Opinion
CV166011314S
10-05-2018
Alexander PHILLIPS PPA v. TOWN OF HEBRON et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
The minor plaintiff, Alexander M. Phillips (plaintiff), is a seven-year-old boy with Down Syndrome and who is without functional speech. He commenced this action through his father, Ralph E. Phillips (father), for discrimination, negligence, and civil assault against the defendants, the Town of Hebron, the Hebron Board of Education ("Board of Education" or "Board") and various employees, on September 19, 2016. The defendants have moved to dismiss counts one through twenty of the plaintiff’s thirty-two-count complaint, asserting a lack of subject matter jurisdiction on the ground that the plaintiff failed to exhaust his administrative remedies pursuant to the Individuals with Disabilities Education Act (IDEA or Act), 20 U.S.C. § 1400 et seq. The plaintiff maintains that he was not required to exhaust the administrative remedies afforded pursuant to the IDEA before pursuing the challenged claims in a civil action. He also claims that the defendants are judicially estopped from asserting the applicability of the Act’s exhaustion requirement based on positions the defendant Board of Education took in related administrative proceedings. As explained below, the court concludes that judicial estoppel does not apply and that the plaintiff was required to exhaust his administrative remedies in accordance with the IDEA before bringing these claims in a civil action.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, in the first twenty counts of his revised complaint, alleges the following relevant facts.
The individually named defendants in this action are all employees of the Hebron Board of Education. The individual defendants involved in the first twenty counts of the revised complaint are: Joshua Martin, Director of Special Education; Barbara Wilson, Head Teacher; Margaret Ellsworth, Special Education Teacher; and Sheryl Poulin, Classroom Teacher.
The plaintiff attends public school in Hebron. On February 25, 2015, his father visited the school to observe the plaintiff in some of his therapy sessions and activities. While in his son’s kindergarten classroom the father noticed that his son and the paraprofessional working him went into a coatroom. The father was invited in to observe and saw that there was a desk and chair in the coatroom for his son. On March 2, 2015, the father met with the director of special education, Joshua Martin, and asked him how much time the plaintiff spent in the coatroom each school day. Martin responded, "I can’t imagine why Alex would have to be in the coatroom unless there was some discrete testing going on" and he said he "would look into it and get answers to these questions."
On March 25, 2015, during a planning and placement team meeting, the plaintiff’s classroom teacher, Sheryl Poulin, told the father that the plaintiff "naps in the classroom in the afternoon [and] usually awakens by 2 p.m. and will use the computer." The plaintiff’s special education teacher, Margaret Ellsworth, then clarified that the plaintiff sleeps in the coatroom, not the classroom. She said he spent about forty minutes per day in the coatroom doing classwork or projects but, according to the school’s "daily communication sheet" the plaintiff slept, on average, two and one-half hours per day.
Although the plaintiff’s Individual Education Plan (IEP) dated April 2, 2014, indicated that he was to spend 26.33 hours per week with students who do not have disabilities, he actually spent only nine hours per week with non-disabled children. Ms. Ellsworth explained that the plaintiff "works in the coatroom because his projects require a lot of space and there isn’t enough out in the classroom. He can be distracting to other children; they can be distracting to him." The plaintiff’s father had not previously been advised that his son was being "warehoused" this way and had not consented to it.
The plaintiff alleges that "warehousing" is a colloquial term referring to "the practice of placing a child with a learning disability into a room away from non-disabled children ... due to low expectations by teachers of the child’s ability to learn."
Finally, on or about April 30, 2015, the plaintiff’s father received a "progress report" concerning his son that was blank, except for his son’s name, his classroom teacher’s name and the number of days the plaintiff had been tardy.
