J.Z. et al v. NYC Department of Education et al

Filing 28

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)

.Jr
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
17 Civ . 7612

J.Z., et al.,
Plaintiffs,

OPIN I ON

-against NEW YORK CITY DEPARTMENT OF EDUCATION,
et al.,
Defendants.

----------------------------------------x
AJIY

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
By:
Elisa Hyman, Esq.
Attorney for Defendants
ZACHARY CARTER
Corporat i on Counsel of the City of
10 0 Church Street
New York, NY 10007
By:
Elizabeth C . DeGori, Esq.

ew York

Sweet, D.J.

I

Plaintiff M.G. , on behalf of herself and her son, Y.G.

(the

"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" ) ,

u.s.c.

§

794

(" 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 .

§

Con~titution

(the "Due

1983. For the r i asons set forth

below , Plaintiffs ' motion is denied.

Prior Proceedings

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
1

Sta t e Constitution , and New York State Edu cation law and
regulations .

(Dkt. No. 1 . ) On October 19 , 2017 l

Plaintiffs filed

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 .

§

1983 .

(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.

1

1

I
I

Following oral argument , the parties supRlemented the
record with correspondence made with the IHO . l (see Dkt . Nos . 25 27.)
2

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

I

disabled

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

ar~

" reasonably

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 .

98~ ,

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

o~e

that provides

everything that might be thought desirable by loving parents. "
Bryant v. N.Y. Educ. Dep ' t , 692 F . 3d 202 , 215 (2d Cir . 2012)

3

(quoting Walczak v. Fla. Union Free Sch . Dist ., 142 F.3d 119 ,
132 (2d Cir. 1998))

I

(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)

S~h.

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

~ rocess

hearing and

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

(2d

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 .
I

§ 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.

4

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)

("Because Section

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

5

administrative process that cou l d app l y admini l trators '
s
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

&

n.4

(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 .

§

1415(1))

(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 .

§

1415(1))

se~

a l so Cave , 514

("[C]omplainants must

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

6

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
students .
2017

(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 ,
2

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.
7

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

(Id. )

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

8

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.

(Hyman

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

3

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.
~ 10.)
4

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 . )
9

a chaperone , in addition to prior medical approval from a
doctor.

(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 .
Deel.

~

20;

~'

(See DeGori

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.

(See Hyman

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
5

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 . )
10

···-- ______J

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 . )

Applicable Standard

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 , [2]
that [it] is likely to suffer irreparable harm in the
absence of preliminary relief, [ 3] that the balance of
equities
tips
in
[its]
favor,
and
[ 4]
that
an
injuncti on is in the public interest .

11

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
286, 294

(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
below :
(1)

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

12

hours of special education teacher services t o be
funded prospectively ,

(see id.

<JI

(2) (a) - (b ) ,

( i)- ( j ) ,

(k) (v ii )) ;
(2)

expunge all failing grades , adjust grades from
Student's transcript that were reduced based on
attendance or lateness , allow Student make-up
assignments for certain exams and assignments ,
including classes in which the NX policy was
implemented, recalculate certain grades using weighed
averages to include an y made - up work , and prevent
at tendance and lateness from fa ctor ing into Student ' s
grades or credits earned ,

(see i d .

<JI

2(c)- ( f ) ,

(k) (v) ,

(k) (vi ii )) ;
(3)

arrange for teacher and guidance counselor
recommendations necessary for Student ' s college
applications , with supervision of the Court and
Plaintiffs '

counsel , and provide a cover letter to

co ll eges explaining the school ' s NX policy and NX
grades on Student ' s tr ansc ript,
(4)

(see id.

<JI

2(g) - (h)) ;

provide Student a flexible school day to attend al l
academic, non-academic, and extracurricular classes
without penalty,

(see id.

13

<JI

2 (k) (i)) ;

(5)

provide Student partial day home - based instruction
when Student is not well enough to attend school
without requiring parents to provide or fund a
chaperone ,

(6)

(see id. 'II 2 (k) (ii)) ;

provide Student adaptive Physical Education classes
and independent study credit for available classes ,
(see id. 'II 2 (k) ( i v)) ;

(7)

and ,

require daily communication between NES T+m school
staff and Student ' s h ome - based teachers concerning
missing work and assignments ,

(see id. 'II 2 ( k) (vi) ) .

