Opinion
CIVIL ACTION NO. 00-2836, SECTION "C"(4).
February 20, 2001.
ORDER AND REASONS
This matter is before the Court on the motion of Tangipahoa Parish School Board ("the Board") to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is GRANTED .
FACTUAL BACKGROUND
On September 22, 2000, David and Carol Comeaux ("Plaintiffs") individually and on behalf of their minor child, a special education student at D.C. Reeves Elementary School in Tangipahoa Parish, filed a complaint in federal district court against the Board seeking injunctive relief, reasonable monetary damages (compensatory and punitive), attorney's fees and remedial education services.
In this complaint plaintiffs state that "jurisdiction is founded upon the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1412 et seq." (Rec. Doc. 1) In addition, the complaint alleges violations of section 504 of the Rehabilitations Act of 1973, as amended, 29 U.S.C. § 794, the Civil Rights Act, 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitutional arising from the Board's decision to remove their minor child from the school setting, unless a parent is present throughout the school day. (See Rec. doc. 1 at 6-10) Plaintiffs further allege that the action ultimately denied the child access to free appropriate public education.
Specifically, plaintiffs petitioned the Court to enforce the "stay-put" provision of IDEA; order the immediate reinstatement of their child to school; grant a temporary restraining order and injunctive relief ordering the Board to provide appropriate educational services as established in the Individualized Education Program ("IEP"); inter alia. Summarily, these violations are alleged because the plaintiffs claim that the Board failed to provide written notices before changing their child's educational placement (removing him from the school premises for more than 10 days) and refusing to provide services agreed to in the IEP. (Rec. Doc. 6 at 2)
The Board has moved to dismiss the matter for lack of subject matter jurisdiction based on plaintiffs' failure to exhaust administrative remedies as required by IDEA. The plaintiffs contend that exhaustion of any type of administrative remedies would be futile and too time-consuming.
LAW AND ANALYSIS
"The IDEA requires that the IEP be developed during Planning and Placement Team Meetings between the school district representatives, teachers, parents, and when necessary the student. Under the Act, parents have a right to . . . receive prior written notice of administrative actions and to present complaints. 20 U.S.C. § 1415(b)(1)." Gardner v. School Bd. of Caddo Parish, 958 F.2d 108, 110 (5th Cir. 1992). When parents have complaints, they are entitled to an impartial due process hearing conducted by the local education agency in compliance with section 1415(b)(2). Appeal of the local agency's decision to the State agency is provided for at section 1415(c). If the parents are dissatisfied with the State Agency's decision, they may file a civil action in state or federal district court. Sections 1415(e)(2). Id.
The Board, in its motion to dismiss, asserted that the plaintiffs are required to exhaust their administrative remedies prior to instituting a civil action. In Gardner, the Fifth Circuit specifically stated that "[u]nder the IDEA, parties must exhaust administrative remedies before filing suit." Id. Likewise, the Fifth Circuit affirmed the district court's decision in Efferson v. School Bd. of Caddo Parish, No. 95-30627 (5th Cir. Filed Jan. 4, 1996) sub nom. Efferson v. Caddo Parish School Board (requiring the exhaustion of administrative remedies prior to filing suit, despite plaintiffs' urging that the relief sought was not available within the meaning of 20 U.S.C. § 1415(b)(1)(E)). The Effersons' complaint was filed under 42 U.S.C. § 1983 and other federal statutes seeking monetary damages, other equitable relief and attorney's fees, as in the instant case. The district court in Efferson v. Caddo Parish School Bd., No. 94 Civ. 1787 (W.D. La. May 31, 1995) stated that "plaintiffs should not be able to skirt [the] process simply by voluntarily limiting their remedies and then protesting that the process would be futile or inadequate."
Guided by the Fifth Circuit decision in Gardner, this Court incorporates herein pertinent parts of that decision which read:
In examining the statute, we find initially that section 1415(b)(1)(E) guarantees parents "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." Then, section 1415(b)(2) states that whenever the parents file such a complaint, they are entitled to an impartial due process hearing conducted by the state or local educational agency. Next, section 1415(c) provides that if the hearing is conducted by a local educational agency, "any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency." Finally, section 1415(e)(2) provides for a civil action:
Any party aggrieved by the findings and decision made under subsection (b) of this section who does not have the right to appeal under subsection (c) of this section, and any party aggrieved by the findings and decision under subsection (c) of this section, shall have a right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate.
Before initiating such civil action, however, section 1415(f) further makes clear that: before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsection (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.Gardner v. School Board of Caddo Parish, 958 F.2d 108, 111.
The plaintiffs' arguments regarding special education services to be provided to the minor child, established in the IEP as well as IDEA's requirement that the Board provide written notice of changes in the child's educational placement, and his right to free and appropriate public education, fall within section 1415(b)(l)(E) as a complaint that requires administrative exhaustion. The plaintiffs also argue that exhaustion of the administrative remedies would be futile.
The Supreme Court, however, has recognized that although judicial review is not normally available until the administrative proceedings have been exhausted, *112 "Parents may by-pass the administrative process where exhaustion would be futile or inadequate." Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988).Id. at 111-12.
The plaintiffs bear the burden of demonstrating the futility or inadequacy of administrative review. Here, the plaintiffs have failed to show that filing a complaint at the local level would be futile, or that an appeal of the local educational agency's decision to the Louisiana Department of Education would also be futile.
In the language of Gardner, "a complaint based on § 1415(b)(1)(E) is not a justifiable controversy until the plaintiff has exhausted his administrative remedies or proved that exhaustion would be futile or inadequate." Id.
Accordingly, IT IS ORDERED that the Board's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is GRANTED.