The exhibits submitted with the plaintiff’s opposition to the defendant’s motion to dismiss this action reveal the following additional facts concerning the administrative proceedings that followed the events described above. On July 27, 2015, the plaintiff’s father, through counsel, filed a Special Education Complaint form ("State Complaint") and a request for a "due process hearing" with the Bureau of Special Education of the Connecticut State Department of Education ("Department of Education"). These were supported by a detailed complaint, which included all of the allegations described above, plus additional allegations regarding the implementation of a feeding program for the plaintiff. No specific remedies were requested in any of these documents and, in response to the defendant Board of Education’s complaint about that, an amendment was filed with the Department of Education dated September 16, 2015 identifying several remedies sought on behalf of the plaintiff. The remedies sought included: (1) a written explanation concerning the placement of the plaintiff in the coatroom; (2) the replacement of the feeding specialist; (3) unrestricted access to visit the school without advance notice; and (4) modifications to the plaintiff’s IEP. On September 24, 2015 the requested remedies were amended once again to include a claim for monetary damages.
It was agreed by the parties at oral argument that the court should consider these materials in resolving the issues raised by the motion to dismiss.
At the outset of these administrative proceedings, the State Complaint was put in abeyance to allow the due process hearing to proceed, in accordance with applicable regulations. On October 6, 2015 the Board of Education filed a motion to dismiss. The Board’s motion sought to dismiss "certain remedies." Specifically, the Board sought the dismissal of the claim for monetary damages, the request for a written explanation and the request for unrestricted access. The motion did not seek the dismissal of the other remedies sought on behalf of the plaintiff, including modifications to the IEP. The Board’s motion acknowledged the right of the hearing officer "to review all relevant facts and testimony to determine whether there has been a violation of the IDEA." The motion sought a dismissal of the due process request only "to the extent that such request seeks remedies not available under the IDEA or accompanying state statutes and/or regulations." The Board’s brief to the Department of Education acknowledged that: "the Parent has alleged that the Board provided this young student with special education services in a more restrictive educational setting for part of the school day, instead of wholly within the regular education classroom. This claim is expressly based upon the provisions of the IDEA ." (Emphasis added.)
In response to the motion to dismiss, the plaintiff’s father decided to withdraw the request for a due process hearing. He did request that the Department of Education proceed with an investigation of the State Complaint. The Department of Education did so and issued a report of its findings and conclusions on March 14, 2016. Although the report is critical of the defendant Board of Education’s conduct, specifically with respect to the use of the coatroom, it concluded the Board had not denied a "free appropriate public education" (FAPE) to the plaintiff, as required by the IDEA. The report also stated the parties may "request a due process hearing on these same issues through this office if a party disagrees with the conclusions reached in this investigation and meet the applicable statute of limitations."
There was no further request for a due process hearing following the issuance of the Department of Education’s report. At some point, however, a complaint was filed with the Connecticut Commission on Human Rights and Opportunities (CHRO). The CHRO provided a release of jurisdiction on or about June 24, 2016. The plaintiff then commenced this action on September 19, 2016, asserting discrimination claims under General Statutes § § 46a-58(a) and 46a-75(a) and (b), as well as claims of negligence per se, assault and negligent supervision. On October 17, 2016, the defendants removed this action to the United States District Court for the District of Connecticut. On August 7, 2017, the District Court remanded the case back to the Superior Court because it found there was no substantial question of federal law. Following remand, the plaintiff filed the operative revised complaint on December 4, 2017. In the first count of the plaintiff’s revised complaint, he alleges discrimination. He alleges that he is a member of a protected class under General Statutes § 46a-51(13) and (15) based on his learning and physical disabilities. He alleges that the defendant Board of Education illegally discriminated against him, in violation of General Statutes § § 46a-58(a) and 46a-75(a) and (b), by segregating him from other children without disabilities. He also alleges that the Board of Education deprived him of the right to be educated in the least restrictive environment in violation of § 1412(C)(5) of the IDEA.
