United States District Court, N.D. New York
June 4, 2004.
IBRAHIM ZAHRAN, a disabled student, by his parent, AHMED ZAHRAN, Plaintiffs, -vs- THE BOARD OF EDUCATION OF THE NISKAYUNA CENTRAL SCHOOL DISTRICT, Defendant
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Ahmed Zahran ("plaintiffs"), on behalf of his minor son,
Ibrahim Zahran ("Ibrahim" or "plaintiffs"), a disabled student, brought
suit against defendants State of New York Department of Education ("DOE")
and Board of Education of the Niskuyana Central School District
("District" or "Board"), alleging causes of action under the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
(first cause of action), Article 89 of the New York State Education Law (second cause of action),
42 U.S.C. § 1983 (third cause of action), the Americans with
Disabilities Act, 42 U.S.C. § 12132 (fourth cause of
action), and the Rehabilitation Act of 1973, 29 U.S.C. § 794
(fifth cause of action). The district cross-claimed against
DOE, demanding that the state review officer's decision be partially
reversed or modified.
By Memorandum-Decision and Order dated February 10, 2004, the DOE's
motion to dismiss the complaint and cross-claim as against it was
granted. Zahran ex rel. Zahran v. N.Y. Dep't of Educ.,
306 F. Supp.2d 204 (N.D.N.Y. 2004). On April 8, 2004, the District moved for
summary judgment pursuant to Fed.R.Civ.P. 56. (Docket No. 39.)
Plaintiffs opposed and cross-moved for summary judgment, also pursuant to
Fed.R.Civ.P. 56. (Docket No. 41.) Oral argument was heard on the
summary judgment motions on June 2, 2004, in Albany, New York. Decision
II. FACTUAL BACKGROUND
The relevant facts of this case were extensively outlined in the
February 10, 2004, Memorandum-Decision and Order, Id. at
206-08, and will not be repeated here. Familiarity with that decision
("Zahran I") will be assumed.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. N.Y. State Dep't of Corr.
Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and ambiguities must be
viewed in a light most favorable to the nonmovant. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986).
Once the moving party has met the initial burden of demonstrating the
absence of a genuine issue of material fact, however, the nonmoving party
"must set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56; Anderson, 477 U.S. at 250. At that
point, the nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec., 475 U.S. at 386. Indeed, to withstand a summary judgment
motion, the nonmoving party must demonstrate that sufficient evidence
exists upon which a reasonable jury could return a verdict in its favor.
Anderson, 477 U.S. at 248-49; Matsushita Elec., 475
U.S. at 587.
B. Article 89, Americans with Disabilities, and Rehabilitation
Plaintiffs have voluntarily withdrawn their second, fourth,
and fifth causes of action, asserting claims under Article 89
of the New York State Education Law, the Americans with Disabilities Act,
and the Rehabilitation Act of 1973. (Docket No. 41, Attach. 6, p. 1.)
Accordingly, those claims will be dismissed.
C. IDEA Claim
Though Zahran I addressed plaintiffs' claims against just the
DOE, the only defendant which had moved to dismiss, it applies with equal
force to the propriety of plaintiffs' first cause of action
against the District.
In the first cause of action, plaintiffs allege that Ibrahim
was deprived of a free appropriate public education for the 2001-02
academic school year, in violation of the Individuals with Disabilities
Education Act ("IDEA"). In Zahran I, it was noted that compensatory education is available as appropriate relief under the
IDEA, but monetary damages are not. 306 F. Supp.2d at 210 (citing
Garro v. State of Conn., 23 F.3d 734, 736 (2d Cir. 1994);
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist,
288 F.3d 478, 486 (2d Cir. 2002) ("We therefore hold that monetary damages
are unavailable under the IDEA")).
In the complaint, plaintiffs seek "compensatory education and money
damages in the amount of $75,000," as well as "the costs and expenses of
maintaining this action, and the underlying administrative proceedings
necessary to bring this action[,] including reasonable attorneys' fees."
