United States District Court, S.D. New York
April 18, 2005.
JOHN DOES and JANE JONES, Individually, and on behalf of their minor children with disabilities, Plaintiffs,
RICHARD P. MILLS, in his representative capacity as the Commissioner of Education of the State of New York and REBECCA H. CORT, in her representative capacity as Interim Deputy Commissioner of the New York Office of Vocational and Educational Services for Individuals with Disabilities a/k/a VESID, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Richard Mills, Commissioner of Education of the State
of New York (the "Commissioner") and Rebecca H. Cort, Interim
Deputy Commissioner of the New York Office of Vocational and
Education Services for Individuals with Disabilities ("VESID"),
(the "Deputy Commissioner") (collectively the "Defendants") have
moved under Rules 12(b) (1), (2), (3) and 12(h) (2), (3),
Fed.R.Civ.P., to dismiss the amended complaint (the "Amended
Complaint") of John Does and Jane Does, unnamed parents of ten
unnamed children alleged to have been diagnosed with autism
spectrum disorder (the "Plaintiffs"). For the reasons set forth
below, the motion is granted.
The Plaintiffs have brought an action, pursuant to
42 U.S.C. § 1983 et seq., to challenge the validity of newly adopted
regulations of the Commissioner of the State Education Department
(the "SED regulations") that prescribe new procedural
requirements to ensure that impartial hearings are conducted in a
timely manner pursuant to the Individuals with Disabilities
Education Act of 1997 (the "IDEA statute"), 20 U.S.C. 1400 et
seq., and its implementing regulations. The SED regulations at
issue are as follows: 8 N.Y.C.R.R. §§ 200.5(i) (3) (xii)
(g),*fn1 200.5(i) (3) (xiii),*fn2 and 200.5(i) (4).*fn3 Plaintiffs argue that these regulations
violate federal and state law. They seek declaratory relief,
injunctive relief, attorneys' fees, and incidental costs and
The Defendants urge dismissal of the Amended Complaint on
grounds that Plaintiffs lack standing to challenge the SED
regulations at issue, that the Plaintiffs have failed to state a
cause of action, and that this Court should abstain from
exercising its jurisdiction over this action.
The parties have presented significant issues affecting
children afflicted with serious disabilities and the federal and
state statutory regulations providing for their educational
The Complaint was filed on April 15, 2004. The Amended
Complaint was filed July 15, 2004. Pursuant to a briefing
schedule endorsed by the Court, the instant motion was filed on August 26,
2004, and it was heard and marked fully submitted on December 1,
The Statutory and Regulatory Regimen
According to the Deputy Commissioner, the regulations at issue
were adopted to ensure that the SED satisfies its obligations
pursuant to the IDEA statute and its implementing regulations.
(See February 2004 Letter from Cort to District
Superintendents, et al.).
The following background on the IDEA is useful:
In 1975, Congress passed the Education for All
Handicapped Children Act. The Act was passed based on
findings that the special-education needs of over
half of the children in the United States with
disabilities were not being fully met. Specifically,
Congress found that one million children with
disabilities were entirely excluded from the public
school system while others were allowed to
participate but did not realize the full benefits of
an education because their disabilities went
undetected. Thus, by mandating a Free Appropriate
Public Education ("FAPE") for all students with
disabilities in the Least Restrictive Environment
("LRE") possible, Congress effectively required
schools to fully incorporate students with
disabilities into the public education system. The
landmark legislation also gave students with
disabilities and their parents unprecedented due
process rights. The law included a requirement that
school officials and parents jointly design an
Individualized Education Program ("IEP") for each
student requiring special-education. Since 1975,
Congress has amended the statute several times. One
of those amendments, enacted in 1990, gave the law a
new name: the Individuals with Disabilities Education
Act ("IDEA"). Allan G. Osborne, Jr., Discipline of Special-Education Students
Under the Individuals with Disabilities Education Act, 9 Fordham
Urb. L.J. 513, 513-514 (2001).
