386 F.3d 107 (2nd Cir. 2004), 03-7170, J.S. ex rel. N.S. v. Attica Central Schools

Docket Nº:03-7170.
Citation:386 F.3d 107
Party Name:J.S., hereinafter "John", by his parent and natural guardian; N.S., individually and on behalf of all others similarly situated; S.H., hereinafter "Sally" by her parent and natural guardian; C.H., Charles hereinafter by their parent and natural guardian; J.H., individually and on behalf of all others similarly situated; C.Z., hereinafter "Caroline"
Case Date:October 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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386 F.3d 107 (2nd Cir. 2004)

J.S., hereinafter "John", by his parent and natural guardian; N.S., individually and on behalf of all others similarly situated; S.H., hereinafter "Sally" by her parent and natural guardian; C.H., Charles hereinafter by their parent and natural guardian; J.H., individually and on behalf of all others similarly situated; C.Z., hereinafter "Caroline" by their parent and natural guardian; K.Z., "Ken" hereinafter by their parent and natural guardian individually and on behalf of all situated; (Hereinafter "Dennis"), by His Parent and Natural Guardian, S.E., on Behalf of all Others Similarly Situated, Plaintiffs--Appellees,

v.

ATTICA CENTRAL SCHOOLS, Defendant--Appellant.

No. 03-7170.

United States Court of Appeals, Second Circuit

October 6, 2004

Argued: Dec. 3, 2003

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[Copyrighted Material Omitted]

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Daniel J. Moore, Law Firm of Harris Beach LLP, Pittsford, NY, for Defendant-Appellant.

Bruce A. Goldstein, Law Firm of Bouvier, O'Connor, LLP (Arthur H. Ackerhalt, of counsel), Buffalo, NY, for Plaintiffs-Appellees.

Ronald M. Hager, Neighborhood Legal Services, Buffalo, NY; Jonathan Feldman, Public Interest Law Office Of Rochester, Rochester, NY, for Amicus Curiae National Association of Protection and Advocacy Systems and Western New York Disability Law Coalition.

Jay Worona, New York State School Boards Association, Inc., Latham, NY, for Amicus Curiae New York State School Boards Association, Inc.

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Before: CARDAMONE, SACK, and JOHN R. GIBSON,[*] Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Six students who attend school in the Attica Central School District brought an action against the School District primarily alleging that they have been denied the provision of a free appropriate public education. They included claims under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Section 1983, and related New York state education laws. The students sought equitable relief, costs and attorney's fees.1 The School District filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court (William M. Skretny, Judge) denied the motion in its entirety but, upon the School District's request, certified the issue of subject matter jurisdiction for interlocutory appeal. On February 26, 2003, we agreed to hear it.

The School District argues on appeal that the students should have been required to exhaust their administrative remedies before bringing a federal court action. In its order denying the motion to dismiss, the district court concluded that the complaint alleged facts sufficient to establish subject matter jurisdiction. The district court reasoned that the School District's alleged systemic violations of the IDEA cannot be remedied through administrative proceedings, and therefore exhaustion would be futile. The complaint was styled as a class action, and the district court described it as containing "complain[ts] of wrongdoing that is inherent in the program itself and not directed at any individual child." The district court did not rule on the students' motion to certify the class, however, and they later withdrew that motion without prejudice pending this appeal.

On appeal of the district court's order on the motion to dismiss, we must accept as true all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to plaintiffs. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). We may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but we may not rely on conclusory or hearsay statements contained in the affidavits. Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). The district court declined to consider any of the materials outside of the pleadings that either party submitted. Accordingly, we limit our review to the allegations in the complaint.

THE COMPLAINT

The complaint describes each plaintiff's alleged special education deprivations. Plaintiff J.S., or John, attends Attica Middle School in a class with twelve students, one special education teacher, and one aide. Attica Middle School is the only middle school in the School District. According to the School District's Committee on Special Education, John is multiply disabled. He has cerebral palsy, is mentally retarded, and has perceptual/visual motor deficits. These conditions make him physically

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handicapped, mobility-impaired, and dependent upon a wheelchair.

John is able to get in and out of the middle school only through the shop class, and he does not have adequate access to the school's computer room, nurse's office, weight room, home economics room, or swimming pool. He also does not have adequate or safe toilet access.

The School District has not provided John with an appropriate and adequate Individualized Education Program. The document lacks satisfactory goals and objectives, adaptive physical education, mobility training, and means to deal with John's visual/perception deficits. The School District does not provide John with appropriate transition services or sufficient progress reports, and it has failed to evaluate him and provide assistive technology services. John has not been provided an education in the least restrictive environment.

S.H., or Sally, attends Prospect Elementary School in a class with twelve students, one special education teacher, and one aide. She is also classified as multiply disabled. She has cerebral palsy with seizure disorder, is mentally retarded, visually impaired, speech impaired, and is largely non-verbal. She is physically handicapped, mobility-impaired, and dependent upon a wheelchair. She uses "Total Communication" sign language and is assisted with equipment called a Dynavox.

Sally enters the elementary school through a ramped door that someone else has to open for her. She is able to reach only the first floor of the three-story school. She cannot go to the basement where the cafeteria is located, so she and her classmates eat lunch in their classroom. She has no access to the music room, the computer lab, or the school playground. Sally does not receive sufficient physical and occupational therapy, and her education is not in the least restrictive environment.

C.H., or Charles, attends Attica Senior High School in regular education classrooms. He is classified as learning disabled, and he receives resource room services and poorly implemented testing modifications. The School District has not developed an adequate transition plan for Charles or provided him with special education services that would allow him to benefit from his educational program. School staff have not been informed of or trained in implementing Charles's Individualized Education Program.

C.Z., or Caroline, attends Prospect Elementary School in a pre-first grade program for at-risk students. Although she receives special services from the School District, she is not classified under the IDEA. Caroline was tested and denied special education because her scores were too high, but her parent was not given a copy of the test results. Caroline has been denied services she should receive as a learning disabled child.

K.Z., or Ken, attends Sheldon Elementary School as a fifth grade student in a regular education classroom. The School District's Committee on Special Education declassified him from his classification as speech impaired.

D.E., or Dennis, is enrolled at Attica Senior High School. He has a medical condition which defines him as a person with a disability under Section 504 of the Rehabilitation Act. Following his request, a hearing was held which resolved his complaints with respect to his condition.

In addition to describing the circumstances of each individual plaintiff, the complaint alleges twenty-seven separate ways in which the School District has failed to comply with its obligations to

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students who are or may be disabled, and to those students' parents. These allegations include failures to evaluate, to prepare or implement Individual Education Programs, to provide notice to parents, and to provide appropriate training.

I.

The Attica Central School District argues that the district court erred in failing to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b) (1). The district court determined that dismissal was unwarranted because the complaint falls within the "systemic violation" exemption from the exhaustion requirement. In a motion to dismiss for lack of jurisdiction, we review de novo the district court's legal conclusions. APWU v. Potter, 343 F.3d 619, 623-24 (2d Cir. 2003).

It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court,2 and the parties do not dispute the requirement. The process includes review by an impartial due process hearing officer and an appeal from that hearing. 20 U.S.C. § 1415(f) and (g). Parents may request a hearing to present complaints relating to the "identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education." 20 U.S.C. § 1415(b) (6). In New York, upon notice of request to the school district, the local board of education appoints an impartial hearing officer under a rotational selection process. The hearing officer issues a written decision which can be appealed to a state review officer of the New York Education...

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