United States District Court, E.D. New York
March 30, 2004.
D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated, Plaintiffs, -against- NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, Chancellor of New York City Schools; DR. ANGELO GIMONDO, Superintendent, Community School District 30, NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education (CPSE) District 30; MICHELLE FRATTI, Superintendent, Community School District 25; BETH MARINO, Chairperson, CPSE District 25; MICHAEL A. JOHNSON, Superintendent, Community School District 29; JOE BLAIZE, Chairperson, CPSE District 29; RICHARD P. MILLS, Commissioner of the New York State Education Department; THE CITY OF NEW YORK, Defendants
The opinion of the court was delivered by: DAVID TRAGER, District Judge
MEMORANDUM & ORDER
Plaintiffs D.D., A.C., and B.T., by their respective parents, bring
this action on behalf of a proposed class of present and future New York
City preschool children with Individualized Education
Programs ("IEPs") who have not or will not timely receive services
mandated by their IEPs. The "City defendants" are: the City of New York,
the New York City Board of Education ("NYCBOE"); the New York City
Department of Education ("NYCDOE"); Joel Klein, Chancellor of the New York
City Schools; Dr. Angelo Gimondo, Superintendent of Community School
District 30; Nelly Real-Korb, Chairperson of the Committee on Preschool
Special Education in District 30; Michelle Fratti, Superintendent of
Community School District 25; Beth Marino, Chairperson of the Committee on
Preschool Special Education in District 25; Michael A. Johnson,
Superintendent of Community School District 29; and Joe Blaize,
Chairperson of the Committee on Preschool Special Education in District
29. Also named as a defendant is Richard Mills ("Mills"), Commissioner of
the New York State Education Department ("SED").
Plaintiffs claim they have been denied the right to a free and
appropriate education in violation of: (1) the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; (2) Title
II of the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12312 et seq.; (3) Section 504 of the Rehabilitation Act of
1973 ("Section 504"), 29 U.S.C. § 794, as amended by the Civil Rights
Restoration Act of 1987; and (4) 42 U.S.C. § 1983 and 1988.
Pending before the court are: (1) plaintiffs' motion for class
certification; (2) defendant Mills' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and (b)(6); and (3) plaintiffs' motion for a
preliminary injunction as to the class. For the reasons below, plaintiffs'
motion for class certification pursuant to Rule 23(b)(2) is granted with
modification, defendant Mills' motion to dismiss is granted in part and
denied in part, and plaintiffs' motion for a preliminary injunction
directing defendants to immediately implement the IEPs of the class is
In 1990, Congress enacted the IDEA*fn1 to ensure access for all
disabled children to 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).
Under the IDEA, states are eligible for federal funds if they make
available "a free appropriate public education" to all children with
disabilities between the ages of three and twenty-one. Id. §
1412(a)(1)(A). To meet IDEA requirements, each student with an eligible
disability must receive from the state special education and related
services designed for the individual student's needs. Id. § 1401(8).
Those services must be administered according to an individualized
education program ("IEP"), which is a written statement of: the child's
present level of educational performance; measurable annual goals for the
child; the special education, related services and supplementary aids and
services to be provided to the child or on the child's behalf; and the
projected date for the
beginning of such services. Id. § 1414(d)(1)(A). The IDEA further imposes
a preference for educating disabled children "[t]o the maximum extent
appropriate" alongside non-disabled children. Id. § 1412(a)(5); see also
N.Y. Educ. Law
§ 4410(5)(b). This provision essentially requires that special
education be provided in the least restrictive setting consistent with a
child's needs. See Declaration of Linda Wernikoff ("Wernikoff Decl.") at
Under the New York statutes implementing the IDEA, IEPs for preschool*fn2
children with eligible disabilities are developed by a Committee on
Preschool Special Education ("CPSE"), comprised of the child's parents,
the child's regular teacher, and other professionals employed or
appointed by the local school district. 20 U.S.C. § 1414(d)(1)(B); N.Y.
Educ. Law § 4410(3). In New York City, there are ten regional CPSEs, with
approximately 78 CPSE administrators and 77 clerical staff working to
develop and implement IEPs for preschool children. Wernikoff Decl. at ¶
13. Any student suspected of having an eligible disability may be
referred to the local CPSE for special education services or programs by
the child's parent or guardian, a professional staff member at the
child's school or school district, physician, judicial officer, or other
individuals prescribed by law. N.Y. Educ. Law § 4401-a(1); 8 N.Y.C.R.R. §
If, after an individual evaluation, the CPSE determines that the child
is eligible for special education services, the committee will develop a
child's IEP based on the following placement options, ranked in the order
of least restrictive placements first: (1) related services only;*fn3 (2)
special education itinerant services only;*fn4 (3) related services in
combination with special education itinerant services; (4) a half-day
program; and (5) a full day program. N.Y. Educ Law § 4410(5)(b)(i); 8
N.Y.C.R.R. 200.16(d)(3). Parents who are dissatisfied with the IEP
developed by the local school district may challenge it in an impartial
due process hearing before an impartial hearing officer.
20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1). The decision of the
impartial hearing officer may be appealed to a state review officer.
20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2). Any party who does not have
the right to appeal the impartial hearing officer's decision or who
wishes to appeal the state review officer's decision may bring a civil
action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).
Although the IDEA itself is silent as to the time frame for
implementing IEPs, the federal regulations provide that IEPs must be
implemented "as soon as possible" without specifying any time periods.
34 C.F.R. § 300.342(b)(1)(ii).*fn5 *fn6 New York's implementing
regulations provide that there "may be no delay in implementing a
student's IEP," 8 N.Y.C.R.R. § 200.4(e)(1)(i), and direct the board of
education to arrange for the preschool student to:
receive such programs and services commencing with
the July, September or January starting date for
the approved program, unless such services are
recommended by the [CPSE] less than 30 school days
prior to, or after, such appropriate starting date
selected for such preschool student, in which
case, such services shall be provided no later
than 30 school days from the recommendation of the
Id. § 200.16(e)(1).*fn7
See also N.Y. Educ. Law § 4410(5)(e).
Furthermore, "[t]he school district shall
ensure that the recommendations on a student's IEP are implemented."
8 N.Y.C.R.R. § 200.4(e)(3).
In New York, programs and services in preschool IEPs are provided by a
private provider system. Affidavit of Rebecca Cort ("Cort Aff.") ¶ 9;
Transcript of Hearing dated 3/24/04 ("3/24/04 Tr.") at 39. Classroom
placements are arranged with 420 private preschool special education
programs in the state that are operated by 96 approved providers. Cort
Aff. ¶ 9. As for related
services, the NYCDOE maintains a list of over 900 independent related
service providers, including agencies, with whom it has a contractual
relationship. Wernikoff Decl. ¶ 25; 3/24/04 Tr. at 51. Children for whom
providers cannot be found immediately are placed on a waiting list, also
known as a parent notification or "PN list." Wernikoff Decl. ¶¶ 29, 31.
Each district updates the PN list daily. Id. ¶ 31. The NYCDOE then runs
a monthly report that is disseminated to all preschool providers with a
letter asking them to determine whether they can provide services to
children on the list, provide partial services, or request child-specific
permission to temporarily exceed an approved class size to provide
services to children on the list. Id.
New York City serves approximately 23,000 preschool children with
disabilities, including related services, special education itinerant
services and special education provider placements. Cort Aff. ¶ 3. For
the last several years, the number of disabled preschool children in New
York City seeking services has increased by approximately 1,000 per
year. Declaration of Jane R. Goldberg ("Goldberg Decl."), Ex. A; Wernikoff
Decl. ¶ 27. For instance, in fiscal year 2001-2002, NYCDOE provided
services and programs to 22,776 preschool students with disabilities, and
in fiscal year 2002-2003, the NYCDOE provided services and programs to
23,794 preschool students with disabilities. Wernikoff Decl. ¶ 27. Based
on this trend, City defendants anticipate a similar increase for the
fiscal year 2003-2004. Goldberg Decl., Ex. A. The yearly increase in the
preschool population is partially due to an approximate 12% annual
increase in the number of children aged zero to two years old in
Early Intervention programs,*fn8 about half of whom subsequently
transition to preschool programs. Wernikoff Decl. ¶ 28.
Plaintiffs allege that, at the time the amended complaint was filed in
June 2003, over 500 preschool children within the jurisdiction of the
NYCBOE, the NYCDOE and the SED who had IEPs were not receiving the full
services required by the IEPs. Amended Class Action Complaint ("Am.
Compl.") ¶ 36. Some of the children on this list were allegedly
receiving partial services, while others had received no services. Id.
¶ 39. Plaintiffs further allege that preschool children not on the
waiting list are also not receiving all the services required by their
IEPs. Id. ¶ 40.
Over time, however, the number of children on the PN list has
apparently declined. By letter dated November 13, 2003, City defendants
reported that, as of August 29, 2003, the total number of New York City
preschool children on the PN list who had been awaiting services for over
30 days had declined to 220. See Goldberg Decl., Ex. A. As of September
30, 2003, the total number of preschool children awaiting services for
over 30 days had further declined to 149. Id. And as of October 31,
2003, the total number of preschool children awaiting services for over
30 days was 112. Id. The majority of children on these PN lists were
waiting for related services, a problem due in part
by a national shortage of related service providers and by logistical
problems arising from independent service providers who have been
reluctant to travel throughout New York City to provide only a half-hour
to one hour of therapy. Wernikoff Decl. at ¶ 35.
According to the City defendants, the number of children on the PN list
has historically reached its peak in May of a given year. Transcript of
Proceedings on 7/15/03 ("7/15/03 Tr.") at 13. This is because by January
or February, as children who turn three years old "age out" of Early
Intervention or other programs and become eligible for preschool special
education services, a shortage develops in the number of preschool
providers with spaces available to children who need classroom programs,
and in the number of related service providers available for children who
need only related services. 7/15/03 Tr. at 5; Wernikoff Decl. ¶ 30.