There is some overlap between the facts alleged in counts one through twenty and those alleged in counts twenty-one through thirty-two. Some of counts twenty-one through thirty-two arise out of allegedly intrusive photographs taken by Board of Education employee Ellen Kirkpatrick and shared with a third party in May 2016. In connection with this incident there are counts alleging civil assault by two defendants and negligence on the part of other defendants, who allegedly violated their duties to supervise others. There are also several counts incorporating the core factual allegations of counts one through twenty and alleging negligent supervision for both those events and the events underlying the claims of civil assault. The plaintiff asserts claims for indemnification against the defendant Town of Hebron in connection with all of the claims of negligence in counts twenty-one through thirty-two. The defendants have not challenged the court’s jurisdiction over any of the claims set forth in counts twenty-one through thirty-two and this decision does not address any jurisdictional issues relating to those counts.
The third count alleges discrimination against Martin, the director of special education, who knew or should have known that by moving the plaintiff, along with the desk and chair, into the coatroom, the plaintiff was being deprived of his rights on account of his disabilities in violation of § § 46a-58(a) and 46a-75(a) and (b). The plaintiff alleges that Martin failed to act after being questioned by the plaintiff’s father and exploited the fact that the plaintiff himself was unable to communicate with his father about his circumstances at school. Similar allegations are asserted against the defendants Barbara Wilson (head teacher), Margaret Ellsworth (special education teacher), and Sheryl Poulin (classroom teacher) for the roles they played in the plaintiff’s educational program in the fifth, seventh, and ninth counts.
The even numbered second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, eighteenth, and, twentieth counts all seek indemnification against the defendant Town of Hebron, based on the odd numbered counts preceding them, under General Statutes § 7-465.
The eleventh, thirteenth, fifteenth, seventeenth, and nineteenth counts allege negligence per se against the same defendants Board of Education, Martin, Wilson, Ellsworth and Poulin, alleging that each of these defendants breached their duties under 20 U.S.C. § 1412(C)(5) to provide the plaintiff with an education in the least restrictive environment by moving him into the coatroom and leaving him uneducated, subjecting him to imminent harm to his social and academic development.
On January 17, 2018, the defendants filed a motion to dismiss counts one through twenty on the ground that the court lacks subject matter jurisdiction due to the plaintiff’s failure to exhaust administrative remedies under the IDEA. The defendants filed a memorandum in support of the motion and the plaintiff filed a memorandum in opposition on March 22, 2018, along with several exhibits. The court heard oral arguments on the motion on May 29, 2018.
DISCUSSION
I. Applicable Legal Standard
[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ... Trial courts addressing motions to dismiss for lack of subject matter jurisdiction ... may encounter different situations, depending on the status of the record in the case ... [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts.]" (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
II. Defendants’ Motion to Dismiss
The defendants’ motion to dismiss asserts a lack of subject matter jurisdiction on the ground that the plaintiff failed to exhaust the administrative remedies available under the IDEA before pursuing his claims for discrimination, negligence per se, and indemnification in counts one through twenty of the revised complaint. The defendants argue that counts one, three, five, seven, nine, eleven, thirteen, fifteen, seventeen, and nineteen seek relief that is also available under the IDEA. Consequently, the defendants maintain, the IDEA mandates that the plaintiff first exhaust the administrative remedies afforded under the Act before bringing suit on the substantive claims set forth in the odd-numbered counts one through nineteen, as well as the indemnification claims set forth in the even-numbered counts two through twenty because they are derived from the same underlying claims.
The plaintiff argues that he was not required to exhaust his administrative remedies under the IDEA because he seeks monetary damages, which are not available under the IDEA. Further, he argues that the discrimination and negligence per se claims do not seek relief available under the IDEA because, rather than alleging a deprivation of the Act’s guarantee of a "free appropriate public education" (FAPE), his complaint asserts claims of simple discrimination and misconduct arising out of the defendants’ segregation of the plaintiff from other students without disabilities. The plaintiff also argues that judicial estoppel precludes the defendants’ argument that he was required to exhaust administrative remedies. The plaintiff’s judicial estoppel argument rests upon the fact that the defendants moved to dismiss the plaintiff’s claims filed with the Department of Education on the ground that they sought remedies not available under the IDEA.
