K.S. v. Rhode Island Board of Education et al

Filing 14

OPINION AND ORDER denying 11 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 8/26/2014. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
________________________________________
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
R.I. BOARD OF EDUCATION, by and through )
its chair, EVA-MARIE MANCUSO, in her
)
official capacity only; WARWICK
)
SCHOOL COMMITTEE, as a representative
)
of a class of Local Educational
)
Agencies similarly situated, by and
)
through its chair, BETHANY A. FURTADO, )
in her official capacity only,
)
)
Defendants.
)
________________________________________)
K.S., through her parent, C.S., on
behalf of a class of those similarly
situated,

C.A. No. 14-77 S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
Pending before the Court in the above-captioned matter is a
Motion

to

Dismiss

filed

by

Defendants

Rhode

Island

Board

of

Education, Eva-Marie Mancuso, the Warwick School Committee and
Bethany A. Furtado 1 (collectively, the “Defendants”) (ECF No.
11).

For the reasons that follow, the Motion to Dismiss is

DENIED.

1

Ms. Mancuso and Ms. Furtado are sued in their official
capacities only.
1

I.

Background
A.

Facts 2

Plaintiff K.S. suffers from, among other ailments, Asperger
Syndrome,

Attention

social anxiety.

Deficit/Hyperactivity

Disorder

(Compl. ¶ 9, ECF No. 1.)

and

severe

As required by the

federal Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400 et seq., K.S. receives a free appropriate public
education (“FAPE”) from the Warwick School Committee, the Local
Educational

Agency

(“LEA”)

for

her

region.

(Id.

at

¶

2.)

Though she is working toward a high school diploma, K.S. was
recently notified that her FAPE would be terminated on her 21st
birthday.

(Id. at ¶ 28.)

C.S. is K.S.’s mother and holds a power of attorney with
respect to her education.

(Id. at ¶ 9.)

On February 10, 2014,

C.S. brought this action on behalf of K.S. and simultaneously
filed a due process complaint with the Rhode Island Department
of Elementary and Secondary Education. 3
B.

(Id. at ¶ 29.)

Regulatory Framework

Under the IDEA, a FAPE “is available to all children with
disabilities residing in [a] State between the ages of 3 and 21,

2

The facts are summarized from the Class Action Complaint
for Declaratory and Injunctive Relief (cited as “Compl.”) (ECF
No. 1).
3

Though this suit is brought as a class action, no class
has yet been certified.
2

inclusive.”

20 U.S.C. § 1412(a)(1)(A).

This provision, read

alone, suggests that special education students remain eligible
to receive FAPE services under the IDEA until they turn 22.
However, the IDEA also provides, in pertinent part, that:
The obligation to make a [FAPE] available to all
children with disabilities does not apply with respect
to children . . . aged . . . 18 through 21 in a State
to the extent that its application to those children
would be inconsistent with State law or practice . . .
respecting the provision of public education to
children in [that age range].
Id. at § 1412(a)(1)(B)(i).
Rhode
Children
provides

Island’s
with

that

Regulations

Disabilities
“a

[FAPE]

Governing

§

must

300.101
be

the

Education

(“Section

available

to

of

300.101”)

all

eligible

children residing in the LEA, between the ages of 3 and 21,
inclusive (until the child’s [21st] birthday or until the child
receives a regular high school diploma).”
2-54:B

§

services

300.101.
for

Therefore,

special

under

education

R.I. Admin. Code 21-

Rhode

students

Island

law,

terminate

FAPE

on

the

student’s 21st birthday.
States

that

receive

federal

funds

under

the

IDEA

must

“ensure that any State rules, regulations, and policies” conform
to the IDEA.

20 U.S.C. § 1407(a)(1).

If they do not, a student

may file a due process complaint requesting review. 4

4

During the

The individual bringing the due process complaint
required to exhaust certain administrative remedies prior
3

is
to

pendency of the due process proceedings, that student must be
allowed to maintain his or her educational placement under the
so-called “stay-put provision” of the IDEA.
In

this

case,

while

K.S.

did

not

seek

Id. at § 1415(j).

stay-put

relief,

the

Warwick School Committee voluntarily allowed K.S. to maintain
her educational placement.

(See Defs.’ Mem. in Supp. of Mot. to

Dismiss 15-16, ECF No. 11-1.)
Plaintiffs allege that Section 300.101 violates the IDEA
because it cuts off services for special education students at
their 21st birthday, while continuing public education services
for general education students between the ages of 21 and 22 in
the form of various continuing adult education opportunities.
Plaintiffs contend that K.S. is entitled to FAPE services until
the

age

providing

of

22,

consistent

services

to

with

general

Rhode

education

Island’s

practice

of

students

between

the

ages of 21 and 22. 5
The Defendants seek dismissal on grounds that: (1) C.S.
lacks

standing

to

bring

this

suit

on

K.S.’s

behalf;

(2)

Plaintiffs have not pled the required injury in fact; and (3)

seeking judicial relief.
5

Though
the wake of
Hawaii Dep’t
invalidated a

See 20 U.S.C. § 1415(l).

not immediately relevant, this suit was brought in
a recent Ninth Circuit case, E.R.K. v. State of
of Educ., 728 F.3d 982 (9th Cir. 2013), which
similar practice in Hawaii.
4

Plaintiffs

have

failed

to

exhaust

mandatory

administrative

remedies as required under the IDEA.
II.

