The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs, individual students at Riverhead Charter School and Edison Schools*fn1 (collectively, "plaintiffs") bring the present civil rights action against the New York State Department of Education, the New York State Board of Regents, the University of the State of New York, the Office for Vocational and Educational Services for Individuals With Disabilities, Edison Schools, the Riverhead Charter School, Riverhead Charter School officials and members of the Riverhead Charter School Board of Trustees - Steven Cohen, Stephen Charkow, Susan Cheatum, Kate Liddle, Arnold Braunskill and George Grigg (collectively, "defendants").*fn2
Defendants New York State Department of Education, the New York State Board of Regents, the University of the State of New York and the Office for Vocational and Educational Services for Individuals With Disabilities (collectively, "State defendants") move to dismiss plaintiffs' claims related to the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400-1490, pursuant to Fed. R. Civ. P. 12(b)(1), and move to dismiss all claims for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Likewise, defendants Edison Schools, Riverhead Charter School, Riverhead Charter School officials and members of the Riverhead Charter School Board of Trustees (collectively, "School defendants") move to dismiss plaintiffs' claims under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons that follow, defendants' motions are granted in part and denied in part.
The following facts are taken from the amended complaint and are not findings of fact by the Court, but rather are assumed to be true for purposes of deciding this motion and are construed in a light most favorable to plaintiffs, the non-moving party.
On January 10, 2001, the University of the State of New York issued a provisional charter to Riverhead Charter School ("Riverhead"), allowing it to provide free public education. (Am. Compl. ¶ 4.) From January 10, 2001 to the present, Edison Schools owned, operated and supervised Riverhead. (Id. ¶ 5.) According to plaintiffs, Riverhead classrooms were overcrowded, and students were not provided with adequate educational services and programs. (Id. ¶¶ 22, 25.) Specifically, defendants allegedly failed to identify students with learning disabilities and special educational needs, failed to provide such students with educational programs designed to address these issues, and failed to monitor the students' educational performance. (Id. ¶ 25.) Plaintiffs also assert that Riverhead neither provided safe and adequate transportation, nor prevented violent and disruptive behavior among students. (Id.) In addition, Riverhead allegedly lacked proper refrigeration, lunches, rodent extermination, certified teachers, books, paper, pens and pencils. (Id. ¶ 22.) Plaintiffs complained about the conditions at Riverhead to the defendants. (Id. ¶¶ 23, 27.) However, defendants allegedly did not take action to improve the conditions or to return students to their respective public school districts. (Id. ¶¶ 24, 28.) Since returning to their respective public school districts of their own accord, plaintiffs contend that they are unable to function at the appropriate grade level and now require additional educational services as a result of the substandard education that they received at Riverhead. (Id. ¶¶ 29-30.)
On August 2, 2004, plaintiffs filed a complaint in the Southern District of New York, alleging that defendants had denied plaintiffs the right to a free public education. On November 2, 2004, defendants Florida Retirement Systems, Riverhead Charter School, Edison Schools and the Riverhead Charter School Board of Trustees moved to dismiss the complaint. On November 8, 2004, the State defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (3) and (6). Plaintiffs submitted an amended complaint on November 23, 2004.
The amended complaint asserts the following federal causes of action: (1) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (2) the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1490; (3) the Education for all Handicapped Children Act ("EHA")*fn3; (4) the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-799, and specifically Section 504 of the Rehabilitation Act, 28 U.S.C. § 794; (5) Title IX of the Education Amendment of 1982; (6) Title II of the Americans With Disabilities Act, 42 U.S.C. § 12132; (7) the federal civil rights statutes promulgated under 42 U.S.C. §§ 1981, 1983 & 2000d and Title VI of the Civil Rights Act of 1964; (8) supervisory liability under § 1983; and (9) failure to intercede under § 1983. In addition, plaintiffs bring claims under the New York State Constitution, New York Human Rights Law §§ 290-297 and New York Education Law §§ 3302, 4401. Plaintiffs also assert state claims for intentional and/or negligent infliction of emotional distress and failure to train, supervise, manage and/or control. Plaintiffs seek compensatory and punitive damages, injunctive relief, attorneys' fees and costs.
