to proceed with the
hearing unless the Saburs waived their request to record the
proceedings. The Saburs refused to waive their request and the hearing was
adjourned for a ruling from the State Education Commissioner's Office
(the "Commissioner") on the issue of whether the IHO must permit the
hearing to be recorded.
Shortly thereafter, the Commissioner informed the IHO that the decision
whether to permit the recording of the hearing is within his discretion.
The IHO adhered to his earlier decision to prohibit video recording and
re-scheduled the hearing for January 13, 1999. On January 12, 1999, the
Saburs filed a written request that the IHO recuse himself claiming that
he could not render a fair decision in this matter.
On January 13, 1999, the Saburs again requested that the IHO recuse
himself citing his alleged bias in favor of the School District. After
affording their counsel and the Saburs themselves an opportunity to note
their reasons for the recusal request, the IHO denied the request and
stated that the hearing will proceed with or without the Saburs. The
Saburs then chose to leave and not participate in the hearing. The IHO
continued the proceedings in the absence of the Saburs.
On January 22, 1999, the IHO issued a decision remanding the case back
to the CSE. In the Matter of A.S. Mr. and Mrs. S., Impartial Hearing,
Northport-East Northport Union Free District School (Jan. 22, 1999) is
annexed as Exhibit I to the Affidavit of Warren H. Richmond sworn to in
November of 2000 (the "Richmond Affidavit"). In particular, the IHO
stated "[i]t is the parent's responsibility to follow the process, as
explained in 200.4 of the Commissioner's regulations, to go through the
necessary testing, health evaluation, social evaluation, and educational
evaluation necessary to comply with the Commissioner's regulations."
On January 29, 1999, the School District sent the Saburs consent forms
for educational and psychological evaluations to enable the CSE to make
determinations with respect to Alia's classification and placement.
Richmond Affidavit ¶ 14. The Saburs did not return the consent
forms to the School District. Id. On March 10, 1999, the CSE met with
respect to Alia and concluded:
Although assessments do exist within Alia's file,
these assessments are outdated and not comprehensive
enough for the CSE's purpose. The parents wish to
pursue an Independent Educational
district concurs with this request and will provide
parameters for an Independent Educational Evaluation
which will include psychological, educational and
speech assessments. Upon completion, the parents will
submit these evaluations to the school district for
review. The CSE will reconvene to consider these
evaluations within special education regulations.
Targeted case management will be provided.
Minutes of CSE, Northport-East Northport, dated March 10, 1999 annexed as
Exhibit M to the Richmond Affidavit. The Saburs did not submit an
Independent Educational Evaluation to the School District. Instead, the
Saburs enrolled Alia as a student at the State University of New York,
Stony Brook, where she currently maintains a 3.95 grade point average.
On May 11, 2000, the Saburs commenced this action against the School
District and the New York State Department of Education alleging, among
other things, that the defendants failed to provide Alia with appropriate
educational services. On July 23, 2001, this Court dismissed all of the
claims which arose out of the allegation that Alia was not provided an
appropriate education because the Saburs failed to exhaust their
administrative remedies. Sabur v. Brosnan, No. 00-2660, slip op.
(E.D.N.Y. July 23, 2001). In addition, the Court dismissed the remaining
claims, except for one involving the First Amendment, for failure to
state a claim upon which relief can be granted. Id. at 17. Finally, the
Court granted the Saburs permission to file an amended complaint within
thirty days of its decision. Id.
On August 23, 2001, the Saburs filed an amended complaint in which they
assert seven causes of action. Counts one through four allege violations
under 28 U.S.C. § 1983 for the failure to provide Alia with
appropriate educational services. Count five charges a violation under the
First Amendment for hindering the Saburs' right to speak publicly
concerning Alia. Count six alleges a violation under the IDEA for the
failure to provide Alia with appropriate educational services. Count
seven alleges a violation of Article XI, § 1 of the New York State
Constitution for the failure to provide Alia with appropriate educational
Presently before the Court is a motion by the School District to
dismiss all of the counts in the amended complaint, except count five,
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
A. The Standard for Rule 12(b)(1)
When considering a motion for lack of subject matter jurisdiction under
Rule 12(b)(1), the Court may consider affidavits and other materials
beyond the pleadings to resolve the jurisdictional question. Robinson
v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Antares
Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.
1991), vacated on other grounds, 505 U.S. 1215 (1992); Exch. Nat'l Bank
of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976).
Under Rule 12(b)(1), the Court must accept as true all material factual
allegations in the complaint, but will not draw inferences favorable to
the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine
Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Hearsay statements
contained in affidavits may not be considered. Kamen v. Am. Tel. & Tel.
Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
B. The IDEA
Congress passed the IDEA to ensure that children with disabilities
receive "a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and
prepare them for employment and independent living. . . ."
20 U.S.C. § 1400(d)(1)(A). IDEA establishes an educational scheme
which requires each state that receives federal education funds to
prepare an Individualized Education Program ("IEP") for each disabled
child. Hope v. Cortines, 872 F. Supp. 14, 16 (E.D.N.Y. 1995) (citation
omitted), aff'd on the opinion of the district court, 69 F.3d 687 (2d
The IEP provides, among other things, the child's present performance
level, goals and objectives, specific services that will permit the child
to achieve those goals, and evaluation criteria and procedures to
evaluate whether the child has met the goals outlined.
20 U.S.C. § 1414(d)(1)(A). "The IEP is the central mechanism by
which public schools ensure that their disabled students receive a free
appropriate public education." Polera v. Bd. of Educ. of the Newburgh
Enlarged City School Dist., No. 01-7439-00, 2002 WL 825973, *2 (2d Cir.
Apr. 29, 2002).
The IDEA mandates that states "offer parents of a disabled student an
array of procedural safeguards designed to help ensure the education of
their child. . . ." Id. at *3. "Primary among the procedural safeguards
employed by IDEA is the requirement that states provide parents of
disabled students the right to seek review of any decision concerning
their children's education." Hope, 872 F. Supp. at 16. As such, parents
may file complaints about "any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a
free appropriate public education to such child."
20 U.S.C. § 1415(b)(6). Parents must first seek review through an
impartial hearing conducted by either the local school district or the
state. Id. § 1415(f)(1). If the hearing is done by a local school
district, the parents may appeal the decision to the state educational
agency. Id. § 1415(g). Only after the parents have exhausted these
procedures may they seek review in either federal or state court. Id.
Congress permits states to fashion their own educational scheme to
comply with the IDEA. Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir.
1992). This, New York has done. Id. In New York, the CSE, which is
made up of individuals appointed by the board of education or the
trustees of the school district, prepares the IEPs for disabled
children. N.Y. Educ. Law § 4402(1)(b)(1). New York has a two-level
system for the review of an IEP. First, a hearing officer, appointed by
the board of education from a list of state-certified officers, conducts
the initial hearing and makes a determination with regard to the action
of the CSE. N Y Educ. Law § 4404(1). If unsatisfied with this
determination, a party may then appeal the determination to a State
Review Officer ("SRO"). Id. § 4404(2).
"Although the IDEA provides for a federal cause of action to enforce
such rights, it imposes a broadly applicable requirement that plaintiffs
first exhaust administrative remedies. . . ." Polera, 2002 WL 825973 at
*3. Indeed, "[a] plaintiff's failure to exhaust administrative remedies
under the IDEA deprives a court of subject matter jurisdiction." Id.
(citing Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995)).
1. The Applicability of the IDEA's Exhaustion Requirement to the
Plaintiffs' Section 1983 Claims
Where a plaintiff brings a claim under Section 1983 that seeks relief
under the IDEA, she or he must first exhaust the administrative
remedies under the IDEA. See Polera, 2002 WL 825973 at *3 (citing
20 U.S.C. § 1415(l)); Hope, 872 F. Supp. at 19 (stating that the
exhaustion requirement applies to Section 1983 claims which seek relief
that IDEA could provide). A plaintiff may not frame a cause of action
under Section 1983 or any other federal statute and thus avoid the
exhaustion requirements. See Polera, 2002 WL 825973 at *8 (stating that
a plaintiff may not sidestep the exhaustion requirements of the IDEA).
Counts one through four allege violations under Section 1983. Each of
these counts seek relief for the alleged failure to provide Alia with
appropriate educational services. The IDEA is precisely intended to
remedy this type of claim. See Polera, 2002 WL 825971 at *8 (stating
that the IDEA was intended to remedy a claim were the plaintiff sought
relief for a school district's alleged failure to provide her with
appropriate educational services). Accordingly, absent an applicable
exhaustion exception, the Saburs were required to exhaust their
administrative remedies before bringing these claims.
2. The Requirement of Exhaustion under IDEA
"The IDEA's exhaustion requirement was intended to channel disputes
related to the education of disabled children into an administrative
process that could apply administrators' expertise in the area and
promptly resolve grievances." Polera, 2002 WL 825973 at *6. "The
exhaustion requirement `prevents courts from undermining the
administrative process and permits an agency to bring its expertise to
bear on a problem as well as to correct its own mistakes.'" Id. (citing
Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992)). "Exhaustion of the
administrative process allows for the exercise of discretion and
educational expertise by state and local agencies, affords full
exploration of technical educational issues, furthers development of a
complete factual record, and promotes judicial efficiency by giving these
agencies the first opportunity to correct shortcomings in their
educational programs for disabled children." Id. (internal quotation
marks and citations omitted).
