Edward Joseph HELDMAN, on Behalf of his handicapped son,
T.H., and on behalf of himself as an advocate for
handicapped children, Plaintiff-Appellant,
v.
Thomas SOBOL, Commissioner, State Education Department of
New York, Defendant-Appellee.
No. 446, Docket 91-7581.
United States Court of Appeals,
Second Circuit.
Argued Oct. 31, 1991.
Decided April 16, 1992.
Michael H. Sussman, Goshen, N.Y., for plaintiff-appellant.
Martha O. Shoemaker, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., of counsel), for defendant-appellee.
Before OAKES, Chief Judge, LUMBARD and ALTIMARI, Circuit Judges.
OAKES, Chief Judge:
This case presents the question of whether the parent of a child with a disabling condition who is challenging an alleged system-wide violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485 (1988 & Supp. II 1990) can overcome the hurdles of standing, justiciability, and exhaustion of administrative remedies. IDEA requires states, which receive grants under the Act, to provide children with disabling conditions with "a free appropriate public education" in the least restrictive environment suitable for the child. §§ 1400(c), 1412(5)(B).1 Rather than detailing the precise substantive rights applicable to all affected children, Congress opted for individually tailored programs--programs crafted by parents and educators working together to determine what is appropriate for each child. Congress recognized that such an unconventional approach would require extensive procedural safeguards to protect the educational rights of children with disabling conditions. Thus, the scope of these procedural protections--which this case requires us to examine--must be determined in light of their role in ensuring the appropriate application of the Act.
Foremost among the procedural safeguards provided for in the Act is the guarantee that parents may contest their child's placement or classification in "an impartial due process [administrative] hearing" and, if dissatisfied with the outcome, they may initiate a civil action in state or federal court. §§ 1415(b)(2)-(e)(2). In this case, we must decide whether section 1415 of IDEA confers on a parent of a disabled child the right to judicial relief for system-wide due process violations. In particular, Edward J. Heldman, on behalf of his son T.H., challenges N.Y.Educ.Law § 4404 (McKinney 1981 & Supp.1992) and its implementing regulation, 8 N.Y.C.R.R. § 200.5(c)(1) (1991), which permit boards of education to appoint the hearing officer before whom the appropriateness of the child's placement must be demonstrated. The United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, granted defendant's motion to dismiss on the grounds that Heldman neither had standing to contest N.Y.Educ.Law § 4404 nor had he exhausted his administrative remedies as required by IDEA prior to bringing suit in federal court. We reverse, holding that this case presents a justiciable controversy, that Heldman has standing to bring suit, and that to require exhaustion of remedies in this case would be futile.
* A
IDEA created an arena in which a committee composed of special education experts, teachers, and parents could cooperatively determine what constitutes an appropriate education for each disabled child. The findings of the committee are formalized in an "individualized education program" (IEP), which details the child's level of educational performance, the goals for the year, and the educational services needed for the child to achieve these goals. § 1401(a)(19). The IEP process reflects a novel approach to the guarantee of rights to a minority: Congress, in lieu of uniform substantive standards, sought to protect the interests of the child by providing for parental participation in the process of charting an appropriate education for their child. §§ 1400(c), 1401(a)(19), 1412(7), 1415; see also Honig v. Doe,
To ensure that the parents would not be silenced by the very forces that had once excluded disabled children from public education, Congress granted parents the right to seek review of their child's IEP. See generally Laura Rothstein, Rights of Physically Handicapped Persons §§ 2.23-.31 (1984). The parents of a child with a disabling condition may seek a hearing before a hearing officer whose personal and professional interests do not conflict with his or her ability to make an impartial decision. § 1415(b)(2);2 34 C.F.R. §§ 300.506-.507 (1991). States may opt for either a single or multi-tiered system of review. If the initial hearing takes place at the local level, the parents may appeal to the state agency for a review of the record. § 1415(c).3 At the conclusion of the administrative review process, the parties may file a civil suit in federal district court or state court. § 1415(e)(2).4
Although IDEA sets forth a blueprint for state and local programs, the states are left to fashion the requisite programs. In New York state, the IEP is produced by a Committee on Special Education (CSE), whose members are appointed by the board of education or trustees of the school district. N.Y.Educ.Law § 4402(1)(b)(1) (McKinney 1981 & Supp.1992). New York provides for a two-tiered system for the review of IEPs. A hearing officer, appointed by the board of education from a list of state-certified officers, conducts the initial hearing and makes a recommendation to the board. N.Y.Educ.Law § 4404(1); 8 N.Y.C.R.R. § 200.5(c)(1) (1991). Parties may appeal to the commissioner of education for review of the initial hearing. N.Y.Educ.Law § 4404(2).5
Heldman claims that the New York state's procedure for the selection of hearing officers is inconsistent with IDEA's due process guarantee. We turn now to the complicated procedural history of this case.
