Heldman on Behalf of T.H. v. Sobol

• Decision Date: 16 April 1992
• Docket Number: No. 446,D,446
• Citation: 962 F.2d 148
• Parties: , 74 Ed. Law Rep. 1042 Edward Joseph HELDMAN, on Behalf of his handicapped son, T.H., and on behalf of himself as an advocate for handicapped children, Plaintiff-Appellant, v. Thomas SOBOL, Commissioner, State Education Department of New York, Defendant-Appellee. ocket 91-7581.
• Court: U.S. Court of Appeals — Second Circuit

Page 148

962 F.2d 148

60 USLW 2694, 74 Ed. Law Rep. 1042

Edward Joseph HELDMAN, on Behalf of his handicapped son,

T.H., and on behalf of himself as an advocate for

handicapped children, Plaintiff-Appellant, v. Thomas SOBOL, Commissioner, State Education Department of

New York, Defendant-Appellee.

No. 446, Docket 91-7581.

United States Court of Appeals, Second Circuit.

Argued Oct. 31, 1991.

Decided April 16, 1992.

Michael H. Sussman, Goshen, N.Y., for plaintiff-appellant.

Martha O. Shoemaker, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., of counsel), for defendant-appellee.

Before OAKES, Chief Judge, LUMBARD and ALTIMARI, Circuit Judges.

OAKES, Chief Judge:

This case presents the question of whether the parent of a child with a disabling condition who is challenging an alleged system-wide violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485 (1988 & Supp. II 1990) can overcome the hurdles of standing, justiciability, and exhaustion of administrative remedies. IDEA requires states, which receive grants under the Act, to provide children with disabling conditions with "a free appropriate public education" in the least restrictive environment suitable for the child. §§ 1400(c), 1412(5)(B). ¹ Rather than detailing the precise substantive rights applicable to all affected children, Congress opted for individually tailored programs--programs crafted by parents and educators working together to determine what is appropriate for each child. Congress recognized that such an unconventional approach would require extensive procedural safeguards to protect the educational rights of children with disabling conditions. Thus, the scope of these procedural protections--which this case requires us to examine--must be determined in light of their role in ensuring the appropriate application of the Act.

Foremost among the procedural safeguards provided for in the Act is the guarantee that parents may contest their child's placement or classification in "an impartial due process [administrative] hearing" and, if dissatisfied with the outcome, they may initiate a civil action in state or federal court. §§ 1415(b)(2)-(e)(2). In this case, we must decide whether section 1415 of IDEA confers on a parent of a disabled child the right to judicial relief for system-wide due process violations. In particular, Edward J. Heldman, on behalf of his son T.H., challenges N.Y.Educ.Law § 4404 (McKinney 1981 & Supp.1992) and its implementing regulation, 8 N.Y.C.R.R. § 200.5(c)(1) (1991), which permit boards of education to appoint the hearing officer before whom the appropriateness of the child's placement must be demonstrated. The United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, granted defendant's motion to dismiss on the grounds that Heldman neither had standing to contest N.Y.Educ.Law § 4404 nor had he exhausted his administrative remedies as required by IDEA prior to bringing suit in federal court. We reverse, holding that this case presents a justiciable controversy, that Heldman has standing to bring suit, and that to require exhaustion of remedies in this case would be futile.

I

A

IDEA created an arena in which a committee composed of special education experts, teachers, and parents could cooperatively determine what constitutes an appropriate education for each disabled child. The findings of the committee are formalized in an "individualized education program" (IEP), which details the child's level of educational performance, the goals for the year, and the educational services needed for the child to achieve these goals. § 1401(a)(19). The IEP process reflects a novel approach to the guarantee of rights to a minority: Congress, in lieu of uniform substantive standards, sought to protect the interests of the child by providing for parental participation in the process of charting an appropriate education for their child. §§ 1400(c), 1401(a)(19), 1412(7), 1415; see also Honig v. Doe, 484 U.S. 305, 310-12, 108 S.Ct. 592, 597-98, 98 L.Ed.2d 686 (1988); Board of Educ. v. Rowley, 458 U.S. 176, 205-06, 208-09, 102 S.Ct. 3034, 3050-51, 3051-52, 73 L.Ed.2d 690 (1982).