On January 11, 2005, the parties entered into a stipulation dismissing plaintiffs' claims under (1) the Education for All Handicapped Children Act, 20 U.S.C. §§ 1401, 1415 et seq.; (2) Title IX of the Education Amendment of 1982; (3) the New York State Constitution, Article XI, § 1; (4) New York State Education Law §§ 3302, 4401; and (5) the Individuals With Disabilities in Education Act, 20 U.S.C. § 1415.
On February 11, 2005, the State defendants and the School defendants each moved to dismiss the amended complaint and to transfer venue pursuant to 28 U.S.C. § 1404(a). The Honorable Barbara S. Jones granted defendants' motion to transfer venue to the Eastern District of New York on February 7, 2006. On February 21, 2006, the case was assigned to the undersigned. Oral argument on the instant motions was held on January 17, 2007.
Defendants' motions to dismiss for want of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Rule 12(b)(6) are governed by the same standard. See Coveal v. Consumer Home Mortgage, Inc., No. 04-CV-4755 (ILG), 2005 U.S. Dist. LEXIS 25346, at *6 (E.D.N.Y. Oct. 21, 2005) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 540 U.S. 1012 (2003)). In reviewing such motions, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Flores v. S. Peru Copper Corp., 414 F.3d 233, 242 (2d Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The appropriate inquiry is "`not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005) (quoting Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004)). "A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the `jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Coveal, 2005 U.S. Dist. LEXIS 25346, at *7 (quoting Magee v. Nassau Cty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); see also Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (noting that a motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction).
A. Defendants' Motions to Dismiss Pursuant to Fed. R. Civ. P.12(b)(1)
Both the State defendants and the School defendants move to dismiss plaintiffs' claims regarding the education of disabled students pursuant to Fed. R. Civ. P. 12(b)(1). Defendants argue that this Court lacks subject-matter jurisdiction over plaintiffs' claims under the Individuals With Disabilities Education Act, the Rehabilitation Act, the Americans With Disabilities Act ("ADA"), and Section 1983, all of which are subject to the exhaustion requirement of IDEA. The Act requires plaintiffs who assert claims relating to the education of disabled children to exhaust all available administrative remedies prior to bringing suit in federal court. 20 U.S.C. § 1415(l). In the absence of exhaustion, a federal court may not exercise subject-matter jurisdiction over the action. 20 U.S.C. § 1415(l).
The purpose of IDEA is to provide children with disabilities with access to a "free appropriate public education." 20 U.S.C. §§ 1400(c), (d). In passing IDEA, "Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to free public education." Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 200 (1982). The primary mechanism of the statute is the design and implementation of an Individualized Education Plan ("IEP") to address each student's particular disabilities. 20 U.S.C. § 1414. The IEP sets forth (1) a statement of the child's present levels of academic achievement and functional performance; (2) a statement of measurable annual goals; (3) a description of how the child's progress toward meeting the annual goals will be measured; (4) a statement of the educational services to be provided; (5) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class; (6) a statement of any individual accommodations necessary to measure the child's performance on standardized assessments (or an explanation of why the child cannot participate in the assessments); (7) the projected date for the implementation of services, as well as the anticipated frequency, location, and duration of the services; and (8) a plan for achieving postsecondary school goals and provisions for transitional services. 20 U.S.C. § 1414(d)(1)(A).
2. IDEA's Exhaustion Requirement
It is well-settled that, prior to bringing a suit in federal court under IDEA, plaintiffs must exhaust all available administrative procedures. 20 U.S.C. § 1415(l) (2006). In the State of New York, these include an impartial hearing and an appeal of the hearing officer's decision to a state review officer. 20 U.S.C. §§ 1415(f), (g); 8 N.Y.C.R.R. § 200.5. Parents may request a hearing to present complaints relating to the "identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6). "Failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction." Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002) (citing Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995)).
Furthermore, the IDEA statute requires plaintiffs with any claims related to the education of disabled children, whether brought under IDEA or another statute (i.e., the ADA), to exhaust the administrative remedies available under IDEA prior to initiating a federal lawsuit. 20 U.S.C. § 1415(l) (2006) ("Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.") (citations omitted); Polera, 288 F.3d at 481 ("[P]otential plaintiffs with grievances related to the education of disabled children generally must exhaust their administrative remedies before filing suit in federal court, even if their claims are formulated under a statute other than the IDEA (such as the ADA or the Rehabilitation Act)."); Hope v. Cortines, 872 F. Supp. 14, 17 (E.D.N.Y), aff'd, 69 F.3d 687 (2d Cir. 1995) (holding that ADA, Section 1983 and Section 2000d claims are subject to IDEA's exhaustion requirement).