Discussion
A.
In

Standing of C.S.
their

papers,

the

parties

disputed

whether

standing to bring this suit on behalf of K.S.
on

Defendants’

indicated

a

Motion

to

willingness

representative,

and

Dismiss,

to

also

expressed

a

has

At a hearing held

counsel

substitute

C.S.

for

Plaintiffs

K.S.

as

the

class

desire

to

amend

the

Complaint to add another class representative.
“The

court

may

not

dismiss

an

action

for

failure

to

prosecute in the name of the real party in interest until, after
an objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the
action.”

Fed. R. Civ. P. 17(a)(3).

consistent

with

Counsel’s

This being the case, and

representations,

the

Court

grants

Plaintiffs thirty (30) days’ leave to file an amended complaint
substituting

K.S.

for

C.S.

and/or

adding

a

different

class

representative.
B.

Injury in Fact

Defendants contend that K.S. has not adequately alleged an
injury in fact, pointing out that K.S. did not need to seek
stay-put

relief

under

the

IDEA

because

Committee voluntarily extended her FAPE.
5

the

Warwick

School

In order to establish

standing under Article III, a plaintiff must have an “injury in
fact — an invasion of a legally protected interest which is (a)
concrete

and

particularized

and

conjectural or hypothetical.”

(b)

actual

or

imminent,

not

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992) (citations omitted) (internal quotation
marks

omitted).

somewhat

Although

elastic

[one],

the
it

imminent

cannot

injury

be

concept

stretched

is

beyond

“a
its

purpose, which is to ensure that the alleged injury is not too
speculative

for

Article

III

‘certainly impending.’”

purposes

-

that

the

injury

is

Id. at 564 n.2 (quoting Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990)).
While K.S.’s education was not terminated, her injury is
not

based

on

speculation

possibilities.”
1148 (2013).

or

a

“highly

attenuated

chain

of

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
Rather, it is based on representations made by

Defendants to K.S. when K.S. was informed that her FAPE would be
terminated following her 21st birthday.
Moreover,
informing

K.S.

consequence.
practice

that

does

Defendants

that

her

FAPE

had

a

would

change
be

of

heart

terminated

is

after
of

no

“A defendant's voluntary cessation of a challenged
not

deprive

a

federal

court

determine the legality of the practice.”

of

its

power

to

Friends of the Earth,

Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 169-70 (2000)
(citations omitted).

Therefore, in this Court’s view, K.S. is
6

in imminent danger of having her education terminated prior to
her

22nd

birthday

and

her

alleged

injury

is

therefore

sufficient.
C.

Administrative Exhaustion

Defendants

argue

that

K.S.

failed

to

exhaust

administrative remedies prior to bringing suit.

mandatory

“[T]he doctrine

of exhaustion of remedies provides that ‘no one is entitled to
judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.’”

Ezratty

v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981) (quoting Myers
v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)).
However,

the

exhaustion

requirement

“is

not

inflexibly” and does have some exceptions.
Portsmouth

Sch.

Comm.,

877

F.2d

1089,

to

be

applied

Christopher W. v.

1094

(1st

Cir.

1989)

(quoting McGee v. United States, 402 U.S. 479, 483 (1971)).

For

example, “[e]xhaustion may not be required . . . when the issues
raised involve purely legal questions.”

Pihl v. Massachusetts

Dep’t of Educ., 9 F.3d 184, 190 (1st Cir. 1993).
This

so-called

purely

legal

question

exception

is

applicable when “the issue [is] a pure matter of law as to which
specialized

administrative

understanding

Ezratty, 648 F.2d at 774.
legal question

of

enforcement

Section

of

statutory

plays

little

role.”

The instant case involves a purely
interpretation

300.101
7

is

a

concerning

violation

of

whether

the

IDEA.

While this question requires a very modest factual inquiry into
the

availability

of

public

education

programs

to

general

education students over the age of 21, that question itself is
“not one of fact within the agency’s particular expertise.”

Doe

v. Town of Framingham, 965 F. Supp. 226, 229 (D. Mass. 1997).
As

Plaintiffs

have

raised

administrative

understanding

F.2d

they

at

774,

exception,

have

excusing

them

an

issue

plays

little

satisfied
from

“to

the

the

which

role,”

purely

specialized
Ezratty,

legal

administrative

648

question

exhaustion

requirement. 6
III. Conclusion
For these reasons, the Motion to Dismiss is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 26, 2014

6

Separately, the parties dispute the applicability of the
so-called futility exception to the administrative exhaustion
requirement.
See Pihl v. Massachusetts Dep’t of Educ., 9 F.3d
184, 190-91 (1st Cir. 1993).
However, because the Court finds
that the purely legal question exception is applicable, it
declines to separately address the futility exception.
8