Souza et al v. Bennington Rutland Supervisory Union ("BRSU") Board et al
Filing
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OPINION AND ORDER granting 15 Motion to Dismiss Case for Lack of Jurisdiction and for Failure to State a Claim. Signed by Judge Geoffrey W. Crawford on 12/17/2015. (esb)
U.S. DISTRICT COURT
DISTRICT OF VERMONT
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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARIANNE SOUZA and BRUCE SOUZA,
on behalf of minor son, T.S.,
Plaintiffs,
v.
BENNINGTON RUTLAND
SUPERVISORY UNION BOARD et al.,
Defendants.
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2015 DEC 11 PH 2: 29
Case No. 5:15-cv-00187-gwc
OPINION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS
(Doc. 15)
Defendants have filed a Motion to Dismiss for lack of subject matter jurisdiction and for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Doc. 15.) They allege that,
under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490,
Plaintiffs' failure to exhaust administrative remedies bars the federal claims under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Title V ofthe Rehabilitation Act of
1973,29 U.S.C. § 791 et seq. In the absence of viable federal claims, Defendants seek the
dismissal without prejudice of the state-law claims for negligence and violation of state
educational provisions. A hearing on the pending Motion was held on December 2, 2015.
Background
The facts alleged in the Complaint and supplemented by documents filed by both parties
are as follows:
Plaintiffs are the parents ofT.s. who is currently a seventh grader. During the 2013
2014 school year, T.S. was a fifth grader at Flood Brook School ("School") in Londonderry,
VemlOnt. During that school year, he was on an Individual Education Plan (IEP) due to some
problems in learning.
Defendants are administrators and the governing educational boards with responsibility
for supervision of the School.
During his fifth grade year in 20 l3-2014, T.S. fell ill with Lyme disease and missed
many days of schooL Some of his classmates teased him about his absences as well as his need
for IEP services.
When T.S. returned to school in the sixth grade, he was able to attend full-time, but the
teasing and name-calling persisted. In November 2014, Plaintiffs complained to the assistant
principal of the School about their son's ongoing harassment. After a face-to-face meeting, the
assistant principal issued a written decision in which she stated that T.S. had not been subjected
to bullying or harassment. Instead, she determined that T.S. was at fault and issued him a one
day suspension for making a false accusation. She also required T.S. to receive additional
instruction about harassment.
Plaintiffs took no appeal and requested no other review of the November 2014 decision.
In January 2015, matters took a turn for the worse when a classmate added nail polish remover
containing acetone to a milk container set before T.S. T.S. drank the milk and felt sick This
experience made him extremely anxious about returning to school and he missed additional days.
In the wake of this incident, Plaintiffs requested that Defendants permit T.S. to attend an
alternative program in a different schooL They also sought tutoring. These requests were
presented as accommodation requests arising from T.S.'s anxiety and post-traumatic stress
disorder which in turn were caused by the harassment from his peers.
Over the course ofthe spring, Plaintiffs and certain Defendants discussed a possible 504
plan pursuant to the Rehabilitation Act which would have placed T.S. in a different school.
These talks did not result in an agreement. Instead, Plaintiffs withdrew T.S. from the School.
They have paid tuition at an alternative school during the current school year which is T .S.' s
seventh grade year. He seeks to attend this school during his eighth grade as well. The arrival of
school choice in the ninth grade will eliminate any further dispute over where he can attend
school at public expense.
Plaintiffs have filed suit alleging violations of the ADA (Counts I and IV), § 504 of the
Rehabilitation Act (Count II), violations of the Vermont Fair Housing and Public
Accommodations Act (VFHP AA) (Counts III and V), and common law negligence (Count VI).
At oral argument, the court pressed Plaintiffs' counsel to identifY the types of claims presented
and the nature of the damages sought. Counsel identified three principal claims:
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A. Failure to protect T.S. from additional harm despite notice that he was being bullied.
This claim arises under both the ADA as a failure to accommodate T.S.'s illness and subsequent
anxiety and as a state-law negligence claim. The damages sought are consequential money
damages for emotional distress.
B. Failure to accommodate T.S.'s disability of anxiety during the 2014-2015 school year
by authorizing additional care and support such as tutoring at home. The damages sought are
primarily reimbursement of educational expenses borne by the parents.