Similarly, IDEA's exhaustion requirement applies despite plaintiffs' claim for damages, which are not available under the statute. Polera, 288 F.3d at 487 ("Courts in the Second Circuit have required exhaustion of administrative remedies even where damages were held to be unavailable through the administrative process. In such cases, plaintiffs were not permitted to evade the IDEA's exhaustion requirement merely by tacking on a request for money damages."); see also Buffolino v. Bd. of Educ. of Sachem Cent. Sch. Dist. at Holbrook, 729 F. Supp. 240, 247 (E.D.N.Y. 1990) ("[I]f the Court were to hold that plaintiffs in this case are excused from exhausting their remedies because adequate relief could not be obtained, plaintiffs could avoid administrative procedures merely by asking for relief that administrative authorities could not grant."); "BD" v. DeBuono, 130 F. Supp. 2d 401, 428 (S.D.N.Y. 2000) ("[P]laintiffs should not be allowed to avoid the administrative requirements of IDEA by claiming only monetary damages or other relief not available under IDEA."). Therefore, despite plaintiffs' claims for damages pursuant to the Rehabilitation Act, Title II of the ADA and state law, they must comport with the requirements of IDEA, which "is intended to remedy precisely the sort of claim" presented here - namely, that state and local authorities failed to provide plaintiffs with appropriate educational services. Polera, 288 F.3d at 488. As the gravamen of plaintiffs' action is a claim for relief under IDEA, their request for damages pursuant to other federal statutes and state tort law does not allow them to evade the statute's exhaustion requirement.
3. "Futility" Exception to IDEA's Exhaustion Requirement
However, the law provides a narrow exception to the exhaustion requirement of IDEA, permitting plaintiffs to bring a federal lawsuit without an administrative hearing in cases where exhaustion would be "futile" because the administrative procedures available do not provide adequate remedies. Polera, 288 F.3d at 488; Heldman v. Sobol, 962 F.2d 148, 158-59 (2d Cir. 1992). Plaintiffs bear the burden of proving that it would have been futile for them to pursue relief through administrative procedures. "The students bear the burden of proof that exhaustion would be futile." J.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005) (citing Polera, 288 F.3d at 488 n.8 (relying upon the Supreme Court's holding in Honig v. Doe, 484 U.S. 305, 327 (1988), in concluding that under the EHA, the burden of demonstrating futility rests with the party seeking to avoid the exhaustion requirement).
"The primary reason for an exhaustion requirement is to utilize the expertise of administrators" who are familiar with resolving issues relating to the education of disabled students. SJB v. N.Y. City Dep't of Educ., No. 03-CV-6653 (NRB), 2004 U.S. Dist. LEXIS 13227, at *14 (S.D.N.Y. Jul. 14, 2004) (citing Polera, 288 F.3d at 487 ("The IDEA's exhaustion requirement was intended to channel disputes related to the education of disabled children into an administrative process that could apply administrator's expertise in the area and promptly resolve grievances.")) and Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 791 (2d Cir. 2002). Even in instances where an administrative hearing and appeal are unsuccessful in resolving a dispute, such procedures "will at least have produced a helpful record because administrators versed in the relevant issues were able to probe and illuminate those issues for the federal court." J.S., 386 F.3d at 112-13 (citing Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981)). In determining whether plaintiffs should be subject to the exhaustion requirement, the Second Circuit instructs courts "to consider whether administrative review would further the goals of developing facts, making use of available expertise, and promoting efficiency." J.S., 386 F.3d at 113 (citing Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992)).
On the basis of the complaint, the Court must determine whether plaintiffs' claims meet either of two potential bases for "futility" that would excuse them from IDEA's exhaustion requirement: (1) that defendants "failed to implement services that were specified or otherwise clearly stated in an IEP," Polera, 288 F.3d at 489, or (2) that the problems alleged are "systemic violations" that cannot be addressed by the available administrative procedures. J.S., 386 F.3d at 113 ("[T]his Court has previously excused exhaustion of administrative remedies in cases that included allegations of systemic violations.") (collecting cases).