Defendants contest Plaintiffs ' motion largely on the
grounds that the relief sought is available through the ongoing
proceeding before the IHO and , as such , such claims have n ot
been exhausted . For any remaining claims , Defendants contend
that Plaintiffs have not demonstrated irreparable harm from the
absence of a pre liminary injunction.

Turning first to Plaintiffs '

requests addressing the

implementation of stay-put provisions under the IHO' s pendency
order , these requests are n ot properly before the Court at this
time. Jurisdictionally speaking , were Defendants not
implementing 2017 IEP, which the IHO determined contro lled the

14

stay- put provisions of Student ' s pendency , the exhaustion
requirements would be waived . See Murphy v . Arlington Cent . Sch.
Dist. Bd . of Educ ., 297 F . 3d 195, 199 - 200 (2d Cir . 2002)
(citations omitted)

(noting that for matters involving stay- put

provisions, "as a pra c tical matter , access to immediate interim
relief is essential for the vindication of this particular IDEA
right") . Plaintiffs argue that this is the case here because the
IEP is not being implemented : specifically , the Student should
receive the five hours of SETSS stated on his 2017 IEP at home ,
not at school, given his illnesses , and that there is no time in
Student ' s regular school schedule to include the SETSS hours ;
Plaintiffs also argue that Defendants have failed to provide a
second set of textbooks .

(See Pls. ' Reply Mem . at 5 - 7 . )

With the evidence adduced , however, Plaintiffs have not
demonstrated that Defendants are not implementing th e IHO ' s
pendency order and that this Court ' s review is appropriate. The
IEP does n o t require that SETSS to be provided at home-in fact,
it was deemed "unnecessary" and recommends against it .

(Hyman

Deel ., at YG - 001351 . ) There is no requirement that the hours
being provided after-school . 6 (Hyman Deel. , at YG - 000655, YG-

6

Defendants ha ve agreed to provide Student ' s SETSS afterschool , although the chaperone requirement for home instruction
still remains. (See Def s. ' Sur-Reply at 10.)
15

001345 . ) As such, it is not impr o per for Defendants to interpret
the requirement that the SETSS hours be provided at a " Separate
Location General Education/Other Locatio n as needed" to be in
school and during non - academic periods , which has been agreed to
by the NYC DOE .

(Se e Defs. ' Sur-Reply at 7.) As for the missing

second set of textbooks , Defendants represented during ora l
argument th at since the instant motion, those were being
provided t o Student , and no evidence has been presented to
indi cate this is not the case .

The remainder of Student ' s requests that touch upon parts
of the IEP-such as Student - specific funding for compensatory
teacher service hours , adding adaptive Physical Education
classes, or requiring cover letters be written for Student's
college applications-such requests are beyond the parameters as
laid out i n the 2017 IEP . 7 New York ' s "regulation s

.

. plainly

(and mandatorily) provide that a child ' s pendency placement
shall not change during those due process proceedings ." N . Y.C.
Dep't of Educ. v . S . S ., No . 09 Civ. 810

7

(CM) '

2010 WL 983719 , at

With regard to the Physical Education issue , Defendants
have represented that NEST+m has agreed to offer an a lternate
option to Student's currently scheduled Physical Edu ca tion class
that alternates between morning and afternoon . (See Defs .' SurReply at 4 , 14.)
16

*1

(S .D. N. Y. Mar . 17 , 2010)

(emphasis in or igi na l ) . s While

Student 's predicament is unquestionably sympathetic, the relief
sought in this capacity cannot be provided by this Co urt at this
time .