To qualify for federal funding provided pursuant to the IDEA
statute, a state must demonstrate that it has policies and
procedures in place to ensure that: (1) each child with
disabilities is provided with a FAPE pursuant to an IEP, see
20 U.S.C. § 1412, and (2) that the parents of such children are
provided with opportunities both for mediation and for an
impartial hearing on "complaints with respect to any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of" a FAPE. See
20 U.S.C. § 1415(b)(6).
The IDEA statute provides parents with the following rights
with respect to any impartial hearing concerning the
identification, evaluation, or educational placement of a child
with disabilities: (1) to "be accompanied and advised by counsel
and by individuals with special knowledge or training with
respect to the problems of children with disabilities,"
20 U.S.C. § 1415(h) (1); (2) to "present evidence and confront,
cross-examine, and compel the attendance of witnesses,"
20 U.S.C. § 1415 (h) (2); and (3) to have a hearing record and to receive
written findings of fact and a decision. See
20 U.S.C. § 1415(h) (3), (4). The IDEA is silent as to whether parents are
entitled to attorney argument, extensions of time, hearings of particular or unlimited length,
or unfettered discretion by the Impartial Hearing Officer ("IHO")
with respect to the extension of deadlines and time limits.
A parent "aggrieved" by an IHO decision may appeal to a second
administrative level if available. See 20 U.S.C. § 1415(h).
Upon exhaustion of administrative review, an appeal may be made
to a state or federal court. 20 U.S.C. § 1415(i) (2) (A). Failure
to exhaust administrative remedies under the IDEA prior to making
such an appeal deprives a court of subject matter jurisdiction.
See Polera v. Board of Educ. of Newburgh Enlarged City School
Dist., 288 F.3d 478, 483 (2d Cir. 2002).
Regulations promulgated pursuant to the IDEA require that each
State Education Authority ("SEA") periodically certify its
compliance with the IDEA. See 34 C.F.R. § 300.110(a). Such
regulations also incorporate the IDEA's recognition of parents'
rights to be heard at an impartial hearing. See
34 C.F.R. § 300.509. These regulations also provide that hearings should be
held "at a time and place that is reasonably convenient to the
parents and child involved." 34 C.F.R. § 300.511 (d). Finally,
the regulations provide that the SEA shall ensure that a final
decision is reached on a parental complaint no more than 45 days
after receipt of a hearing request. See 34 C.F.R. § 300.511(a).
An IHO "may grant specific extensions of time beyond [the 45
days] at the request of either party." 34 C.F.R. § 300.511(c). New York State's implementation of the IDEA can be found in
Article 89 (entitled "Children with Handicapping Conditions") of
the New York Education Law. See N.Y. Educ. L. §§ 4401-4410-b.
Article 89 provides, in pertinent part, that upon notice by a
parent of a dispute, a local board of education must appoint an
IHO "to hear the appeal and make a determination within such
period of time as the commissioner by regulation shall
determine." N.Y. Educ. L. § 4404(1). The IHO's determination can
be appealed to a State Review Officer ("SRO"). See N.Y. Educ.
L. § 4404(2); see also Engwiller v. Pine Plains Cent. School
Dist., 110 F. Supp. 2d 236, 240 (S.D.N.Y. 2000).
SED has adopted regulations pursuant to the IDEA. See
8 N.Y.C.R.R. Part 200. Section 200.5(i)(4) of the SED regulations
provides that "the impartial hearing officer shall render a
decision . . . not later than 45 days after the receipt by the
board of education of a request for a hearing or after the
initiation of such a hearing by the board."
8 N.Y.C.R.R. § 200.5(i) (4). Section 200.5(i) (4) (i) provides that "[a]n
impartial hearing officer may grant specific extensions of time
. . . at the request of either the school district or the parent."
8 N.Y.C.R.R. § 200.5(i) (4) (i).
On February 23, 2004, the SED Board or Regents approved certain
amendments to section 200.5 of the regulations, and these amendments became effective on May 1, 2004. These amendments
include the statutory provisions that are at issue in this case.
Plaintiffs are parents of ten children "diagnosed with one
variant or another of an autism spectrum disorder," each of whom
has an IEP and has requested a hearing. (See Am. Compl. ¶¶ 10,
14.) The Amended Complaint does not specify the substance,
procedure, or status of such hearings. Plaintiffs reside in
unspecified counties in the Southern District of New York. (See
Am. Compl. ¶ 11.) No information has been provided as to the
school districts of the children at issue.
