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R.A. v. State of Connecticut Department of Education

United States District Court, D. Connecticut

October 11, 2016

R.A. and M.A, individually and on behalf of M.A., a minor, Plaintiffs,



         This action arises from the decision to deny a disabled student admission to the Oliver Wolcott Technical High School, which is a part of the Connecticut Technical High School System administered by the State of Connecticut Department of Education. The student's parents (“Plaintiffs”) claim that the denial violated the student's rights under § 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794 (“Section 504”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and seek a preliminary injunction requiring the Defendants to admit the student to the high school. (ECF No. 2.)

         The Defendants have moved to dismiss, contending that the Court lacks subject matter jurisdiction because the Plaintiffs failed to exhaust administrative remedies. The Court held a hearing on August 24, 2016, at which it heard evidence on the Plaintiffs' Motion for Preliminary Injunction and argument on the Defendant's Motion to Dismiss. At the conclusion of the hearing, I stated that I was uncertain about whether the Court had jurisdiction and ordered the Plaintiffs to provide further information related to this issue. I also stated that, if I concluded that the Court had jurisdiction, I would deny the Motion for Preliminary Injunction. This ruling supplements my remarks at the hearing.

         I now conclude that Plaintiffs' Section 504 and ADA claims are subject to the exhaustion requirement of the Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400, et seq (“IDEA”), and thus that under Second Circuit precedent the Court does not have subject matter jurisdiction.[1] The application of the IDEA and its exhaustion requirement to the sequence of events in this case, however, raises a novel issue: Do a student and his parents have to exhaust remedies under the IDEA when they file suit after the student became IDEA eligible, but their suit challenges a decision made by school authorities before the student became IDEA eligible? I answer this question affirmatively and thus GRANT the Motion to Dismiss. Because existing Second Circuit case law does not address this issue, I also indicate how I would rule on the merits of the Motion for Preliminary Injunction in the event I am incorrect about the jurisdictional issue. In the event that the Court does have jurisdiction, the Motion would be denied because the Plaintiffs have failed to show sufficiently serious questions going to the merits. Based on the submissions of the parties and the evidence introduced at the August 24 hearing, I make the following findings of fact and conclusions of law.

         I. Findings of Fact[2]

         A. The Connecticut Technical High School System

         The Connecticut Technical High School System (“CTHSS”), a division of the Defendant Connecticut Department of Education, runs the Oliver Wolcott Technical High School in Torrington, Connecticut (“OWTHS”). Defendant Ruth Simoncelli is the director of admissions at OWTHS. OWTHS has a different curriculum than a general comprehensive high school. In particular, OWTHS has a dual curriculum, where the instructional cycles alternate between academic curriculum and technology curriculum. (Exhibit 10.) While comprehensive high schools cover academic curriculum in 180 days over two semesters, technical high schools, including OWTHS, cover academic curriculum in 90 days. (Id.) The other 90 days are spent on technology curriculum. (Id.)

         In addition, unlike general comprehensive high schools, which have open enrollment, technical high schools in Connecticut have a competitive admissions process. There are two phases in this process. (Exhibit 11.) In the first phase, the applicants fill out a written application and are assigned points based on grades and other information submitted. (Id.) The applicants are then ranked, and those who do not meet the admissions criteria are added to a waitlist. (Id.) Once an applicant passes the first step, technical high schools ask for additional records, including any 504 Plans and Individualized Education Plans (“IEPs”).[3] (Id.) Once those records are received by the technical high school, a Planning and Placement Team Meeting (“PPT”) or 504 meeting is convened to determine what accommodations the student will need.[4] (Id.) In some circumstances, this “meeting may determine that the CTHSS is not an appropriate placement for a student to receive a free and appropriate education.” (Exhibit 2.) Students with disabilities are routinely admitted to OWTHS and are accommodated with 504 Plans and IEPs. (Uncontroverted Facts, ECF No. 39 at ¶ 1.)

         B. M.A.'s Application to OWTHS

         M.A. (the “student”) is a fourteen year old who was due to enter high school in the 2016-2017 school year. (ECF No. 39 at ¶ 1.) The 2016-2017 school year began on August 29, 2016. (Second Am. Compl., ECF No. 27 at ¶ 13.) Plaintiff R.A. is the student's father and Plaintiff M.A. is the student's mother. (ECF No. 39 at ¶ 2, 3.)