III. The IDEA and Implementing State Statutes and Regulations
"The IDEA provides federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education’- more concisely known as a FAPE- to all children with certain physical or intellectual disabilities ... As defined in the Act, a FAPE comprises ‘special education services’- both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction." (Citations omitted.) Fry v. Napoleon Community Schools, 580 U.S., 137 S.Ct. 743, 748-49, 197 L.Ed.2d 46 (2017). "Under the IDEA, an ‘individualized education program’ called an IEP for short, serves as the ‘primary vehicle’ for providing each child with the promised FAPE." (Citation omitted.) Id., 749. It is the responsibility of an "IEP Team," including parents, school officials and teachers, to formulate and implement an IEP. Id. The IDEA requires states to adopt policies and procedures that conform to the requirements of the Act. 20 U.S.C. § § 1407 and 1412.
Among the requirements the Act imposes on states is the requirement in § 1412(a)(5) that children with disabilities be educated in the "least restrictive environment." Providing the least restrictive environment under the Act means "[t]o the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." § 1412(a)(5). Also of relevance in this case, the IEP must establish "measurable annual goals" for the student and specify how progress toward those goals will be measured and reported to parents. 20 U.S.C. § § 1414(d)(1)(A)(i)(II) and (III). Further, § 1412(a)(6) of the Act requires that "[c]hildren with disabilities and their parents are afforded the procedural safeguards required by section 1415 of this title."
Section 1415 of the Act sets forth the required procedural safeguards, including dispute resolution procedures. The dispute resolution procedures provide an opportunity for parents to file complaints which, if not resolved at a preliminary meeting or by mediation, are subject to an "impartial due process hearing" before a hearing officer. Following a final decision from the hearing officer, judicial review is available by filing a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(a). § 1415(l) of the Act sets forth a "rule of construction" that is at the heart of the defendants’ motion to dismiss:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or 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 this subchapter.
Connecticut has adopted statutes and regulations implementing the requirements of the IDEA. General Statutes § 10-76a et seq. Of significance to the defendants’ motion to dismiss is § 10-76h, which sets forth the procedures for resolving disputes, including the right of parents to file complaints and to an impartial due process hearing. See also Regs., Conn. State Agencies § 10-76h et seq. The regulations of the Department of Education provide: "[t]he written findings of fact, conclusions of law and decision and order of the hearing officer shall be final, except that any aggrieved party may appeal such decision under the provisions of 20 U.S.C. Section 1415(i)(2)(A) and the regulations adopted thereunder, as amended from time to time, section 10-76h(d)(4) of the Connecticut General Statutes." Id., § 10-76h-16(a). "Appeals from the decision of the hearing officer or board shall be taken in the manner set forth in section 4-183 ..." General Statutes § 10-76h(d)(4).
IV. Applicability of IDEA’s Exhaustion Requirement to State Statutory and Common-Law Claims
The IDEA permits a plaintiff to pursue remedies under the Americans with Disabilities Act (ADA), the Rehabilitation Act and other "federal laws," except that when an action is brought under "such laws" and the action is "seeking relief that is also available" under the IDEA, the plaintiff must first exhaust the administrative remedies provided by the Act. Several questions are raised by this statutory language, some of which have recently been addressed by the Supreme Court in Fry v. Napoleon Community Schools, supra . One question Fry does not address is whether the exhaustion requirement applies to state law claims and not just to claims brought under "federal laws." See Moore v. Kansas City Public Schools, 828 F.3d 687, 693 (8th Cir. 2016) (holding that the IDEA exhaustion requirement does not apply to state law statutory and common-law claims). The parties’ briefs do not focus precisely on this issue and at oral argument the plaintiff acknowledged the Fry analysis applies to her claims. Because the court’s subject matter jurisdiction is questioned, however, the court briefly addresses this threshold issue.