B
This case grew out of a dispute over what constituted an appropriate education for the Heldmans' son, T.H. In 1988, the Heldman family moved into the Minisink Central School District of New York ("Minisink"). The Minisink CSE classified T.H. as learning disabled and placed him in the local high school, augmenting this placement with special education classes. T.H. did not adjust well to the new setting and he attended school irregularly.
In January 1989, the CSE met again to modify T.H.'s IEP. Due to the severity of T.H.'s learning disability, the CSE recommended placing him in the Karafin School, a private institution. Although the Heldmans had reservations about the appropriateness of the new placement, they consented to the change because they believed Karafin to be the only state-approved school that could accommodate T.H.'s needs.
State approval of the proposed placement, however, was not forthcoming. A month later the CSE changed T.H.'s classification from learning disabled to emotionally disturbed with the understanding that this would expedite approval of the private placement. Following submission of a revised application, the New York State Education Department ("NYSED") approved T.H.'s private placement. The Heldmans' concerns about the appropriateness of T.H.'s placement and classification persisted and they removed T.H. from Karafin three days after his arrival at the school.
An emergency meeting of the CSE was convened to resolve the Heldmans' challenge to T.H.'s placement and classification. The CSE changed neither T.H.'s IEP nor his classification. Pursuant to N.Y.Educ.Law § 4404(1), the Heldmans requested an impartial hearing to challenge T.H.'s classification as emotionally disturbed, as opposed to learning disabled, and his placement in Karafin as a denial of an appropriate education. The Minisink Board of Education selected a hearing officer, who had been recommended by the school district's attorney, to preside over the hearing.
During the winter of 1989, prior to the dispute over T.H.'s IEP, the Heldmans, acting as concerned citizens, became involved in a dispute over the independence of hearing officers. Frank Eckelt, a hearing officer in an unrelated proceeding, was found to have violated the conflict of interest provisions by serving both as a consultant and hearing officer for a school district. The Heldmans actively campaigned for Eckelt's removal from the list of certified hearing officers. As a result of the Eckelt controversy, the Heldmans were made aware of the potential for abuse within the New York system for the selection of hearing officers. This awareness apparently led them to question the impartiality of the hearing officer, one George Kandilakis, assigned to review T.H.'s IEP. The Heldmans, after being notified of the identity of their hearing officer, requested both a copy of his resume and a disclosure of past and present relationships with either Minisink or the Karafin School. The hearing officer, however, denied these requests.
The Heldmans subsequently found a letter in T.H.'s file from Minisink's attorney--the very attorney they would be arguing against in the upcoming hearing--to the Board of Education recommending that they select Kandilakis as the hearing officer. Furthermore, in the letter, the attorney revealed that "[i]t was through Dr. Eckelt that I was able to locate Mr. Kandilakis." On the basis of this information, on March 31, 1989, the Heldmans filed a motion of recusal and withdrew their hearing request pending a decision on the motion. Officer Kandilakis never responded to the motion and, on April 10, 1989, he conducted the hearing without the Heldmans being present.
On April 11, 1989, Edward Heldman, pro se, filed suit in federal district court challenging the manner in which hearing officers are selected in New York state, which he claimed had denied T.H. an impartial review of his IEP. The district court dismissed the complaint with leave to amend on July 25, 1990. On August 31, 1990, Heldman filed the current amended complaint, which the district court dismissed for lack of standing and failure to exhaust administrative remedies.