According to the defendants, this number gradually declines and is at its
lowest in September and October as children age out of preschool in June
and August and transition into kindergarten, thereby creating new
openings for preschool programs and services. 7/15/03 Tr. at 4-5, 13-14;
Wernikoff Decl. at ¶ 32. Given the number of preschool children on PN
lists awaiting services and the total number of preschool children served
in New York City, City defendants assert that the NYCDOE's rate at
providing services to preschool children in a timely manner hovers
between 97% and 99%, depending on the time of year. Wernikoff Decl. ¶
D.D. is a five-year-old resident of Jackson Heights, New York. Am.
Compl. ¶ 45. Shortly after he turned four in September 2002, his
parents sent him to a regular public school which offered no
special education services. Id. Shortly after D.D. began attending
school, his mother asked the school to evaluate him for potential
developmental problems. Id. ¶ 46. The school referred D.D.'s case to the
CPSE in School District 30. Id. In October 2002, evaluations showed that
D.D. had significant developmental difficulties. Id. ¶¶ 47-54. As a result
of these evaluations, D.D.'s mother and the District 30 CPSE
representative prepared an IEP for D.D. Id. ¶ 56. This IEP recommended
special education services of a "[h]alf day integrated class, 21/2 hours
per day, 5 days per week with speech and occupational therapy as related
services," with a class ratio of eight students to one teacher. The
recommended related services were three weekly sessions of speech and
language therapy, and a weekly session of occupational therapy. Id. ¶
57. The projected date for implementing the IEP was set for December 6,
2002. Id. ¶ 58. Despite numerous phonecalls and letters from D.D's
mother to various officials, D.D. remained on the waiting list for
special education services for several months. Id. ¶¶ 62-66. After D.D.
retained counsel in March 2003, CPSE scheduled a second conference to
consider amending D.D.'s IEP to include Applied Behavioral Analysis
("ABA") services which had been recommended by a neurologist in December
2002. Id. ¶¶ 67-68. On March 31, 2003, D.D. received an amended IEP which
repeated all the recommendations from the first IEP and added ten hours
of weekly ABA therapy from a special education teacher. Id. ¶ 69.
Throughout March 2003, D.D. received no special education services.
Id. ¶ 70. On April 11, 2003, D.D. had an impartial hearing before a
NYCDOE impartial hearing officer. Id. ¶ 72. By decision dated April 30,
2003, the hearing officer held that D.D. required the services listed in
the amended IEP and ordered the NYCDOE to implement this IEP by May 10,
2003 and to provide him with compensatory services. Id. ¶ 74.
On May 16, 2003, over six months beyond the projected start date for
his IEP, D.D. filed and served upon defendants an order to show cause for
a temporary restraining order and preliminary injunction to: comply with
and implement the April 30 decision of the hearing officer; provide D.D.
with special education services through the end of the summer program at
a previously designated preschool; and provide D.D. with an ABA/Special
Education Itinerant Teacher ("SEIT") provider through the end of the
summer. See Order dated 5/21/03. The temporary restraining order was
granted on May 21, 2003 by court order, and defendants NYCDOE and NYCBOE
were ordered to comply with and implement the hearing officer's April 30
However, in July 2003, D.D.'s parents removed him from the preschool
and took him out of the country. See Wernikoff Decl. ¶ 47. As a result,
by court order dated August 18, 2003, the DOE was permitted to
discontinue payment of SEIT services. See Order dated 8/12/03. Finally,
in July 2003, D.D. turned five years old and became ineligible for
preschool services as of the end of August 2003. Municipal Defendants'
Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary
Injunction and Class Certification ("City Mem.") at 3.
A.C. is a four-year-old resident of Brooklyn, New York. Am. Compl. ¶
80. Sometime after he turned two years old, A.C. was evaluated and
accepted for an Early Intervention program in April 2002, and also
received speech, language and occupational therapy services at home. Id.
¶ 82. In December 2002, A.C. became three years old and aged out of the
Early Intervention Program.
After the local CPSE failed to arrange for A.C.'s transition to CPSE
services, A.C.'s mother
contacted the Birch Early Childhood Center to obtain the necessary CPSE
forms and evaluations. Id. ¶¶ 84-85. Evaluations performed in November and
December of 2002 and January 2003 revealed that A.C. had significant
developmental difficulties with a developmental delay of almost one
year, as well as a disorder on the autism spectrum. Id. ¶¶ 86-92. As a
result of these evaluations, on February 26, 2003, the District 29 CPSE
representative prepared an IEP which recommended a year-round special
education class with a ten-student, one-teacher, two-aide ratio. The IEP
also recommended speech therapy, occupational therapy and counseling
services. Id. ¶¶ 93-94. The projected date for A.C.'s IEP was March 10,
2003. Id. ¶ 95.
The District 29 CPSE representative, however, told A.C.'s mother that
about 500 preschool children throughout the city were on a waiting list
for special education services, and that A.C. might have to wait until
July or September 2003 for a placement. Id. ¶¶ 96-97. Although A.C.
eventually received speech therapy on an interim basis, he did not
receive any occupational therapy, counseling, or school placements for at
least three months. Id. ¶¶ 98-101. Finally, on June 4, 2003, A.C.'s mother
retained counsel and had an impartial hearing before a NYCDOE impartial
hearing officer. Id. ¶ 102.
On or about June 4, 2003, the CPSE advised A.C.'s parents about
openings at three programs, but his parents declined the program at one of
the schools. Wernikoff Decl. ¶ 51. At around the same time, A.C. also
relocated to School District 19. Although A.C.'s parents were advised
that another program in that district was available, his parents
apparently failed to honor two appointments to view the program. Id. ¶
52. Eventually, A.C.'s parents accepted a placement at Lifeline Center
for Child Development beginning July 1, 2003, which offered a full-day
special class program with related services and SEIT therapy. Id. ¶ 53.
On July 25, 2003, the impartial hearing officer issued a decision
ordering NYCDOE to provide compensatory services to A.C. According to the
NYCDOE, A.C.'s parents made it difficult to move forward with the
compensatory services because they initially insisted on adding Applied
Behavioral Analysis services to their child's IEP as a precondition to
granting their consent, despite being told the statutory and
administrative reasons for not listing them. Id. ¶ 55. However, it
appears that A.C. is now doing well and has progressed to a less
restrictive class. Id. ¶ 56.
B.T. is a four-year-old resident of Flushing, New York. Am. Compl. ¶
107. In May 2001, B.T. was deemed eligible for Early Intervention
services and subsequently received speech, occupation, physical therapy,
special instruction and eventually Applied Behavioral Analysis services
until December 2002, a few months after his third birthday. Id. ¶¶
108-109. As part of the transition to special education services
administered by the District 25 CPSE, B.T. was referred to the CPSE in
October 2002. Id. ¶ 110. After preschool evaluations showed that B.T.
had significant development difficulties, the District 25 CPSE developed
an IEP for B.T. on January 3, 2003. Id. ¶¶ 112-121. The IEP recommended:
one year of special education services; related services of speech,
occupational and physical therapy; a "sensory gym" and a "sensory diet";
supports for his social and emotional needs; and the services of a special
education teacher. Id. ¶¶ 121-123. The IEP initiation date was set for
"ASAP," meaning "as soon as possible." Id. ¶ 124.
In the months following the IEP, the CPSE Administrator for District 25
contacted ten preschool programs to find a place for B.T. in the
appropriate program and also explored half-day programs and larger class
size programs, but none were available. Wernikoff Decl. ¶ 58. As a
from January through March 2003, B.T. received none of the services
required by the IEP and was not in school. Am. Compl. ¶¶ 125-128. In April
or May 2003, the CPSE offered B.T. an interim placement of home-based
occupational and physical therapy three times a week and two hours daily
of ABA services, but did not offer any speech therapy or school
placements. Id. ¶¶ 129-130. On or about May 29, 2003, B.T.'s parents
accepted partial services in the form of SEIT services ten hours per
week. Wernikoff Decl ¶ 59. It was not until June 25, 2003 that B.T. was
offered and accepted a placement at a school. Wernikoff Decl. ¶ 60.
Motion for Class Certification
Plaintiffs seek to certify a class comprised of "[a]ll present and
future New York City preschool children with IEPs who have not or will
not receive all of the services required by their IEPs." Plaintiffs'
Memorandum of Law in Support of Motion for Class Certification ("Pls.'
Class Cert. Mem.") at 3. In order to certify a class, plaintiffs must
satisfy the four requirements of Rule 23(a) and demonstrate that the
proposed class action fits into one of the three categories described in
Rule 23(b). Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968).
Although plaintiffs bear the burden of proving that the proposed class is
appropriate for certification, see Demarco. v. Edens, 390 F.2d 836, 845
(2d Cir. 1968), plaintiffs do not have to make an extensive evidentiary
showing in support of their motion. Follette v. Vitanza, 658 F. Supp. 492,
505 (N.D.N.Y. 1987), vac'd in part on other grounds by 671 F. Supp. 1362
(N.D.N.Y. 1987). In addition, a court considering a motion for class
assume the truth of the plaintiff's allegations. See Shelter Realty
Corp. v. Allied Maint. Corp., 574 F.2d 656, 661, n.15 (2d Cir. 1978);
DeAllaume v. Perales, 110 F.R.D. 299, 305 (S.D.N.Y. 1986) ("[F]or
purposes of determining class certification issues, the allegations are
taken as true and the merits of the complaint are not examined.")
For the reasons set forth below, the court grants plaintiffs' motion
for class certification with a modification, and appoints individual
plaintiffs D.D., A.C. and B.T. as class representatives.
A. Class Definition
As a threshold matter, the City defendants oppose plaintiffs' class
definition because it could theoretically include all preschool children
with IEPs who do not receive services "even the day after the IEP is
developed." City Mem. at 18.