Plaintiffs assert jurisdiction under 42 U.S.C. § 1983 et
seq., the Rehabilitation Act, 29 U.S.C. § 794 et seq., and
28 U.S.C. § 1331. (See Am. Compl. ¶ 10.) According to the
Plaintiffs, the challenged regulations violate the Fifth and
Fourteenth Amendments, the IDEA, federal IDEA regulations, the
Rehabilitation Act, prior SED regulations, the State Code of
Judicial Conduct, and state public policy. (See Am. Compl. ¶¶
1, 2, 4, 5, 28, 44, 45, 47.)
The gravamen of the Amended Complaint is that the challenged
SED regulations violate the rights of parents of children with
disabilities to be heard and to have a full and fair opportunity to proffer evidence and to examine and cross-examine
witnesses before an IHO. Furthermore, Plaintiffs argue that the
challenged SED regulations discourage the exercise of their
rights, virtually guarantee numerous hearings in cases that might
have been settled, set more restrictive procedural standards than
the IDEA and state and federal constitutions; and violate
constitutional due process and equal protection rights. (See
Am. Compl. ¶¶ 1, 2, 4, 5, 15, 18, 20, 22, 23, 41, 44, 45, 47.)
With respect to section 200.5(i) (3) (xiii), the Plaintiffs
argue that the regulation is unnecessary; not in federal
statutes; unprecedented in state regulations; "presumptively
restricts" each side to one day for presentation of its case
unless the IHO exercises discretion to extend that time; does not
take into account that "[m]ost" hearings, including those
concerning children with autism, can require more than two days;
may "chill and discourage" parents from asking for more than one
day; and puts pressure on IHOs and compromises their
impartiality. (See Am. Compl. ¶¶ 19, 20, 24-26, 27, 31.)
Plaintiffs also contend that the one-day limit is vague because
they believe "day" is not defined. (See Am. Compl. ¶ 31.)
Plaintiffs challenge that part of Section 200.5(i) (4) that
provides that "absent a compelling reason or a specific showing
of substantial hardship, a request for an extension shall not be granted because of . . . settlement discussions between
the parties." 8 N.Y.C.R.R. § 200.5(i) (4) (iii). Plaintiffs argue
even if the parties, their attorneys, and the hearing
officer all agree that the matter is being
recommended for settlement and the hearing should be
adjourned to allow the recommended settlement to
become approved, documented, and effectuated, the
anticipated settlement . . . is [not] . . .
sufficient grounds to adjourn the case.
(Am. Compl. ¶ 33.)
Plaintiffs also contend the regulation is impractical because
it takes school districts time to approve settlements, and during
the pendency of such approval processes, IHOs will not have
discretion "to manage their calendars and caseloads." (Am. Compl.
¶¶ 35-37. Plaintiffs also allege the word "compelling" is
"impermissibly vague" without "objective definition." (Am. Compl.
The Plaintiffs do not challenge an IHO's discretion whether to
receive memoranda of law from the parties to an impartial
hearing. However, the Plaintiffs do challenge the 30-page limit
for such memoranda imposed by 8 N.Y.C.R.R. § 200.5(i)(3) (xii)
(g). Plaintiffs argue that this page restriction is vague because
the regulation does not "define whether it concerns a pre-hearing
memorandum, a post-hearing memorandum in the nature of proposed
findings of fact and conclusions of law, or both," and "does not
indicate whether . . . the page limitation is applicable to . . . a table of contents or table of authorities." (Am.
Compl. ¶ 38.) The Plaintiffs also challenge the lack of IHO
discretion to relax the 30-page limit if necessary. (See Am.
Compl. ¶¶ 39, 40.)
A. Standard Of Review
In deciding a motion for judgment on the pleadings, the court
is generally limited to considering the factual allegations set
forth in the complaint and corresponding answer. See
Fed.R.Civ.P. 12(c). A party is entitled to judgment on the pleadings
only if it is clear that no material issues of fact remain to be
resolved and that he or she is entitled to judgment as a matter
of law. See Juster Assocs. v. City of Rutland, 901 F.2d 266,
269 (2d Cir. 1990); Rosado v. Barnhart, 290 F. Supp. 2d 431,
435 (S.D.N.Y. 2003).