Heldman's federal filing did not bring a halt to the state administrative proceedings. The hearing officer rendered a decision on May 30, 1989, which affirmed T.H.'s placement but found that there was insufficient evidence in the record to support classifying T.H. as emotionally disturbed. Heldman appealed the hearing officer's decision regarding placement to the Commissioner of Education on July 15, 1989. On November 15, 1989, the Commissioner held that the Board of Education had no basis to proceed with a hearing once the moving party had withdrawn. The Commissioner ordered the Board of Education to resume the educational services provided to T.H. prior to the placement in Karafin and to reconvene the CSE to draft a new IEP.
On remand, the CSE recommended a new placement for T.H. Although Heldman thought the new placement and classification to be inappropriate, he accepted them in hopes that an amicable agreement could be reached without resort to the adversarial process. In April 1990, Heldman abandoned this informal approach and sought a second impartial hearing. On May 14, 1990, Heldman filed a written motion for the new hearing officer to recuse himself. Heldman argued, among other things, that the method of his appointment cast doubt on his ability to review T.H.'s IEP impartially. On May 22, 1990, the hearing officer denied the motion to recuse, at which point Heldman withdrew from the hearing with the apparent intention of appealing the denial to the Commissioner. On July 12, 1990, Heldman served notice that he intended to appeal to the Commissioner. On October 16, 1990, the state administrative review of T.H.'s IEP came to an end with the Commissioner's dismissal of the appeal as untimely because the notice of intention to appeal was filed more than thirty days after the hearing officer's decision. See 8 N.Y.C.R.R. § 279.2(b) (1991).
In 1991, the Heldmans, frustrated by Minisink's inability to assure T.H. an appropriate education and by the resulting deterioration of T.H.'s condition, withdrew T.H. from the public school system.
II
Federal courts may decide only actual cases and controversies. See U.S. Const. art. III, § 2.6 The parameters of the case or controversy limitation emerge from the cluster of justiciability doctrines--doctrines that incorporate concerns about the proper role of the judiciary in a democratic society and the need to assure an adversarial presentation of the issues. See Warth v. Seldin,
* The threshold question in every suit brought in federal court is whether the plaintiff has standing to invoke the authority of the federal judiciary. At a minimum, to satisfy the core requirements derived from Article III, a plaintiff must allege: (1) personal injury or threat of injury; (2) that the injury fairly can be traced to the action challenged; and (3) that the injury is likely to be redressed by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
1. Injury
Congress may create a statutory right the alleged violation of which constitutes injury in fact. Havens Realty Corp. v. Coleman,
It is elementary that the provision of a fair hearing before an impartial tribunal is a basic requirement of due process. To ensure an impartial adjudicator, certain situations have been identified in which the probability of bias reaches unconstitutional proportions. Withrow v. Larkin,
The evolution of IDEA reveals that Congress intended, through the section 1415 guarantee of "an impartial due process hearing," to incorporate the full protection of the Due Process Clauses. The legislative history of the 1975 Act points to a pair of federal court cases involving challenges to the exclusion of disabled children from the public schools, see Pennsylvania Ass'n for Retarded Children v. Pennsylvania,
The structure of IDEA similarly attests to Congress' concern for adjudicatory independence. The Act relies on parental involvement to contribute to the determination of what constitutes an appropriate education for a child. A system perceived by parents as tainted by biased adjudicators would deter parents from fulfilling their role under the Act. The success of IDEA's novel approach to protecting the rights of disabled children, thus, turns on ensuring the right to adjudicative independence. See generally David Engel, Law, Culture, and Children with Disabilities: Educational Rights and the Construction of Difference, 1991 Duke L.J. 166 (analysis of factors that tend to undermine IDEA's approach to protecting children with disabling conditions). IDEA's procedural guarantees, however, serve not only to guarantee the substantive rights accorded by the Act; the procedural rights, in and of themselves, form the substance of IDEA. Congress addressed the problem of how to guarantee substantive rights to a diverse group by relying on a process-based solution. Thus, Congress envisioned that compliance with the procedures set forth in IDEA would ensure that children with disabling conditions were accorded a free appropriate public education. See Rowley,
The Office of Special Education and Rehabilitative Services regulations implementing section 1415 also interpret IDEA as guaranteeing adjudicatory independence. According to the regulations, "[a] hearing may not be conducted ... [b]y any person having a personal or professional interest which would conflict with his or her objectivity in the hearing." 34 C.F.R. § 300.507 (1991). Heldman alleges, of course, that the New York system selects adjudicators who are beholden to the school district in violation of section 300.507. See Mayson v. Teague,
IDEA's language, legislative history, structure, and implementing regulations all bear witness that the Act prohibits the use of biased adjudicators--a prohibition that section 1415(e) permits parents to enforce in federal court. Congress, thus, conferred on the parents of disabled children an enforceable legal right to an impartial hearing officer. If Heldman's allegations are correct, the New York system of selecting hearing officers, as applied to him, denied him his due process rights under IDEA and resulted in actual injury. We turn now to the remaining requirements for standing.