(Docket No. 1, Prayer For Relief, ¶¶ (a)-(d)). In Zahran I
it was pointed out that this language could be read in one of two ways:
either as seeking compensatory education, on one hand, and $75,000 in
money damages, on the other, or as seeking $75,000 as representing both
money damages and the value of compensatory education. This ambiguity was
cured, it was noted, in plaintiffs' opposition papers to the DOE's motion
to dismiss, in which plaintiffs stated that the $75,000
"`represent[s] compensatory education and trebled
money damages[.]'" Zahran I, 306 F. Supp.2d at 210-11 (quoting
Docket No. 26, p. 1) (emphasis added). Therefore, because plaintiffs seek
only monetary damages no matter what such damages supposedly
represent it was held that the IDEA claim had to be dismissed.
Because such a holding was not based on the particular moving defendant,
however, it applies with equal force to the District's summary judgment
Plaintiffs attempt to evade the reach of the holding by claiming, in
their summary judgment moving papers, for the first time, that they do
indeed seek both compensatory education and monetary damages. However, at
no time after Zahran I was issued on February 10, 2004, did plaintiffs seek to amend the complaint or
otherwise notify the court to reflect this. They will not now be
permitted to exploit the decision highlighting their mistake to shift the
relief sought, to the prejudice of the District. Accordingly, the
District is entitled to judgment as a matter of law on the
first cause of action.
Even assuming, without deciding, that compensatory education has been
properly plead, and that gross violations need not be found for an
awarding of the same, and accepting as true plaintiffs' conclusory
allegation that they intend to return to the District in the near future
despite residing in Georgia for approximately the past two years, it is
unclear what form of such education plaintiff seeks. In their memorandum
of law in opposition to the District's motion for summary judgment,
plaintiffs mention tutoring and summer school as types of compensatory
education, but they never state they seek either or both, or any other
type of compensatory education.
Without any guidance it would be difficult, if not impossible, to
fashion a compensatory education award. No party seems to want an award
that merely heaps on hours to his school day, and plaintiffs have taken
issue with the SRO's decision that the time lost could made up gradually
over time, whatever that means. Additionally, there is no question that,
since his move to Georgia in the summer of 2002, well before the SRO's
decision, Ibrahim has been receiving educational services. Any attempt to
determine what services he specifically needs, right now, years after the
events in question, would result in the contours of any award being
formulated out of nothing but sheer speculation and guesswork.
This may have been the reason plaintiffs never sought to amend the
complaint, or otherwise clarify the relief sought or object to
Zahran I, after Zahran I was issued. Therefore, it can only be concluded that the compensatory education now sought
in the present moving papers is an improper, untimely, and prejudicial
shift in legal strategy that will not be permitted. As monetary damages
are the only relief sought by plaintiffs, their claim under IDEA must be
C. Section 1983
While plaintiffs may not seek monetary damages under the IDEA, it was
made clear that they could obtain the same through a 42 U.S.C. § 1983
action to enforce IDEA rights. Zahran I, 303 F. Supp.2d at 211
(citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 786 n.14
(2d Cir. 2003); id. (collecting cases). In the third
cause of action, plaintiffs do just that, asserting a claim under §
1983 to enforce Ibrahim's IDEA rights.
Before addressing the merits of the § 1983 claim, it is appropriate
to address some preliminary issues raised by defendants in the moving
1. § 1983 as Avenue of Relief
The District contends that, when a final administrative decision has
been rendered, an action under the IDEA itself is the only permissible
avenue of relief for a plaintiff. Utilizing § 1983 instead of the
statute itself in such a situation, according to the District,
significantly undercuts the purposes and structure of the IDEA. This
argument is rejected. While the IDEA does indeed provide an avenue of
relief for a disabled student alleging he or she has been deprived of a
free and appropriate education, it is the exclusive avenue of relief only
when the relief sought is actually available under the statute. Thus, if
for example compensatory education was available in this case, and
plaintiff had properly sought the same in the complaint, his claim to
that extent would have been considered one made under the IDEA, and not
pursuant to § 1983. However, as noted, plaintiff in the complaint
which, again, has not been amended since Zahran I sought
as relief $75,000. Such relief is not available under the IDEA
and hence no claim can be stated thereunder but is available in a
§ 1983 claim to enforce IDEA rights. See supra.
