Opinion
CIVIL ACTION NO. 3:99-CV-771-C
May 4, 2000
MEMORANDUM OPINION AND ORDER
This matter is before the court upon the defendants' motions to dismiss. The court has reviewed the arguments of counsel and, being otherwise sufficiently advised, will dismiss the case without prejudice.
Factual Summary
This case concerns the quality of educational and other support services provided by the Bullitt County Board of Education to five disabled children.
Dwayne Cupp is autistic and qualified for special education under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA" or "the Act") while he attended Bullitt County schools. On December 12, 1997, concerned over whether their son was being provided an appropriate education, his parents filed a request for a due process hearing as provided by the Act. A hearing officer was assigned and a hearing date scheduled. His parents and the school district, however, resolved their issues in an ARC meeting, and the Cupps withdrew their request for a hearing. In November of 1998, the Cupps filed a second complaint and again asked for a due process hearing. A hearing officer was assigned and a hearing date scheduled. Prior to the hearing, the Cupps agreed to try to mediate their complaint; if the mediation proved unsuccessful the hearing would proceed upon a request by either party. The Cupps, however, canceled the mediation and did not request a hearing. While these events were occurring, his parents were forced to place Dwayne in a hospital as a result of problems with his education placement. Dwayne returned home in January of 1999 and was educated at home until his home-education program was ceased due to staffing issues. On August 15, 1999 Dwayne was rehospitalized. He is no longer a resident of Bullitt County and above the age of compulsory attendance.
The parties have not informed the court of the full name of this acronym.
Ann Hartnett qualifies for IDEA services in Bullitt County schools as a deaf/blind student. On March 25, 1996, her mother filed a complaint with the Kentucky Department of Education ("KDE"), alleging that the school district failed to provide Ann with adequate services and evaluations and inappropriately placed her. KDE investigated and awarded Ann four years of compensatory education. Bullitt County implemented the agreed-upon education program. Ann's mother filed a second complaint in 1998 after one of the children in Ann's class was seen masturbating. The Hartnetts and the school board met and resolved the issues raised in the complaint. Ann's mother withdrew her complaint before any investigation began.
Robbie Kelton is a disabled student with cerebral palsy and spina bifida at North Bullitt High School, where he receives specialized instruction and related services pursuant to IDEA. On August 6, 1999 his parents filed a due process complaint, alleging that he was inappropriately placed. A hearing was scheduled and hearing officer assigned. A mediation was scheduled but was canceled by the Keltons' counsel, who informed the school district that Robbie's parents had decided instead to file the instant lawsuit.
Christina Phelps, disabled by autism, cerebral palsy, and mental retardation, was provided special education while enrolled in Bullitt County schools. Her parents removed her from her school in the spring of 1999 due to concerns about her physical safety, behavior, and lack of implementation of her agreed-upon educational program; she is now over the age of compulsory attendance. Prior to her removal, on February 18, 1998 her parents filed a written complaint with the KDE, alleging that her educational program was inappropriate for her needs and that she had been subjected to inappropriate physical and mental treatment. The Phelpses requested that behavioral and communication specialists be assigned to work with Christina. After an investigation, the KDE concluded that the district should provide additional training for staff and perform an independent evaluation of Christina; the district agreed to comply with the recommendations. Her parents explain that they tried to work with the district to assure that Christina's needs would be met and withdrew her from school only after the district failed to fulfill its obligations.
Corey Vittitow receives special instruction and related services at Cedar Grove Elementary School due to static encephalopathy with psycho motor delay, motor apraxia, and epilepsy with myoclonic seizures. His parents requested an independent evaluation of their child, arguing that because Bullitt County could not effectively evaluate Corey due to his physical and communication disabilities he was inappropriately denied education at his home school and with his nondisabled peers. A hearing was scheduled and hearing officer assigned after the district requested a due process hearing. When Corey's parents withdrew their request for an independent evaluation, the district withdrew its due process hearing request. The district agreed to meet with Corey' s parents to discuss and resolve issues concerning his education.
On April 1, 1999 the parents of Cupp, Hartnett, Phelps, Vittitow, and other concerned parents filed a class complaint with the KDE Division of Exceptional Children Services concerning the quality of their children's education and the services provided by the district. Following an investigation, the KDE filed a Report of Findings, concluding that the district did not meet required timelines; failed to implement appropriate referral processes, to ensure evaluations were completed in all areas of concern, to develop Individualized Education Plans ("IEPs") with input from all team members, to implement the IEPs, and to provide education in the least restrictive environment; and did not educate students with disabilities to the maximum extent possible or provide the personnel need to implement Part B of the IDEA. The plaintiffs allege that the district has not remedied these problems and that the district's one-size-fits-all approach to meeting students needs endangers their children's health and safety and undermines the quality of their education.