2. Fairly Traceable
To establish standing, a plaintiff must also demonstrate a causal nexus between the defendant's conduct and the injury. See Allen,
The critical issue in applying the causation requirement is what constitutes a sufficient causal nexus for standing. The notion of "causation," however, is sufficiently complex to receive eleven pages of treatment in the Encyclopedia of Philosophy. 2 Encyclopedia of Philosophy 56-66 (1967) (entry authored by Richard Taylor). The Supreme Court, acknowledging that the components of standing are "not susceptible of precise definition," directed courts to find guidance in the developing case law. Allen,
The case before us, in contrast, does not present the "missing link" scenario; thus, it is distinguishable from Allen. New York state created a two-tiered system of IEP review designed to implement the procedural protections required by IDEA; Minisink, in compliance with the state regulations, selected the hearing officer who would review T.H.'s IEP, which in turn is alleged to have caused T.H.'s injury. Although a third party not before the court--Minisink--played a role in T.H.'s alleged injury, Minisink's actions were the direct result of the regulations and do not constitute "independent action." Furthermore, unlike the complaint in Allen, Heldman's pleadings aver the existence of this intermediate link between the state regulations and the injury.3. Redressability
To satisfy the redressability hurdle, a plaintiff must demonstrate the likelihood that the relief requested would, in principle, redress the injury alleged. See Orr v. Orr,
The Commissioner of Education argues that, because Heldman has withdrawn T.H. from Minisink and has no hearing pending before a local hearing officer, this relief will not inure to T.H.'s benefit. This argument conflates the redressability analysis and the closely related issue of whether the case is moot. Rephrased in terms of the mootness doctrine, the Commissioner's argument is that Heldman no longer has a sufficient personal stake in the outcome of the litigation to permit this court to consider the case. We disagree. T.H. is currently nineteen years old and has not yet completed a high school education. Although he is not currently enrolled in the public schools and has no pending IEP review hearing, T.H. remains entitled to a free appropriate public education and an impartial review of his IEP in New York state until he reaches age twenty-one. See §§ 1412(2)(B), 1415(b)(2); N.Y.Educ.Law §§ 3202, 4401(1) (McKinney 1981 & Supp.1992). Because the threat of future denial of an impartial hearing is sufficiently real and the right to contest an IEP is integral to active parental participation in the yearly process of determining what constitutes an appropriate education for their child, Heldman retains enough of a personal stake in the outcome for us to retain jurisdiction over this case.9B
We conclude that Heldman, as the father of a child with a disabling condition, has standing to challenge the New York procedures for the selection of hearing officers. Heldman also seeks associational standing, however. See Hunt v. Washington State Apple Advertising Comm'n,
III
The Commissioner contends that Heldman failed to exhaust his state administrative remedies before bringing this action in federal district court. According to this argument, the structure of section 1415 reveals that Congress intended to limit the scope of civil suits brought pursuant to section 1415(e) to challenges of final decisions of state administrative agencies relating to the evaluation or placement of a disabled child. No such exhaustion occurred in the present case; therefore, barring an exception to the exhaustion requirement, Heldman is not entitled to judicial relief for his alleged injury. Heldman brought this action following the failure of the hearing officer to recuse himself, prior to a decision by either of the two levels of state administrative review. The only proper manner in which to bring the present claim, according to the state, was to appeal the Commissioner's ruling.10
Normally, actions brought under IDEA must adhere to the exhaustion requirement. Riley v. Ambach,
The exhaustion doctrine prevents courts from undermining the administrative process and permits an agency to bring its expertise to bear on a problem as well as to correct its own mistakes. See McKart v. United States,
IV
We find that Heldman has standing to challenge 8 N.Y.C.R.R. § 200.5(c)(1) and N.Y.Educ.Law § 4404 and that this challenge falls within the futility exception to IDEA's exhaustion of remedies requirement. We therefore reverse the district court's order dismissing Heldman's complaint. With regard to Heldman's claim of associational standing, on remand the district court should afford Heldman an opportunity to amend his complaint.
