D.A.B. et al v. New York City Department of Education
Filing
48
OPINION AND ORDER re: 38 CROSS MOTION for Summary Judgment filed by New York City Department of Education, 30 MOTION for Summary Judgment on Plaintiffs Section 504 Allegations filed by D.A.B., M.B. The Court has cons idered all of the arguments raised by the parties. To the extent not specifically addressed, they are either moot or without merit. For the reasons explained above, the plaintiffs' motion for summary judgment on the Section 504 claim is dismissed without prejudice for lack of subject matter jurisdiction. The Clerk is directed to close all pending motions. (Signed by Judge John G. Koeltl on 9/22/2014) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
D.A.B. AND M.B., INDIVIDUALLY AND ON
BEHALF OF D.B.,
Plaintiffs,
12 Cv. 4325 (JGK)
OPINION AND ORDER
- against NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiffs, D.A.B. and M.B., bring this action on
behalf of their son, D.B., pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,
Section 504 of the Rehabilitation Act of 1973 (“Section 504”),
29 U.S.C. § 794 et seq., and New York Education Law § 4401 et
seq., against the New York City Department of Education (“the
Department”).
In an earlier decision, this Court granted
summary judgment for the defendant dismissing the plaintiffs’
challenge to the decision of the State Review Officer (“SRO”),
leaving undisturbed the SRO’s decision that the Department had
offered D.B. a “free and appropriate education” (“FAPE”) for the
2010-2011 school year.
D.A.B. v. New York City Dep't of Educ.,
973 F. Supp. 2d 344, 363 (S.D.N.Y. 2013).
The parties have now
cross-moved for summary judgment on the plaintiffs’ Section 504
claim, which was not argued by the parties at the time of the
earlier decision.
For the reasons explained below, the plaintiffs’ Section
504 claim is dismissed without prejudice for lack of subject
matter jurisdiction.
I.
The Court has already set forth the facts and procedural
background of this case in its prior opinion, familiarity with
which is assumed.
See id. at 351-358. The following facts,
taken from the administrative record and the submissions of the
parties, are set forth because of their relevance to the Section
504 claim.
The facts are undisputed unless otherwise noted.
A.
D.A.B. and M.B. are the parents of D.B., a child classified
with autism and apraxia of speech. 1
(SRO Op. at 2; Tr. 780.)
D.B. was approximately six years old at the time of the 20102011 school year at issue in this case.
(Independent Hearing
Officer (“IHO”) Op. at 4; Ex. 1 (“IEP”) at 1.)
Consistent with New York State Public Health Law, the
Department requires that all students be vaccinated before
attending school, subject to certain exceptions.
Health Law § 2164; (see Edmonds Decl. ¶ 2, Ex. 1.)
N.Y. Pub.
Parents that
1 Apraxia of speech is a disorder characterized by severe motor planning
difficulties, by which a person has trouble speaking correctly. (Tr. 360,
485, 508–09.) “Tr.” refers to the transcript of the hearing before the IHO.
2
do not want their children to be vaccinated due to medical
concerns may request an exemption by submitting a statement from
a New York State physician.
N.Y. Pub. Health Law § 2164(8);
(see Edmonds Decl. ¶ 3, Ex. 2.)
The plaintiffs have claimed that they do not want D.B. to
be vaccinated due to medical concerns.
(Tr. 854-55.)
Prior to
the 2009-2010 school year, they requested an exemption from the
Department’s vaccination requirement by submitting a letter from
Dr. Cecilia McCarton, a clinical pediatrician, stating that D.B.
has a “history of adverse reactions” to vaccinations.
Ex. 5.)
(Tr. 854;
The Department denied the request because it found no
(Ex. 6.) 2
medical basis for the exemption.
Prior to the 2010-
2011 school year, D.B. still had not received the necessary
vaccinations and the plaintiffs did not request an exemption.
(Def.’s Statement of Undisputed Facts, ¶ 8; Pl.’s Resp. Def.’s
Statement of Undisputed Facts, ¶ 8.)
