J.Z. v. N.Y.C. Dep't of Educ.

• Decision Date: 05 December 2017
• Docket Number: 17 Civ. 7612
• Citation: 281 F.Supp.3d 352
• Parties: J.Z., et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

281 F.Supp.3d 352

J.Z., et al., Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.

17 Civ. 7612

United States District Court, S.D. New York.

Signed December 5, 2017

Attorney for Plaintiffs, THE LAW OFFICE OF ELISA HYMAN, P.C., 42 West 24th Street, 2nd Floor, New York, NY 10010, By: Elisa Hyman, Esq.

Attorney for Defendants, ZACHARY CARTER, Corporation Counsel of the City of New York, 100 Church Street, New York, NY 10007, By: Elizabeth C. DeGori, Esq.

OPINION

Sweet, D.J.

Plaintiff M.G., on behalf of herself and her son, Y.G. (the "Student" and, collectively, the "Plaintiffs") have moved for a temporary restraining order and preliminary injunction against Defendants the New York City Department of Education ("NYC DOE"), New York City Board of Education ("NYC BOE"), and Chancellor of the New York City School District Carmen Farina (collectively, the "Defendants"). Plaintiffs seek injunctive relief for violations of the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400 et seq. ("IDEA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Due Process Clause of the Fourteenth Amendment of the United States Constitution (the "Due Process Clause"), 42 U.S.C. § 1983. For the reasons set forth below, Plaintiffs' motion is denied.

Prior Proceedings

On October 5, 2017, Plaintiffs filed their Complaint against Defendants, alleging that Defendants, in a variety of situations, had denied Plaintiffs their rights as promised under the IDEA, Section 504, the Due Process Clause, the New York State Constitution, and New York State Education law and regulations. (Dkt. No. 1.) On October 19, 2017, Plaintiffs filed their First Amended Complaint ("FAC"), which added three additional Plaintiffs. (See generally Dkt. No. 10.) As relevant to the instant motion, the FAC alleges that Student was denied a FAPE for the 2014 through 2017 school years, as well as been discriminated against in violation of Section 504, the ADA, and 42 U.S.C. § 1983. (See id. at 33.)

On November 13, 2017, Plaintiffs filed an order to show cause for a preliminary injunction, after which the Court issued a briefing schedule. (Dkt. No. 19.) On November 22, 2017, Plaintiffs filed an amended motion for a preliminary injunction, (the "Amended PI," Dkt. No. 22), which was heard and marked fully submitted on November 27, 2017.¹

Statutory Framework and Facts

a. IDEA, Section 504, and the ADA

The IDEA establishes a comprehensive program for providing federal funds to assist the states in educating disabled children. In exchange for that federal assistance, the recipient state is required to ensure that disabled students receive a "free appropriate public education [ ("FAPE") ] that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. §§ 1400(d)(1)(A) ; 1412(a). A FAPE is a special education and related services that are "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE–1, ––– U.S. ––––, 137 S.Ct. 988, 999, 197 L.Ed.2d 335 (2017). The law requires that at least annually, the needs and services of a disabled child be described in an Individual Education Program ("IEP"). 20 U.S.C. § 1414(d) ; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). An IEP must provide an "appropriate education" but "not one that provides everything that might be thought desirable by loving parents." Bryant v. N.Y. Educ. Dep't, 692 F.3d 202, 215 (2d Cir. 2012) (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) ) (internal quotation marks omitted).

Under the IDEA, "parents of students with disabling conditions are guaranteed both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (internal quotation marks and citation omitted). Accordingly, parents are afforded procedural safeguards to ensure that his or her child's IEP provides a FAPE. See 20 U.S.C. § 1415(f). In New York, after filing a Due Process Complaint ("DPC"), parents have the right to an impartial due process hearing before an Impartial Hearing Officer ("IHO"), who conducts an initial due process hearing and issues written findings. See N.Y. Educ. Law § 4404(1) ; see also J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004). Once a DPC is filed, a student is entitled to a "pendency" or to "stay put" in the then-current educational placement until the dispute is resolved. See 20 U.S.C. § 1415 (j). Decisions by an IHO may be appealed to a New York State Review Officer ("SRO"), who examines the record and issues an "independent decision." See 20 U.S.C. § 1415(g) ; N.Y. Educ. Law § 4404(2). Appeals from an SRO's decision may be brought a civil action in federal or state court. See 20 U.S.C. § 1415 (i) (2) (A) ; N.Y Educ. Law § 4404 (3).

