MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
I held oral argument on May 6, 2000, to hear the parties' responsesto my Order of April 30, 2004, concerning the defendants' motion todismiss. At that time, the lawyers helpfully clarified the issues in thiscomplicated area where home schooling intersects with the federalIndividuals with Disabilities Education Act ("IDEA"). I nowGRANT the defendants' motion to dismiss all the federal claims,and REMAND the remaining state law claims (Counts I and III) tostate court.
The parents of this autistic nine-year-old obviously care very deeplyabout their son and his educational and social development. They trulybelieve that he has been discriminated against, because of hisdisability, in the withdrawal of playground privileges at Falmouth'sPlummer-Motz/Lunt School, privileges they consider essential to his social development. The municipal andschool officials in turn defend their decision as not discriminatory, butbased upon their responsibility to all the children using the playground.I know that it will be frustrating to the parents that I decline toresolve this factual dispute. But judges have limited powers. It isimportant to be faithful to those limitations in a democracy. Here, theIDEA specifies that before filing a lawsuit under any federal law thatprotects the rights of children with disabilities, a plaintiff must firstexhaust the administrative remedies that the IDEA provides, at least ifthe relief requested is also available under the IDEA. Those conditionsare satisfied here, but the plaintiffs have failed to exhaust theiradministrative remedies. I must therefore dismiss the federal claims.Without the federal claims, it is appropriate to remand the remainingstate law issues to the state court from which this case was removed.
Most of the relevant allegations about this voluntarily home-schooledchild, his use of the public school playground, and the suspension ofthose privileges last November, are described in my earlier order ofApril 30, 2004. See Fitzpatrick v. Town of Falmouth, 2004 U.S.Dist. LEXIS 7494, *l-4 (D. Me.). At that time, I invited evidentiarysubmissions on the question whether the plaintiffs had exhaustedavailable administrative remedies to challenge the suspension. The schoolofficials filed an affidavit with attached documents, and at the hearing the parents submitted two letters. From those documents, as well asuncontested statements at oral argument, I find the following factsconcerning the exhaustion requirement.
This home-schooled autistic child did have a Pupil Evaluation Team("PET") at the Plummer-Motz/Lunt School, but did not have anIndividualized Education Program ("IEP") as federal and state law usesthose terms. A PET program meeting on September 11, 2003, attended by themother approved the child's use of the school playground. SeeAff. of Gayle A. Fitzpatrick as Supplemental and in Reply to Defs.' Opp'nto Pls.' Mot. ("Fitzpatrick Aff."), Ex. A, Pupil Evaluation Team Minutesof 9/11/03 (Docket Item 11) ("Playground use approved."); Aff. of CarolynCrowell on Issue of Exhaustion ("Crowell Aff.") ¶ 4 and Ex. 2 (DocketItem 27). On November 7, 2003, school officials suspended playgroundprivileges. See Fitzpatrick Aff. ¶ 2; Ex. D, Letter fromCrowell to Fitzpatrick of 11/7/03 (Docket Item 6).
At a subsequent PET meeting on November 24, 2003, attended by themother and a lawyer, school officials described incidents ofinappropriate behavior on the playground and stated that it would benecessary to develop a behavior management plan. SeeFitzpatrick Aff., Ex. B, Pupil Evaluation Team Minutes of 11/24/03;Crowell Aff. ¶ 9. The Special Services Director recommended that afunctional behavior assessment be completed on the plaintiffs' son,see Fitzpatrick Aff., Ex. B, Pupil Evaluation Team Minutes of11/24/03; Crowell Aff. ¶ 10, a request that the plaintiffs declined. SeeFitzpatrick Aff., Ex. B, Letter from Fitzpatrick to Crowell of 12/4/03.The plaintiffs previously had received a copy of the Maine SpecialEducation Regulations procedural safeguards.1 Pls.' Mem. in Opp'n toDefs.' Supplement Mot. to Dismiss and in Opp'n to Defs.' Mot. to DismissAm. Compl., Ex. A (Docket Item 21).
My Order of April 30, 2004, discussed the IDEA claim (then Count VII ofthe First Amended Complaint), the absence of a request for damages andthe demand for a jury trial. The IDEA was the source of the defendants'argument that the plaintiffs must first exhaust administrative remediesbefore suing on their federal claims. Since then, the plaintiffs havefiled, without objection, a Second Amended Complaint that drops the IDEAclaim altogether, adds claims for money damages and drops the request forjury trial.