C. Failure to provide an appropriate education at a new school as a result of the
harassment inflicted on T.S. during the 2014-2015 school year. The damages sought are
reimbursement of tuition at the new school which T.S. attends and related expenses.
In addition, Plaintiffs assert claims of retaliation against T.S. because of his assertion of
claims under the ADA and the Rehabilitation Act.
Analysis
Defendants argue that Plaintiffs failed to exhaust their administrative remedies by
requesting a "due process" hearing under 20 V.S.c. § 1415(f) regarding their claim that their son
was not receiving an appropriate education. 1 Since exhaustion is a requirement for education
based claims, Defendants seek dismissal of the Complaint without prejudice.
Plaintiffs argue that the Motion is premature since exhaustion is an affirmative defense
which must be raised in an answer and not in a motion to dismiss on jurisdictional grounds.
They also argue that any administrative remedy would be futile because the hearing officer has
no authority to award consequential damages of the type they seek. They also argue more
I Section 1415(f) contemplates an impartial "due process hearing" conducted by a state or
local educational agency. !d. § 1415(f)(1)(A). Vermont law provides for such due process
hearings. See 16 V.S.A. § 2957 (special education due process hearings); State of Vermont
Special Education Rules 129, 193 (2013), http://education.vermont.gov/documents/educ_sped_
guide.pdf (last visited Dec. 17,2015) (Rule 2365.1.6 setting forth due process complaint
procedures; Rule 1253 providing that § 504 violations "may be resolved through due process
hearings in the same manner as for a special education due process hearing"). The court rejects
Plaintiffs' suggestion that they satisfied the purpose behind the exhaustion requirement "through
on-going communication and administrative processes with the defendants." (Doc. 16 at 7.) The
communications and § 504 meeting are not a substitute for the State administrative due process
hearing.
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broadly that the process of administrative review is wasteful and unnecessary in cases of this
nature.
I.
Timeliness of the Motion and the Rule 12(b)(1) Standard
Second Circuit precedent clearly authorizes-indeed expects-the trial courts to consider
claims of failure to exhaust remedies under IDEA as jurisdictional in nature. Polera v. Bd. of
Educ. ofNewburgh Enlarged City Sch. Dist., 288 F.3d 478,483 (2d Cir. 2002) ("A plaintiff's
failure to exhaust administrative remedies under the IDEA deprives a court of subject matter
jurisdiction."). These claims can and must be heard at the earliest possible stage in order to
avoid the delay which follows a later determination that plaintiffs failed to exhaust
administrative remedies. Any dismissal is without prejudice to plaintiffs' right to refile after
making use ofthe administrative remedy. The court is satisfied that now is the correct time to
consider the exhaustion issue.
Accordingly, the court proceeds under Fed. R Civ. P. 12(b)(1). "A case is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court
'lacks the statutory or constitutional power to adjudicate it.'" Mastafa v. Chevron Corp.,
770 F.3d 170, 177 (2d Cir. 2014) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000)). "'A plaintiff asserting subject matter jurisdiction has the burden ofproving by a
preponderance of the evidence that it exists. '" Id. (quoting Makarova, 201 F.3d at 113).
II.
Exhaustion of Remedies
Understanding the exhaustion doctrine in a claim that public educators failed to meet the
needs of a disabled student requires a brief tour of the applicable statutes. The IDEA creates a
right to a free appropriate public education for any disabled child. Through the development of
an IEP and other tools, parents and school boards are required to address the individual needs of
each student and provide additional resources or alternative educational opportunities. Although
the IDEA includes a right to sue in federal court, Poiera, 288 F.3d at 483, it permits equitable
relief only; there is no cause of action for money damages under the IDEA. Id. at 486
("[MJonetary damages are not available under the IDEA.").
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The IDEA also requires the parties to submit their dispute to an administrative hearing
process before filing suit. 20 U.S.c. § 1415(1)? Plaintiffs have not filed suit under the IDEA.
Instead, they have filed suit under the ADA and the Rehabilitation Act-both of which apply to
schools and students and authorize lawsuits in federal court. These two provisions do not require
exhaustion of administrative remedies. But in Polera, the Second Circuit held that the addition
of a money damage claim under the ADA or the Rehabilitation Act did not excuse compliance
with the exhaustion requirement when the matter at issue was the provision of appropriate
educational services. 288 F.3d at 488; see also id. at 481 (the IDEA "provides that potential
plaintiffs with grievances related to the education of disabled children generally must exhaust
their administrative remedies before filing suit in federal court, even iftheir claims are
fonnulated under a statute other than the IDEA (such as the ADA or the Rehabilitation Act)").