In connection with a Rule 12 motion, "`the issue is not whether
a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.'" York v.
Ass'n of Bar of City of New York, 286 F.3d 122, 125 (2d Cir.)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), cert.
denied, 537 U.S. 1089 (2002). In other words, "`the office of a
motion to dismiss is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.'" Eternity Global Master Fund Ltd.
v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d
Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639
(2d Cir. 1980)).
"[T]he court should not dismiss the complaint [pursuant to Rule
12(b)(6)] `unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Ricciuti v. New York City Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)).
B. The Plaintiffs Have Standing
According to the Defendants, the Plaintiffs neither satisfy the
Article III "case or controversy" requirements nor present a
ripe, prudentially justiciable controversy because their
allegations have not alleged that they have "suffered an injury
in fact," that is, an "invasion of a legally protected interest"
that is both "concrete and particularized" and actual or
imminent, not conjectural or hypothetical." Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks
and citations omitted). Defendants also argue that the Plaintiffs
have not alleged "a causal connection between the [alleged]
injury and the conduct complained of." Id. That is, Defendants
assert that Plaintiffs have failed to allege an injury fairly
traceable "to the challenged action of the defendant, and not . . . [resulting]
from the independent action of some third party not before the
court." Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26, 41-42 (1976). Finally, Defendants argue that
Plaintiffs have failed to allege that it is "`likely,'" as
opposed to "being merely `speculative,' that their alleged injury
will be redressed by a favorable decision." Lujan,
504 U.S. at 560 (quoting Simon, 426 U.S. at 38, 43).
Contrary to the Defendants' arguments, the Plaintiffs have
standing. The Plaintiffs have alleged a loss and deprivation of
"due process" hearing entitlements guaranteed by the IDEA and the
U.S. Constitution. The invasion of legal rights is an actual
injury creating standing. See Warth v. Seldin, 422 U.S. 490,
The Defendants' May 1, 2004 implementation of certain of the
new state regulations is alleged to deprive the Plaintiffs of the
kind of full and fair due process hearing that Plaintiffs had
prior to May 1, 2004, and which they allege is guaranteed to them
under the federal IDEA statute and the Rehabilitation Act. There
is a sufficiently direct relationship between the injury alleged
and the new regulations being challenged to constitute a
traceable connection between the threatened or actual injury and
the "putatively illegal action." Simon, 426 U.S. at 41. Finally, a declaratory judgment and injunction would remedy the
injuries that the Plaintiffs allegedly have suffered as a result
of the new regulations.
C. Abstention Is Appropriate
Under Younger v. Harris, 401 U.S. 37 (1971), federal courts
are generally required "to abstain from taking jurisdiction over
federal . . . claims that involve or call into question ongoing
state proceedings." Diamond "D" Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (citing Younger,
401 U.S. at 43-44). Younger abstention is required when three conditions
are met: "(1) there is an ongoing state proceeding; (2) an
important state interest is implicated in that proceeding; and
(3) the state proceeding affords the federal plaintiff an
adequate opportunity for judicial review of the federal
constitutional claims." Diamond "D", 282 F. 3d at 198 (quoting
Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)).
The Younger doctrine applies whether the ongoing state
proceedings are civil or administrative. See Ohio Civil Rights
Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629
(1986); Spargo v. N.Y.S. Comm'n on Judicial Conduct,
351 F.3d 65, 75 (2d Cir. 2003), cert. denied, 124 S.Ct. 2812 (2004);
Christ the King Regional High School v. Culvert, 815 F.2d 219,
223-24 (2d Cir.), cert. denied, 484 U.S. 830 (1987). "[W]hen
[the] Younger [abstention doctrine] applies, abstention is mandatory and its
application deprives the federal court of jurisdiction in the
matter." Diamond "D", 282 F.3d at 197. "[A]ny uncertainties as
to the scope of state proceedings or availability of state
remedies are generally resolved in favor of abstention."
