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August 14, 2002


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


In this action commenced by parents of a high school student, claims are set forth pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 (the "IDEA"), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504") and the federal civil rights statute, 42 U.S.C. § 1983 ("Section 1983").

Plaintiffs seek an award of attorneys' fees pursuant to the provision in the IDEA that authorizes an award of fees to parents who are "prevailing parties" in connection with any "action or proceeding" brought pursuant to the statute. 20 U.S.C. § 1415 (i)(3)(B). In addition to fees, Plaintiffs seek a declaratory judgment that Defendants intentionally discriminated against Robert Vultaggio on account of his disability and failed to make the required reasonable accommodations. Finally, Plaintiffs allege unlawful retaliation for the exercise of their rights under the First Amendment of the Untied States Constitution.

Defendants argue that an award of fees in this case is not authorized by statute and move to dismiss this cause of action. Additionally, Defendants seek dismissal of the IDEA and Section 504 claims on the ground that Plaintiffs have failed to exhaust their administrative remedies. Finally, Defendants argue that Plaintiffs' have failed to set forth sufficient facts in support of any retaliation claim. Based upon all of these arguments, Defendants move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiffs' action in its entirety. Plaintiffs oppose Defendants' motion and cross-move, pursuant to Rule 15 of the Federal Rules of Civil Procedure, for leave to file an amended and supplemental complaint.


I. Factual Background

A. The Parties

Plaintiffs Amy and Robert Vultaggio (the "Vultaggios") are the parents of Robert Vultaggio ("Robert"), an eighteen year-old student attending high school within the Smithtown Central School District (collectively "Plaintiffs"). Robert has long been classified as multiply disabled. Specifically, he has been classified in the past as both emotionally disturbed ("ED") and "other health impaired" ("OHI").

Named as defendants are the Smithtown Central School District (the "District"), Stuart Grossman, the District's Director of Special Education ("Grossman") and Brenda Clark, chair of the District Committee on Special Education ("Clark"). Grossman and Clark are named in their official as well as their individual capacities.

B. Factual Allegations in Support of the Claims

The facts set forth below are drawn from Plaintiffs' complaint, the allegations of which are accepted as true at this stage of the proceedings.*fn1

On April 26, 2001, the Smithtown Committee on Special Education ("CSE") met to develop an Individualized Education Plan ("IEP") for Robert for the academic year 2001-2002. Although the meeting took place that day, the IEP was not finalized. Plaintiffs allege, on information and belief, that finalization did not take place because Robert was pursuing the requirements for admission to a BOCES Cultural Arts Center where he desired placement (the "Arts Program").

The CSE met again on June 18, 2001, to develop Robert's IEP. This IEP placed Robert in a special education class with a teacher to student ratio of fifteen students to one teacher. That IEP also provided that in the following academic year, Robert would be attending the Arts Program. Plaintiffs allege that some time after drafting of this IEP, they were informed by the District that Robert would not be assigned the desired placement in the Arts Program.

Shortly thereafter, the Vultaggios retained counsel to provide advice regarding Robert's rights and, if appropriate, to file a complaint with the State Education Department regarding Robert's placement. In August of 2001, Plaintiffs' counsel submitted a complaint, on behalf of the Vultaggios, to the New York State Education Department (the "SED"). This complaint was submitted pursuant to the New York State Complaint Review Procedure (the "CRP"). The CRP complaint enumerated several alleged deficiencies in Robert's IEP. Additionally, the complaint stated the Vultaggios' belief that Robert was to be wrongfully denied admission to the Arts Program.

In September of 2001, the District submitted its response to the Vultaggios' CRP complaint. The District response was submitted by defendants Grossman and Clark. The Vultaggios replied to the District submission in October of 2001.

On October 17, 2001, the SED rendered its decision with respect to the Vultaggios' CRP complaint (the "October 17 Decision"). That decision set forth several failures in Robert's IEP and noted that these failures made it impossible for the SED to determine whether placement in the Arts Program was appropriate for Robert. The October 17 Decision directed the District to take specific actions to remedy the stated deficiencies, including drafting a new IEP for Robert by December 17, 2001.

After the SED rendered the October 17 Decision, the Vultaggios, taking the position that they had achieved prevailing party status within the meaning of the IDEA, submitted to the District an itemization of the attorneys' fees incurred in connection with the CRP and sought payment. To date, the District has not paid the Vultaggios' fees.

In November 2001, the CSE met to discuss an IEP for Robert. After this meeting, the District changed Robert's classification from a student with multiple handicaps (emotionally disturbed and other handicap) to a student with a single handicap only — "OHI." The CSE met again in December of 2001 to develop an IEP for Robert. Plaintiffs take issue with the results of the last two meetings of the CSE. Specifically, it is argued that the IEP's developed for Robert failed to comply with certain directives contained in the October 17 Decision.

II. Plaintiffs' Complaint

As noted above, Plaintiffs set forth claims pursuant to the IDEA, Section 504 and Section 1983. The IDEA cause of action alleges that Plaintiffs are prevailing parties and seeks an award of attorneys' fees for time spent by counsel during the CRP and the meeting of the CSE that followed. The cause of action set forth pursuant to Section 504 alleges intentional discrimination and deliberate indifference to Robert's rights when the District failed to recommend that Robert attend the Arts Program. This cause of action also alleges a district-wide policy of discriminating against disabled students "generally relative to their admission" to the Arts Program.

Plaintiffs' final cause of action alleges retaliation. Specifically, this cause of action alleges that the District refused to consider relevant information when considering Robert's application for admission to the Arts program at the November 2001 CSE meeting. It is similarly alleged that the District failed, again, to consider relevant information when considering the suitability of the Arts Program for Robert in December of 2001. Plaintiffs allege that the District's actions were taken in retaliation for the Vultaggios exercise of their "lawful right to file a complaint with the SED" against the District. Such retaliation is alleged to violate the anti-retaliation provision of Section 504 as well as Plaintiffs' rights under the First Amendment to the United States Constitution.

Plaintiffs' request for relief seeks a declaration that, as a result of the findings of the SED in the October 17 Decision, Plaintiffs are prevailing parties entitled to an award of attorneys' fees. Plaintiffs also seek a declaration that the District's refusal to enroll Robert in the Arts Program violated the IDEA and Section 504. An order of this court is sought that would require the District to enroll Robert in the Arts Program for a period of two years. Plaintiffs also seek a declaration that the District has an unlawful practice and policy of refusing to recognize the authority of the CSE to recommend, in an IEP, a student's enrollment in a general education vocational program at BOCES. Finally, Plaintiffs seek an order declaring that all Defendants retaliated against the Vultaggios in violation of Section 504 and the First Amendment.

III. Defendants' Motion

A. Dismissal of the Request for Attorney's Fee

Defendants attack Plaintiffs' claim for attorneys' fees on two fronts. First, it is argued that the court lacks jurisdiction to award fees because the procedure invoked by the Vultaggios at the school district level, the CRP, does not constitute an "action or proceeding" within the meaning of the IDEA. Even assuming, however, that the CRP is deemed an IDEA action or proceeding, it is argued that fees are ...

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