F.C. v.
| Decision Date | 05 August 2016 |
| Docket Number | 15 Civ. 6045 (PAE) |
| Parties | F.C., on behalf of herself and her child, T.C., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; CARMEN FARINA, in her official capacity as Chancellor of the New York City School District, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff F.C., individually and on behalf of her minor son, T.C., ("plaintiff"), brings this action against the New York City Department of Education ("DOE"), the New York City Board of Education ("BOE"), and Carmen Farina, in her official capacity as Chancellor of the New York City School District (collectively, "defendants"), under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §§ 794, the New York State Constitution, New York State Education Law §§ 3202, 3203, and 4401 et seq., and 8 N.Y.C.R.R. §§ 100 et seq. and 200 et seq.
Now pending is defendants' motion to dismiss, in part, plaintiff's Amended Complaint ("AC") under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The AC brings a range of claims. One set appeals certain administrative rulings by a New York City impartial hearing office ("IHO") and the New York State Review Officer ("SRO") pertaining to a due process complaint F.C. filed regarding T.C.'s schooling during the 2011-2012 and 2012-2013 school years ("SYs"). Defendants do not move to dismiss these claims. But defendants do move to dismiss plaintiff's other claims. These include claims raised before but not addressed by the IHO and SRO; claims related to later school years, including that defendants violated T.C.'s rights while the IHO and SRO decisions were pending and continued to do so thereafter; claims that defendants failed to implement the relief awarded by the IHO and SRO; and claims challenging defendants' systemic policies and practices.
For the reasons that follow, defendants' motion to dismiss is granted in part and denied in part.
T.C., who was age 11 when the AC was filed, is a "child with a disability" under the IDEA and an individual with a disability under Section 504 under the Rehabilitation Act. AC ¶ 12. T.C. has delays in writing, reading, and basic math skills, and has learning disabilities, Attention Deficit Hyperactivity Disorder ("ADHD"), and a language-based disability. Id. ¶¶ 82, 112, 120, 128-136, 199-200. F.C. and T.C. live together in Community School District 2 in Manhattan, New York. Id. ¶¶ 13-14. Until June 2015, T.C. attended public elementary school in District 2; in September 2015, T.C. began attending public middle school. See id. ¶¶ 55, 72, 91, 119, 198.
T.C. received early intervention and preschool special education services. Id. ¶ 68. While T.C. was in kindergarten, the DOE created an Individualized Education Program ("IEP")for the 2010-2011 SY ("2010 IEP"). Id. ¶ 70. The 2010 IEP terminated all of T.C.'s special education services and declassified T.C. Id. ¶ 71.
In May 2011, defendants held an IEP meeting, and in November 2011, provided F.C. with the IEP for the 2011-2012 SY (second grade) ("2011 IEP"). Id. ¶¶ 85, 94. The 2011 IEP recommended counseling, speech language therapy ("SLT"), and occupational therapy ("OT") in small groups of two or three children. Id. ¶ 95.
In May 2012, defendants held an IEP meeting for the 2012-2013 SY (third grade), at which T.C. was decertified for all services except for OT. Id. ¶¶ 107-08.
On May 24, 2013, F.C. filed a due process complaint, which was later amended on June 24, 2013 ("the DPC"). It alleged, inter alia, that the DOE had failed to provide T.C. with a free appropriate public education ("FAPE") for the 2011-2012 and 2012-2013 SYs. Id. ¶¶ 6, 124. The IHO issued an interim order directing defendants to fund various independent educational evaluations ("IEEs"). Id. ¶ 127; id., Ex. C ("Interim Order"). These evaluations were later conducted. AC ¶¶ 128-40.
On March 10, 2014, the IHO issued a decision (the "IHD"). It found, inter alia, that the DOE had failed to provide T.C. with a FAPE for the 2011-2012 and 2012-2013 SYs, and awarded T.C. compensatory education. Id. ¶¶ 7, 156-59; id., Ex. A ("IHD"). On April 18, 2014, F.C. filed a petition to the SRO appealing only the rulings of the IHD adverse to T.C. (i.e., awarding less compensatory education than F.C. had sought) and the IHD's failure to rule on certain issues. Id. ¶ 164. Defendants did not cross-appeal the IHD. Id. ¶ 166.
Defendants did not convene an IEP meeting, or prepare an IEP, for the 2013-2014 SY. Id. ¶ 165. In May 2014, defendants held an IEP meeting for the 2014-2015 SY. Id. ¶¶ 174-77.F.C. later discovered that defendants had decertified T.C. at the May 2014 IEP meeting. Id. ¶ 180. During the 2014-2015 SY, T.C. did not receive any services. Id. ¶ 182.