The Individualized Education Program (“IEP”) recommended by
the Committee on Special Education (“CSE”) proposed placing D.B.
in a specialized class in a specialized school with a
student/teacher/paraprofessional ratio of 6:1:1, along with
several other support services.
(IEP at 1-2.)
On June 15,
2 Exhibits with numbers refer to the defendant's exhibit appendix and exhibits
with letters refer to the plaintiffs' exhibit appendix each of which was
submitted to the Office of State Review. Exhibits with roman numerals refer
to the IHO's exhibits that were submitted to the Office of State Review.
Neither party challenges the exhibits.
3
2010, the plaintiffs sent a letter to the Department, through
their attorney, in which they stated that they would be
unilaterally placing D.B. at the McCarton Center, a non-public
center in New York City which D.B. had attended the previous
school year.
(Ex. C.)
The letter discussed the plaintiffs’
failed attempts to receive an exemption from the vaccination
requirement during the 2009-2010 school year.
(Ex. C.)
On June
16, 2010, the Department mailed D.B.'s parents a final notice of
recommendation (“FNR”) offering D.B. a classroom placement at
P811M @ P149M (“P811M”) that allegedly provided the services
listed in the IEP.
(Ex. 3.)
After receiving the FNR, D.A.B. visited P811M to observe
the classroom and available services.
(Tr. 345-50.)
In a June
28, 2010 letter to the Department, she stated that the principal
had told her that D.B. would require vaccination, which she
stated would be “contrary to the advice of his physicians.”
(Ex. B.)
D.A.B. also stated in the letter that the program was
not appropriate for D.B. because he “requires one on one
instruction” and “none was available.”
(Ex. B.)
On September 16, 2010, the plaintiffs filed a due process
complaint notice requesting an impartial hearing and seeking
reimbursement for the student's tuition at the McCarton Center
for the 12–month 2010–2011 school year.
(Ex. I at 6.)
The due
process complaint alleged several procedural and substantive
4
deficiencies with the IEP, including among other things that the
6:1:1 program, annual goals, and Behavioral Implementation Plan
were inappropriate for D.B.
(Ex. I at 1-6.)
The due process
complaint also argued that the IEP failed to recommend an
appropriate placement because D.B. was rejected from the
proposed placement due to his lack of vaccinations.
(Ex. I at
3.)
During the due process hearing, D.A.B. explained that she
did not approve of the placement because “a 6:1:1 at any school
would not be appropriate,” and that the school did not have
several services that D.B. required.
(Tr. 870.)
She also
testified that she had informed the CSE of the problem with D.B.
receiving vaccinations.
(Tr. 849.)
However, the Department’s
psychologist, Kathy Kaufman, testified that the issue of D.B.’s
vaccinations was not discussed during the CSE meeting, and
neither the IEP nor the CSE minutes mentions any such
discussion.
(Tr. 303; Exs. 1, 2.)
B.
On April 1, 2011, the IHO issued an Interim Order
dismissing the plaintiffs’ claims that D.B. had been excluded
from the proposed placement based on his lack of vaccinations.
(See IHO Interim Op. at 6.)
The IHO concluded that he lacked
subject matter jurisdiction over this claim because it was
“governed by the New York Public Health Law,” so the “proper
5
forum for resolution” is an appeal to the New York State
Commissioner of Education.
(IHO Interim Op. at 7.)
Following the IHO’s Interim Order, the due process hearings
continued, and the IHO issued his final decision on December 1,
2011, in which he held that the Department failed to offer D.B.
a FAPE for the 2010-2011 school year.
(See IHO Op. at 21.)
The
plaintiffs did not appeal the Interim Order or any portion of
the IHO’s decisions to the SRO, and requested that the SRO
uphold the IHO’s final decision in its entirety.
6.)
(SRO Op. at
On March 5, 2012, the SRO reversed the IHO’s December 1
decision, holding that the Department offered D.B. a FAPE for
the 2010-2011 school year.
(SRO Op. at 15.)
On June 1, 2012, the plaintiffs filed a complaint in this
Court.
