J.Z. et al v. NYC Department of Education et al
OPINION re: 22 AMENDED MOTION for Preliminary Injunction on behalf of Plaintiffs M.G. and Y.G. filed by M.G. For the foregoing reasons, Plaintiffs' motion is denied, with leave to renew upon a proper showing of an unjustifiably delay or to challenge any administrative determinations as to Student following administrative exhaustion. (Signed by Judge Robert W. Sweet on 12/5/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
17 Civ . 7612
J.Z., et al.,
OPIN I ON
-against NEW YORK CITY DEPARTMENT OF EDUCATION,
A P P E A R A N C E S:
Attorney for Plaintiffs
THE LAW OFFICE OF ELISA HYMAN, P.C.
42 West 24th Street, 2nd Floor
New York, NY 10010
Elisa Hyman, Esq.
Attorney for Defendants
Corporat i on Counsel of the City of
10 0 Church Street
New York, NY 10007
Elizabeth C . DeGori, Esq.
Plaintiff M.G. , on behalf of herself and her son, Y.G.
"Student" and, collective l y , the "Plaintiffs") have moved for a
temporary restraining order and preliminary in'unction against
Defendants the New York City Department of Edur ation ("NYC
DOE"), New York City Board of Education ("NYC F OE") , and
Chancellor of the New York City School District Carmen Farina
(collectively , the "Defendants"). Plaintiffs seek injunctive
relief for violations of the Individuals with Disabilities
Education Improvement Act , 20 U.S.C.
140 0 et seq .
Section 504 of the Rehabilitation Act of 1973, / 29
( " I DEA" ) ,
(" Section 504 " ) , the Americans with Disabilit'es Act, 42 U.S.C.
1 2 101 et seq.
("ADA" ) , and the Due Process Olause of the
Fourteenth Amendment of the United States
Process Clause " ), 42 U. S . C .
1983. For the r i asons set forth
below , Plaintiffs ' motion is denied.
On October 5 , 2017 , Plaintiffs filed the J r Complaint
against Defendants, alleging that Defendants, in a variety of
s ituati ons , had denied Plaintiffs their right , as promised under
the IDEA, Section 504, the Due Process Clause , the New York
Sta t e Constitution , and New York State Edu cation law and
(Dkt. No. 1 . ) On October 19 , 2017 l
their First Amended Compla i nt ("FAC " ), which a b ded three
additional Plaintiffs .
(See generally Dkt. No. 10.) As relevant
to the instant motion , t h e FAC alleges that st Ldent was denied a
FAPE for the 20 1 4 through 2017 schoo l years , as we ll as been
discriminated against in v i olat i on of Section 504 , the ADA , and
42 U. S.C .
(See i d. at 33 . )
On November 13 , 2017 , Plaintiffs filed an order to show
cause for a pre l iminary injunction , after which the Court issued
a briefing schedule .
(Dkt . No . 19 . ) On November 22 , 2017 ,
Plaintiffs filed an amended motion for a preliminary injunction ,
(the " Amended PI ,
Dkt. No . 22) ' which was he J rd and marked
ful l y submitted on November 27 , 2017.
Following oral argument , the parties supRlemented the
record with correspondence made with the IHO . l (see Dkt . Nos . 25 27.)
Statutory Framework and Facts
a . IDEA, Section 504 , and the ADA
The I DEA establishes a comprehensive program for providing
federal funds to assist the states in educatin
children . In exchange for that federal assista r ce , the recipient
state is required to ensure that d i sabled stud, nts receive a
"free appropriate public education [ ("FAPE")] r hat emphasizes
special education and related services designe r to meet their
unique needs. " 20 U.S.C . §§ 1400 (d) (1) (A); 141!2 (a) . A FAPE is a
special education and related services that
calculated to enable a child to make progress appropriate in
light of the child ' s circumstances." Endrew F. ex rel . Joseph F.
v . Doug l as Cnty . Sch . Dist. RE -1, 137 S.Ct .
999 (2017). The
law requires that at least annually , the needs and services of a
disabled child be described in an Individual l ducation Program
("IE P") . 20 U.S.C.
1414(d); see also Cerra v . Pawling Cent.