To ensure that the parents would not be silenced by the very forces that had once excluded disabled children from public education, Congress granted parents the right to seek review of their child's IEP. See generally Laura Rothstein, Rights of Physically Handicapped Persons §§ 2.23-.31 (1984). The parents of a child with a disabling condition may seek a hearing before a hearing officer whose personal and professional interests do not conflict with his or her ability to make an impartial decision. § 1415(b)(2); ² 34 C.F.R. §§ 300.506-.507 (1991). States may opt for either a single or multi-tiered system of review. If the initial hearing takes place at the local level, the parents may appeal to the state agency for a review of the record. § 1415(c). ³ At the conclusion of the administrative review process, the parties may file a civil suit in federal district court or state court. § 1415(e)(2). ⁴

Although IDEA sets forth a blueprint for state and local programs, the states are left to fashion the requisite programs. In New York state, the IEP is produced by a Committee on Special Education (CSE), whose members are appointed by the board of education or trustees of the school district. N.Y.Educ.Law § 4402(1)(b)(1) (McKinney 1981 & Supp.1992). New York provides for a two-tiered system for the review of IEPs. A hearing officer, appointed by the board of education from a list of state-certified officers, conducts the initial hearing and makes a recommendation to the board. N.Y.Educ.Law § 4404(1); 8 N.Y.C.R.R. § 200.5(c)(1) (1991). Parties may appeal to the commissioner of education for review of the initial hearing. N.Y.Educ.Law § 4404(2). ⁵

Heldman claims that the New York state's procedure for the selection of hearing officers is inconsistent with IDEA's due process guarantee. We turn now to the complicated procedural history of this case.

B

This case grew out of a dispute over what constituted an appropriate education for the Heldmans' son, T.H. In 1988, the Heldman family moved into the Minisink Central School District of New York ("Minisink"). The Minisink CSE classified T.H. as learning disabled and placed him in the local high school, augmenting this placement with special education classes. T.H. did not adjust well to the new setting and he attended school irregularly.

In January 1989, the CSE met again to modify T.H.'s IEP. Due to the severity of T.H.'s learning disability, the CSE recommended placing him in the Karafin School, a private institution. Although the Heldmans had reservations about the appropriateness of the new placement, they consented to the change because they believed Karafin to be the only state-approved school that could accommodate T.H.'s needs.

State approval of the proposed placement, however, was not forthcoming. A month later the CSE changed T.H.'s classification from learning disabled to emotionally disturbed with the understanding that this would expedite approval of the private placement. Following submission of a revised application, the New York State Education Department ("NYSED") approved T.H.'s private placement. The Heldmans' concerns about the appropriateness of T.H.'s placement and classification persisted and they removed T.H. from Karafin three days after his arrival at the school.

An emergency meeting of the CSE was convened to resolve the Heldmans' challenge to T.H.'s placement and classification. The CSE changed neither T.H.'s IEP nor his classification. Pursuant to N.Y.Educ.Law § 4404(1), the Heldmans requested an impartial hearing to challenge T.H.'s classification as emotionally disturbed, as opposed to learning disabled, and his placement in Karafin as a denial of an appropriate education. The Minisink Board of Education selected a hearing officer, who had been recommended by the school district's attorney, to preside over the hearing.

During the winter of 1989, prior to the dispute over T.H.'s IEP, the Heldmans, acting as concerned citizens, became involved in a dispute over the independence of hearing officers. Frank Eckelt, a hearing officer in an unrelated proceeding, was found to have violated the conflict of interest provisions by serving both as a consultant and hearing officer for a school district. The Heldmans actively campaigned for Eckelt's removal from the list of certified hearing officers. As a result of the Eckelt controversy, the Heldmans were made aware of the potential for abuse within the New York system for the selection of hearing officers. This awareness apparently led them to question the impartiality of the hearing officer, one George Kandilakis, assigned to review T.H.'s IEP. The Heldmans, after being notified of the identity of their hearing officer, requested both a copy of his resume and a disclosure of past and present relationships with either Minisink or the Karafin School. The hearing officer, however, denied these requests.

The Heldmans subsequently found a letter in T.H.'s file from Minisink's attorney--the very attorney they would be arguing against in the upcoming hearing--to the Board of Education recommending that they select Kandilakis as the hearing officer. Furthermore, in the letter, the attorney revealed that "[i]t was through Dr. Eckelt that I was able to locate Mr. Kandilakis." On the basis of this information, on March 31, 1989, the Heldmans filed a motion of recusal and withdrew their hearing request pending a decision on the motion. Officer Kandilakis never responded to the motion and, on April 10, 1989, he conducted the hearing without the Heldmans being present.

On April 11, 1989, Edward Heldman, pro se, filed suit in federal district court challenging the manner in which hearing officers are selected in New York state, which he claimed had denied T.H. an...