         The student has been diagnosed with anxiety. (ECF No. 39 at ¶ 12.) The parties agree that his anxiety is a “physical or mental impairment that substantially limits one or more major life activities.” (Id.) At the end of his 7th grade year at the Gilbert School, a combined middle and high school in Winsted, Connecticut, the student came home from school extremely upset after watching a video about ISIS in social studies class. After that point, the student refused to return to the Gilbert School. The student was diagnosed with anxiety and panic disorder and was treated by three doctors. (Exhibits 5, 7, 8.) Each doctor wrote a note stating that the student was diagnosed with anxiety and could not attend school as a result. (Id.) The notes were delivered to the Gilbert School. The last note and update that the Gilbert School received was dated December 12, 2015. (Exhibit 8.)

         In response to these notes, the Gilbert School developed a 504 plan for the student, which provided that he would receive homebound tutoring until further notice. (Exhibit 4.) In February of 2016 the Gilbert School convened a PPT meeting, at which Gilbert School officials determined that he was not a student with a disability under the IDEA. See note 3, supra. The Gilbert School accordingly declined to create an IEP for him. (Exhibit 4.) The student did not attend the Gilbert School and received homebound instruction during his 8th grade year. (Id.)

         In November 2015, the student applied for admission to the OWTHS. (ECF No. 39 at ¶ 10.) With the application, the Plaintiffs executed a release of records from the Gilbert School, which would include, if applicable to the student, “documents including course grades, discipline records, test results, 504 plans, IEP and/or PPT records, psychological reports, attendance records, health records, and records of extracurricular activities.” (Exhibit 3.)

         On January 26, 2016, Plaintiffs were notified by OWTHS that the student had successfully completed the “first step in the application process.” (Exhibits 2, 3.) The first step in the admissions process involved an analysis of the student's grades only. (Id.) The letter stated that the “continuation of the application process is predicated upon” a variety of things, including the “convening of a PPT/504 meeting (where applicable).” (Id.) Plaintiffs were invited to a 504 meeting at OWTHS on April 19, 2016. (Exhibits 14, 15.) Plaintiffs were told that the “IICAPS team” the student was working with was welcome to attend as well.[5] (Exhibit 14.) OWTHS also invited representatives from the Gilbert School to the meeting. (Exhibit 21.) A representative of the Gilbert School responded that she would try to attend, but OWTHS never received any further communication from the Gilbert School with regard to the meeting, and no one from the Gilbert School attended. (Id.) The purpose of the meeting was to discuss accommodations the student would need to attend OWTHS. (Id.) Before the meeting, representatives from OWTHS asked Plaintiffs to provide “copies of the psychiatric evaluation that was done and their treatment plan for” the student. (Exhibits 14, 22.) The Plaintiffs did not provide any new information about the student, and because the IICAPS team had only recently begun work with the student, they could not provide any information. At the meeting, the student's mother reported that little had changed with respect to the student's anxiety and diagnosis. The only records that Defendants received were the school and medical records provided by the Gilbert School, including the last doctor's note in the file from December 2015.

         At the meeting, the 504 Team[6], including Defendant Simoncelli, determined that the student would not be admitted to OWTHS for the 2016-2017 school year. (Exhibit 15.) Initially, the 504 team discussed possible accommodations for the student, such as different reading materials. After more discussion, however, the team determined that based on the student's “identified 504 needs and required programming, CTHSS [was] not able to meet his educational needs.” (Id.) In particular, OWTHS noted that it could not provide the home tutoring that the student was currently receiving as part of his 504 plan. (Id.) At the evidentiary hearing, Defendant Simoncelli testified that OWTHS has never made the accommodations that the student required, namely homebound instruction, for any other student. After the meeting, OWTHS told the student's mother that to be admitted in the future, the student would have to “demonstrate documented ability to successfully participate in a general education school/classroom environment.” (Id.) After the meeting, the student's mother followed up with the Connecticut Technical High School System. Carrie Leib, an educational consultant for the System, reiterated that OWTHS would have to see regular attendance in a general education system, and that the student was welcome to reapply once that was shown. (Exhibit 16.) There was no further communication between Plaintiffs and OWTHS.