On September 16, 2013, the Court granted summary
judgment for the defendants dismissing the plaintiffs’ IDEA
claim and upholding the SRO’s decision.
at 363.
D.A.B., 973 F. Supp. 2d
In their original summary judgment motions, the parties
focused their arguments on the IDEA claims and did not discuss
the plaintiffs’ Section 504 claim.
Following the Court’s
decision, the parties submitted cross-motions for summary
judgment on the plaintiffs’ Section 504 claim.
II.
“It is well settled that the IDEA requires an aggrieved
party to exhaust all administrative remedies before bringing a
6
civil action in federal or state court.”
J.S. ex rel. N.S. v.
Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004); 20 U.S.C.
§ 1415(i)(2)(A).
“Failure to exhaust the administrative
remedies deprives the court of subject matter jurisdiction.”
Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 246 (2d
Cir. 2008).
Even if the plaintiff requests relief that is
unavailable under the IDEA, a court looks to the “theory behind
the grievance” to determine if there must be IDEA exhaustion.
Id. (quoting Polera v. Bd. of Educ. of Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)).
Thus, “potential
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).”
Polera, 288 F.3d at 481; 20 U.S.C.
§ 1415(l) (“Nothing in this chapter shall be construed to
restrict or limit the rights, procedures, and remedies available
under . . . title V of the Rehabilitation Act of 1973 . . .
except that before the filing of a civil action under such laws
seeking relief that is also available under this subchapter, 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 subchapter.”)
7
In this case, the Rehabilitation Act claim parallels the
IDEA claim.
Under both statutes, the plaintiffs claim that they
are entitled to compensation for the cost of private education.
Under the IDEA claim, the plaintiffs claim that the Department
failed to provide DAB with a FAPE and therefore they were
justified in placing him in a private school.
Under the
Rehabilitation Act claim, the plaintiffs claim that they are
entitled to reimbursement of the cost of private education
because the Department discriminated against DAB because of his
autism.
In New York, both levels of administrative review—a due
process hearing before an IHO and an appeal to a SRO—“must be
exhausted before an aggrieved party may commence an action in
federal court.”
McAdams v. Bd. of Educ. of the Rock Point Union
Free Sch. Dist., 216 F. Supp. 2d 86, 93 (E.D.N.Y. 2002).
Proper
exhaustion is “critical” because the IDEA's administrative
scheme “allows for the exercise of discretion and educational
expertise by state and local agencies, affords full exploration
of technical issues, furthers development of a complete factual
record, and promotes judicial efficiency by giving these
agencies the first opportunity to correct shortcomings in their
educational programs for disabled children.”
Taylor v. Vt.
Dept. of Educ., 313 F.3d 768, 790 (2d Cir. 2002) (quoting
Polera, 288 F.3d at 487).
8
Congress has specified that exhaustion is not necessary if
“(1) it would be futile to resort to the IDEA's due process
procedures; (2) an agency has adopted a policy or pursued a
practice of general applicability that is contrary to the law;
or (3) it is improbable that adequate relief can be obtained by
pursuing administrative remedies.”
Murphy v. Arlington Cent.
Sch. Dist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002)
(citing Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir.1987)
(quoting H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985)).
The burden of proving the applicability of one of the exceptions
rests on the party seeking to avoid exhaustion.
Id.
As this Court noted in its prior opinion, the plaintiffs
never raised the issue of vaccinations before the SRO.
973 F. Supp. 2d at 354 n.11.
D.A.B.,
The failure to appeal an IHO’s
decision to the SRO constitutes a failure to exhaust
administrative remedies under the IDEA and requires dismissal. 3
See, e.g., R.S. v. Bedford Cent. Sch. Dist., 899 F. Supp. 2d
285, 288 (S.D.N.Y. 2012) (holding that SRO’s dismissal of appeal
as untimely constituted failure to exhaust administrative
3 The defendants also argue that the plaintiffs’ claim should be dismissed
because the plaintiffs did not exhaust other available remedies, such as
requesting an exemption to the vaccination requirements or appealing to the
State Commissioner of Education. However, the defendants cite no cases
suggesting that the IDEA exhaustion requirement applies to administrative
remedies that are outside of the IDEA administrative process. See 20 U.S.C.