Although Connecticut’s statutes implementing the IDEA do not contain an express exhaustion requirement, such a requirement may nevertheless be inferred "from an administrative scheme providing for agency relief." Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 564, 821 A.2d 725 (2003). It is a matter of discerning legislative intent to determine whether "application of the doctrine would be consistent with the statutory scheme." (Citations omitted, quotation marks omitted.) Id. The state statute provides for an administrative hearing "pursuant to the Individuals with Disabilities Education Act." General Statutes § 10-76h(b). The statute references the right to judicial review by way of an administrative appeal substantially similar to the judicial review afforded under the IDEA. General Statutes § 10-76h(d)(4). The applicable state regulation states such appeals may be taken "under the provisions of [the IDEA]." Regs., Conn. State Agencies § 10-76h-16(a). The primary purpose of the state statute is to implement the substantive and procedural requirements of the IDEA. Thus, even though state statutes implementing the IDEA do not contain an explicit exhaustion requirement, the court concludes that exhaustion is required, consistent with the exhaustion requirements under the IDEA.
In this case the plaintiff asserts causes of action for common-law negligence per se and discrimination pursuant to General Statutes § § 46a-58(a) and 46a-75(a) and (b). Regarding the discrimination claims, the plaintiff alleges that the Commission on Human Rights and Responsibilities (CHRO) has provided a release of jurisdiction enabling her to bring this suit. The defendants, however, do not challenge the court’s subject matter jurisdiction based on a failure to exhaust administrative remedies with CHRO. Their challenge is akin to one brought against a claim asserted under the ADA where there is an alleged failure to exhaust administrative remedies under the IDEA. Other courts have concluded that the IDEA’s exhaustion requirements apply to both state statutory and common-law claims under these circumstances. Murphy v. Town of Wallingford, United States District Court, Docket No. 3:10-CV-278 (CFD) (D.Conn., March 23, 2011) (dismissing common-law claims for negligence and intentional infliction of emotional distress); Avoletta v. City of Torrington, United States District Court, Docket No. 3:07-CV841 (AHN) (D.Conn., March 31, 2008), reconsideration denied July 18, 2008 (dismissing state constitutional, statutory and common-law claims); Hsing v. Glastonbury Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-01-0809804-S (December 1, 2003, Hennessey, J.) (dismissing state statutory claims) This court agrees that before the plaintiff may bring a civil action based on state law claims, he must satisfy the requirements of exhaustion under the IDEA, if otherwise applicable, consistent with the exhaustion requirements applicable to ADA and Rehabilitation Act claims and other "such laws," as interpreted by the Supreme Court in Fry .
V. Judicial Estoppel
Before addressing the applicability of the exhaustion requirement specifically to the plaintiff’s claims, the court must address the plaintiff’s position that the doctrine of judicial estoppel bars the defendants from asserting that the plaintiff was required to exhaust administrative remedies. "Judicial estoppel is an equitable doctrine invoked by a court at its discretion." (Citations and internal quotation marks omitted.) Barton v. Norwalk, 326 Conn. 139, 155, 161 A.3d 1264 (2017). It "prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ..." Id. The doctrine "protects the integrity of the judicial process ... by prohibiting parties from deliberately changing positions according to the exigencies of the moment ..." (Internal quotations, punctuation and citations omitted.) Id., 156. "Judicial estoppel applies if (1) a party’s later position is clearly inconsistent with its earlier position, (2) the party’s former position has been adopted in some way by the court in the earlier proceeding, and (3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel." (Internal quotation marks omitted.) Id. "The application of judicial estoppel is further limited to situations where the risk of inconsistent results with its impact on judicial integrity is certain." (Internal quotation marks omitted.) Id.