Sch . Dist ., 427 F.3d 1 86 , 192 (2d Cir. 2005) . An IEP must
provide an "appropriate education " but "not
everything that might be thought desirable by loving parents. "
Bryant v. N.Y. Educ. Dep ' t , 692 F . 3d 202 , 215 (2d Cir . 2012)
(quoting Walczak v. Fla. Union Free Sch . Dist ., 142 F.3d 119 ,
132 (2d Cir. 1998))
(internal quotation marks pmitted).
Under the IDEA, "parents of students with disabling
conditions are guaranteed both an opportunity for meaningful
input into all decisions affecting their child ' s education and
the right to seek review of any decisions they think
inappropriate ." Cave v. E. Meadow Union Free
F . 3d 240 , 245 (2d Cir . 2008)
Dist ., 514
(internal quotation marks and
citation omitted). Accordingly , parents are afforded procedural
safeguards to ensure that his or her child's IEP provides a
FAPE. See 20 U. S.C . § 1415(f ) . In New York , after filing a Due
Process Complaint ("DPC") , parents have the right to an
impartial due process hearing before an Impartial Hearing
Officer ("IHO " ) , who co nducts an initial due
issues written findings . See N.Y . Educ. Law§ 4404(1 ) ; see also
J . S . ex rel . N.S . v. Attica Cent . Sch. , 386 F. 3d 107, 112
Cir . 2004) . Once a DPC is filed , a student is ent itl ed to a
"pendency " or to "stay put" in the then - current educational
placement until the dispute is res o lved. See 2 0 U.S.C .
§ 1415(j). Decis i ons by an IHO may be appealed to a New York
State Review Officer ("SRO") , who examines the record and issues
an "independent decision. " See 20 U. S.C. § 1415(g) ; N. Y. Educ.
Law§ 4404(2) . Appeals from an SRO 's decision may be brought a
civil action in federal or state court. See 20 U.S.C.
§ 1415(i)(2)(A ) ; N.Y Educ. Law§ 4404(3).
Section 504 provides that "[n]o otherwise qualified
individual with a disability .
shall, solely by reason of
her or his disability, be excluded from the par ticipation in, be
denied the benefits of , or be subjected to discrimination under
any program or activity receiving Federal fina l c ial assistance ."
29 U.S.C. § 794(a). Section 504 also requires the provision o f a
FAPE , and the implementation of an IEP in accordance with the
IDEA is one way of satisfying Section 504's requirements. See 34
C.F.R. § 104.33. Given their similar requirements, Section 504
and the ADA are regularly considered in tandem. Rodriguez v .
City of N.Y., 197 F.3d 611 , 618
(2d Cir. 1999)
504 of the Rehabilitation Act and the ADA impose identical
requirements, we consider these claims in tandem.").
"I t is we ll settled that the IDEA requir e s an aggrieved
party to exhaust all administrative remedies f efore bringing a
civil action in federal or state court
." J.S., 386 F.3d
at 112. "The purpose of the exhaustion rule is to channel
disputes related to the education of disabled children into an
administrative process that cou l d app l y admini l trators '
expertise in the area and promptly resolve grievances ." Cave ,
514 F.3d at 245-46. Exhaustion of
administrati ~ e
remedies is a
requirement to provide a court subject matter ' urisdiction over
IDEA c l aims . See F.C. v . N. Y. C. Dep ' t of Educ. , No . 15 Civ . 6045
(PAE) , 2016 WL 8716232 , at *5
(S . D.N. Y. (\ug. 5 , 2016)
(cit ing Coleman v . Newburgh Enlarged City Sch . Dist ., 503 F.3d
198 , 203 (2d Cir . 2007))
(collecting cases) . "The exhaustion
requirement a l so applies where plaintiffs seek relief under
other federal statutes when relief is also available under the
IDEA." J.S. , 386 F . 3d at 112 (citing 20 U.S . C .
(observing that Section 504 and Section 1983 d laims "both seek
to ensure a free appropriate public education, thus subjecting
both to the IDEA exhaustion requirement " ) ;
F.3d at 246 (c i ting 20 U. S.C .
a l so Cave , 514
overcome this significant procedural hurdle n o t only when they
wish to file a suit under the IDEA itself, but also whenever
they assert claims for relief avai l able under the IDEA,
regardless of the statutory basis of their complaint").