Addressing the City defendants' concern that the class definition
includes children who have timely received services, the following
limited alteration to the proposed class definition is adopted: "All
present and future New York City preschool children with IEPs who have not
or will not timely receive all of the services required by their IEPs"
(emphasis added). See, e.g., Ray M. v. Bd. of Educ., 884 F. Supp. 696,
698 (E.D.N.Y. 1995) (certifying provisional class of "[a]ll preschool
students, ages three through five, living in New York City, who have been
or will be referred to the Committee on Preschool Special Education for a
determination as to whether they require special education services and
who have not been or will not be timely evaluated, recommended for and/or
provided special education services.); Tonya K. v. Chicago Bd. of Educ.,
551 F. Supp. 1107, 1113 (N.D. Ill. 1982) (certifying class of "all
handicapped children who . . . will not be placed in such facilities by
the Chicago defendants in a timely manner.")
B. Rule 23(a)
In pertinent part, Rule 23(a) provides that:
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims
or defenses of the representative parties are
typical of the claims or defenses of the class,
and (4) the representative parties will fairly and
adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). Each of these requirements will be addressed in
Rule 23(a)(1) requires that a proposed class be so numerous that
joinder is impracticable. The plaintiff is not obligated to identify the
exact number of class plaintiffs. See Robidoux v. Celani, 987 F.2d 931,
935 (2d Cir. 1993). "[A] class action may proceed upon estimates as to
the size of the proposed class," In re Alcoholic Beverages Litig.,
95 F.R.D. 321, 324 (E.D.N.Y. 1992), and "courts may `make common sense
assumptions' to support a finding of numerosity." Weissman v. ABD Fin.
Servs., Inc., 203 F.R.D. 81, 84 (E.D.N.Y. 2001) (quoting Pecere v. Empire
Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000)).
Generally, "numerosity is presumed at a level of 40 members." Consol.
Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
When plaintiffs filed their amended complaint in June 2003, there were
allegedly more than 500 preschool children with IEPs on the PN list who
were awaiting services. Am. Compl.
¶ 36. City defendants represented to the court that the total number
of children on this list had gone down to 125 as of October 31, 2003.
See Goldberg Decl., Ex. A. Taking into account the fluctuating number of
preschool students awaiting services, either the low end (125) or the high
end (over 500) of
the range constitutes a sufficient number of members to satisfy
numerosity. Thus, the numerosity requirement has been met.
To fulfill the commonality requirement of Rule 23(a)(2), plaintiffs
must demonstrate that common questions of law or fact are at the core of
the cause of action. City defendants contend there are no questions of
fact common to the class as a whole and assert that the court would have
to conduct individualized inquiries to determine, among other things,
whether each potential class member had an IEP, when the IEP was
developed, how long the child had been waiting for the services
recommended on the IEP, and whether parents or guardians had accepted the
recommendations or requested an impartial hearing. See City Mem. at 17.
This argument, however, is unavailing, for "the existence of factual
variations in the types of irreparable injury suffered or in the length
of the delay does not preclude class certification." Alexander A. v.
Novello, 210 F.R.D. 27, 33 (E.D.N.Y. 2002) (quoting Brown v. Giuliani,
158 F.R.D. 251, 268 (E.D.N.Y. 1994)).
Despite individual variations in the services sought by the named
representatives and the putative class members, all their claims
singularly focus on the defendants' alleged failure to provide services
listed on their IEPs in a timely manner in violation of the IDEA, the
ADA, Section 504 and 42 U.S.C. § 1983 and 1988. Since "[e]ven a single
common question has been sufficient to satisfy the commonality
requirement," Boyland v. Wing, 92 CV 1002, 2001 WL 761180, at *8
(E.D.N.Y. Apr. 6, 2001), plaintiffs have satisfied this element.
The typicality requirement of Rule 23(a)(3) is met when the class
representatives' claims are
typical of those in the proposed class. Boyland, 2001 WL 761180, at *10.
"[E]ach class member's claim arises from the same course of events and
each class member makes similar legal arguments to prove the defendant's
liability." Robidoux, 987 F.2d at 936. Like the commonality prong, when
the pleadings allege that the named plaintiff and the class were
subjected to or affected by the same unlawful conduct, the typicality
requirement is usually met regardless of "minor variations in the fact
patterns underlying individual claims." Id. at 936-37. The individual
plaintiffs assert that their claims for injunctive relief are typical of
the proposed class as a whole because they are subject to the same
policies and practices that have failed to provide timely services to New
York City preschool children with IEPs. Pls.' Class Mem. at 7. Plaintiffs
also assert that typicality exists because the named plaintiffs have
already suffered an injury and seek to represent a class which includes
children who are threatened by similar injuries, but have not yet
suffered them. Id. at 7-8. On the other hand, City defendants and Mills
also appear to attack typicality by asserting that the interests of the
named plaintiffs are atypical of the rest of the class because they
sought half- or full-day classroom placements, whereas most preschool
students with disabilities require related services. See City Mem. at 20;
Memorandum of Law in Support of Defendant Mills' Motion to Dismiss and in
Opposition to Plaintiffs' Motions for Preliminary Injunction and Class
Certification ("Mills' Mem.") at 26.
Again, the defendants' arguments are unavailing. "When it is alleged
that the same unlawful conduct was directed at or affected both the named
plaintiff and the class sought to be represented, the typicality
requirement is usually met irrespective of minor variations in the fact
patterns underlying individual claims." Robidoux, 987 F.2d at 936-37. See
also Tonya K., 551 F. Supp. at 1111) (holding that, regardless of diverse
disabilities and needs of class members, common and only legal issue
was whether defendants' failure to place them in private educational
services was untimely and violative of their federal and state rights to
a free appropriate education); Rossini v. Ogilvy & Mather, Inc.,
798 F.2d 590, 595 (2d Cir. 1986) (holding that defendants acted "in the
same general fashion" and typicality was met where individual and class
members alleged wrongful denials of opportunities for professional
advancement, despite differences in decisions affecting opportunities for
promotion and training). Similarly, individual variations in IEP-mandated
placements and/or services cannot defeat the typicality prong where
plaintiffs' primary claim is that defendants unlawfully failed to
implement their IEPs in a timely manner. As a result, the typicality
prong has been met.
(4) Fair and Adequate Representation
Finally, to satisfy Rule 23(a)(4), plaintiffs must demonstrate that
"the representative parties will fairly and adequately protect the
interests of the class." The "adequate representation" inquiry has two
prongs: "First, class counsel must be qualified, experienced and generally
able to conduct the litigation. Second, the class members must not have
interests that are antagonistic to one another." Harrison v. Great
Springwaters of Am., No. 96-CV-5990, 1997 WL 469996, at *5 (E.D.N.Y. June
18, 1997) (quoting D'Alauro v. GC Servs. Ltd. P'ship, 168 F.R.D. 451, 457
There is no dispute as to the first part of the adequacy test.
Plaintiffs are represented by the law firm of Emery Celli Cuti
Brinckerhoff & Abady P.C. Plaintiffs allege that the firm has
substantial expertise in civil rights litigation and class action
representation, and there are no known conflicts between the firm and
members of the class and among members of the class. See Declaration of
Ilann M. Maazel in Support of Motion for Class Representation ("Maazel
Class Cert. Decl.") at ¶¶ 2-4. Since defendants do not challenge these
assertions and there is no reason for the court to doubt them,
the first element has been met.
However, defendants argue that the class representatives fail to meet
the second part of the adequacy inquiry for two reasons. City defendants
first argue that the named representatives have received or are receiving
the services mandated on their IEPs. See City Mem. at 20-21. Defendants'
second attack on the adequacy prong center around the fact that the named
plaintiffs generally required one type of services (school placements),
and that other class members will likely need other types of services
(related or itinerant services). City Mem. at 20; Mills' Mem. at 26. In
particular, Mills and the City defendants suggest in conclusory fashion
that the named plaintiffs' interests are antagonistic to those of the
putative class because "the named plaintiffs have an interest in
increasing the number of instructors in approved preschool programs, even
to the detriment of related or itinerant services." Mills' Mem. at 26; see
also City Mem. at 20. Both arguments are unpersuasive for the following
With respect to defendants' first argument, class certification is
still proper even where named plaintiffs have already received the relief
they sought. Although a genuine dispute must exist in order to meet the
"case or controversy" requirement of Article III of the Constitution, the
Supreme Court has recognized that in class action contexts:
[t]here may be cases in which the controversy
involving the named plaintiffs is such that it becomes
moot as to them before the district court can
reasonably be expected to rule on a certification
motion. In such instances, whether the certification
can be said to `relate back' to the filing of the
compliant may depend upon the circumstances of the
particular case and especially the reality of the
claim that otherwise the issue would evade review.
Sosna v. Iowa, 419 U.S. 393
, 402 n.11 (1975). This "relation back"
doctrine has been applied to allow class representation by individuals
whose claims became moot after the motion for class
certification was filed, but before the motion was resolved. Crisci v.
Shalala, 169 F.R.D. 563, 567 (S.D.N.Y. 1996) (citations omitted). This is
especially true where class claims are "inherently transitory."
Robidoux, 987 F.2d at 939. Relation back is also appropriate "so long as
a justiciable controversy existed some time prior to class
certification." Goetz v. Crosson, 728 F. Supp. 995
, 1000 n.8 (S.D.N.Y.
1990). Here, plaintiffs' claims are inherently transitory because
defendants will almost always be able to implement an IEP before a
plaintiff can obtain relief through litigation. See, e.g., Robidoux, 987
F.2d at 939 (recognizing "inherently transitory" nature of claim
involving unlawful delays in processing applications for public
assistance benefits); Olson v. Wing, 281 F. Supp.2d 476, 484 (E.D.N.Y.