Section 504 provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Section 504 also requires the provision of a FAPE, and the implementation of an IEP in accordance with the IDEA is one way of satisfying Section 504's requirements. See 34 C.F.R. § 104.33. Given their similar requirements, Section 504 and the ADA are regularly considered in tandem. Rodriguez v. City of N.Y., 197 F.3d 611, 618 (2d Cir. 1999) ("Because Section 504 of the Rehabilitation Act and the ADA impose identical requirements, we consider these claims in tandem.").

"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 ...." J.S., 386 F.3d at 112. "The purpose of the exhaustion rule is to channel disputes related to the education of disabled children into an administrative process that could apply administrators' expertise in the area and promptly resolve grievances." Cave, 514 F.3d at 245–46. Exhaustion of administrative remedies is a requirement to provide a court subject matter jurisdiction over IDEA claims. See F.C. v. N.Y.C. Dep't of Educ., No. 15 Civ. 6045 (PAE), 2016 WL 8716232, at *5 & n.4 (S.D.N.Y. Aug. 5, 2016) (citing Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 203 (2d Cir. 2007) ) (collecting cases). "The exhaustion requirement also applies where plaintiffs seek relief under other federal statutes when relief is also available under the IDEA." J.S., 386 F.3d at 112 (citing 20 U.S.C. § 1415(1) ) (observing that Section 504 and Section 1983 claims "both seek to ensure a free appropriate public education, thus subjecting both to the IDEA exhaustion requirement"); see also Cave, 514 F.3d at 246 (citing 20 U.S.C. § 1415(1) ) ("[C]omplainants must overcome this significant procedural hurdle not only when they wish to file a suit under the IDEA itself, but also whenever they assert claims for relief available under the IDEA, regardless of the statutory basis of their complaint").

The exhaustion requirement is excused in limited circumstances, such as "systemic violations that could not be remedied by local or state administrative agencies ‘because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process.’ " Cave, 514 F.3d at 249 (quoting J.S., 386 F.3d at 114. Courts have also found that "lengthy delays in the administrative process may justify a finding that exhaustion would be futile or inadequate" although "specific threshold for such a finding is unclear." M.G. v. New York City Dept. of Educ., 15 F.Supp.3d 296, 303 & nn. 40–41 (S.D.N.Y. 2014) (collecting cases).

b. Student's IEP and Due Process Complaints ²

Student is an eighteen year-old, twelfth grade student who currently attends New Explorations into Science, Technology, and Math ("NEST+m"), a public high school for gifted and talented students. (Declaration of Elizabeth C. DeGori dated November 16, 2017 ("DeGori Decl.") ¶ 8; Declaration of Elisa Hyman, Esq., dated November 10, 2017 ("Hyman Decl."), at YG–001171.) Student's psychoeducational evaluation indicates he possesses general cognitive ability in the superior range. (Hyman Decl., at YG–001165–1170.) Starting in March 2015 through the present, Student became diagnosed with an increasing number of disabilities and conditions, including Mononucleosis

, Crohn's Disease, Irritable Bowel Syndrome, Convergence Insufficiency, Pediatric Sleep Apnea, and Chronic Fatigue Syndrome /Myalgic Encephalomyelitis. (See Hyman Decl., at YG–001070–89, YG–001165–70.) Student's IEP notes that his "medical illnesses cause extended absences which negatively impact his participation and progress" in the school curriculum. (Hyman Decl., at YG–001342.) During the 2017–2018 school year, as of November 13, 2017, Student has been absent 22 days and present 21 days; for the prior two academic years, Student was absent 165 days in 2015–2016 and 128 days in 2016–2017. (See Hyman Decl., at YG–001338; DeGori Decl. ¶ 19.) Student is presently missing eleven academic credits needed to graduate, though has completed the necessary Regents exams. (See DeGori Decl. ¶ 11.) Student presently has college counseling. (Id. )

Student's 2017–2018 IEP, dated August 25, 2017, includes provisions intended to respond to Student's health conditions (the "2017 IEP"). (See Hyman Decl., at YG–001337–53.) Student's EP notes, inter alia, that Student is to receive extended time...