The same restrictions on this Court 's jurisdictional power
extend to the remainder of Plaintiffs' requests, as each falls
wi thin the purview of the IHO's ongoing due process proceeding .
First, although Plaintiffs attempt to separate out claims made
under IDEA, Section 504, or the ADA , each of the claims is
intended to provide Student a FAPE; as such, it is not relevant
under which statute the IHO considers the requested relief , as
the ultimate relief cou l d be the same. See J.S., 386 F.3d at 112
("At the district court correctly noted, the students asserted a
section 504 Rehabilitation Act claim and a section 1983 c l aim
8

Plaintiffs cite F.C. v . N.Y.C Dep't of Educ., No. 15 Civ.
6045 (PAE) , 2016 WL 8716 2 32 (S . D. N. Y. Aug. 5 , 2016) , to support
their cla im that th is Court can hear these compensatory services
requests . (See Pls.' Reply at 8 . ) On a motion to dismiss , the
F .C. court found that a plaintiff sufficient pleaded a claim
that a ll eged a student had been depr i ved of compensatory
services previously granted by an IHO because of defendants'
policy and practices. See id., 2016 WL 8716232 , at *2 , *8 . In
fact, F.C. appears to support finding a lack of jurisdiction
here : that for c l aims made prior to an IHO's decision , the court
found that it lacked jurisdiction to "fash ion the very types of
relief [Plaintiff] seeks: ' compensatory education and equitable
relief to [Pl a intiff] that places him in the position that he
wou l d have been in had he not suffered FAPE deprivations.'" I d .,
2016 WL 8716232 , at *7 . Such is the case here.
17

that both seek to ensure a free appropriate public education ,
thus subjecting both to the IDEA exhaustion requirement.") . The
fact that the IHO has declined to hear claims under Section 504
or the ADA does not change the IHO's ability to afford the same
sought relief under the IDEA.

9

See Coleman , 503 F.3d at 205

(quoting Murphy , 297 F.3d at 199)

("For relief to be adequate ,

it must ' give realistic protection to the c l aimed right.'").
Plaintiffs' requests , in their entirety , both can and should be
considered by the IHO during her upcoming due process hearing.

The Supreme Court ' s recent decision in Fry v. Napoleon
Cmty . Sch., 137 S . Ct. 743 (2017), supports this conclusion. In
Fry , the Court provided guidance to district courts in
evaluating whether a plaintiff ' s claim is subject to IDEA ' s
exhaustion requirements or is free of the requirement because
the complaint seeks relief from harms "in ways unrelated to a
FAPE." Id. at 754. According to the Court , this evaluation
requires looking to the complaint's "substance, not surface":

9

The Second Circuit has observed the wide range of relief
that state and local officials can provide, including equitable
relief such as modifying "academic honors " and "reimbursement of
educational expenses ." Polera v . Bd. of Educ. of Newburgh
Enlarged City Sch . Dist. , 288 F.3d 478, 486 (2d Cir . 2002)
(citations omitted) . As such , it is well within the capacity of
the IHO to afford Plaintiffs the relief sought here , if
ultimately found appropriate .
18

for example , asking if " the gravamen of a complaint against a
school concerns the denial of a FAPE , or instead addresses
disability - based discrimination ." Id . at 755 - 56 . Courts can also
look to the " history of the proceedings " to determi ne the
"gravamen of the suit ." Id . at 757 . In Fry , the plaintiff
brought a discrimination claim against her school for refus i ng
to al l ow her to bring in a service dog , which the Court found
potentially to be outside the IDEA ' s foc u s on the denial of a
FAPE , exp l aining that plaintiff "could have filed essentially
the same complaint i f a public library or theater had refused
admittance to [the service dog ]. " Id . at 758.

The factors discussed in Fry indicate that Plaintiffs '
requests are not excluded from the IDEA ' s exhaustion
requirements . The "gravamen " of the reliefs sought- mo dify i ng
where and when teacher hours are provided , adjusting grades and
class schedules , or providing add i tional instruct i on and
communication between the school , the Student ' s parents , and
college counselors-are all related to providing a FAP E and are
not the sorts of requests that could be made outside of
discussing the "adequacy of [Student ' s] education ." Id . at 758 .
Moreover , nothing in the procedural h i story of this matter ,
wh i ch has been the normal process of IEP meetings , due process

19

complaints , and various hearings before an IHO,

suggests the

scope of Plaintiffs' requests go beyond ensuring that Student is
provided a FAPE. See id. at 757

("A plaintiff ' s initial choice

to pursue that process may suggest that she is indeed seeking
relief for the denial of a FAPE-with the shift to judicial
proceedings prior to full exhaustion reflecting only strategic
calculations about how to maximize the prospects of such a
remedy . ") . As such, the invocation of federal statutes and
federal relief does not remove Plaintiffs' claims from the New
York administrative process.