The Second Circuit has recently stated:
[T]he exhaustion requirement is predicated on
Congress's belief, expressed through the statutory
scheme, that administrative agencies can `get it
right': that the agencies themselves are in the
optimal position to identify and correct their errors
and to fine-tune the design of their programs.
Sweeping exceptions to the exhaustion requirement are
at odds with this belief.
Polera, 2002 WL 825973 at *9. It is undisputed that the Saburs failed to
exhaust their administrative remedies under the IDEA. Accordingly, the
Court need only decide whether this failure is excusable.
3. Exceptions to the Exhaustion Requirement under the IDEA
Congress provided three general situations where the exhaustion of the
administrative remedies under the IDEA are not required: (1) where it
would be futile to use the due process procedures; (2) where an agency
has adopted a policy or pursued a practice of general applicability that
is contrary to the law; or (3) where it is improbable that adequate
relief can be obtained by pursuing administrative remedies. Mrs. W. v.
Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987) (citations omitted). The
Second Circuit has collapsed exceptions two and three into exception
one, namely the futility exception. Hope, 872 F. Supp. at 22 ("The
Second Circuit in Heldman effectively collapsed (2) and (3) above into
the futility exception. . . ."). See also Polera, 2002 WL 825973 at *8
(stating that exhaustion is futile if the "administrative procedures do
not provide adequate remedies.") (internal quotation marks and citations
a. The Futility Exception
A plaintiff has the burden of showing that the futility exception
applies. Polera, 2002 WL 825973 at *8 n. 8. The Saburs argue that the
futility exception applies to her claims for the following reasons: (a)
failure of the School District to timely conduct the administrative
proceedings; (b) failure of the CSE to evaluate Alia in a timely fashion;
(c) failure of the School District to develop and implement an adequate
educational plan; (d) failure of the School District to develop an
educational plan unless the Saburs waived their right to legal recourse
against the School District; (e) failure of the School District to comply
with the IHO's determination; (f) failure to appoint an unbiased hearing
officer; and (g) failure of the School District to produce certain notes
concerning Alia. None of these arguments excuse the exhaustion
The Court finds that the administrative proceedings were conducted in a
timely fashion. In November of 1998, the Saburs requested a hearing
before an IHO. A hearing was set for December 23, 1998. On that date,
the Saburs appeared with a private camera crew, which compelled the IHO
to seek instructions on the use of video recording devices at the
hearing. After receiving the appropriate instructions, the IHO set a new
hearing date for January 13, 1999. Despite the Saburs' choice not to
participate in the hearing, the IHO held the hearing and issued a written
decision on January 22, 1999.
In addition, the Court finds that the Saburs are responsible for the
CSE's inability to evaluate and place Alia in an IEP. Seven days after
the written decision of the IHO, the School District sent the Saburs
consent forms for educational and psychological evaluations to permit the
CSE to make a determination on Alia's classification and placement in an
IEP. The Saburs did not return the consent forms. Approximately a month
and a half after the IHO's decision, the CSE met and stated that they
will be in a position to evaluate Alia once the Saburs submit an
Independent Educational Evaluation, which they wished to do. The Saburs
did not submit an Independent Educational Evaluation. As such, the
Saburs' failure to comply with these instructions is largely the reason
that the CSE was and is unable to evaluate Alia.
Courts in this circuit have routinely held that the futility exception
does not apply where the parents unilaterally withdraw from the
administrative hearing before its conclusion. See Kielbus v.
Wertheimer, No. 01-1130, 2002 WL 24446, *3 (E.D.N Y Jan. 4, 2002)
(withdrawing from the hearing process without allowing the IHO a chance
to fashion a remedy); Ajala v. N.Y.C. Bd. of Educ., No. 97-0469, 1997 WL
736699, *4 (S.D.N.Y. Nov. 28, 1997) (same); D.R. v. Bedford Bd. of
Educ., 926 F. Supp. 47, 49 (S.D.N.Y. 1996) (same). Here, the Saburs
unilaterally withdrew from the hearing before the IHO. Despite this
withdrawal, the IHO rendered a determination which remanded the case back
to the CSE for a classification and placement of Alia in an IEP. Instead
of participating in the process before the CSE or appealing the IHO's
determination to the SRO, the Saburs enrolled Alia in the State
University of New York, Stony Brook and commenced an action against the
School District in federal court.