On March 31, 2015, the SRO issued a decision upholding the IHD. Id. ¶ 9; id., Ex. B ("SRO decision"). After the SRO's decision, F.C. filed another due process complaint alleging that T.C. had been denied a FAPE for the 2013-2014 and 2014-2015 SYs. AC ¶ 190.
In September 2015, T.C. began middle school without an IEP. Id. ¶ 198.2
The AC challenges as unlawful a host of actions and omissions by, and policies and practices of, defendants, which it alleges were implicated by defendants' treatment of T.C. By way of broad overview:
First, F.C. challenges the scheduling of special education and related services and compensatory education services. F.C. alleges that T.C.'s IEP resulted in T.C.'s receiving such services during the school day, which resulted in T.C.'s being removed from his classes, without receiving make-up instruction to cover the course material that T.C. missed. See id. ¶¶ 96 (2011), 171-72 (spring 2014). Plaintiff alleges that defendants had a policy and practice of not offering such services at other times. Id. ¶¶ 59-60, 96, 172, 206; see also id. ¶ 238 ().
Second, F.C. challenges limitations on the special education services that the IEP teams were able to recommend for him. F.C. alleges that some services were unavailable, see, e.g., id. ¶¶ 88, 111 (IEP team did not recommend and was not familiar with assistive technology("AT")); that the amount of individualized care T.C. received was restricted, see, e.g., id. ¶¶ 112-13 (); that the IEP, per DOE policy, would not provide services to enable T.C. to participate in extracurricular activities, id. ¶ 62; and that services were not available for children with ADHD, id. ¶¶ 63, 207, 246-47.
Third, F.C. challenges defendants' decertifications of T.C. for special education services without first conducting an appropriate reevaluation.3 F.C. complains that T.C. was decertified multiple times. See id. ¶¶ 71 (), 102-08 (2012 IEP decertified T.C. for all services except for OT, based on evaluation of non-licensed speech pathologist), 180, 193-97 (2014 IEP meeting decertified T.C. without reevaluation). F.C. alleges that defendants have asserted that they cannot reverse the 2014 decertification decision. Id. ¶ 202. F.C. challenges defendants' alleged practice of not reevaluating students before decertifying them, and their alleged failure to properly train or supervise employees as to reevaluations. See id. ¶¶ 64-65, 194; see also id. ¶ 195 ().
Fourth, F.C. challenges T.C.'s IEPs for lowering, relative to the general school population, the criteria necessary for T.C. to be promoted to the next grade, rather than giving him services that would enable him to meet the generally applicable criteria. See id. ¶¶ 97, 277.
On July 31, 2015, plaintiff commenced this action by filing a complaint. Dkt. 1. On October 29, 2015, defendants filed a motion to dismiss. Dkt. 12. On November 23, 2015, plaintiff filed the AC. Dkt. 20. On December 17, 2015, defendants filed a motion to dismiss theAC, Dkt. 25, along with a memorandum of law, Dkt. 26 ("Def. Br."), and declaration with attached exhibits in support, Dkt. 27 ("Hassan Decl."). On January 12, 2016, plaintiff filed a memorandum of law in opposition to defendants' motion, Dkt. 32 ("Pl. Br."), and the following day filed a declaration with attached exhibits, Dkt. 33 ("Hyman Decl."). On January 25, 2016, defendants filed a reply memorandum. Dkt. 34 ("Def. Reply Br.").
Defendants move to dismiss all claims in the AC except to the extent that F.C. appeals specific adverse rulings by the IHO and SRO as to the 2011-2012 and 2012-2013 SYs. See Def. Br. 13-14. Defendants argue that the Court lacks subject matter jurisdiction over all claims pertaining to T.C.'s education after the 2012-2013 SY, whether brought under the IDEA or other laws, because F.C. failed to exhaust administrative remedies for those years. Defendants argue that the Court similarly lacks jurisdiction over plaintiff's § 504 claims for the 2011-2012 and 2012-2013 SYs because F.C. failed to exhaust administrative remedies as to those specific claims. Defendants also argue that, because they have conceded that they did not offer T.C. a FAPE between 2011 and 2015, to the extent that F.C.'s claims are read to claim denial of a FAPE, F.C.'s claims are moot and there is no case or controversy. Finally, defendants argue as to various specific claims that the AC does not state a claim.
After setting out the standards of review, the Court...
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