         II. Procedural History

         Plaintiffs filed a complaint along with a Motion for Preliminary Injunction on July 20, 2016. (ECF No. 1, 2.) The initial complaint named only the State of Connecticut Department of Education. (ECF No. 1.) In response to the Court's Order to Show Cause why the case should not be dismissed on Eleventh Amendment grounds (ECF No. 14), the Plaintiffs filed a First Amended Complaint, which added as defendants two Connecticut Technical High School System educational consultants. After an in-court status conference on August 5, 2016, the Plaintiffs filed a Second Amended Complaint, removing the two educational consultants and adding as a defendant Ruth Simoncelli.

         At the August status conference, I raised and directed the parties to brief the issue of whether Plaintiffs' claims were subject to the exhaustion requirement under the IDEA. (ECF No. 25.)

         On August 10, 2016, Defendants filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the Plaintiffs had failed to exhaust administrative remedies under the IDEA. (ECF No. 29.) In addition to responding to the Motion, Plaintiffs submitted their Second Amended Complaint, in which they “ma[de] or revise[d] certain factual allegations to make clear that at all relevant times that the student was not disabled pursuant to the Individuals with Disabilities Education Act, and, therefore, the IDEA's policy to exhaust prior to the commencement of litigation should not apply.” (Mot. to Amend, ECF No. 26 at 2.) Plaintiffs alleged that “[a]t all times relevant herein, the student was not identified as a child with a disability pursuant to” the IDEA. (ECF No. 27 at ¶ 16.)

         In response to an Order directing the parties to file on the docket any notice in their possession that was given to the Plaintiffs about their rights under the IDEA (ECF No. 38), the Defendants filed a statement that they had no such documents. (ECF Nos. 40, 41.) The student's mother filed an affidavit stating only that she was not provided notice of the IDEA's procedural safeguards in advance of the April 19th meeting, which as noted, was a 504 meeting. (ECF No. 41 at ¶ 3.)

         At the August 24 hearing on the Motion for Preliminary Injunction, however, M.A., the student's mother, testified that the student had in fact been classified as a child with a disability under the IDEA at a July 2016 PPT meeting with the Gilbert School. Based on this new information, I ordered the Plaintiffs to provide “all documents that they received at the July meeting with the Gilbert School, and any documents received thereafter or before that concern the July PPT meeting or [the student's] designation as a child with a disability under the IDEA.” (ECF No. 43.) The Plaintiffs complied with the order and hand-delivered to chambers on August 25, 2016 the student's IEP records from April, May, and July (ECF No. 45), a psychological evaluation by Michelle Quattrone of the Winchester Public Schools, prepared on May 20, 2016 (ECF No. 44 at 5), and a psychiatric report prepared by Alicia Carmona, M.D., prepared June 14, 2016. (Id. at 12.) These documents show that the student was classified as a child with a disability under the IDEA under the “Other Health Impairment” category on July 12, 2016. The documents also reveal that Plaintiffs were pursuing an IDEA classification for their child starting in February 2016 and continuing up until the student was ultimately identified as a child with a disability under the IDEA on July 12, 2016. (See ECF No. 45.) In April, the Plaintiffs returned to the Gilbert School administrators and requested that the student be reevaluated. The Gilbert School complied, but in May determined again that the student was not a child with a disability under the IDEA. The Plaintiffs again requested that the student be reevaluated by an independent psychiatrist. The Gilbert School again complied, and after the student met with the independent psychiatrist, he was determined to be a child with a disability under the IDEA in July.

         In light of the student's classification under the IDEA, the Gilbert School created an IEP for the student. The new IEP no longer mandates that the student receive homebound instruction, but rather sets goals to reintegrate the student into a general education class. The psychological and psychiatric reports suggest that the student could thrive at a technical high school. (Id. at 14.)

         None of these documents was provided to the Court, Defendants, or opposing counsel before August 25, 2016, the day after the preliminary injunction hearing.[7] The PPT/IEP documents make clear that Plaintiffs received at the February 18, 2016 meeting a copy of Procedural Safeguards in Special Education, which informs parents of children in need of special education of their rights under the IDEA. (ECF No. 45 at 9, 14, 17, 20, 21.) The student's mother also provided an affidavit stating that she received a copy on February 18, 2016 along with a copy of Parental Notification of the Laws Relating to Restraint and Seclusion. (ECF No. 42 at 1.) There was no evidence presented at the hearing ...

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