§ 1415(i)(2)(A)(requiring that parties be aggrieved by administrative
findings under that subsection before having the right to bring a civil
action). Nevertheless, the Court need not reach this issue because the
plaintiffs have failed to exhaust their IDEA remedies.
9
remedies); M.M. ex rel. J.M. v. New York City Dep't of Educ.,
No. 09 Civ. 5236, 2010 WL 2985477, *8 (S.D.N.Y. July 27, 2010)
(dismissing claim for failure to exhaust due to failure to
appeal IHO decision).
Therefore, unless one of the exceptions applies,
plaintiffs’ claim must be dismissed for lack of subject matter
jurisdiction. 4
In this case, the plaintiffs have not argued that
any of the exceptions apply, 5 much less carried their burden to
prove the applicability of any exception.
See Coleman, 503 F.3d
at 206 (stating that even if resort to administrative processes
“takes time,” that does not “equate to an inadequate remedy”).
Plaintiffs’ claim is thus dismissed without prejudice.
See
4 The Court of Appeals for the Second Circuit has been somewhat “equivocal” at
times in its discussion of whether the IDEA exhaustion requirement is
jurisdictional. Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198,
203 (2d Cir. 2007). It has cautioned that, in accord with Supreme Court
decisions in Eberhart v. United States, 546 U.S. 12, 16 (2005) and Kontrick
v. Ryan, 540 U.S. 443, 455 (2004), courts should “carefully distinguish
between jurisdictional rules and mandatory claims-processing rules,” such as
waiver and forfeiture. Coleman, 503 F.3d at 203. Nevertheless, the
defendant has not waived its exhaustion argument here, and therefore it is
either a jurisdictional bar or an affirmative defense that has been invoked.
See Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 680-81 n.7
(S.D.N.Y. 2011) (discussing developments in light of more recent Supreme
Court opinions and splits among lower courts in the Second Circuit about
whether exhaustion is an affirmative defense or jurisdictional, and
concluding that it need not decide the issue because the defendant had not
waived the defense).
5 Plaintiffs’ arguments in their reply brief mostly ignore the defendant’s
exhaustion argument altogether. They appear to argue that the plaintiffs’
failure to obtain an exemption to the vaccination requirement for the 20102011 school year was justified because “the Department’s own employee
informed the Parents that the [Department’s] prior refusal to grant such an
exemption was still in effect for the 2010-2011 school year.” Pl.’s Reply
Br. at 3. Even if accepted as true, this argument appears to be directed at
the failure to request an exemption and does not excuse the failure to appeal
the IHO’s decision. The plaintiffs prevented the SRO from considering their
arguments with respect to vaccination and how that might have affected the
Department’s ability to provide a suitable placement for D.A.B. by failing to
appeal the IHO’s decision.
10
Cave, 514 F.3d at 250 (directing district court to dismiss
without prejudice a claim that the plaintiffs had failed to
exhaust).
III.
For purposes of completeness, the Court notes that even if
there were jurisdiction over plaintiff’s Section 504 claim, it
is without merit.
Section 504 of the Rehabilitation Act of 1973 provides that
“[n]o 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....”
U.S.C. § 794(a).
29
“A plaintiff may assert a Section 504 claim in
conjunction with an IDEA claim on the theory that he has been
denied access to a free appropriate education, as compared to
the free appropriate education non-disabled students receive.”
C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 36
(S.D.N.Y. 2012) (internal quotation marks and citation omitted).
“The scope of protection under the Rehabilitation Act differs
from that under the IDEA.”
Id.
“Specifically, Section 504
offers relief from discrimination, whereas IDEA offers relief
from inappropriate education placement, regardless of
discrimination.”
Gabel ex rel. L.G. v. Bd. of Educ., 368 F.
11
Supp. 2d 313, 333 (S.D.N.Y. 2005); see also D.C. ex rel. E.B. v.
New York City Dep't of Educ., 950 F. Supp. 2d 494, 517-18
(S.D.N.Y. 2013).