At oral argument, the plaintiffs stated that their primary claims aredisability discrimination claims under the federal civil rights laws,42 U.S.C. § 1983, 1985, and 1986 (Counts IV, V, and VI). These are thestatutes commonly invoked to protect constitutional rights. Exhaustion ofadministrative remedies is not ordinarily required before filing alawsuit under these statutes. See, e.g., Patsy v. Bd. of Regents ofthe State of Florida, 457 U.S. 496, 516 (1982) (interpreting section1983). When Congress first enacted the IDEA (formerly known as theEducation of the Handicapped Act), however, the United States SupremeCourt held that it supplanted section 1983 for cases involving disabledschoolchildren. See Smith v. Robinson, 468 U.S. 992, 1011-12(1984). Congress quickly changed the statute to alter that result, byadding this language: 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, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.20 U.S.C. § 1415(1) (2000). If the new language had stoppedthere, the plaintiffs would be able to proceed on their federal claims(sections 1983, 1985, 1986, the equal protection clause of the U.S.Constitution, and Section 504 of the Rehabilitation Act of 1973). But thestatute went on to add the following additional language: 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) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.20 U.S.C. § 1415(1) (emphasis added). The "procedures undersubsections (f) and (g)" are due process hearings before state or local educationalagencies and appeals before state educational authorities. In my April30th Order, I quoted at length from First Circuit opinions that makeclear that this language means just what it says: if the relief isavailable under the IDEA, it doesn't matter that the lawsuit is broughtunder a different federal statute or constitutional provision.Administrative remedies still must be exhausted. See Rose v.Yeaw, 214 F.3d 206, 209-10 (1st Cir. 2000) ("[t]his requirementapplies even when the suit is brought pursuant to a different statute solong as the party is seeking relief that is available under subchapter IIof IDEA"); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64(1st Cir. 2002) (requiring exhaustion even when seeking money damages).As stated in Weber v. Cranston Public School Committee,245 F. Supp.2d 401, 406 (D.R.I. 2003) (emphasis added), "The availability ofconcurrent relief pursuant to statutes other than the IDEA . . . does notoverride the IDEA's exhaustion requirement, which applies to allclaims requesting relief that is available under the IDEA, whether or notthey invoke that statute." Thus, dropping the IDEA claim from theSecond Amended Complaint actually makes no difference to the outcome, ifthis family is seeking relief that is available under the IDEA and if thedue process hearing procedures are available to them.
The relief this family seeks is restoration of playground privileges tothe child and, with the new Second Amended Complaint, damages.Restoration of playground privileges is certainly relief available underthe IDEA. The privileges were established at a PET meeting; they were withdrawn by schoolofficials; their withdrawal was reviewed at another PET meeting; and theparents had been informed of the procedural safeguards included in theMaine Special Education Regulations that were promulgated pursuant to theIDEA. So far as the new claim for damages is concerned, the First Circuithas explicitly held that exhaustion is still required before damages canbe pursued. See Frazier, 276 F.3d at 64.
Were procedures available that satisfied 20 U.S.C. § 1915 (f) and(g)? Those subsections entitle aggrieved parties to seek a due processhearing and appeal the finding of such a hearing to the state educationagency. Under Maine statutes and the Maine Special Education Regulations,home schooling parents are entitled to file a written complaint with theCommissioner of the Maine Department of Education alleging that schoolofficials are not complying with state or federal laws regarding theeducation of disabled students. See 20-A M.R.S.A. § 7206(1)(Supp. 2003) ("An interested party may file with the commissioner awritten complaint alleging that a school administrative unit . . .serving exceptional students has failed to comply with this chapter.");Me. Dep't of Educ., 05-071 CMR 101-4.7(G), 13.5 ("An . . . individual mayfile a written complaint with the Commissioner alleging that a schooladministrative unit . . . has failed to comply with State or Federal lawregarding the identification, evaluation, placement or the provision of afree appropriate public education to a student with a disability."). Following the filingof such a complaint, the commissioner initiates and completes aninvestigation and written report. See 20-A M.R.S.A. §7206(2). The investigator may carry out an independent on-siteinvestigation; will provide the complainant the opportunity to submitadditional information; will review all relevant information and make apreliminary independent determination as to whether the school isviolating a requirement of the regulations; may convene a complaintresolution meeting to discuss preliminary findings and develop a proposedresolution to the complaint; and will transmit a written decision to theDepartment that addresses each allegation in the complaint. Me. Dep't ofEduc., 05-071 CMR 101-13.5. It is undisputed that the parents declined tofile a complaint. See Crowell Aff. ¶ 15 (Docket Item 27).