2003) ("[D]efendants' voluntary actions to resolve the named plaintiff's
claim should not be allowed to serve as a mechanism for avoiding judicial
scrutiny of allegedly unconstitutional acts against plaintiff's proposed
Although D.D., A.C. and B.T. have either aged out of the system or have
received the services listed in their IEPs, their IEPs clearly had not
been implemented for several months at the time their amended complaint
was filed. Given the inherently transitory nature of plaintiffs' claims
and the fact that plaintiffs allegedly suffered injuries at the time the
complaint was filed but before the class was certified, plaintiffs'
receipt of IEP placements and services does not render the entire class
action moot. See also Robidoux, 987 F.2d at 938 (holding that class
action was not moot merely because named plaintiffs received their
unlawfully delayed benefits after lawsuit was filed); Olson, 281 F.
Supp.2d at 484 (holding that class action was not moot because named
plaintiffs were granted hearings to contest termination of Disaster Relief
Medicaid benefits after suit was filed); Tonya K., 551 F. Supp. at 1112
(holding that class action was not moot because named plaintiffs no
longer awaited placement in
appropriate educational programs). Defendants' first argument is,
therefore, without merit.
As for the defendants' claim that the difference in services sought
renders the named plaintiffs' interests antagonistic to those of the
class, nothing in plaintiffs' amended complaint can be read as an
inference that one type of services need be sacrificed for the benefit of
another. Instead, the amended complaint consistently demands an
implementation of "all of the services" or "the full services" required
by the IEPs of the putative class. See Am. Compl. ¶¶ 23, 24, 26, 38, 140,
148, ad damnum clause. Despite the difference in services sought, the
named plaintiffs and the class members still have an identical interest
in the timely implementation of their IEPs. The adequacy prong of Rule
23(a) has, therefore, been met. See Marisol A. v. Giuliani, 126 F.3d 372,
378 (2d Cir. 1997) (holding that the class members' interests were
identical and that Rule 23(a)(4) was met, where plaintiffs sought "broad
based relief which would require the child welfare system to dramatically
improve the quality of all of its services. . . .")
C. Rule 23(b)
In addition to satisfying the requirements of Rule 23(a), a potential
class action must qualify under one of the categories set forth in
Rule 23(b). Plaintiffs rely on Rule 23(b)(2), or in the alternative,
Rule 23(b)(2) allows class certification if the moving party shows that
the defendants have "acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the class as a
whole." Fed.R.Civ.P. 23(b)(2). Rule 23(b)(2) "does not extend to cases in
which the appropriate final relief relates exclusively or predominantly
to money damages." Fed.R.Civ.P. 23(b)(2) advisory committee's note
(1966). However, if money damages are "merely incidental" to plaintiffs'
request for injunctive or declaratory relief, a class action may be
certified under Rule 23(b)(2). Vengurlekar v. Silverline Tech., Ltd.,
No. 02 Civ. 7724, 2003 WL 22801757, at *4 (S.D.N.Y. Nov. 24, 2003)
(citing Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 156-57
Plaintiffs assert that class certification under Rule 23(b)(2) is
appropriate because defendants, by failing to implement the IEPs of the
putative plaintiff class, have refused to act on grounds generally
applicable to the class. See Pls.' Class Cert. Mem. at 10. Defendants,
however, attack Rule 23(b)(2) certification with several arguments.
First, they claim to have expended tremendous efforts to facilitate,
expand and deliver services to the disabled preschool population as a
whole. See City Mem. at 21; Mills' Mem. at 23. Second, the City defendants
argue that plaintiffs' claims for compensatory and punitive damages
require this court to determine whether those damages predominate over
the claims for injunctive and declaratory relief. See City Mem. at
21-22. Finally, Mills contends that this court can, in the exercise of
discretion, deny certification if it finds that it is "unnecessary to
ensure that all persons similarly situated to plaintiffs will benefit by
any relief accorded to plaintiffs." Mills' Mem. at 27-28 (quoting
Denenberg v. Blum, 93 F.R.D. 131, 133-34 (S.D.N.Y. 1982)). According to
Mills, class certification is "unnecessary" in actions where plaintiffs
are challenging the policies and practices of governmental officials
seeking injunctive or declaratory relief. Mills' Mem. at 28 (citing
Galvan v. Levine, 490 F.2d 1255, 1261-62 (2d Cir. 1973); Ruiz v. Blum,
549 F. Supp. 871, 878 (S.D.N.Y. 1982); Davis v. Smith, 431 F. Supp. 1206
(S.D.N.Y. 1977), aff'd, 607 F.2d 535 (2d Cir. 1978); Aluminum Co. of Am.
v. FTC, 67 F.R.D. 510, 512 (S.D.N.Y. 1975)). Defendants' arguments will
be addressed in turn.
First, as plaintiffs note, defendants' claims of exerting their best
efforts to serve most of the disabled preschool population are irrelevant
for purposes of 23(b)(2). The question is whether defendants have
allegedly failed to act "on grounds generally applicable to the class."
Fed.R.Civ.P. 23(b)(2) (emphasis added). Here, the proposed class consists
of disabled preschool children whose IEPs have not or will not be
implemented in a timely manner due to defendants' alleged failure to act
on grounds generally applicable to them. Thus, defendants' first argument
is without merit.
Turning to the next argument, this court notes that plaintiffs seek, in
addition to declaratory and injunctive relief, compensatory and punitive
damages arising from defendants' allegedly unlawful policy and practice
of failing to immediately implement services required by their IEPs. See
Am. Compl. ¶ 4, ad damnum clause. City defendants correctly point out
that these claims for compensatory and punitive damages require this
court to determine whether they predominate over the claims for
injunctive and declaratory relief. See Parker v. Time Warner Entm't Co.,
331 F.3d 13, 18 (2d Cir. 2003) ("[W]hen monetary relief is requested in
tandem with injunctive and declaratory relief, the court must determine
whether the requested monetary relief predominates over the claims for
equitable relief."). This is because certification under Rule 23(b)(2) is
inappropriate for class actions where "the appropriate final relief
relates exclusively or predominately to money damages." Id. (quoting
Fed.R.Civ.P. 23(b)(2), advisory committee note (1966)).
A district court considering a motion for Rule 23(b)(2) certification
of a claim seeking both injunctive relief and non-incidental monetary
damages must "`consider the evidence presented at a class certification
hearing and the arguments of counsel,' and then assess whether (b)(2)
certification is appropriate in light of `the relative importance of the
remedies sought, given all of the facts and
circumstances of the case.'" Id. at 20 (quoting Robinson v. Metro-North
Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001)). A court should
allow Rule 23(b)(2) certification where: "(1) the positive weight or
value to the plaintiffs of the injunctive or declaratory relief sought is
predominant even though compensatory or punitive damages are also
claimed, and (2) class treatment would be efficient and manageable,
thereby achieving an appreciable measure of judicial economy." Dodge v.
County of Orange, 208 F.R.D. 79, 90 (S.D.N.Y. 2002) (quoting Robinson,
267 F.3d at 164). Although deciding whether injunctive or declaratory
relief predominates requires an "ad hoc approach" that varies from case
to case, in making its determination, the court should, at a minimum, be
satisfied with the following:
(1) even in the absence of a possible monetary
recovery, reasonable plaintiffs would bring the suit
to obtain the injunctive or declaratory relief sought;
and (2) the injunctive or declaratory relief sought
would be both reasonably necessary and appropriate
were the plaintiffs to succeed on the merits.
Insignificant or sham requests for injunctive relief
should not provide cover for (b)(2) certification of
claims that are brought essentially for monetary
Robinson, 267 F.3d at 164.
Here, the injunctive and declaratory relief sought by plaintiffs
predominate over the compensatory and punitive damages claimed. It is
likely that plaintiffs would have brought this suit even in the absence
of the potential for monetary recovery by some plaintiffs, as the class
seeks a declaration that the defendants' policy, practice and custom of
failing to immediately implement IEPs to New York City preschool children
violate federal law. Plaintiffs also seek significant injunctive relief
in the form of an order enjoining defendants to immediately implement all
the services required by IEPs. If defendants are in fact liable, it would
be in plaintiffs' interest to obtain the equitable relief that, if
complied with, would halt or prevent the alleged harms arising from the
denial of a free appropriate public education.
While plaintiffs do request monetary damages, the positive or
qualitative value of the declaratory and injunctive relief they seek
overwhelms these requests for damages.*fn9 Finally, it would be an
extremely inefficient use of judicial resources to try the liability
phase of each plaintiff's claims individually.
Finally, Mills' incorrectly argues that certification is "unnecessary"
in actions where plaintiffs are challenging the policies and practices of
governmental officials seeking injunctive or declaratory relief. In
fact, Rule 23(b)(2) was "designed specifically for civil rights cases
seeking broad declaratory or injunctive relief for a numerous . . . class
of persons." In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.,
209 F.R.D. 323, 341 (S.D.N.Y. 2002) (quoting Baby Neal v. Casey,
43 F.3d 48, 58 (3d Cir. 1994)); Fed.R.Civ.P. 23(b)(2) advisory committee's
note (1966). There is also "a long line of cases in the
Second Circuit allowing class actions that seek to enjoin governmental
actions." Alexander A., 210 F.R.D. at 34 (citations omitted).
Notwithstanding precedent granting Rule 23(b)(2) certification in
actions similar to the instant case, Mills argues that, "where plaintiff
is successful in challenging the legality of a policy or practice of a
governmental or public official and obtaining injunctive or declaratory
relief," class certification is unnecessary because "defendants will
provide that relief to all others similarly situated." Mills' Mem. at 28.
In making this argument, Mills misrepresents and misapplies Galvan v.
Levine, 490 F.2d 1255 (2d Cir. 1973) and other cases citing Galvan.