To recover under the Rehabilitation Act, a plaintiff must
show (1) that he has a disability for purposes of the
Rehabilitation Act, (2) that he is “otherwise qualified” for the
benefit that has been denied, (3) that he has been denied the
benefits “solely by reason of” his disability, and (4) that the
benefit is part of a program or activity receiving Federal
financial assistance.
Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 275 (2d Cir. 2009); see also D.C., 950 F. Supp. 2d
at 518.
Here, it is undisputed that D.B. is disabled and that the
school district receives federal financial assistance.
However,
it is unclear whether plaintiffs can show that D.B. was excluded
from school at all.
The plaintiffs rejected the proposed
placement before receiving the FNR and unilaterally placed D.B.
at the McCarton Center.
(Ex. C.)
The plaintiffs never enrolled
D.B. at his designated placement and he was never rejected by
that school.
Furthermore, D.A.B. stressed at the due process
hearing and in her letter to the Department that her objections
to the proposed placement were based in large part on the
substantive inadequacy of the proposal, such as the 6:1:1 ratio.
(Ex. B; Tr. 870.)
Nevertheless, even if plaintiffs did intend
12
to enroll D.B. in public school, they cannot show that D.B. was
excluded from school “solely by reason” of his disability.
29
U.S.C. § 794(a); Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.
1995) (dismissing Section 504 claim because the plaintiff was
denied an additional subsidy for modifications to a vehicle due
to his “inability to drive”).
No reasonable factfinder could conclude that D.B. was
prevented from attending the school because of his autism.
Even
under the plaintiffs’ hypothetical assumptions, D.B. would not
have been allowed to attend his designated school because he did
not have the required vaccinations.
Plaintiffs hypothesize that
D.B.’s autism prevents him from obtaining the required
vaccinations, and therefore the enforcement of this requirement
constitutes discrimination.
In so arguing, the plaintiffs rely
heavily on Honig v. Doe, 484 U.S. 305 (1988), in which the
Supreme Court held that a state may not unilaterally exclude
mentally disabled students from public school due to dangerous
conduct.
Id. at 324-25.
There is no reasonable comparison
between a vaccination requirement (with appropriate medical
exceptions) and the exclusion of mentally disabled students.
Moreover, Honig dealt exclusively with the Education of the
Handicapped Act, a precursor to the IDEA, id. at 309, not with a
claim of discrimination under Section 504 of the Rehabilitation
Act.
13
The only Section 504 cases that plaintiffs rely on to argue
that the vaccination requirement constitutes discrimination
involve sweeping, automatic exclusions of all children with a
certain disease.
See New York State Ass'n for Retarded
Children, Inc. v. Carey, 466 F. Supp. 479, 486 (E.D.N.Y. 1978)
aff'd, 612 F.2d 644 (2d Cir. 1979) (holding that the exclusion
of all mentally disabled children with Hepatitis B violated
Section 504); Dist. 27 Cmty. Sch. Bd. by Granirer v. Bd. of
Educ. of City of New York, 502 N.Y.S.2d 325, 335 (Sup.Ct. 1986)
(holding that the automatic exclusion of all children with AIDS
would violate the Rehabilitation Act).
By contrast, the
Department’s vaccination requirement, which allows the
possibility of exemptions, is a more limited, generally
applicable law intended to limit the spread of contagious
disease.
N.Y. Pub. Health Law § 2164; see Carey, 466 F. Supp.
at 486 (stating that in contrast to complete exclusion, Section
504 allows “prophylactic measures” to limit the “risk of
contagion”).
Because all record evidence shows D.B. was not
excluded from public school solely because of his autism, the
plaintiffs’ Section 504 claim is without merit.
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed, they are
either moot or without merit.
For the reasons explained above,
14
the plaintiffs’ motion for summary judgment on the Section 504
claim is dismissed without prejudice for lack of subject matter
jurisdiction.
The Clerk is directed to close all pending
motions.
SO ORDERED.
Dated: New York, New York
September 22, 2014
_______________/s/________________
John G. Koeltl
United States District Judge
15
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