BULLYING AND FEDERAL CLAIMS AGAINST SCHOOL

In this case:

"Plaintiffs bring claims under Section 504 of the Rehabilitation Act of 1983 (the "Rehabilitation Act"), 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that Defendant "failed to protect J.L. from the repeated and frequent bullying which occurred because of his disability on the schools' premises" ("Count One" and "Count Two," respectively). (Compl. ¶¶ 42-60.) Plaintiffs also bring a variety of common-law claims, including negligence, negligent infliction of emotional distress, and negligent hiring and supervision ("Count Three," "Count Four," and "Count Five," respectively). (Id. ¶¶ 61-90.)

Defendant argues that Plaintiffs must first exhaust their administrative remedies with respect to any disability claim pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq prior to bringing the suit. (Mot. 4-10.) Plaintiffs, by contrast, contend that exhaustion of their claims is not necessary because their claims do not pertain to access to a free appropriate public education ("FAPE"), a right guaranteed by IDEA. (Pl. Opp'n at 3-4.)"

The court denied the motion and went into an overview of the IDEA exhaustion requirement and held that the plaintiffs' claims were beyond the reach of the IDEA's exhaustion requirement.

PARKER-LEON v. MIDDLE VILLAGE PREPARATORY CHARTER SCHOOL, No. 17-CV-4548 (NGG) (RML), United States District Court, E.D. New York, June 4, 2019:

"Under the IDEA, parents of disabled children are guaranteed "a variety of procedural safeguards," Mr. P, 885 F.3d at 741, including the right "to request a due process hearing in order to present complaints as `to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.'" Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting 20 U.S.C. § 1415(b)(6)(A)). These administrative proceedings are determined by and conducted pursuant to the laws of each state. See 20 U.S.C. § 1415(f)(1)(A), (g). "New York has opted for a two-tier administrative system" for review of IEPs:

First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision. That decision can then be appealed to a state review officer of the New York Education Department.

Cave, 514 F.3d at 245. "Only after exhaustion of these procedures has an aggrieved party the right to file a suit in a federal or state court." Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

The exhaustion requirement applies to all suits that "seek relief for the denial of a FAPE," regardless of whether the suit was brought under the IDEA or "similar laws," which include the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 752 (2017); see 20 U.S.C. § 1415(1) ("Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under . . . other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].").

"[I]n determining whether a suit indeed `seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiffs complaint." Fry, 137 S. Ct. at 752. "[I]f, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required." Id. at 754; see L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56, 57 (2d Cir. 2016) (summary order) ("[I]f the `theory' behind a claim relates to the `education of disabled children,' IDEA exhaustion is required ...." (quoting Polera v. Bd. of Educ., 288 F.3d 478, 481, 487-88 (2d Cir. 2002))).

"[T]he exhaustion requirement does not apply `in situations in which exhaustion would be futile." Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007) (quoting Polera, 288 F.3d at 488). "To show futility, a plaintiff must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process." Id. (internal quotation marks and citations omitted). Futility may exist where the case involves "systemic violations that could not be remedied by local or administrative agencies." Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App'x 131, 134 (2d Cir. 2012) (summary order) (quoting Cave, 514 F.3d at 249); accord J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 113 (2d Cir. 2004). "The rationale behind this exception is that while the administrative hearing officers have the authority to enforce established regulations, policies[,] and procedures, they generally do not have the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch. Dist., 918 F.Supp. 772, 781 (S.D.N.Y. 1996). While claims of systemic violations are often asserted as part of a class action, they "can be made at the individual level, provided `a systemic policy is at stake' and `the administrative officer has no power to correct the violation.' J.Z. v. N.Y.C. Dep't of Educ., 281 F.Supp.3d 352, 362 (S.D.N.Y. 2017) (quoting F.C. v. N.Y.C. Dep't of Educ., No. 15-CV-6045 (PAE), 2016 WL 8716232, at *8 (S.D.N.Y. Aug. 5, 2016)). "The burden of demonstrating futility rests with the party seeking to avoid the exhaustion requirement." Coleman, 503 F.3d at 205.

Exhaustion may also be excused where "the parents have not been notified that [administrative] remedies were available to them." Weixel, 287 F.3d at 149; see Dervishi ex rel. T.D. v. Stamford Bd. of Educ., 691 F. App'x 651, 652 (2d Cir. 2016) (summary order) ("[E]xhaustion is excused if the defendant failed to notify the plaintiff of her procedural rights under the IDEA.")."