Plaintiffs make some additional arguments as to futility in
an attempt to surmount the exhaustion requirement: that they are
alleging claims of systematic harm , that exhaustion should be
excused because of untimely delay of the administration process ,
and that exhaustion should be excused because the IHO could not
provide adequate remedies or prevent irreparable harm. None are
availing .

Plaintiffs argue that their claims involving homeinstruction amount to systemic, citywide policies and practice
of discrimination because not providing part-time home
instruction without incurring prohibitory financial cost to

20

families like Plaintiffs ', it infringes on students' access to a

FAPE and discriminatorily forces students like Student to miss
academic and non-academic services that their non-disabled peers
do not.

(See Pls .' Reply at 15 -1 7.)

In cases involving "systemic violations that could not be
remedied by local or state administrative agencies," the Second
Circuit has found exhaustion excused "'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."' Cave, 514 F . 3d at 249 (quoting
J.S. , 386 F . 3d at 114) . Claims of systemi c violations can be
made at the individual level , provided "a systemic policy is at
stake " and "the administrative officer has no power to correct
the violation ." F.C., 2016 WL 8716232, at *8

(internal quotation

marks, citation , and alternation omitted) .

Such a case has not been established here. Plaintiffs have
identified legitimate challenges that Student faces in balancing
either acquiring home - instruction , which is a dmi ttedly made more
difficult by NYSDOE's supervision and doctor certifi c ation
policies, or in crafting a schedule for Student to receive the

21

same specialized instruction while at schoo l. However , th i s i s ,
at i ts root , a dispute about how and should Student receive
instruction-whether at home or at schoo l, and which has been
addressed already in the 2017 IEP- and how to structure Student ' s
school day to afford SETSS hours in the context of his vario u s
physical disabilities . Resolv i ng this i ssue , while c omplicated ,
has not been demonstrated to be outside the parameters of the
currently existing administrative review structure . Wh i le the
outcome may not be exactly what Plaintiffs desire , it has not
been shown that the possible outcome after the I HO ' s careful
consideration would not be a legally sufficient and appropriate
FAPE . 10 See L . K. v . N. Y. C . Dep ' t of Educ. , 674 F. App ' x 100 , 101
(2d Cir . 2017)

(citations and internal alternations omitted)

(noting that the IDEA "does not require that a child be provided
with the optimal prograrrunatic alternative" or "the best
education that money can buy" but rather " calls on l y for
se l ect i on of a program that provides a basic floor of
opportunity ," which must be ba l anced when deciding what
additional services the state needs to pay for) . Plaint i ffs'
concerns are valid and deserving of attention , but they are not
the kinds of issues that the administrative process has "no
power to correct " and which are not subject to administrative
10

In particular , the record with respect to Defendants '
policies of supervision and doctor certification is not mature .
22

exhaustion . J.S. , 386 F . 3d at 11 3 ; see a l so Polera v . Bd . of
Edu c . of Newburgh Enlarged City Sch . Dist ., 288 F.3d 478, 486
(2d Cir . 2002)

(noting that state of local administrative

agencies have a wide authority "to find that an IEP is
deficient , has not been complied with , or that similar wrongs
have been commi tted " and remedy them); F . C ., 2016 WL 8716232 , at
*9 (ci ting S . W. by J.W. v . Warren , 528 F. Supp . 2d 282 , 296
(S . D. N. Y. 2007))

("These allegations therefore do not support

the claim of a systemic vio lati ons , but instead rather reflects
a plaintiff - specific ' dispute over the qua l ity or methodology of
service , which is routinely and properly resolved through the
administrative process .'" ) ; Mrs. M v. Br idgeport Bd . of Edu c .,
96 F . Supp . 2d 124 , 133 (D. Conn . 2000)

(construing c laims as

nonsystematic by finding the " chal len ge re ally is to the
substantive determinations reached by the [defendant school
district] concerning ce rtain children , not to the structure of
the system under which the identification was made") .