Initially I had been troubled that under the Maine Special EducationRegulations a written complaint concerning a home-schooled student didnot appear to be subject to a due process hearing with the localeducational agency. See Me. Dep't of Educ., 05-071 CMR101-4.7(G). But at oral argument, the defendants' lawyer pointed me to20-A M.R.S.A. § 7206(4). That statute provides that within 30 days ofreceiving the investigation report, a parent can request a due processhearing so as to challenge the report. Thus, Maine does provide the due process hearing mandated by 20 U.S.C. § 1415(f).2 Theplaintiffs therefore are required to exhaust these administrativeremedies before pursuing their federal claims.
I also find that plaintiffs do not meet any exceptions to theexhaustion requirement. I discussed those exceptions in my April 30thOrder and add the following. It would not have been fufile to seek relieffrom the appropriate state administrative agency in November 2003, whenthe suspension first occurred.3 I assess futility and irreparableharm as of that date, not now, when the end of the school year isimminent. I therefore conclude that, notwithstanding the SecondAmended Complaint, the plaintiffs failed to exhaust their administrativeremedies, and their claims arising under federal law must be dismissedpursuant to 20 U.S.C. § 1415(1).
There is a reason for the exhaustion requirement. The question here iswhether playground privileges are appropriate for this home-schoolednine-year-old or whether he has been discriminated against. According tothe court of appeals: The IDEA's administrative machinery places those with specialized knowledge — education professionals — at the center of the decisionmaking process, entrusting to them the initial evaluation of whether a disabled student is receiving a free, appropriate public education. . . .
. . . . [T]he provision of judicial review is "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." . . . Allowing plaintiffs to bypass the IDEA's administrative process en route to state or federal court disrupts this carefully calibrated balance and shifts the burden of factfinding from the educational specialists to the judiciary. That phenomenon is directly at odds with the method of the IDEA: "[t]o allow parents to come directly to federal courts will render the entire scheme [of the IDEA] nugatory."Frazier, 276 F.3d at 60-61 (citations omitted).
The defendant's Motion to Dismiss Count IV (42 U.S.C. § 1983),Count V (42 U.S.C. § 1985(3)), Count VI (42 U.S.C. § 1986), CountVII (29 U.S.C. § 794(a)) and Count VIII (Equal protection clause ofthe U.S. Constitution) is GRANTED. Count I (5 M.R.S.A. §4601) and Count III (5 M.R.S.A. § 4592) are REMANDED tostate court.
1. The letters provided by the plaintiffs at oral argument shedlittle light on what administrative remedies plaintiffs were told wereavailable. The plaintiffs wrote the Falmouth Board of Educationcomplaining of slander, harassment and discrimination against their sonand family, and requesting that all allegations about their son bedeleted from his permanent educational records. See Pls.' Ex. 1(Docket Item 29). The Chair of the Falmouth School Board respondedaccordingly, indicating that the primary thrust of the letter was inregards to the content of the educational records. See Pls.'Ex. 2 (Docket Item 29). He indicated a possible remedy for this issue aswell as described a "number of avenues" for dealing with allegations ofharassment and discrimination. Id. This exchange was notrelated to any remedies under the IDEA.
2. "Whenever a complaint has been received . . . the parentsinvolved in such complaint shall have an opportunity for an impartial dueprocess hearing, which shall be conducted by the State educational agencyor by the local educational agency, as determined by State law or by theState educational agency." 20 U.S.C. § 1415(f)(1).
3. Arguably, had plaintiffs initiated complaint proceedings, theschool would have been required to continue permitting use of theplayground until the complaint was resolved pursuant to the "stay put"provisions of the Maine Special Education Regulations. See Me.Dep't of Educ., 05-071 CMR 101-12.12.