The present action is not certified as a class action.
The plaintiffs bring claims under the IDEA, the Rehabilitation Act, 42 U.S.C. § 1983 (§ 1983"), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, and for the tort of outrageous conduct. Their claims stem from the school district's alleged actions and lack of action in regard to their children's special education needs and its failure to provide them with appropriate special education programs. The defendants argue that these claims fall under the purview of the the IDEA and, due to the plaintiffs' failure to exhaust their administrative remedies under the IDEA, their claims should be dismissed. The plaintiffs counter that their claims exceed the scope of the IDEA and are not subject to IDEA exhaustion requirements.
The KDE also moves for dismissal on the grounds that the plaintiff failed to make any factual allegations against the department and arguing that the 11th Amendment bars suit for claims under the ADA. The plaintiff counters that it seeks a preliminary injunction to force the KDE to withhold state funds to the defedant school and that it brings claims against the KDE only under IDEA, rendering the KDE's immunity claim moot. The court, for purposes of this motion, agrees with with the plaintiff's arguments.
IDEA
The IDEA mandates that all disabled children are to be provided free appropriate public education, tailored to their unique special education needs. 20 U.S.C. § 1440. Educators accomplish IDEA's mandate through collaboratively designed IEPs reflecting the input of parents, teachers, and school district representatives. 20 U.S.C. § 1401. An IEP determines a child's education level, performance, and goals. 20 U.S.C. § 1414. In short, it is the governing document for a disabled child's education. See Eva N. v. Brock, No. 90-5911, 90-5914, 943 F.2d 51, 1991 WL 164324 ( 6th Cir. Aug. 23, 1991) (unpublished).
The IDEA provides procedural safeguards to parents and children, allowing the examination of relevant records, identifications, evaluations, and educational placements. Franklin v. Frid, 7 F. Supp.2d 920, 923 (W.D.Mich. 1998). School officials must give notice to parents, and parents have a right to a hearing when changes are made in their child's educational program and placement. 20 U.S.C. § 1415 (b). Parents may contest such changes in an impartial procedural hearing provided by the state. Id. The hearings are conducted by a hearing officer and parents may appeal to the state educational agency. 20 U.S.C. § 1415 (g). Only after the Appeals Board renders its decision may a federal court review the educational decision. 20 U.S.C. § 1415(i). The IDEA does not preclude a disabled child from pursuing other available remedies under federal law in state or federal court, provided he or she first exhausts all administrative avenues of relief available under the IDEA. 20 U.S.C. § 1415 (l); Doe v. Smith, 879 F.2d 1340, 43-44 (6th Cir. 1989); Franklin, 7 F. Supp.2d at 923.
Ordinarily, an IDEA plaintiff must exhaust her administrative remedies before proceeding to federal court. Covington v. Knox County School System, 205 F.3d 912 (6th Cir. 2000).
The policies underlying this exhaustion requirement are both sound and important. States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act. Federal courts — generalists with no expertise in the educational needs of handicapped students — are given the benefit of expert factfinding by a state agency devoted to this very purpose. Such a mechanism is necessary to give effect to a fundamental underlying the EHA [now IDEA]: "that the needs of handicapped children are best accommodated by having parents and the local education agency work together to formulate an individualized plan for each handicapped child's education."
Crocker v. Tennessee Secondary School Athletic Assoc., 873 F.2d 933 (6th Cir. 1989) (analyzing the Education of Handicapped Act, subsequently renamed IDEA). Even in cases such as the present one, in which the parties' previous attempts to reach agreement have failed, the exhaustion requirement serves two important purposes. First, an administrative hearing and the decision rendered by an experienced and expert hearing officer creates a detailed record for the court to review. "Reviewing courts are statutorily required to review the administrative record from below. . . . `In order for a reviewing court to accord `due weight' to state administrative proceedings, the court must accommodate the procedures contemplated by the Act, so that there is an administrative record to review.'" Metropolitan Board of Public Education v. Guest, 193 F.3d 457, 462 (6th Cir. 1999), quoting Doe v. Smith, 879 F.2d at 1344. The due process hearing and any administrative appeal are conducted before a neutral third party and not only develop an administrative record for this court to review, but also may lead to a favorable resolution of the case without federal court review. See N.B. v. Alachua County School Board, 84 F.3d 1376 (11th Cir. 1996).