Spargo, 351 F.3d at 78 (citation omitted).
Here, there are ongoing impartial hearings which were requested
by the Plaintiffs. (See Am. Compl. ¶ 14.) These hearings
involving important state interests (public education,
implementation of state legislation through state regulation, IHO
certification, guidance for IHO discretion, access to federal
funding, and SED efforts to assure compliance with federal
regulations and to respond appropriately to past complaints of
delay). The Plaintiffs have an "adequate opportunity for judicial
review of [their] constitutional [or federal statutory or
regulatory] claims during or after the [state] proceeding."
Christ The King, 815 F.2d at 224. The administrative
proceedings could resolve Plaintiffs' individual concerns on
state law grounds based on individualized circumstances and the
IHO's, SRO's, or state court's interpretation of the regulations.
Furthermore, SRO and state court review can address issues of
whether individual proceedings comply with federal and state
statutory and regulatory law. Based on the foregoing, Younger abstention is appropriate.
Abstention is also appropriate under Burford v. Sun Oil Co.,
319 U.S. 315 (1943). As the Second Circuit has stated:
Burford abstention is proper in order to "avoid
resolving difficult state law issues involving
important public policies or avoid interfering with
state efforts to maintain a coherent policy in an
area of comprehensive regulation or administration."
American Disposal Servs., Inc. v. O'Brien,
839 F.2d 84, 87 (2d Cir. 1988); see also [Bethphage
Lutheran Service, Inc. v. Weicker, 965 F.2d 1239 (2d
Cir., 1992)]. . . . [T]he court looks to several
factors to determine the applicability of Burford
abstention, including: " the degree of specificity
of the state regulatory scheme,  the necessity of
discretionary interpretation of state statutes, and
 whether the subject matter of the litigation is
traditionally one of state concern." Bethphage,
965 F.2d at 1243 (citation omitted).
Planned Parenthood of Dutchess-Ulster, Inc. v. Steinhaus,
60 F.3d 122, 127 (2d Cir. 1995). The subject matter of this
litigation is a complex state administrative structure that
requires various levels of specialized administrative review and
numerous interrelated regulatory sections providing procedural
guidance. See id. However, the Plaintiffs argue that
Burford is inapposite because the state regulations at issue
seek to implement federal statutory entitlements and because,
they allege, certain of the regulations are not specific but
unconstitutionally vague. However, the regulations at issue
involve state statutory entitlements in an area of traditional
state concern. See Rogers v. Assoc. for the Help of Retarded Children, Inc., 308 N.Y. 126,
132, 123 N.E.2d 806, 809 (1954) (stating that "education of all
children, however handicapped," has long been a matter of "strong
public policy of the State"). Furthermore, the state
statutory/regulatory scheme at issue here is specific, and this
case raises issues that necessitate discretionary interpretation
of state statutes. Finally, the Plaintiffs' challenge to certain
words within the entire regulatory and administrative systems
does not diminish the system's overall specificity.
Abstention is also appropriate here under Railroad Comm'n of
Texas v. Pullman, Co., 312 U.S. 496 (1941) to avoid unnecessary
resolution of federal constitutional, statutory and regulatory
issues that might well be mooted by future state construction of
the regulations. Id. at 498-501. The dispute here, which
involves difficult questions of how to best serve children with
disabilities and how to curb inefficient use of SED
administrative resources, implicates "sensitive area[s] of social
policy upon which the federal courts ought not to enter." Id.
The Plaintiffs have initiated individual hearings, and they
have the right to appeal disputed IHO ruling as provided by state
law. Abstention here will avoid the interpretation of new state
regulations by the federal court without the benefit of state
determinations. Id. at 500; Moore v. Sims, 442 U.S. 415, 428
(1979). Based on the foregoing, abstention is appropriate.
D. The Amended Complaint Fails To State A Cause Of Action
Alternatively, should abstention be deemed inappropriate, the
Amended Complaint fails as a matter of law.
1. No Federal Statutory Violation Has Been Stated
To the extent that the Plaintiffs claim that the SED
regulations at issue violate the IDEA and Section 504 of the
Rehabilitation Act, the claim fails because there are no
provisions of the IDEA or the Rehabilitation Act which prohibit
the application of SED's new regulations in impartial hearings.