Pl a i ntiffs next argue that their c laims should be excused
because the IHO has failed to hold a resolution session and
issue a decision within the required statutory time period .
(Pls. ' Reply at 1- 2 . ) Specifically , Plaintiffs note that from
th e date of filing their DPC to the time of this motion ' s ora l

23

argument , three months have elapsed without a hear in g , and a
decis i on should have statutorily been rendered about a month
ago.

(Pls .' Reply at 2) ; see 34 C . F . R. §§ 300 . 510, 3 0 0 . 515.

Plaintiffs also note , after reviewing cases in Second Circuit ,
those decisions suggest that state due process hearing decisions
have taken many years to be resolved .

(See Pls .' Reply at 2-3 . )

Courts in the Second Circuit have recognized th at , "in
certain circumstances,

'l engthy delays in the administrat i ve

process may justify a finding that exhaustion would be futile or
inadequate .'" M. G., 1 5 F . Supp . 3d at 303 (citing Fruti ger v .
Hamilton Cent. Sch . Dist .,

928 F . 2d 68 , 74

(2d Cir . 1991)). If a

plaintiff "has shown that , due to admin istrati ve backlog or
otherwise , an IHO or SRO has failed to timely issue a decision
on a fully briefed due process complaint or appeal , a distr ict
court can assume jurisdiction . " F.C. , 2016 WL 871623 2 , at *7
(citation omitted ) . 1 1 "Although the specific threshold for such a
finding is unclear," courts have found exhaustion after a delay
in cases ranging from two months to two years. M.G., 15 F . Supp .
3d at 303 & n.44

(collecting cases).

11

IHOs have thirty days to hold a resolution session , unless
the period is extended, and following the session have fortyfi ve days to issue a final decision; SROs have thirty days
following a fully briefed appeal to issue a f i nal decision . See
34 C .F. R. §§ 300 . 510 , 300 .51 5 .
24

Plaintiffs ' situati o n , wh il e frustrating , has n o t been
demonstrated to merit excuse from exhaustion . Fi rst , at this
time, the resolution period has been extended by t h e IHO on
request by Defendants , and appears based i n part on the IHO's
decision t o hold off pending the outcome of Plaintif fs '
preliminary i n jun ct i on petition .

ins tant

(See Letter o f Elis a Hyman

da t ed November 30 , 2017, Ex. A, Dkt. No . 25 . ) While t here has
been a de l ay of over two months in hold ing th e resolution
session from the date of Plaintiffs '

initial DPC , there has b ee n

an extens i on made and granted for arguably appropriate reasons ;
as such , t o " take some f o rm o f equ i table action prior to the
revised deadline .

might only prolong the resolution of this

case , wh i ch i s long overdue , by interfering with the
admin i st ra t i ve scheme prov i ded for by the IDEA ." Murphy v .
Ar lington Cent . Sch . Di st . Bd . of Educ ., No . 99 Civ . 9294
1999 WL 114 0872 , at *4

(S .D.N. Y. Dec . 13 , 1 999)

(CSH) ,

(refra inin g fr om

g ranting r equ ested equitable remedies even wh e n the SRO , sua
sponte, granted an extension of t ime two months af t er final

dec i s i on was due and wi thout " any bas i s or cause " ) . W le
hi
Plaintiffs have put forward a collection of Second Circuit cases
t ha t demonstrate that the entire administrative process , from an
initial DPC to an SRO ' s f in a l dec i sion , can take years ,

25

(see

Pls. ' Reply at 2 - 3) , evidence has not established that there is
an " administrative back l og or otherwise " as to Plaintiffs '

IHO

that will prevent a timely issuance of a decision following this
Opinion . 1 2 F . C. , 2016 WL 8716232 , at *7.