In examining Plaintiffs' claims closely, it is clear that many ofthe claims arise from a
belief that the school district refused to provide an appropriate education. The claims identified
at oral argument by Plaintiffs' counsel were a failure to protect T.S. from harassment; a failure to
provide additional services such as tutoring during his sixth grade year; and a failure to pay for
his alternative school placement during his current seventh grade year. The last two claims
whether expressed as equitable claims for reimbursement or money claims for damages-are
claims that the school district did not provide an appropriate education.
Only the first claim identified by Plaintiffs-the failure to protect T.S. from harassment
culminating in the poisoned milk incident-is a tort-like claim arising under the ADA (and a
pure state-law negligence theory) which does not lend itselfto resolution through an
2
Section 1415(1) provides:
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the Americans with
Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the
Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], 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
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.
(Brackets in original, emphasis added.)
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administrative due process hearing. There was obviously no opportunity to have a hearing
before the incident, and after the incident a hearing officer would have had no authority to enter
an award for consequential damages. But because Plaintiffs have brought a mixture of claims in
which claims of inadequate educational services feature prominently, the court cannot proceed
with the lawsuit. See MM ex reI. J.M v. New York City Dep't ofEduc., No. 09 Civ.
5236(PAC), 2010 WL 2985477, at *7 (S.D.N.Y. July 27,2010) (noting, in case where plaintiffs
sought equitable relief as well as damages, that "[ e]ven if the plaintiff seeks a remedy (such as
money damages) that is unavailable under the IDEA, the plaintiff must still exhaust
administrative remedies under the IDEA if 'the claim is one that seeks relief for an alleged
failure to provide appropriate educational services.'" (quoting Vultaggio ex reI. Vultaggio v. Bd.
ofEduc., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 (E.D.N.Y. 2002))).
III.
Futility or Irreparable Harm
It is necessary to address Plaintiffs' arguments regarding possible exceptions to the
exhaustion requirement. Plaintiffs seek to avoid the exhaustion requirement by arguing that
recourse to the due process hearing would be futile because the hearing officer lacks authority to
issue all of the damages they seek and because the process is "circular" and inefficient.
The Second Circuit has recognized that the 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)). However, it is no excuse to the exhaustion requirement that one cannot
receive everything one seeks to recover in the administrative process. Cave v. E. Meadow Union
Free Sch. Dist., 514 F.3d 240,247 (2d Cir. 2008) ("[A] disabled student who claims deficiencies
in her educational program may not bypass the IDEA's administrative exhaustion rule merely by
claiming monetary damages." (citingPolera, 288 F.3d at 488)). So long as a substantial portion
ofthe relief sought falls within the authority ofthe hearing officer, exhaustion is required.
Nor is the court persuaded by Plaintiffs' more general argument that the administrative
process is wasteful or harmful to T.S. Cases involving educational requirements of students with
disabilities present difficult issues of fact and professional judgment which benefit from
consideration by an administrative hearing officer. The court sees no basis for concluding that
sending this case to a hearing officer would be futile.
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IV.
State-Law Claims
As stated above, Defendants assert that, in the absence of viable federal claims, Plaintiffs'
state-law claims for negligence and violation of the VFHPAA should be dismissed without
prejudice. Plaintiffs say that their VFHP AA claims should not be dismissed because a state court
would dismiss those claims as preempted by federal law regarding students with disabilities.
(Doc. 16 at 2.)
The court concludes that, since it lacks jurisdiction to adjudicate Plaintiffs' federal
claims, it is appropriate to decline to retain supplemental jurisdiction over Plaintiffs' state-law
claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors ... will point toward declining to exercise jurisdiction over the remaining
state-law claims."). Dismissing Plaintiffs' state-law claims without prejudice allows Plaintiffs to
reassert them after exhausting their administrative remedies. Any preemption issue can be
addressed at the appropriate time if Plaintiffs elect to reassert their state-law claims.
Conclusion
Defendants' Motion to Dismiss (Doc. 15) is GRANTED. The court dismisses this action
without prejudice. In the event that Plaintiffs seek to refile after exhausting their administrative
remedies, the court will not require payment of a second filing fee.
Dated at Rutland, in the District of Vermont, this l?
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