The IDEA exhaustion requirement applies not only to claims brought directly under the Act but also to other claims such as those brought under the Constitution or the Americans with Disabilities Act. 20 U.S.C. § 1415(l). If a claim falls under the purview of the IDEA, that is, if it relates to the provision of appropriate free public education, a plaintiff must exhaust her administrative remedies before proceeding to federal court. Covington, 205 F.3d 912; Babicz v. School Board of Broward, 135 F.3d 1420 (11th Cir. 1998). Here, the plaintiffs argue that they do not need to exhaust their administrative remedies because their claims exceed the scope of the IDEA. The gravamen of their complaint, however, alleges the denial of appropriate public education and seeks remedies for the damages suffered by the families because of that denial. Thus, their claims are not sufficiently removed from the IDEA so as to excuse the exhaustion requirement. Franklin, 7 F. Supp.2d at 925.
The plaintiffs further argue that they need not exhaust their administrative remedies because they seek monetary damages. As their claims are derivative of IDEA they must exhaust their administrative remedies before seeking monetary damages in federal court. Covington, 205 F.3d at 912. "To hold otherwise would allow [IDEA] plaintiffs `to frustrate Congressional purpose by bypassing the administrative process in virtually every case containing' damage claims derived from the Act." Moore v. Harriman City Schools, No. 92-5572, 16 F.3d 1220, 1994 WL 18021 (6th Cir. Jan. 21, 1994) (unpublished), quoting Waterman by Waterman v. Marquette-Alger Intermediate School Dist., 739 F. Supp. 361 (W.D.Mich. 1990). The Sixth Circuit, however, has explained that in some unique cases in which "the injured child has already graduated from the special education school, his injuries are wholly in the past, and therefore money damages are the only remedy that can make him whole," the plaintiff need not exhaust administrative remedies before filing suit in federal court. Covington, 205 F.2d 912. Here, it does not appear that such a unique circumstance is present. Two of the plaintiffs' children were removed from their schools and subsequently have exceeded the age of compulsory attendance. They did not, however, graduate from their special education programs and there may be remedies under IDEA still available to those students, such as additional compensatory education. A parent's unilateral removal of a child from public school does not remove the exhaustion requirement. Franklin, 7. F. Supp.2d at 924. Of course, should the hearing officer determine that their damages cannot be remedied under the IDEA for the reasons set forth in Covington, they need not pursue the administrative process further.
The IDEA does not mandate exhaustion when the use of the administrative process would be futile or inadequate. Crocker, 873 F.2d at 936. The party seeking to avoid exhaustion bears the burden of showing futility. Id. Inadequacy may be shown if the administrative process cannot provide adequate remedies or if the hearing officer could not grant the plaintiff relief. Doe v. Bd. of Educ. of the Elyria City Schools, No. 96-4008, 149 F.3d 1182, 1998 WL 344061 (6th Cir. May 27, 1998) (unpublished); Eva N. 943 F.2d at 51. Similarly, a biased hearing officer or a defendant who would or could have improperly influenced the administrative process would render the administrative process futile. Franklin, 7 F. Supp.2d at 924. A school district's dilatory tactics, hostility between parties, or allegations of purposeful discrimination do not support a finding of futility. Kuszewski v. Chippewa Valley Schools, 51 F. Supp.2d 812, 815 (E.D.Mich. 1999). Rather, an impartial hearing officer neutralizes those problems. Id.
Here, the plaintiffs have failed to show that the administrative process would be inadequate or futile. The plaintiffs allege a history of interactions with the district characterized by broken promises, bad faith, and a general unwillingness to correct problems on the part of the district. Those problems, the gravity of which is not to be underestimated, do not render the administrative process — a formal due-process hearing conducted by a neutral and impartial hearing officer with a right to appeal — futile or inadequate. The plaintiffs' previous complaints, including their EDGAR complaints, and the negotiated agreements between the parties cannot be substitutes for exhaustion of the IDEA administrative process, including a due-process hearing. See generally Hoeft v. Tuscon Unified School Dist., 967 F.2d 1298 (9th Cir. 1991); Christopher W. v. Portsmouth School Dist., 877 F.2d 1089 (1st Cir. 1989). Accordingly,
Education Department General Administrative Regulations
IT IS ORDERED that the motions to dismiss are GRANTED.