EDNY denies NYS motion to dismiss claim of illegal practice; private school has standing to bring 504 claim

Kalliope R. v. New York State Department of Education (EDNY 6/1/10): Plaintiffs in this action are the parents of four minor children with disabilities and the private school that they attend. Plaintiffs alleged that the New York State Education Department ("NYSED") unlawfully promulgated a policy prohibiting the use of a particular student-teacher ratio. The private school in question had implemented a 12:2:2 program, a program for which they had sought and received state approval, and for placement into which a child’s CSE had to recommend the 12:2:2. Subsequently, state ed allegedly contacted the various CSEs of the kids in the program and advised them to stop placing kids into the 12:2:2 program, thus prompting the parents’ legal action. NYS filed a motion to dismiss.

The Court denied the district’s motion to dismiss agreeing initially with the parents that exhaustion of the administrative process should be excused reasoning that exhaustion “is deemed futile when the conduct alleged to have violated IDEA affected all students in a given program.” The Court then reasoned that the parents had stated a viable claim that the “policy could constitute a "predetermination" that is a procedural violation of IDEA” and that “NYSED's interference with the IEP process has hampered the progress of the individual plaintiffs' children and the other children attending SLCD, and thereby substantively violated IDEA.”

The Court then went on to find that the private school had standing to sue under the Rehabilitation Act (504) as it had allegedly “incurred over $22,000.00 in expenses as a result of the NYSED's alleged policy.” The Court declined to dismiss the plaintiff’s 504 claim reasoning that “gross misjudgment or bad faith may be found when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary.” Here, the Court held that plaintiffs had satisfied that standard by alleging “that NYSED, despite the fact that students' CSEs had recommended the 12:2:2 class size, instituted a policy prohibiting use of that class size.”

When in doubt, exhaust the administrative process

PAYNE v. PENINSULA SCHOOL DISTRICT, 07-35115 (9th Cir. 3-18-2010): This case, which addresses the use of a “safe” room for an autistic child, is an excellent example of why a parent should exhaust the administrative process unless there is no doubt that she has the right to go directly to court.

District Court affirms IHO right to rule on issue not raised by parent

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008): In a decision that was otherwise unfavorable to the parent, the Court reversed the SRO and upheld a hearing officer determination that the district must provide the child with transition services. The parent had not raised the issue to the IHO, a fact noted and relied upon by the SRO in his reversal of the IHO. The Court found that the parent had challenged the sufficiency of the IEP and that this was enough for the IHO to order the district to implement a service that was required by law.