The exhaustion requirement i s excused in limited
circumstances , such as "systemic violations that could not be
remedied by local or state administrative agencies ' because the
framework and procedures for assessing and placing students in
appropr i ate educational programs were at issue, or because the
nature and volume of complaints were incapable of correction by
the admi nistrative hearing process .'" Cave , 514 F. 3d at 249
(quot in g J.S.,
386 F . 3d at 114. Courts have al l o found that
"lengthy delays in the administrative process may justify a
finding t h at exhaustion would be futile or inadequate" although
" specific threshold for such a finding is unclear ." M. G., 15 F.
Supp. 3d at 303 & nn . 40 - 41
(collect i ng cases) .
b. Student ' s IEP and Due Process Complaints 2
Student is an eighteen year - old, twe l fth grade student who
curren tl y attends New Explorations into Sc i ence , Technology , and
Math ( " NEST+m" ) , a public high school for gifted and talented
(Declaration of Elizabeth C . DeGori dated November 16,
(" DeGori Deel.") ':II 8 ; Declarat i on of Elisa Hyman, Esq.,
dated November 10 , 2017
("Hyman Deel. " ) , at YG - 001171.)
Student ' s psychoeducational evaluation indicates he possesses
general cognitive ability in the superior range .
(Hyman Deel. ,
at YG - 001 1 65 -11 70 . ) Starting in March 2015 through the present ,
The following facts are drawn from the parties ' briefing ,
submitted declarations , and attached exh i bits with regard to the
instant motion and are in c lu ded on l y insofar as they provide
he l pfu l background or are necessary for the motion ' s resolution.
Student became diagnosed with an increasing number of
disab ili ties and conditions , including Mononucleosis , Crohn ' s
Disease , Irritable Bowel Syndrome , Convergence Insufficiency ,
Pediatric Sleep Apnea , and Chron i c Fatigue Syndrome/Myalg i c
Encephalomyelit i s .
(See Hyman Dee l., at YG - 001070 - 89 , YG - 001165 -
70 . ) Student ' s I EP notes that his " medica l illnesses cause
extended absences which negative l y impact his part i cipation and
progress " in the school curriculum .
(Hyman Deel ., at YG - 001342.)
During the 2017 - 2018 school year , as of November 13 , 2017 ,
Student has been absent 22 days and present 21 days ; for the
prior two academic years , Student was absent 165 days in 2015 2016 and 128 days in 2016 - 2017 .
DeGori Deel .
(See Hyman Deel ., at YG-001338 ;
19 . ) Student is presently missi ng eleven academic
cred i ts needed to gradu ate , though has completed t he necessary
Regents exams .
(See DeGori Dee l.
college counse li ng .
11.) Student presently has
Student ' s 2017 - 20 1 8 IEP , dated August 25 , 2017 , i nc l udes
provisions intended to respond to Student ' s hea l th conditions
(the " 2017 IEP " ) .
(See Hyman Dee l., at YG - 001337 - 53.) Student ' s
IEP notes , inter a l ia , that Student is to rece i ve extended time
on classroom assignments, make up testing sessions that do not
impact academic class t i me , make - up work during t he Fa l l , a
second set of text books for home use, and use of a locker .
(Hyman Deel ., at YG - 001342 . ) The IEP included accommodations for
Student's testing, bathroom breaks , and snacks l
(Hyman Deel ., at
YG - 001347.) Under the IEP , Student was expecte b to participate
in regular academic and physical education classes.
Deel ., at YG-001349.)
The IEP required five hours per week of direct Specia l
Education Teacher Support Services (" SETSS") and ten hours per
week of indirect SETSS , both to be provided "Separate Location
General Education/Other Location"; the IEP determined that homeinstruction was not necessary , but that the separate location be
with limited students to "reduce visual and auditory
distraction. " 3 (Hyman Dee l., at YG-001345 , YG - 001347, YG - 001351.)
Under the IEP , the direct SETSS hours are to be focused on math . 4
(Hyman Deel ., at YG - 001345.) Home instruction is available , but
requires either a parent remain home or that the parent provide
Indirect SETSS cover instances when Student's teachers
"provide assignments, schedules , and notes , as appropriate , to
be uploaded online for the Student ' s access ." (DeGori Deel.
