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 ...