Lastly, as to Plaintiffs' inadequate remedies and
irreparable harm arguments , they are unavailing for similar
reasons discussed above . "IDEA's exhaustion requirement does not
apply 'in situations in which exhaustion would be futile because
administrative procedures do not provide adequate remedies .'"
Polera , 288 F . 3d at 488

(quoting Heldman v . Sobol , 962 F.2d 148,

158 (2d Cir. 1992)) . As detailed ab ove , the relief sought ,
receiving a FAPE for Student , whether through adjusted Physical
Education and SETSS classes or grade adjustments and make - up
classes to receive a diploma , is within the IHO ' s powers under
the IDEA and needs to be first adjudicated through the
legislatively-designed admi nistrat i ve process . 13 See id. at 486 .

12

The facts underlying Sabatini v . Corning-Painted Post Area
Sch. Dist., 78 F. Supp. 2d 138 (W . D.N. Y. 1999), to which
Plaintiffs cite , are different than present here . The court
there addressed an untimely SRO decis i on , which as noted above
as a shorter timeframe for rendering a final decision , on appeal
by defendants , and the record had "no indication of the reason
for the delay ," request for extensions , or apparent good reason
for the delay . Id . at 141.
13

Plaintiffs argue that M.W . v. N. Y. C . Dep ' t of Educ., No. 1 5
Civ . 5029 (WHP) , 2015 WL 5025368 , at *1 (S.D.N.Y. Aug. 25 ,
26

While not the fastest process , it has not been established that
the " administrative process is so structurally tainted " that
Plaint i ffs have not been " afforded a fair and impartial forum to
present their claims ." Cave , 514 F . 3d at 250 ; see also Coleman ,
503 F . 3d at 206 (re jecting futility and "emergency situation "
arguments in the context of an expelled student because , under
the I DEA, "the carrying out of these admi n i strative processes
may take some time , and in certain circumstances result in the
child graduating in an IAES after his anticipated graduation
date , does not equate to an inadequate remedy . ") ; Polera , 288
F . 3d at 490

(holding that exhaustion of administrative remed i es

was not futile where the plaintiff "could have obtained complete
relief at the time , through changes to her IEPs , additiona l
educational services , and , if necessary , remedial education")

20 1 5) , supports their claim that Student ' s risk of losing the
ability to earn a high school d i ploma amounts to irreparable
harm. Wh i le accurate that Judge Pauley ' s decision supports the
contention that the inability to earn a diploma would go against
the " fundamental purpose of the IDEA" and be irreparable harm ,
the case is otherwise inapposite . Id ., 2015 WL 50 2 53 68 , at *5 .
There , a twenty - o ne year old who had already aged out of New
York public education appealed from an SRO ' s final decision , and
the court found, with the backdrop of defendants ' admission that
they denied plaintiff a FAPE for two years , that the plainti f f
shou l d cont i nue to be el i gible for spec i a l education serv i ces
and a diploma while receiving instruction and t he opportunity to
sit for necessary Regents exams . See id ., 2015 W 5025368 , at
L
*1-2 , *8 . Student ' s s i tuation , years away from aging out and in
the ea r ly stages of rece i ving administrative relief , is
meaningfu lly distinguishable .
27

Student's situation is undesirable and , to date ,
frustrating. However, Plaintiffs ' claims are "not properly
brought before" this Court and the relief they seek is not for
it to give. Cave , 514 F . 3d at 250. Given the procedural posture
of this case , such requests need to be addressed first by the
administrative system , whose adjudicators are "uniquely well suited" to delve into the details required to resolve Student's
issues. Polera , 288 F.3d at 487
this Opinion, Plaintiffs '

(citation omitted). Following

requests need to be addressed by the

IHO expeditiously , thoroughly, and encompassing each of the
requested reliefs sought by Plaintiffs. The IHO ' s declination of
jurisdiction over federal claims should in no way prevent her
from considering the whole range of requested relief , as such
falls within her powers under the IDEA, and assisting Student in
receiving a FAPE, to which he is entitled under the same.

28

Conclusion

For the foregoing reasons , Plaintiffs ' motion is denied ,
with leave to renew upon a proper show i ng of an unjustifiably
delay or to challenge any administrative determinations as to
Student following administrative exhaustion .

It is so ordered.

New York, NY
December ~ 2017

U.S.D.J.

29