The IDEA and its implementing regulations provide procedural
safeguards for impartial hearings. Pursuant to the IDEA statute,
parties to an impartial hearing are accorded:
(1) the right to be accompanied and advised by
counsel and by individuals with special knowledge or
training with respect to the problems of children
(2) the right to present evidence and confront,
cross-examine, and compel the attendance of
(3) the right to a written . . . verbatim record of
such hearing; and
(4) the right to written . . . findings of fact and
decisions. 20 U.S.C. § 1415(h).
The IDEA's implementing regulations set forth the same
procedural safeguards and also additional safeguards including,
among other things, restrictions on the introduction of
previously undisclosed evidence. See 34 C.F.R. § 300.509. The
pertinent implementing regulation of the Rehabilitation Act
a system of procedural safeguards that includes
notice, an opportunity for the parents or guardian of
the person to examine relevant records, an impartial
hearing with opportunity for participation by the
person's parents or guardian and representation by
counsel, and a review procedure. Compliance with the
procedural safeguards of [the IDEA] is one means of
meeting this requirement. [Emphasis supplied].
34 C.F.R. § 104.36.
As described above, Plaintiffs here challenge the amendments
now codified at 8 N.Y.C.R.R. § 200.5(i) concerning page
limitations for memoranda, time limitations for hearings, and
limitations on extensions of impartial hearings. Plaintiffs have
not set forth any specific provisions of the IDEA or the
Rehabilitation Act that is violated by the new regulations.
Section 504 of the Rehabilitation Act of 1973 provides in
pertinent part that "[n]o otherwise qualified individual with a
disability . . . 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. . . ." 29 U.S.C. § 794.
The Plaintiffs have not alleged that their children were treated
differently from non-disabled students (and their parents) based
on disability. Therefore, they fail to state a claim for a
violation of the Rehabilitation Act. See Doe v. Pfrommer,
148 F.3d 73, 83-84 (2d Cir. 1998); P.C. v. McLaughlin,
913 F.2d 1033, 1041 (2d Cir. 1990).
The IDEA does not contain any express language prohibiting
states from regulating impartial hearing procedures or any other
matters related to the administration of the IDEA. The same is
true with respect to the Rehabilitation Act. In fact, the IDEA
contemplates concurrent federal and state regulation of matters
related to the efficient, expeditious administration of IDEA
benefits. Similarly, the relevant Rehabilitation Act regulation
explicitly provides for state regulation of, and the use of IDEA
procedures in, impartial hearings. See 34 C.F.R. § 104.36.
In the alternative, the Plaintiffs argue that the new SED
regulations are preempted by the IDEA and the Rehabilitation Act.
(See Am Compl. ¶ 47.) Such preemption arguments have been
rejected by other courts of this circuit based on the absence of
express language in the IDEA prohibiting states from regulating
in areas within its purview and the "elaborate interrelation of
state and federal regulation" which it contemplates. E.S. ex
rel. Mr. S. v. Ashford Bd. of Educ., Civ. No. 397CV620 (PCD), 1998 U.S. Dist.
LEXIS 23045, at *11-13 (D. Conn. Aug. 17, 1998) (rejecting
argument that IDEA preempts state statute barring presentation at
impartial hearing of issue not previously presented to IEP
planning entity); see also Lillbask ex rel. Mauclaire v.
Sergi, 117 F. Supp. 2d 182, 189-90 (D. Conn. 2000) (same). As
concluded by these authorities, the regulations are not
2. No Federal Constitutional Violation Has Been Stated
The Plaintiffs have also alleged that the SED's new regulations
violate the procedural due process guarantee of the Fourteenth
Amendment. The Second Circuit has stated that the elements of a
procedural due process claim are as follows: (1) that the
plaintiff possessed a constitutionally protected interest, (2)
that such interest was deprived as a result of government action,
(3) and that the deprivation occurred without constitutionally
adequate pre- or post-deprivation process. N.Y. State NOW v.
Pataki, 261 F.3d 156, 163 (2d Cir. 2001) (citing Logan v.