2. Exhaustion of Administrative Remedies
The District contends that any challenge plaintiffs are making to the
2001-02 IEP must be dismissed because of an alleged failure to raise it
at the administrative level. In order to assess this issue, the precise
parameters of plaintiffs' § 1983 claim need to be defined.
Plaintiffs' arguments with respect to this claim can be broken down into
two categories: (1) that the District failed to properly formulate and
implement Ibrahim's 2001-02 IEP up until and including his suspension on
December 10, 2001; and (2) that the District failed to formulate and
implement an IAES sufficient to allow Ibrahim to meet the goals stated in
his IEP, from December 10, 2001, to April 1, 2002, so as to deprive him
of a free appropriate public education in that time period.
With respect to the latter front, it is clear that such a claim was
addressed at the administrative level and is therefore properly asserted
in this forum. However, to the extent plaintiffs are claiming that the
formulation and implementation of the IEP prior to the suspension and
commencement of proceedings to develop an IAES to replace the IEP, such a
claim has not been administratively exhausted. Plaintiffs pursuing claims
under the IDEA, or through § 1983 to enforce rights guaranteed in the
IDEA, are required to exhaust administrative remedies. See
Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,
297 F.3d 195, 199 (2d Cir. 2002) (citing 20 U.S.C. § 1415(i)): see
also Polera v. Bd. of Educ. of the Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002) (stating that the
intent of the exhaustion requirement is to allow for grievances to be
promptly resolved by individuals with expertise in the education of the disabled, free
from court interference). "A plaintiff cannot evade the IDEA'S exhaustion
requirement simply by framing his or her action as one for monetary
relief," even if such relief is sought under § 1983 and not the
statute itself. Taylor, 313 F.3d at 789.
Here, the administrative proceedings were initiated by the District to
gain approval for the IAES, which was to serve as substitute programming
for Ibrahim while his 2001-02 IEP was revised. While the IEP was
certainly relevant to the development of the IAES, it was not itself in
issue. Indeed, that Ibrahim's 2001-02 IEP influenced the development of
the IAES, was prevalent in the IHO's January 29, 2002, decision, and
provided background for the SRO's determination on appeal, is more a
function of legal requirements*fn1 than any claim challenging the
implementation of the IEP prior to the suspension being in issue at the
administrative level. The wrangling between plaintiffs and the District
pertained to the substantive contours of the IAES. While it was indeed
found that Ibrahim was deprived of a free appropriate public education,
such finding was limited to December 10, 2001, onward to April 1, 2002.
It did not encompass the school year prior to the suspension. Therefore,
exhaustion of remedies was required if plaintiffs wished to challenge
events prior to December 10, 2001, including any allegations that the IEP
was improperly formulated and implemented, so as to deprive Ibrahim of a
free and appropriate public education up until his suspension.
The Second Circuit has noted that "[e]xhaustion will be excused where
it would be futile, the agency has adopted a policy or practice of
general applicability that is contrary to law, or it is improbable that adequate relief is available in the
administrative forum, or where . . . the parents have not been notified
that such remedies were available to them." Weixel v. Bd. of Educ.
of City of New York, 287 F.3d 138, 149 (2d Cir. 2002) (internal
quotations and citations omitted). Only the third exception where
"it is improbable that adequate relief is available in the administrative
forum" requires comment here.
It could be argued, for example, that because monetary damages could
not be awarded at the administrative level, plaintiffs were excused from
the exhaustion requirement. However, "`[r]elief available' means relief
for the events, condition, or consequences of which the person complains,
even if not necessarily relief of the kind the person prefers."