Defendants have stated that NYC DOE has agreed that SETSS
hours may be used to support Student in any subject necessary
and that any missed SETSS hours can be provided as make-up
services. (See DeGori Deel . ~~ 17-18 . )
a chaperone , in addition to prior medical approval from a
(See Hyman Deel. , Ex. J. )
Several of Student 's grades are presently marked as
Incomplete, mainly due to work incomplete during the semester;
incompletes are indicated as an "NX" on trans cripts .
Hyman De el ., at YG-000701.) NX grades do not
factor into the GPA, and students who receive an NX as a grade
must complete the remaining course requirements by the end of
the next semester to receive a final grade . 5 (See Hyman Deel .,
Ex. F.) Many of Student 's grades previously marked as an NX are
now marked as a 55, in c luding for Physical Education.
Deel., Ex. I.)
Plaintiffs have initiated administrative relief. Plaintiffs
attended two IEP meetings in August 20 17; on August 31 , 2017 ,
Plaintiffs filed a Due Process Request, and on October 3 , 20 17,
filed a Due Process Complaint , alleging c laims similar to those
in Plaintiffs' FAC.
(See FAC Exs. 0 & P; Declaration of Elisa
Hyman, Esq., dated November 16, 2017
("Hyman No v. 16 Deel."),
Ex. A-3-A-6; FAC, Ex. P.) The IHO held a pre-hearing conference
Plaintiffs note that the stated school policy regarding NX
grades does not indicate that failure to complete remaining
make-up work within that timeframe results in the NX grades
convert ing into grades of 55. (See Hyman Deel., Ex. F . )
on October 6 and October 12, 20 17.
(See Hyman Deel ., Ex. H.) As
a result of the pre - conference hearing , the IHO indi cated that
she would not consider Plaintiffs' federal claims for relief
under Section 504 and the ADA.
(See Hyman Deel. , at YG -001132-
33; see also id ., at YG - 000977.) On October 19 , 2017 , the IHO
held a pendency hearing .
(See Hyman Deel., Ex. H.)
On November 9, 2017 , the IHO issued an Interim Orde r of
Pendency, which found that the pendency program should be
effective as of August 31 , 2017 and the services should be as
described in the 2017 IEP.
(Hyman Nov . 16 Deel., Ex. A-6 . )
Preliminary injunctions are "extraordinary and drastic
remed[ies] that should not be granted unless the mova nt, by a
clear showing, carries the burden of persuasion." Mazurek v.
Armstrong , 520 U. S . 968 , 972
(1997). A party seeking a
preliminary injunction must establish :
[l] that [it] is likely to succeed on the merits , 
that [it] is likely to suffer irreparable harm in the
absence of preliminary relief, [ 3] that the balance of
injuncti on is in the public interest .
Winter v . Natural Res. Def. Council , Inc. , 555 U. S . 7 , 20
(2008). When a mandatory injunction, which "al t er[s] rather than
maintain[s] the status quo ," is sought, "the movant must show a
' clear ' or ' substantial '
likelihood of success" on the merits .
N.Y. Civil Liberties Union v . N.Y . C. Transit Auth. , 684 F . 3d
(2d Cir. 2012)
(citation omitted). The standards for
granting a temporary restraining order and preliminary
injunction are the same . Echo Design Grp., Inc. v . Zino Davidoff
S.A ., 283 F . Supp . 2d 963 , 966 (S.D . N.Y. 2003).
Plaintiffs' Motion is Denied
Plaintiffs ' Amended PI seeks to enjoin Defendants from
engaging in violations as outlined in the FAC,
(see Amended PI
(1) (a) - (e) ), and directs Defendants to perform the following
actions , which have been summarized and regrouped by categories
implement the IHO's pendency order and sta y - put
placement for five weekly hours of 1:1 teacher
services at a rate of at least $150 per hour and
similar compensatory teacher services at Student ' s
h ome as required under the IEP's all o cated SETSS hours
from a private tutoring service, and with the five
hours of special education teacher services t o be
funded prospectively ,
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