In Galvan, plaintiffs challenged the state industrial commissioner's
policy of denying unemployment benefits to persons of Puerto Rican origin
who had returned from New York to Puerto Rico. Id. at 1257. In denying
plaintiffs' motion for certification pursuant to Rule 23(b)(2), the Second
Circuit explained that:
[I]nsofar as the relief sought is prohibitory, an
action seeking declaratory or injunctive relief
against state officials on the ground of
unconstitutionality of a statute or administrative
practice is the archetype of one where class action
designation is largely a formality at least for the
plaintiffs. As we have recently noted . . . what is
important in such a case for the plaintiffs . . . is
that the judgment run to the benefit not only of the
named plaintiffs but of all others similarly
situated. . . .
Id. at 1261. The Second Circuit then observed that, prior to class
certification and prior to judgment, the state indicated that it
understood the judgment would bind it with respect to all claimants,
withdrew the challenged policy, and promised not to reinstate it. Id.
Given the state's willingness to comply, class action designation would
have been "unnecessary." Id. As discussed below, however, class
certification would not be "largely a formality" or "unnecessary" for the
Courts deciding the necessity of Rule 23(b)(2) certification under
Galvan have focused on four factors to determine whether certification
would be superfluous. Daniels v. City of New York, 198 F.R.D. 409, 421
(S.D.N.Y. 2001) (citing Blecher v. Dep't of Hous. Pres. and Dev., No. 92
CIV. 8760, 1994 WL 144376, at *4 (S.D.N.Y. Apr. 19, 1994)). First, "an
affirmative statement from the government defendant that it will apply
any relief across the board militates against the need for class
certification." Second, "withdrawal of the challenged action or
non-enforcement of the challenged statute militates against the need for
class certification." Third, if "the relief sought is merely a
declaration that a statute or policy is unconstitutional, denial of class
certification is more appropriate than where plaintiffs seek complex,
affirmative relief." Fourth, class certification is necessary if
plaintiffs' claims are likely to become moot. Daniels, 198 F.R.D. at 421
(quoting Blecher, 1994 WL 144376, at *4-5 (citations omitted)).
Applying all four factors to this case: (1) the defendants have not
expressed a willingness to ensure compliance with a ruling for the
putative class; (2) defendants are being asked to comply with existing
regulations, not to withdraw or discontinue the enforcement of an
existing policy; (3) the relief sought is not a declaration that a
statute or policy is unconstitutional, but a declaration that defendants
are violating existing law, and a mandate for defendants to affirmatively
ensure compliance; and (4) the class members' claims are likely to become
moot.*fn10 Given these circumstances, and because plaintiffs
allege that defendants, in failing to comply with their statutory
duties of timely providing services, have refused to act on grounds
generally applicable to them, plaintiffs' class action can be maintained
under Rule 23(b)(2).*fn11
Defendant Richard Mills' Motion to Dismiss
Defendant Mills moves pursuant to Rules 12(b)(1) and (b)(6) to dismiss
the amended complaint as to him on the following grounds: (1) the IDEA
does not provide for monetary damages, Mills' Mem. at 9-10; (2) the
Eleventh Amendment bars plaintiffs' claims for monetary damages against
him under § 1983, id. at 10-11; (3) Mills is not liable in his individual
capacity for § 1983 monetary damages because he was not personally
involved in the provision of special education services, id. at 11-12; (4)
plaintiffs have not stated a cause of action under the ADA or the Section
504 of the Rehabilitation Act, id. at 13-14; and (5) the injunctive claims
against him require dismissal because implementation of IEPs is the
responsibility of the local school districts>. Plaintiffs and the City
defendants oppose Mills' motion to dismiss. For the following reasons,
Mills' motion to dismiss is granted in part and denied in part.
For both Rule 12(b)(1) and a 12(b)(6) motions to dismiss, the factual
allegations of the complaint are presumed to be true and all factual
inferences must be drawn in the plaintiffs' favor. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Sweet v. Sheahan, 235 F.3d 80, 83 (2d
Cir. 2000). This court may not dismiss the complaint pursuant to either
rule unless the movant demonstrates "beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50
(1989). The court must "limit itself to facts stated in the complaint or
in documents attached to the complaint as exhibits or incorporated in the
complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773
(2d Cir. 1991). In this context, a complaint is deemed to include
"documents that the plaintiffs either possessed or knew about and upon
which they relied in bringing this suit." Rothman v. Gregor, 220 F.3d 81,
88 (2d Cir. 2000). Under Rule 12(b)(1), however, this court may consider
evidence outside the complaint to determine whether jurisdiction is
lacking. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
From the outset, this court notes that Mills' and the City defendants'
briefs in support of and opposing this motion to dismiss refer to
affidavits previously submitted in response to plaintiffs' class
certification and preliminary injunction motions-specifically, the
affidavits of Rebecca Cort and Linda Wernikoff. See, e.g., Mills' Mem. at
16-17; Reply Memorandum of Law in Further Support of Defendant Mills'
Motion to Dismiss ("Mills' Reply Mem.") at 5; Municipal Defendants'
Memorandum of Law in Opposition to State Defendant's Motion to Dismiss
("City Mem. in Opp.") at 3, 6-7. The City defendants' opposition brief
also refers the court to various SED publications which are disseminated
to school districts> throughout the state. City Mem. in Opp. at 6. When a
district court is
provided with materials beyond the pleadings in a 12(b)(6) motion to
dismiss, the court may either: (1) exclude the additional materials and
decide the motion on the complaint alone; or (2) convert the motion to a
Fed.R.Civ.P. 56 motion for summary judgment and give all parties the
opportunity to present supporting material. Kopec v. Coughlin, 922 F.2d 152,
154 (2d Cir. 2001). Because plaintiffs have not filed any material
outside their pleadings in response to Mills' motion to dismiss, and
because discovery is at a preliminary stage, this motion will not be
converted to a summary judgment motion. Accordingly, statements outside
the pleadings will not be taken into consideration for purpose of
deciding Mills' 12(b)(6) motion.
A. Claims for Monetary Damages Under the IDEA and Section 1983
Defendant Mills first asserts that claims for compensatory and punitive
damages under the IDEA should be dismissed against him because the
statute does not provide for such awards. Mills' Mem. at 9-10 (citations
omitted). Mills further asserts that both the Eleventh Amendment and the
doctrine of respondeat superior also bar recovery of monetary damages
brought against him in his official capacity under § 1983. Mills' Mem. at
10-12 (citations omitted). Since plaintiffs' reply brief asserts that
they are not seeking monetary damages against Mills, see Plaintiffs'
Reply Memorandum of Law ("Pls.' Reply Mem.") at 11, these arguments are
moot, and all claims for monetary damages under IDEA and § 1983 against
Mills are thereby dismissed.*fn12
B. ADA and Section 504 Claims
Next, Mills asserts that plaintiffs have failed to state a cause of
action under either the ADA or Section 504 of the Rehabilitation Act.
Mills' Mem. at 13-14. Specifically, Mills claims that plaintiffs'
complaint fails to allege that they were treated differently from
non-disabled individuals solely because of their disabilities. Id.
Plaintiffs respond that they "did not move for a preliminary injunction
on the ADA or Section 504 claims." Pls.' Reply Mem. at 10,*fn13 but this
still leaves an ADA and Section 504 claim for money damages against
Mills. Plaintiffs also respond that the Second Circuit's holding in
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), "simply dispose
of Mills' argument." Pls.' Reply Mem. at 11. For the reasons set forth
below, this court agrees with Mills' contention that plaintiffs cannot
allege discrimination by reason of their disabilities and that Henrietta
D. is inapposite. Accordingly, plaintiffs' ADA and Section 504 claims
against Mills are dismissed. For similar reasons, plaintiffs' ADA and
Section 504 claims against the City defendants are also dismissed sua
1. Reasonable Accommodation
Title II of the ADA and Section 504 of the Rehabilitation Act protect
disabled persons from discrimination in the provision of public
services. Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002). Title
II of the ADA provides that:
Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public entity,
or be subjected to
discrimination by any such entity.
42 U.S.C. § 12132.
Section 504 of the Rehabilitation Act similarly provides, in part:
No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her
or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency or by the
United States Postal Service.
29 U.S.C. § 794(a).
"Apart from the Rehabilitation Act's limitation to denials of benefits
`solely' by reason of disability and its reach of only federally
funded-as opposed to `public'-entities, the reach and requirements of
both statutes are precisely the same." Weixel, 287 F.3d at 146 n.6. See
also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999)
("Because Section 504 of the Rehabilitation Act and the ADA impose
identical requirements, we consider these claims in tandem."). Thus,
where neither difference is significant or relevant to the case at hand,
claims under both statutes are treated identically. Henrietta D., 331
F.3d at 272. Because there is no question that defendants are public
entities and receive federal funding under both statutes, plaintiffs'
claims under the ADA and Section 504 will be analyzed together.
To establish a violation under Title II of the ADA and Section 504 of
the Rehabilitation Act, plaintiffs must show that: (1) they have a
disability for purposes of the ADA and Section 504; (2) they were
otherwise qualified for the benefits that had been denied; and (3) they
had been denied the benefit by reason of their disabilities. Weixel, 287
F.3d at 146-47; Henrietta D., 331 F.3d at 272 (citing Doe v. Pfrommer,
148 F.3d 73, 82 (2d Cir. 1998)).
Mills does not contest that plaintiffs are qualified individuals with
disabilities or that they were otherwise qualified for the benefits
denied them. What Mills contests is that plaintiffs have failed to
allege, and cannot allege, that they were denied the opportunity to
participate in or benefit from state services, programs or activities, or
that they were otherwise discriminated against by reason of their
disabilities. Mills' Mem. at 13-14; Mills' Reply Mem. at 8-10.