The plaintiff claims the defendants are judicially estopped from asserting a failure to exhaust administrative remedies under the IDEA because the defendant Board of Education moved to dismiss the plaintiff’s complaint filed with Department of Education on the ground that the plaintiff sought remedies that were not available under the IDEA. The principal difficulty with the plaintiff’s claim of judicial estoppel is that it is counter to the well-established doctrine that a party cannot waive the absence of subject matter jurisdiction. D’Attilo v. Statewide Grievance Committee, 329 Conn. 624, 635, 188 A.3d 727 (2018); Sobczak v. Board of Education of City of Meriden, 88 Conn.App. 99, 102 n.6, 868 A.2d 112 (2005). Some courts have questioned whether a failure to exhaust administrative remedies under the IDEA provides the basis for a defense, rather than depriving the court of jurisdiction. See Payne v. Peninsula School District, 653 F.3d 863, 867-71 (9th Cir 2011). Under those circumstances the claim may be waivable. In the Second Circuit, however, the issue of IDEA exhaustion is considered jurisdictional. Cave v. East Meadow Union Free School District, 514 F.3d 240 (2nd Cir. 2008). Moreover, under Connecticut law a failure to exhaust administrative remedies is considered jurisdictional. Neiman v. Yale University, 270 Conn. 244, 253, 851 A.2d 1165 (2004). The plaintiff has cited no authority for the proposition that the defendants’ jurisdictional claim may be subject to the doctrine of judicial estoppel and the court is aware of none.
Nor does the plaintiff explain why the individual defendants would be barred by judicial estoppel from raising this jurisdictional claim when they were not parties to the administrative proceeding.
Even if the doctrine of judicial estoppel could be invoked to preclude a challenge to a court’s subject matter jurisdiction, the requirements of that doctrine are not met in this case. As explained above, the defendants’ motion to dismiss did not seek a dismissal of the plaintiff’s entire due process complaint. It sought a dismissal of the claim for monetary damages, for unrestricted access to the school and a written explanation of the defendants’ alleged segregation of the plaintiff. The plaintiff’s complaint, however, raised other claims and sought more than just those remedies. The complaint sought changes to the IEP and other relief. In addition, the defendant Board’s brief filed in support of the motion to dismiss expressly acknowledged that the complaint raised claims under the IDEA. The Board of Education, therefore, did not take a position before the Department of Education that the plaintiff’s claims were outside the scope of the IDEA.
Even assuming that the position taken by the defendants before the Department of Education and before this court are inconsistent, the second prong of the judicial estoppel test also is not met in this case. A valid claim of judicial estoppel requires that the earlier position taken by the defendants was actually adopted by the court, or in this case the administrative agency, in the earlier proceeding. The Department of Education, however, never ruled on the defendant Board of Education’s motion to dismiss because the plaintiff withdrew his due process complaint before the Department of Education had the opportunity to do so. Accordingly, the second prong of the judicial estoppel test is not met and, thus, the doctrine of judicial estoppel, even if it could be invoked against a challenge to the court’s subject matter jurisdiction, does not apply in these circumstances.
VI. IDEA Exhaustion under Fry v. Napolean Community Schools
In Fry v. Napoleon Community Schools, supra, the Court traced the judicial and legislative history of the IDEA- as an exclusive remedy at the outset, and then as a remedy that must merely be exhausted before other claims are made. The issue before the Court was whether the exhaustion requirement applied to a claim arising out of a local school district’s refusal to permit a service dog to be present at school with a disabled student. The Court did not reach a conclusion on that issue but it did adopt a framework of analysis courts must utilize to determine whether exhaustion is required. The analysis focuses upon whether the claims asserted in the civil suit "seek relief that is also available under [the IDEA]." 20 U.S.C. § 1415(l). This standard, according to the Court, may be restated to mean that, in order for the exhaustion requirement to apply, the "suit must seek relief for the denial of a FAPE." Fry v. Napolean Community Schools, supra, 137 S.Ct. 752.
[The IDEA’s] exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA ... Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, 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.(Footnote omitted.) Id., 754.
In order to determine whether a lawsuit seeks relief for the denial of a FAPE, a court must decide whether "the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way." Id., 755. The analysis takes a "rights-centered" approach, eliminating the bar imposed by the "injury-centered" approach previously taken by federal appellate courts, but stopping short of a "relief-centered" approach that would focus only on the form and substance of the relief requested by the plaintiff in the complaint. See R. Garda, "Fry v. Napolean Community Schools: Finding a Middle Ground," 46 J.L. & Educ. 459 (2017). Instead, the question is whether the facts underlying the claim of liability allege the denial of a FAPE. If so, exhaustion is required, regardless of the specific remedy requested in the complaint.