Plaintiffs argue that their claims fall under the "failure to implement" exception to the exhaustion requirement. Polera, 288 F.3d at 489; see also SJB, 2004 U.S. Dist. LEXIS 13227, at *16 ("Where an IEP-related claim is based on a district's failure to implement services already spelled out in an IEP, exhaustion is excused.") (citing Polera, 288 F.3d at 489, and Heldman, 962 F.2d at 158 n.11); Michaels v. Mills, 02-CV-0555E(F), 2004 U.S. Dist. LEXIS 6155, at *13 (W.D.N.Y. Feb. 14, 2004) ("[T]he `legislative history of the IDEA suggests an exhaustion exception for situations concerning the implementation of an IEP, as opposed to the contents of an IEP.'") (emphasis in original) (quoting Joseph M. v. S.E. Delco Sch. Dist., No. 99-CV-4645, 2001 U.S. Dist. LEXIS 2994, at *25 (E.D. Pa. Mar. 19, 2001)). In evaluating claims of futility on the basis of "failure to implement," the Second Circuit has advised that
[A] court must closely examine a plaintiff's claims before concluding that they involve nothing more than "implementation" of services already spelled out in an IEP. Here, [plaintiff's] assertion that her claim relates solely to implementation does not make it so. . . . Polera's claim unavoidably encompasses both a failure to provide services and a significant underlying failure to specify what services were to be provided.
Polera, 288 F.3d at 489. In the instant case, plaintiffs allege that Riverhead did not provide the services and accommodations specified in the IEPs of ten individual plaintiffs. For instance, the amended complaint states that plaintiff "Sean Duford . . . is a child/student with learning disabilities/special educational needs requiring an individualized education program/special educational services including, but not limited to, speech services" and avers that "Defendants did not implement/provide Plaintiff Sean Duford with the required, necessary and/or proper educational services, plans and/or programs, including, but not limited to, an individualized educational program including speech services." (Am. Compl. ¶¶ 47-48.) Based upon these allegations, it appears that, at least with regard to certain plaintiffs, defendants may not have provided the students with any IEP-plan whatsoever, rather than declining to implement services "specified" or "clearly stated" in IEPs that had already been created for the students. Therefore, the Court finds that, even construing the facts most favorably to plaintiffs, they have failed to meet their burden of demonstrating that, on the basis that their claims involve only a failure to implement services set forth in IEP plans, exhaustion of administrative remedies would be futile in this case. Thus, plaintiffs are not excused from the exhaustion requirement on this ground.
Plaintiffs argue, in the alternative, that they should be excused from the exhaustion requirement on the basis that their claims allege "systemic violations" of IDEA. The Second Circuit has found systemic violations where the complaint alleges "wrongdoing that is inherent in the program itself and not directed at any individual child." J.S., 386 F.3d at 113. Specifically, where a school completely fails to implement the procedures set forth in IDEA, systemic violations that cannot be cured by administrative procedures are present. See, e.g., Handberry v. Thompson, 446 F.3d 335, 344 (2d Cir. 2006) (declining to apply exhaustion requirement where "individual administrative remedies would be insufficient to address the defendants' failure to provide the services required by the IDEA.") (citing J.S., 386 F.3d at 112); J.S., 386 F.3d at 114 (describing systemic violations as those which "could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process"); Taylor, 313 F.3d at 789 (excusing exhaustion requirement where "`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)'") (quoting Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987)); J.G. v. Bd. of Educ. of the Rochester City Sch. Dist., 830 F.2d 444, 446-47 (2d Cir. 1987) ("Exhaustion of administrative remedies is not required if adequate remedies are not reasonably available. . . . The same is true where the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process.") (citing Jose P. v. Ambach, 669 F.2d 865, 869 (2d Cir. 1982), McNeese v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, Cahokia, Ill., 373 U.S. 668, 674-75 (1963), Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir. 1982) and Riley, 668 F.2d at 640-41); see also Heldman, 962 F.2d at 159 (2d Cir. 1992) (declining to apply exhaustion requirement where plaintiffs challenged New York State's procedures for the appointment of hearing officers: "The policies underlying the exhaustion requirement do not come into play, however, when pursuit of administrative remedies would be futile because the agency either was acting in violation of the law or was unable to remedy the alleged injury"); Tirozzi, 832 F.2d at 757 (finding systemic violation exception to EHA's exhaustion requirement where plaintiffs objected to Connecticut's ...