Plaintiffs, without analysis or explanation, respond that the Second
Circuit's analysis and holding in Henrietta D. supports their proposition
that the failure to timely implement IEPs is a discriminatory failure to
reasonably accommodate the disabilities of preschool disabled children
under both statutes. Pls.' Reply Mem. at 11. Contrary to plaintiffs'
assertions, however, this court finds that Henrietta D. is
distinguishable from this case.
In Henrietta D., a class of New York City residents suffering from AIDS
and other HIV-related illness sued the city and the state under, inter
alia, Title II of the ADA and Section 504 of the Rehabilitation Act. 331
F.3d at 264. Although the city had established the Division of AIDS
Services and Income Support ("DASIS") pursuant to N.Y.C. Admin. Code §
21-126, et seq. ("DASIS law") to help HIV-afflicted residents access
federal, state and local welfare benefits which were also available to
qualifying non-disabled persons, plaintiffs asserted that DASIS had
systematically failed to achieve its goals. Id. at 265-66.
Following a bench trial, the district court agreed with plaintiffs'
assertions that their illnesses presented unique physical challenges and
medical risks which, in turn, created barriers to accessing public
assistance benefits and services. Id. at 265, 267. Specifically, the
court found that AIDS and HIV-infected persons experience "serious
functional limitations that make it extremely difficult . . . to
negotiate the complicated City social service system on their own," and
"to engage in regular activities of daily life such as traveling,
standing in line, attending scheduled appointments, completing paper work
and otherwise negotiating medical and social service bureaucracies. . . ."
Id. at 267-68. Although DASIS was designed to overcome these barriers
by providing the reasonable accommodations sought by plaintiffs, the
court found that the agency had generally failed to deliver services
which it was required by law to provide. As a result, the court found the
city and the state liable to plaintiffs for failing to provide them with
meaningful access to critical benefits and services in violation of the
ADA and Section 504. Id. at 269.
The city and state defendants appealed, arguing that the facts found by
the trial court did not establish any violation of the ADA or Section
504. Id. at 271. Defendants contended that, because plaintiffs had not
demonstrated that they were receiving less access to services than
non-disabled individuals, plaintiffs had not shown that defendants
"denied [them] the benefits of the services, programs or activities of a
public entity . . . by reason of their disability," rather than for other
reasons that would also affect non-disabled clients-e.g., systemic
breakdowns in the social services system. Id. at 272-73 (emphasis in
original). Plaintiffs responded that, because of their disabilities, they
needed special accommodations to obtain meaningful access to social
service benefits that were more readily accessible to the non-disabled.
Therefore, a showing of disparate impact was unnecessary; rather, it was
sufficient for them to show that reasonable accommodations were not being
made. Id. at 273.
The Second Circuit first noted that plaintiffs had advanced a
"reasonable accommodation" claim-defined as "not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability. . . .unless such
covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of the
business of such covered entity." Id. (citing 42 U.S.C. § 12112(b)(5)(A);
Alexander v. Choate, 469 U.S. 287, 300-01 (1985)). Since reasonable
accommodation claims "do not expressly rely on a theory of disparate
impact," the threshold question was whether the ADA's "concept of
discrimination" required plaintiffs to identify "a comparison class of
similarly situated individuals given preferential treatment." Id.
(quoting Olmstead v. L.C., 527 U.S. 581, 598 (1999) (plurality)). The
Second Circuit concluded that it did not. Id.
Following a lengthy analysis of its own cases applying Section 504 of
the Rehabilitation Act, the Second Circuit declared that:
our cases speak simply in terms of helping individuals
with disabilities access public benefits to which both
they and those without disabilities are legally
entitled, and to which they would have difficulty
obtaining access due to disabilities; the cases do not
invite comparisons to the results obtained by
individuals without disabilities.
Id. at 274 (emphasis added) (citing Dopico. v. Goldschmidt, 687 F.2d 644
652 (2d Cir. 1982); Rothschild v. Grottenthaler, 907 F.2d 286
, 292-93 (2d
Cir. 1990)). In sum, the Second Circuit concluded that "the demonstration
that a disability makes it difficult for a plaintiff to access benefits
that are available to both those with and without disabilities is
sufficient to sustain a claim for reasonable accommodation." Id. at 277
Here, plaintiffs allege they have "physical impairments that
substantially limit one or more major life activities, including
talking, communicating, learning and interacting with others," and that
defendants "have failed and will continue to fail to reasonably
accommodate the disabilities of . . . the plaintiff class," by not timely
providing a free appropriate public education. See Am. Compl. ¶¶ 152, 155,
159, 162. However, plaintiffs' amended complaint fails to allege that
they seek access to benefits that a public
entity has made available to both disabled and non-disabled children of
preschool age. Mills points out that under New York law, the right to a
free public education is extended to resident children over the age of
five and under twenty-one. N.Y. Educ. Law § 3202(1). By contrast, the
putative class is comprised of preschool children with disabilities, which
under New York law, are children between the ages of three and five.
N.Y. Educ. Law § 4410(1)(i).
Unlike the instant case, the reasonable accommodation claims in
Henrietta D. and the other ADA/Section 504 cases cited by the Second
Circuit, see 331 F.3d at 273, involve programs or services made available
to both disabled and non-disabled persons. In these cases, certain
applicants or users were, by reasons of their disability, unable to access
or benefit from those programs or services. In Henrietta D., for
instance, the Second Circuit found it was sufficient that AIDS- or
HIV-afflicted plaintiffs demonstrated a facial entitlement to public
benefits which are also available to similarly situated persons without
disabilities and that their disabilities necessitated a reasonable
accommodation for them to access those benefits. Id. at 280. In Dopico,
the Second Circuit recognized that Section 504 at least required
"modest, affirmative steps" to accommodate handicapped persons in public
transportation systems that are open to all passengers. 687 F.2d at 652.
In Rothschild, the Second Circuit also held that Section 504 requires the
provision of publicly-funded sign language interpreters so that deaf
parents of non-hearing impaired children can participate in
education-related conferences and meetings that are open to all parents.
907 F.2d at 289.
Because plaintiffs have failed to allege a necessary element of an
ADA/Section 504 reasonable accommodation claim-i.e., that they were
denied the opportunity to participate in or benefit from defendants'
services, programs, or activities that the defendants have made available
preschool children, or were otherwise discriminated against by
defendants, by reason of their disabilities-plaintiffs' ADA and Section
504 claims against Mills and the City defendants must be dismissed.
C. IDEA Claims for Injunctive Relief Against Mills
Defendant Mills also moves to dismiss plaintiffs' claims for injunctive
relief as against him, claiming that the SED cannot provide appropriate
injunctive relief. Mills' Mem. at 14-15. Mills asserts that under the
IDEA, his role is only a general, supervisory one, and that the local
school districts> are actually responsible for implementing IEPs. Id. In
opposition, plaintiffs and City defendants assert that the SED is a
necessary and proper party to this action, and that Mills'
characterization of his duties under IDEA are based on a narrow
construction of the statute. Pls.' Reply Mem. at 8; Municipal Defendants'
Memorandum of Law in Opposition to State Defendant's Motion to Dismiss
("City Defs.' Opp to Mills") at 4. For the following reasons, this court
denies Mills' motion to dismiss claims for injunctive relief against
As an initial matter, we note that any injunctive relief against Mills
and the City defendants is appropriately based on 42 U.S.C. § 1983, not
the IDEA itself. Under the IDEA, "[a]ny party aggrieved" by a final state
administrative decision may bring a civil action in a state or federal
court. 20 U.S.C. § 1415(i)(2)(A). This provision has been interpreted to
mean that "parties seeking to enforce favorable decisions under the IDEA
have `neither the responsibility nor the right to appeal the favorable
decision by the local hearing officer since they were not aggrieved by
[her] decision.'" A.T., 1998 WL 765371, at *6 (quoting Antkowiak v.
Ambach, 838 F.2d 635, 641 (2d Cir. 1988)). Parents of a
disabled child may also bring an action for reimbursement of tuition and
costs if they enrolled their child in a private school to compensate for
a public agency's failure to make a free appropriate education "in a
timely manner prior to enrollment." 20 U.S.C. § 1412(10)(C)(ii).
Plaintiffs are not seeking any tuition reimbursements, nor are they
challenging any state review officer's findings against them. Because
they "are before the [c]ourt solely for the purpose of enforcement,
[they] cannot be characterized as aggrieved parties under the IDEA."
A.T., 1998 WL 765371, at *6. Accordingly, the IDEA is not the proper
basis for the injunctive relief which plaintiffs seek.
However, plaintiffs' rights to injunctive relief are still enforceable
through 42 U.S.C. § 1983. Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.
1987). This is because § 1983 is a recognized vehicle for addressing
violations of federal statutory rights as well as constitutional
violations, Chan v. City of New York, 1 F.3d 96, 103 (2d Cir. 1993), and
because of Congress's express intent to include § 1983 within the range
of available rights and remedies for IDEA violations. Mrs. W., 832 F.2d
at 755 (citing 20 U.S.C. § 1415(f) (recodified as 20 U.S.C.
§ 1415(1))). See also Blazejewski v. Bd. of Educ., 599 F. Supp. 975,
979 (W.D.N.Y. 1985) ("Congress limited relief under [§ 1415(i)(2)(A)]
only to parties who are aggrieved at the administrative level. If
Congress saw a need to extend to extend the scope of [§ 1415(i)(2)(A)],
it could have easily done so. Congress did not need to do so, because
section 1983 is available to remedy deprivations of statutory rights.").
Thus, plaintiffs may seek to enforce their IDEA claim under § 1983.
Secondly, we also note that a § 1983 claim that seeks relief available
under the IDEA must first exhaust all administrative remedies by
obtaining adverse decisions at the state and local level. Polera v. Bd.
of Educ., 288 F.3d 478, 487 (2d Cir. 2002); Adrian R. v. New York City
Bd. of Educ., 99 Civ.