The Court in Fry expressly left "for another day" the question whether merely asserting a claim for money damages is enough to avoid IDEA’s exhaustion requirement, in light of the fact that an IDEA hearing officer lacks the authority to award money damages." Fry v. Napolean Community Schools, supra, 137 S.Ct. 752 n.4. In the Second Circuit, a claim for monetary damages does not relieve a plaintiff of the IDEA’s exhaustion requirement. Cave v. East Meadow Union Free School District, supra, 514 F.3d 246-47 citing Polera v. Board of Education of Newburgh Enlarged City School District, 288 F.3d 478 (2d. Cir. 2002). Contra, Payne v. Peninsula School District, supra .
In Fry, the Court acknowledged the distinct purposes of the IDEA, which "guarantees individually tailored education services," and laws such as the ADA and the Rehabilitation Act, which "promise non-discriminatory access to public institutions." The Court further recognized, however, that there can be some "overlap in coverage." Id., 756. In order to facilitate the efforts of lower courts attempting to distinguish simple discrimination claims, which do not require IDEA exhaustion, from claims that are subject to that requirement, the Court offered some "clues." "One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses a disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school- say, a public theater or library? And second, could an adult at the school- say, an employee or visitor have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim." (Emphasis in original.) Id., 756.
The Fry court includes two hypotheticals in their analysis to assist in the determination of whether or not the case is based upon a FAPE. The first example suggests that a wheelchair-bound student sues his school under Title II because the school failed to provide access ramps so that he may enter. This child would be able to bring the same claim against a public facility because it suggests equality of access rather than adequacy of special education. The second example is a student with a learning disability who sues his school under Title II for failing to provide remedial tutoring basing his claim on reasonable accommodations, but he would not be able to make the same claim on a public facility, and an adult cold not sue the school to obtain a math tutorial. Fry v. Napoleon Community Schools, supra, 137 S.Ct. 756-57.
"A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA’s formal procedures to handle the dispute ... A plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE- with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligations and that the grievance involves something else entirely. But prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term." (Citation omitted.) Id., 757.
VII. Exhaustion Analysis
In accordance with Fry v. Napolean Community Schools, supra, the court must consider the gravamen of the plaintiff’s claims to determine whether they seek relief for the denial of a FAPE. With respect to the statutory discrimination claims, the court concludes that they do seek relief for the denial of a FAPE. The core allegations of the discrimination claims are that the defendants violated the plaintiff’s rights by placing him in the coatroom, thereby segregating him from other children without disabilities, and allowing him to sleep there for hours during the day. He alleges that the Board of Education deprived him of the right to be educated in the least restrictive environment in accordance with 20 U.S.C. § 1412(C)(5). He further claims that the defendants failed to report on his progress toward meeting the goals set forth in his IEP. There is no other way to view these allegations than lying at the heart of the IDEA. The negligence per se claims are expressly grounded upon a violation of the IDEA, an alleged failure to ensure that the plaintiff was educated in the "least restrictive environment" as required by § 1412(C)(5). The gravamen of all these claims is the denial of a FAPE.