The remainder of the Saburs' arguments to invoke the futility exception
lack merit because each argument could have been
and should have been
made in the administrative proceedings. See Garro v. State of Conn.,
23 F.3d 734
, 737 (2d Cir. 1994) (stating that any alleged procedural
violations by the local school district should be raised in the
administrative proceedings); D.R., 926 F. Supp. at 49-50 (stating that
had the parents not withdrawn from the administrative process they "would
have had the right to pursue an administrative appeal of the hearing
officer's decision, challenging both the substance of the ruling and the
alleged bias of the hearing officer."); Jacky W. v. N.Y.C. Bd. of Educ.,
848 F. Supp. 358, 361 (E.D.N.Y. 1994) (stating that the destruction of
draft opinions by the IHO can be appealed to the SRO).
By commencing this action before the exhaustion of administrative
remedies, the Saburs leave the Court with an insufficient factual record
to review the alleged violations. See Garro, 23 F.3d at 737-38 ("[T]he
failure to comply with the exhaustion requirements has not only deprived
the state administrative authorities of an opportunity to redress the
claimed violations at a far more appropriate time but has also deprived
this Court of the factual record necessary to review the alleged
violations."). First, the Court has no classification of Alia because
the Saburs chose not to participate in the proceedings before the CSE.
Second, because the CSE had insufficient records to assess Alia, there is
no IEP for the Court to review. Accordingly, the Court does not have a
sufficient factual record to review the alleged violations.
Because the Saburs failed to exhaust their administrative remedies, the
Court lacks subject matter jurisdiction over counts one, two, three, four
and six in the amended complaint. Accordingly, the motion to dismiss
these counts under Rule 12(b)(1) is granted.
C. Article XI, § 1 of the New York State Constitution
On a motion to dismiss for failure to state a claim under Rule
12(b)(6), a court should dismiss the complaint if it appears beyond doubt
that the plaintiff can prove no set of facts in support of her or his
complaint which would entitle her or him to relief. King v. Simpson,
189 F.3d 284, 286 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d
Cir. 1996). A court must accept all well-pled factual allegations in the
complaint as true and draw all reasonable inferences in favor of the
plaintiff. Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir. 1999); Jaghory
v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue
is not whether the plaintiff will ultimately prevail but whether the
plaintiff is entitled to offer evidence to support the claims. Villager
Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
As to materials presented outside the pleadings, the Second Circuit has
Rule 12(b) gives district courts two options when
matters outside the pleadings are presented in
response to a 12(b)(6) motion: the court may exclude
the additional material and decide the motion on the
complaint alone or it may convert the motion to one
for summary judgment under Fed.R.Civ.P. 56 and afford
all parties the opportunity to present supporting
material. See Fed.R.Civ.P. 12(b).
Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d
Cir. 1988). The Second Circuit has strictly enforced "the conversion
requirement of Rule 12(b)(6) where there is a legitimate possibility that
the district court relied on inappropriate material in granting the
motion." Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999). The purpose
is to ensure that "courts will refrain from engaging in fact-finding when
considering a motion to dismiss, and also that plaintiffs are given a
fair chance to contest defendants' evidentiary assertions. . . ." Id.
In a motion to dismiss under Rule 12(b)(6), a court must confine its
consideration "to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by reference,
and to matters of which judicial notice may be taken." Leonard F. v.
Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v.
County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The Court decides the
School District's motion to dismiss count seven of the amended complaint
solely on the facts stated on the face of the amended complaint.
Article XI, § 1 of the New York State Constitution provides that
"[t]he legislature shall provide for the maintenance and support of a
system of free common schools, wherein all the children of this state may
be educated." N.Y. Const. Art. XI, § 1. Article XI, § 1 does
not create a private cause of action. See Donohue v. Copiague Union Free
School Dist., 47 N.Y.2d 440, 443, 418 N.Y.S.2d 375, 377 (N.Y. 1979)
(stating that no private cause of action exists under Article XI, § 1
of the New York State Constitution). Accordingly, the motion to dismiss
count seven is granted.
Based upon the foregoing, it is hereby
ORDERED, that the motion to dismiss counts one, two, three, four and
six for lack of subject matter jurisdiction on the ground that the Saburs
failed to exhaust their administrative remedies is GRANTED; and it is
ORDERED, that the motion to dismiss count seven for failure to state a
claim for relief is GRANTED; and it is further
ORDERED, that the parties are directed to appear forthwith before
United States Magistrate Judge Michael L. Orenstein to set a discovery
schedule with respect to count five in the amended complaint.
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