9064, 2001 U.S. Dist. LEXIS 15616, at *5 (S.D.N.Y. Oct. 2, 2001)
(citing 20 U.S.C. § 1415(i)(2)).
However, exhaustion is not required if the claim falls within any of
the following three exceptions:
(1) it would be fufile to use the due process
procedures . . .; (2) an agency has adopted a policy or
pursued a practice of general applicability that is
contrary to the law; (3) it is improbable that adequate
relief can be obtained by pursuing administrative
remedies (e.g., the hearing officer lacks the
authority to grant the relief sought). . . .
Mrs. W., 832 F.2d at 756. Plaintiffs have the burden of showing that the
futility exception applies. Polera, 288 F.3d at 489 n.8.
Plaintiffs argue, and defendants do not contest, that this exception
applies in class action litigation alleging "a practice of systemic [IDEA]
violations," because "a due process hearing officer lacks the authority
to effectuate class action and system-wide relief." Pls.' Class Cert.
Mem. at 19 (quoting Mrs. W., 832 F.2d at 756-57)). Taking into account
plaintiffs' request for class-wide relief, and the fact that defendants
failed to immediately implement the IEPs of two of the three named
plaintiffs despite orders from the impartial hearing officers who heard
their cases, see Am. Compl. ¶¶ 74-75, 103, administrative exhaustion would
be fufile under the circumstances.
Having waived the administrative exhaustion requirement, we turn to the
merits of Mills' argument that any injunctive claims under the IDEA
should be dismissed as to him. For the following reasons, this court
disagrees with Mills' characterization of his role under the IDEA and
denies his motion to dismiss.
Under the IDEA, any state receiving federal funds is entrusted with
"general supervisory responsibilities" and must have policies and
procedures to ensure, among other things, that it provides a free
appropriate public education to all children with disabilities in the
state. 20 U.S.C. § 1412
(a). By placing such supervisory responsibilities in the hands of the
"state educational agency," Congress intended to insure the following:
Without this requirement, there is an abdication of
responsibility for the education of handicapped
children. Presently, in many states, responsibility is
divided, depending upon the age of the handicapped
child, sources of funding, and types of services
delivered. While the Committee understands that
different agencies may, in fact, deliver services, the
responsibility must remain in a central agency
overseeing the education of handicapped children, so
that failure to deliver services or the violation of
the rights of handicapped children is squarely the
responsibility of one agency.
S. Rep. No. 94-168, at 24 (1975) (quoted in Garrity v. Gallen,
522 F. Supp. 171, 235 (D.N.H. 1981)). The state also has the power to
allocate IDEA funds towards supporting and directing personnel
development and training, assisting local educational agencies in meeting
personnel shortages, and making sub-grants to local educational agencies
to help them provide direct services and "in making systemic change to
improve results for children with disabilities. . . ."
20 U.S.C. § 1411(f)(3), (f)(4)(A). Under the New York implementing
statutes, the state education commissioner is also responsible for, among
other things, approving and re-approving applications to provide special
preschool services and to expand existing preschool programs, establishing
tuition rates for approved preschool services or programs, reimbursing
school districts> for administrative costs associated with IDEA
implementation, and setting regional cost ceilings on transportation
costs per student. See N.Y. Educ. Law § 4410.
Given the broad statutory supervisory responsibilities accorded to
state educational agencies, in cases such as this where plaintiffs have
alleged systemic violations of IDEA, courts have found that the state is
a proper party to the action. See, e.g., Adams v. Sch. Bd. of
Anoka-Hennepin Indep. Sch. Dist. No. 11, No. Civ. 02-991, 2002 WL
31571207, at *2 (D. Minn. Nov. 18, 2002) ("A state
education agency is only a proper party if an action involves claims of
`systemic' violations of the IDEA."); S.C. v. Deptford Township Bd. of
Educ., 213 F. Supp.2d 452, 466 (D.N.J. 2002) ("Traditionally . . . the
IDEA has been interpreted to require a `single line of responsibility,'
with the buck stopping at the desk of the state educational agency.");
Fetto v. Sergi, 181 F. Supp.2d 53, 72 (D. Conn. 2001) ("The state
education agency is a proper party to actions involving claims of
systemic violations of the IDEA."); Corey H. v. Bd. of Educ.,
995 F. Supp. 900, 910 (N.D. Ill. 1998) (finding, after trial against the
Illinois State Board of Education, that the state was liable for failing
to "perform its monitoring and enforcement function" under the IDEA);
Gadsby v. Grasmick, 109 F.3d 940, 953 (4th Cir. 1997) (holding that the
state educational agency "is ultimately responsible for the provision of
a free appropriate public education to all of its students and may be
held liable for the state's failure to assure compliance with IDEA.");
Jose P. v. Ambach, 669 F.2d 865, 870-71 (2d Cir. 1982) (holding that the
state educational agency could be held responsible for supervisory
failures in violation of § 1412(6) of the Education of All Handicapped
Children Act, the precursor to the IDEA).
Here, plaintiffs allege that Mills, as the Commissioner of the SED,
"has the power and duty to perform any duty imposed upon the SED,
including the operation of all special education programs and services."
Am. Compl. ¶ 16. Plaintiffs further allege that: Mills acted under color
of law and in his capacity as an SED agent, servant, and employee within
the relevant time period; SED receives federal funds under the IDEA; and
SED is required by the IDEA to ensure the administration of special
education and related services to all disabled children between the ages
of three and twenty-one who reside within the state. Id. Plaintiffs
further allege that, at the time the amended complaint was filed, over
500 preschool children within the jurisdiction of the NYCDOE and the SED
were not receiving the
full services required by their IEPs. Id. ¶ 24. This "pervasive and
blatant violation of federal law" was, among other things, due to the
NYCDOE and the SED's failure to place preschool children in appropriate
schools, the SED's failure to certify a sufficient number of schools, and
the city and state's failure to certify and/or provide sufficient
providers of educational services. Id. ¶ 41. This practice of failing to
implement IEPs is "persistent and widespread." Id. ¶ 42. In sum,
plaintiffs allege a systemic violation of the IDEA that is supposedly, in
part, due to the SED's failure to exercise its supervisory and other
responsibilities under the statute. Accepting plaintiffs' allegations as
true, plaintiffs have stated a claim against Mills upon which relief can
In his defense, Mills cites several cases where the SED and its
commissioner were dismissed from IDEA actions, see Mills' Mem. at 15-16;
Mills' Reply Mem. at 4, but these cases do not support the proposition
that, as a matter of law, the state can never be liable for systemic
violations of the IDEA. What distinguishes these cases is that the court
either found no allegations of systemic IDEA violations, or found that
the local board of education could provide complete relief. See Adrian
R., 2001 U.S. Dist. LEXIS 15616, at *2-3 (dismissing IDEA claim against
state defendants where parents challenged practice of placing disabled
children in resource rooms with inappropriate high student-teacher
ratios, since city defendants were capable of providing requested
relief); Yamen v. Bd. of Educ., 909 F. Supp. 207, 210-11 (S.D.N.Y. 1996)
(dismissing IDEA claim for reimbursement of student's tuition against the
SED and its commissioner because the complaint did not allege systemic
violations of federal and state law). Additionally, A.A. v. Board of
Education (cited in Mills' Mem. at 15-16) is also distinguishable because
the court dismissed IDEA claims against state education officials only
after plaintiff had settled its claims against the local school
district, and after a bench trial with extensive
findings of fact regarding the measures the state took or could have
taken in monitoring the local district's compliance with IDEA.
255 F. Supp.2d 119, 124-29 (E.D.N.Y. 2003).
Reading the amended complaint in the light most favorable to
plaintiffs, and taking into account the SED's supervisory role and other
responsibilities under federal and state law, it cannot be determined at
this juncture whether plaintiffs, if successful, can attain the relief
they seek without the state's participation. As a result, Mills' motion
to dismiss plaintiffs' claims to compel enforcement of the IDEA is
Motion for Preliminary Injunction
"[A] preliminary injunction is an extraordinary remedy that should not
be granted as a routine matter." JSG Trading Corp. v. Tray-Wrap,
Inc., 917 F.2d 75, 80 (2d Cir. 1990).
To prevail on a motion for a preliminary injunction, a plaintiff
ordinarily must demonstrate: (1) irreparable harm and (2) either (a)
likelihood of success on the merits or (b) "sufficiently serious
questions" on the merits and a balance of hardships "tipping decidedly"
in the movant's favor. Brooks v. Giuliani, 84 F.3d 1454, 1462 (2d Cir.
1996) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70,
72 (2d Cir. 1979)). However, a party moving for a mandatory injunction
which alters the status quo by commanding some positive act must meet a
higher standard. Tom Doherty Assoc., Inc. v. Saban Entm't, Inc.,
60 F.3d 27, 33-35 (2d Cir. 1995). To obtain a mandatory injunction, the
moving party must demonstrate a clear or substantial likelihood of
success on the merits, or that it will suffer extreme or very serious
damage if denied preliminary relief. Jolly v. Coughlin, 76 F.3d 468, 473
(2d Cir. 1996); Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.
Because plaintiffs seek a mandatory injunction-i.e., an injunctive
order which alters the status quo with a positive act-the heightened
standard will apply. Plaintiffs concede and defendants acquiesce in the
application of the heightened standard. Pls.' Prelim. Inj. Mem. at 11;
City Mem. at 11; Mills' Mem. at 18-19.
A. Irreparable Harm
A showing of irreparable harm is the "single most important
prerequisite for the issuance of a preliminary injunction." Brown v.
Guiliani, 158 F.R.D. 251, 264 (E.D.N.Y. 1994) (quoting Bell and Howell
v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Before the other
requirements for a preliminary injunction will be considered, the movant
must show that injury is likely. Id. "Irreparable harm must be shown to
be imminent, not remote or speculative, and the injury must be such that
it cannot be fully remedied by monetary damages." Brown, 158 F.R.D. at
264 (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969,
975 (2d Cir. 1989)).