Zimmerman Brush Co., [455 U.S. 422, 428] (1982)).
Even assuming for the sake of argument (1) that the Plaintiffs
possess a constitutionally protected interest in a FAPE under the
IDEA and (2) that the SED statutory/regulatory scheme can have
the effect of depriving Plaintiffs of such interest, Plaintiffs
have nonetheless failed to allege the third element of a procedural due process claim. That is, they have failed to
allege facts showing that as a result of the SED regulations at
issue, such deprivation occurred without adequate process.
The hearing rights provided by the IDEA, as currently
implements by SED, are at least as extensive as those the Supreme
Court has previously determined to be constitutionally adequate.
See Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (stating that
in the context of the termination of public assistance benefits,
due process requires a pre-termination hearing with rights to
representation, oral presentation, confrontation of witnesses,
and a written decision).
In the context of administrative hearings, such as the ones at
issue in this case, the Supreme Court has held that procedures
less extensive than those normally utilized in a full adversarial
hearing satisfy procedural due process requirements. See
Matthews v. Eldridge, 424 U.S. 319, 340 (1976) (holding that
post-deprivation, non-adversarial hearing with right to
representation satisfied due process in termination of Social
Security disability benefits); see also Barry v. Barchi,
443 U.S. 55, 65 (1979) (stating that lack of formal hearing prior
to suspension of a horse trainer's license did not violate due
process where trainer was given "more than one opportunity to
present his side of the story to the State's investigators");
Bell v. Burson, 402 U.S. 535, 540 (1971) (stating that for
revocation of driver's license, due process required only pre-revocation probable cause hearing as to
licensee's fault which "need not take the form of a full
adjudication of the question of liability").
In addition, in the context of IDEA impartial hearings,
numerous federal courts have held that constitutional due process
requirements are satisfied where, as here, the parties are
provided the procedural safeguards found in the IDEA and its
implementing regulations. See, e.g., BD v. DeBuono,
130 F. Supp. 2d 401, 434-35 (S.D.N.Y. 2001); Wenger v. Canastota Cent.
Sch. Dist., 979 F. Supp. 147, 153 (N.D.N.Y. 1997), aff'd,
208 F.3d 204 (2d Cir. 2000).
Based on the foregoing, it is determined that the procedures
set forth in the IDEA and its implementing regulations afford
Plaintiffs all of the constitutional due process to which they
In addition, Plaintiffs' allegations concerning
8 N.Y.C.R.R. § 220.5(i) (3) (xii) (g), which imposes a 30-page limit on legal
memoranda that may be received by an IHO, fail to state a
procedural due process claim. Legal memoranda of a particular
length are not a necessary requirement of due process. See
Goldberg, 397 U.S. at 269. Due process challenges based on page
limits have been dismissed by federal courts. See, e.g.,
Watts v. Thompson, 116 F.3d 220, 223-24 (7th Cir. 1997) (page
limit on memoranda of law complies with due process); Cunningham
v. Becker, 96 F. Supp. 2d 396, 373-74 (D. Del. 2000), aff'd, 275 F.3d 34
(3d Cir. 2001).
Nor do Plaintiffs state a procedural due process claim with
respect to 8 N.Y.C.R.R. § 200.5 (i) (3) (xiii), which states that
"[e]ach party shall have up to one day to present its case." The
IDEA and the pertinent regulation of the Rehabilitation Act,
see 34 C.F.R. § 103.46, require only "a hearing." Moreover, an
IHO is required to make a determination in response to a party's
request for more time to present his or her case, and nothing in
8 N.Y.C.R.R. § 200.5(i) (3) (xiii) prevents an IHO from
exercising the discretion granted by the regulation to do so.