Applying the hypothetical. questions posed in Fry to this case makes it clear that the plaintiff’s discrimination and negligence claims, and the related indemnification claims, seek relief for the denial of a FAPE. First, the court asks whether the plaintiff could have brought the same claim if the alleged conduct had occurred in a public facility other than a school. Second, the court asks whether an adult could have brought the same claim against the school. The plaintiff could not sue a public facility for failing to educate him in a least restrictive environment, nor could he sue a public facility for failing to report on his academic progress and social development. Likewise, an adult cannot sue a school for such deprivations. The fact that segregating disabled people from non-disabled people in a public facility is grounds for an actionable discrimination claim does not take the plaintiff’s claim outside the scope of the IDEA. See M.A. v. New York Department of Education, 1 F.Supp.3d 125, 131-32 (S.D.N.Y. 2014) (claim that disabled student was removed from classroom to the hallway for separate instruction required exhaustion of administrative remedies under the IDEA). The plaintiff’s complaint includes allegations that ascribe a discriminatory intent to the defendants’ actions. For example, the complaint alleges discrimination in counts three, five, seven, and nine based on allegations that the individual defendants "exploited the fact that the minor plaintiff did not have functional speech and could not tell his father what had been happening to him, when it started or how it made him feel." The defendants may well have been actuated by a discriminatory purpose, but the existence of such a motivation does not extinguish the exhaustion requirement. The Supreme Court clearly anticipates in Fry that claims for the denial of a FAPE might overlap with discrimination claims- and those discrimination claims can be pursued, provided there has been compliance with the IDEA’s exhaustion requirement. Fry v. Napolean Community Schools, supra, 137 S.Ct. 749-50.
The conclusion that the plaintiff’s claims seek relief for a denial of a FAPE is further supported by the history of the proceedings. The plaintiff began this litigation by seeking a due process hearing, in accordance with the IDEA and General Statutes § 10-76h. In Fry, the Court stated that "prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term." (Citation omitted.) Fry v. Napolean Community Schools, supra, 137 S.Ct. 757. The allegations in the plaintiff’s complaint to the Department of Education are substantially the same as the allegations set forth in the first twenty counts of the plaintiff’s complaint in this lawsuit. In the administrative complaint, the plaintiff alleged that the defendant Board of Education "violated the Individuals with Disabilities Education Act" and "failed to provide [him] with a Free and Appropriate Public Education." When he specified the relief he was seeking, it included changes to his IEP, including a request that he be provided, at no cost to him, a Saturday morning socialization program offered by a private provider. The plaintiff withdrew the complaint seeking a due process hearing, but not because he came to an "awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely." Id. On the contrary, although the request for a due process hearing was withdrawn, the plaintiff requested that the Department of Education go forward with the investigation of the State Complaint, including the claim that the school failed to educate the plaintiff in the least restrictive environment. Thus, the history of the proceedings confirms that the claims asserted in counts one through twenty seek relief for the denial of a FAPE.
Unless there is an applicable exception to the exhaustion requirement, the court is constrained to dismiss counts one through twenty. "Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine ... We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes. We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate; the procedures followed by the administrative agency are constitutionally infirm; or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Internal citations omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 103, 726 A.2d 1154 (1999). The plaintiff has argued that the exhaustion requirement is not applicable to his claims, but has not alternatively asserted that any known exception applies. The plaintiff instead makes the point that the report produced by the Department of Education at the end of its investigation substantively satisfies the policy concerns underlying the exhaustion requirement. "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 v. East Meadow Union Free School District, supra, 514 F.3d 245-46, quoting Polera v. Board of Education of Newburgh Enlarged City School District, supra, 288 F.3d 487. One of the benefits of the exhaustion requirement is the creation of a complete factual record and application of administrative expertise to the issues, which facilitates judicial review and promotes judicial efficiency. Polera v. Board of Education of Newburgh Enlarged City School District, supra, 288 F.3d 487. The plaintiff maintains the Department of Education’s report fulfills that purpose. The exhaustion requirement, however, has other purposes, including ensuring that "a disabled student claiming deficiencies in his or her education may not ignore the administrative process, then later sue for damages." Id., 488. The plaintiff has cited no legal authority for the proposition that administrative remedies may be exhausted by some process other than the one specified. Moreover, at the end of the Department of Education’s investigative report, it invited the parties to contest its conclusions by seeking a due process hearing. The plaintiff chose not to do that.
CONCLUSION
The IDEA requires that plaintiff exhaust his rights in a due process hearing before filing a civil lawsuit. The record establishes the plaintiff did not do that and, therefore, the court lacks subject matter jurisdiction. The defendants’ motion to dismiss is granted.