Taylor, 313 F.3d at 790 (internal quotations and citations
omitted). Unlike his counterpart in Taylor, the impartial
hearing officer here could have awarded plaintiffs appropriate relief if
it was proven that the IEP was formulated or implemented in an improper
fashion prior to the December 10, 2001, suspension. Thus, to the extent
plaintiffs' § 1983 claim is predicated on a failure to formulate or
implement Ibrahim's 2001-02 IEP prior to December 10, 2001, it must be
3. Merits of Claim
Therefore, the issues remaining in this case would appear to be whether
the SRO erred in affirming the IAES approved and order implemented by the
IHO, and, if so, whether plaintiff suffered damages as a result. However,
complicating effective disposition of these issues is the finding of the
SRO that Ibrahim was improperly denied educational services from December
10, 2001, to April 1, 2002. In other words, the SRO approved of the IAES,
but determined that because it had not been implemented and Ibrahim had
not received sufficient (or any) services until April 1, 2002, Ibrahim
was improperly denied educational services from the date of his suspension up until that point. The
SRO denied plaintiffs' request on appeal that this period of deprivation
could be remedied by compensatory education.
By the time the SRO issued his decision, though well over a
year after the last decision issued by the IHO plaintiffs had
been living in Georgia since the summer of 2002. This fact, coupled with
a lack of allegations until summary judgment that any return to New York
State was planned or that compensatory education was even sought,
counsels against plaintiffs challenging the SRO's decision denying
compensatory education. In the complaint, however, as noted
supra, plaintiffs seek a monetary award that is supposedly
representative of compensatory education and compensatory damages. Thus,
we are left with a highly anomalous situation involving three of the
SRO's findings: a determination adverse to plaintiffs with respect to the
substance of the IAES; a determination favorable to plaintiffs with
respect to whether he was deprived of a free appropriate public education
from December 10, 2001, to April 1, 2002; and a determination adverse to
plaintiffs with respect to the remedy for such deprivation.
With respect to the substance of the IAES eventually ordered
implemented by the SRO, such an issue is properly asserted in this forum,
but is moot since an IAES is only temporary programming until a new IEP
can be developed, and a subsequent IEP has been developed for Ibrahim in
Georgia.*fn2 With respect to the SRO's finding that Ibrahim was
improperly denied services from December 10, 2001, to April 1, 2002, a
challenge to this finding is not properly before the court, as it has not been
appealed by the only party to which it was adverse, the District.*fn3
Only the third issue the relief appropriate for the denial of
services between December and April is properly at issue here.
While it is acknowledged that plaintiffs did not seek compensatory
damages in the administrative proceedings, they did indeed raise the
issue of the proper relief, and can properly appeal from the SRO's
finding in that regard.
Therefore, the sole issue remaining in this case is the measure of
damages for the District's failure to provide Ibrahim with a free
appropriate public education from December 10, 2001, to April 1, 2002.
Such issue will be the subject of a trial, after which plaintiffs, if
successful in securing more than nominal damages, will be permitted to
submit a verified application for attorney's fees, as well as supporting
submissions, which the District will have the opportunity to oppose.
Plaintiffs have consented to the voluntary dismissal of the
second, fourth, and fifth causes of action.
Plaintiffs' first cause of action asserted under the
IDEA must also be dismissed, as monetary damages, the only remedy
sought, are unavailable under the statute. Plaintiffs can seek such
damages for a violation of IDEA rights under Section 1983. The issue of
whether Ibrahim's rights were violated is not at issue here due
to the District's failure to contest the SRO's finding that he was
improperly denied services from December 10, 2001, to April 1, 2002. Therefore, the only issue remaining for
trial is whether plaintiffs can prove compensatory damages or are limited
to only nominal damages.
Accordingly, it is
1. Defendant Board of Education of the Niskayuna Central School
District's motion for summary judgment is GRANTED with respect to the
first, second, fourth, and fifth causes of action,
and DENIED with respect to the third cause of action;
2. Plaintiffs' cross-motion for summary judgment is GRANTED on the
issue of liability with respect to the third cause of action,
and DENIED in all other respects;
3. The first, second, fourth, and fifth causes of
action are DISMISSED.
IT IS SO ORDERED.