Finally, the provisions of 8 N.Y.C.R.R. § 200.5 (i) (4) (iii)
do not, as Plaintiffs have alleged, abridge a due process right
to receive an extension to effectuate a settlement. Procedural
due process guarantees parties notice and an opportunity to be
heard at a meaningful time and in a meaningful manner. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950); Armstrong v. Manzo, 380 U.S. 545, 552 (1965). They do
not guarantee the opportunity to extend the hearing process in
order to implement a settlement. Furthermore, it should be noted
that the regulation expressly permits extensions for a compelling
reason or substantial hardship. Because the IDEA provides an adequate review process for
Plaintiffs to obtain redress of any unconstitutional application
of the SED's new regulations, the Plaintiffs' due process claim
also fail. See NOW, 261 F.3d at 168 (stating that there is no
denial of due process based on acts of state agency when adequate
state procedures are available to correct such errors); Liotta
v. Rent Guidelines Bd., 547 F. Supp. 800, 802 (S.D.N.Y. 1982)
(stating that Article 78 proceedings to review administrative
decision satisfy due process); see also DeBlasio v. Zoning
Bd. of Adjustment, 53 F.3d 592, 597-98 (3d Cir. 1995) (stating
that "a state provides constitutionally adequate procedural due
process when it provides reasonable remedies to rectify a legal
error"), abrogated on other grounds, UA Theatre Circuit, Inc.,
v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003).
Pursuant to 34 C.F.R. 300.510(b) an SRO reviewing an IHO's
determination after an impartial hearing must, among other
things, "[e]nsure that the procedures at the hearing were
consistent with the requirements of due process."*fn4
34 C.F.R. § 300.510 (b) (2) (iii). This procedure ensures that the
new regulations will be subject to thorough review for compliance
with constitutional due process. The Plaintiffs' equal protection claim has been abandoned
(Pls.' Mem. in Opp. Mot. Dismiss, at 2 n. 2). It is therefore
dismissed without prejudice.
Void-for-vagueness challenges such as those advanced by the
Plaintiffs are usually directed at criminal statutes and civil
provisions which prohibit future individual conduct, particularly
conduct protected by the First Amendment. Boutilier v.
Immigration and Naturalization Service, 363 F.2d 488, 495 (2d
Cir. 1966), aff'd, 387 U.S. 118 (1967). The regulations here
are not criminal laws. They do not proscribe conduct protected by
the First Amendment. Nor do they impose civil sanctions for
certain types of conduct. Therefore, the void-for-vagueness
doctrine is not applicable. Boutilier, 363 F.2d at 495.
Moreover, the terms at issue e.g., "day" and "compelling
reason" are not vague. Sectin 200.5 assigns no specific
definition to the term "day." The term "compelling reason" is
defined negatively. See 8 N.Y.C.R.R. § 200.5(i) (4) (iii)
(stating that "[a]greement of the parties is not a sufficient
basis for granting an extension," and therefore would not
constitute a compelling reason). It is the Defendants'
interpretation, which presumably will be adopted, that if there
is (1) either an agreement in principle to settle or present,
active settlement discussions and (2) no adverse effect of the
extension on the "child's educational interest or well-being,"
see 8 N.Y.C.R.R. § 200.5 (i) (4) (ii) (a), it is within an IHO's discretion to
permit an extension.
To the extent that the terms "day" and "compelling reason" are
not defined by the regulations themselves, they are to be read
according to their plain-language meanings. See, e.g., Hobbs
v. County of Westchester 397 F.3d 133, 146 (2d Cir. 2005)
(stating that "it is a general rule of statutory construction
that, absent a definition in the statute, courts construe words
in their plain and ordinary sense") (quoting Weinberg v. City of
Chicago, 310 F.3d 1029, 1042 (7th Cir. 2002).
This rule of construction applies with equal force to those
statutory provisions concerning page limits for submissions in
connection with impartial hearings.
E. The State Law Claims Against The State Are Dismissed
The Plaintiffs do not have any viable federal claims against
the Defendants. "In general, where the federal claims are
dismissed before trial, the state claims should be dismissed as
well." Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir. 1998);
see also Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.
1994) (noting that "it is axiomatic that a court should decline
to exercise jurisdiction over state-law claims when it dismisses
the federal claims . . ."); Bernstein v. Misk, 948 F. Supp. 228, 243
(E.D.N.Y. 1997). Therefore, the state law claims are dismissed.
Based on the foregoing, the Amended Complaint is dismissed.
Leave is granted to replead within twenty (20) days.
It is so ordered.