In this case, plaintiffs argue that further developmental delays or
damages resulting from their failure to timely receive educational
services constitute irreparable harm. Pls.' Prelim. Inj. Mem. at 12. In
opposition, defendants contend that since this case was filed, all named
plaintiffs and at least two-thirds of preschoolers on NYDOE waiting list
have received the services in their IEPs. See Municipal Defendants'
Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary
Injunction and Class Certification ("City Reply Mem.") at 9; Mills' Mem.
at 20. Defendants also argue that members of the putative class will not
suffer irreparable harm because the NYCDOE provides preschool special
education services to "nearly all eligible preschool children" as
recommended by their IEPs. City Reply Mem. at 10.
Plaintiffs' assertion of irreparable harm finds support in cases
holding that the deprivation of mandated educational services will result
in irreparable harm. See, e.g., A.T. v. New York State Educ. Dep't, No.
98-CV-4166, 1998 WL 765371, at *10 (E.D.N.Y. Aug. 4, 1998) (holding that
child who was denied a free and appropriate public education under the
IDEA was suffering actual and imminent harm); Borough of Palmyra Bd. of
Educ. v. F.C., 2 F. Supp.2d 637, 645 (D.N.J. 1998) (holding that loss of
appropriate education for child with Attention Deficit Disorder would
constitute irreparable harm); J.B. v. Killingly Bd. of Educ.,
990 F. Supp. 57, 72 (D. Conn. 1997) (holding that continued denial of a
free appropriate public education satisfied irreparable harm element).
Moreover, any developmental delays suffered as a result of further
placement delays cannot be fully remedied by monetary damages. Defendants'
arguments in opposition to a finding of irreparable harm are without
merit. That other preschool children outside the putative class are not
being harmed is irrelevant, as the alleged irreparable harm is being
suffered by members of the plaintiff class who are not receiving services
in a timely manner. Plaintiffs have, therefore, satisfied the first prong
of the preliminary injunction test.
B. Substantial Likelihood of Success on the Merits
Although plaintiffs have shown that they would suffer irreparable harm
without an injunction, they have not satisfied the second part of the
preliminary injunction test-i.e., a clear or substantial likelihood of
success on the merits.
Though neither party raises this point, it should be noted that the
IDEA contains a provision permitting the Secretary of Education to
withhold federal funds if it finds "that there has been a failure by the
State to comply substantially with any provision of this subchapter."
20 U.S.C. § 1416(a);
34 C.F.R. § 300.587(a)(1). Additionally, under 20 U.S.C. § 1234c, the
Department of Education is authorized to take certain measures against a
state if it determines that a recipient "is failing to comply
substantially with any requirement of law applicable" to the federal
program funds administered by that agency. Other federal welfare and
Medicaid statutes also provide that federal funding may be withheld if
the state has failed "substantially" to comply with federal standards.
See, e.g., 42 U.S.C. § 609(a)(8) (Title IV-D of the Social Security Act);
42 U.S.C. § 671(b) (amended 1994) (Adoption Assistance and Child Welfare
Act); 42 U.S.C.
§ 1396c (Medicaid Act).
Courts in this and other circuits have construed these provisions to
mean that a state cannot be held to a standard higher than "substantial
compliance" when applicants or recipients seek an injunction to mandate
full enforcement of these statutes. See Karen L. v. Health Net,
267 F. Supp.2d 184, 192 (D. Conn. 2003), aff'd, No. 03-7656, 2003 WL
22429040 (2d Cir. Oct. 24, 2003) (holding that federal Medicaid law
requires "something less than total and absolute compliance" due to
statutory authorization for Secretary of Health and Human Services to
cease payments to a state if, inter alia, `there is a failure to comply
substantially with any such provision [of 42 U.S.C. § 1396a].'"); Roberta
G. v. Perales, No. 90 CIV 3485, 1992 WL 320469, at *4 (S.D.N.Y. Oct. 23,
1992) (despite defendants' failure to achieve "100% compliance with
literal requirements of the statute and regulations . . . acceptance of
less than 100% compliance [was] reasonable and not unfair to class
members."); Moore v. Perales, 692 F. Supp. 137, 144-45 (E.D.N.Y. 1988)
(denying injunction directing state and local welfare authorities to
timely issue decisions regarding AFDC benefits because defendants' level
of compliance under "substantial compliance" standard was unclear); Shands
602 F.2d 1156, 1160 (3d Cir. 1979) (holding that "substantial compliance"
provisions "show an implied intent to hold the states to a standard of
substantial compliance and thus to make some allowance for the
difficulties of administering an extensive bureaucracy."). See also
Blessing v. Freestone, 520 U.S. 329, 343 (1997) (noting, in dicta, that
the "substantial compliance" provision in Title IV-D of the Social
Security Act requires the Secretary of Health and Human Services to
"examine aggregate services provided by the state, not to whether the
needs of any particular person have been met."). But see Withrow v.
Concannon, 942 F.2d 1385, 1388 (9th Cir. 1991) (holding that, in claim
involving state's failure to issue timely decisions involving welfare
benefits, "[i]mpossibility of perfect compliance . . . does not preclude
an injunction requiring compliance with the regulations when a pattern of
non-compliance has been shown to have existed.")
Although the IDEA and the accompanying regulations do not appear to
contain objective criteria for what constitutes "substantial compliance,"
at a minimum, § 1416(a) and the above cases raise some question as to
whether defendants can be held to an absolute standard of timely
providing services to 100% of preschool children with IEPs. See Pls.'
Reply Mem. at 6-7. In addition, assuming that "substantial compliance"
with IDEA is legally sufficient, as the record now stands, it is
uncertain whether the defendants' rate of timely placing 97% to 99% of
preschool children with IEPs fails to meet that standard.
The causes underlying defendants' pattern of delay are not clear from
the present record. Neither party has proffered sufficient evidence for
the court to infer that the delays are due to defendants' inexcusable
failure to properly ascertain and make adequate preparations or
provisions for preschool services, or whether unforeseen circumstances or
structural problems beyond the defendants'
control contributed to these delays.
On the one hand, defendants' briefs and statements made at oral
argument suggest that, in some cases, IEP implementation was delayed
because a parent refused to accept proposed placements or otherwise
cooperate with local education officials. See 3/24/04 Tr. at 21-22.
Defendants also claim that the largest number of children under the PN
lists are waiting for related services-a problem that allegedly reflects
a national shortage of related service providers. Wernikoff Decl. ¶ 35.
Additionally, the SED asserts that any delays in processing applications
to provide special education services are caused by incomplete or
inaccurate applications, or by applicants who were unable or unwilling to
meet minimal building safety, licensing, staff and programs requirements
that are a precondition to receiving state approval. Cort Aff. ¶¶ 11, 14.
Defendants further claim that injunctive relief is unwarranted because
they have embarked on a number of initiatives to project future needs and
increase preschool special education services. For example, to better
project the number of classroom spaces and related service providers that
will be needed in the coming school year, NYCDOE is collaborating with
the State Department of Health in monitoring the number of children who
will make the transition from Early Intervention to preschool. Wernikoff
Decl. ¶ 20. City defendants have also developed a coding system to track
other referral sources besides Early Intervention to better evaluate the
number of children who will transition to preschool at different times of
the year. Id. ¶ 21. SED, in collaboration with the NYCDOE and the State
Department of Health, is also investigating the possibility of
encouraging parents to retain their children in Early Intervention
services to the maximum extent permitted by state law. Cort Aff. ¶ 22.
To meet the need for more providers, City defendants further assert
they are making "continual
efforts" to locate additional independent related service providers
and to fund scholarship programs to encourage students to enter related
service fields. Wernikoff Decl.
¶¶ 25-26. SED is also working closely with NYCDOE on plans for retaining
existing special education teachers and recruiting new teachers for
disabled preschool children. Cort Aff. ¶ 18. SED has also developed
procedures to allow the expansion of existing programs by instituting a
procedure to waive statutory requirements for maximum class sizes and by
holding periodic meetings with service providers to identify obstacles to
the delivery of services. Id. ¶ 29. Additionally, SED asserts that it is
promoting the integration of preschool children with disabilities through
the use of Universal Prekindergarten programs, thereby increasing
available educational placements. Id. ¶ 26.
All these assertions or claims raise open questions as to what
constitutes an acceptable level of compliance, whether extrinsic factors
contributed to the delays, and whether defendants' efforts are the best
they can expend under the circumstances and would, therefore, militate
against a finding that plaintiffs have shown a clear or substantial
likelihood of success. However, if all these assertions or claims are
true, this does not mean plaintiffs cannot prevail on their IDEA claim,
for the fact remains that, at any given time of the year, 1% to 3% of
eligible preschool children in New York City are still not receiving
services in a timely manner. As some of the parties have alluded, it may
well be that defendants have failed to utilize every resource or
alternative available to them.*fn14 In any event, these
issues cannot be resolved on the basis of the present record; further
inquiry is needed to substantiate the factors affecting defendants'
placement times and the adequacy of their present efforts and to identify
possible remedies. Accordingly, plaintiffs' motion for a preliminary
injunction is denied.
For the foregoing reasons, plaintiffs' motion for class certification
under Rule 23(b)(2) is granted, and the following class definition is
adopted: "All present and future New York City preschool children with
IEPs who have not or will not timely receive all of the services required
by their IEPs."
Defendant Mills' motion to dismiss all claims for monetary damages
under the IDEA and 42 U.S.C. § 1983 against him is granted, his motion to
dismiss the ADA and Section 504 claims against him is granted, and his
motion to dismiss the claims for injunctive relief against him pursuant
to 42 U.S.C. § 1983 is denied.
The ADA and Section 504 claims against the City defendants are
Plaintiffs' motion for a preliminary injunction is denied.