Notes
In 1990, Congress changed the name of the Education of the Handicapped Act to IDEA. Pub.L. No. 101-476, 104 Stat. 1141. Although the events that led to the present suit occurred prior to the effective date of the 1990 Amendments, we refer to the Act using its current name
Congress first addressed the education of children with disabilities in the 1966 amendments to the Elementary and Secondary Education Act of 1965 (ESEA). Pub.L. No. 89-750, 80 Stat. 1191, 1204; see Erwin Levine & Elizabeth Wexler, PL 94-142: An Act of Congress 21-33 (1981). In 1970, the Education of the Handicapped Act, Pub.L. 91-230, 84 Stat. 175, replaced the ESEA provisions. Levine & Wexler, supra, at 34-37. Congress subsequently enacted the Education Amendments of 1974 ("the 1974 Act"), an interim provision, which for the first time addressed the right of children with disabilities to receive an education. Pub.L. No. 93-380, 88 Stat. 541, 579, 583; Levine & Wexler, supra, 42-71. The following year, Congress enacted the Education for All Handicapped Children Act of 1975 ("the 1975 Act"), which, despite amendments, remains the foundation for IDEA.
The relevant portion of section 1415(b)(2) provides:
[T]he parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.
The relevant portion of section 1415(c) provides:
If the [initial hearing] is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing.
Section 1415(e)(2), in pertinent part, provides:
Any party aggrieved by the findings and decision made [during administrative review] shall have the 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.
Effective July 1, 1990, a state review officer, instead of the Commissioner of Education, reviews the initial hearing. N.Y.Educ.Law § 4404(2); 8 N.Y.C.R.R. 276.10 (1991); see also Burr v. Ambach,
Article III states that "[t]he judicial Power shall extend to all Cases ... [and] Controversies ...," which has been interpreted to mean that federal courts may only hear cases or controversies. See, e.g., Allen v. Wright,
Recently, members of the Supreme Court and commentators have questioned the nexus between the mootness doctrine and Article III. See Honig,
The causation and redressability analyses overlap one another, particularly where, as in the present case, the remedy requested is the cessation of allegedly illegal conduct. National Wildlife Fed'n v. Hodel,
Even if we were to find Heldman's complaint to be moot, this case falls within the wrongs "capable of repetition, yet evading review" exception to the mootness doctrine. See Honig,
The case before us parallels the Court's findings in Honig. First, with regard to the reasonable expectation prong of the analysis, if T.H. were to return to school, there is a likelihood that a dispute would arise concerning his IEP, that Minisink would select a hearing officer pursuant to 8 N.Y.C.R.R. § 200.5(c)(1), giving rise to the same alleged violation of T.H.'s IDEA-rights. Second, the time required for review under IDEA is likely to prevent review of future claims brought by T.H.
As the Commissioner notes, if Heldman were to argue that his amended complaint of August 31, 1990 constituted an appeal from the Commissioner's decision of November 15, 1989, then the action would run afoul of the four month New York statute of limitations for appeals from final administrative decisions. See Adler v. Education Dep't,
The congressional understanding of the futility exception is spelled out in more detail in the legislative history leading to the Handicapped Children's Protection Act of 1986 (1986 Act), Pub.L. 99-372, 100 Stat. 796 (codified at 20 U.S.C. 1415(e)(4)(B)-(G) & (f) (1988)). Although the 1986 Act dealt primarily with attorneys' fees, this issue was linked to the question of exhaustion of remedies. See 20 U.S.C. § 1415(f) (1988). Senator Paul Simon, a cosponsor of both the 1975 Act and the 1986 Act, defined more precisely the parameters of the futility exception:
It is important to note that there are certain situations in which it is not appropriate to require the exhaustion of [IDEA] administrative remedies before filing a civil law suit. These include complaints that: First, an agency has failed to provide services specified in the child's individualized educational program [IEP]; second, an agency has abridged or denied a handicapped child's procedural rights--for example, failure to implement required procedures concerning least restrictive environment or convening of meetings; three, an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law, or where it would otherwise be futile to use the due process procedures--for example, where the hearing officer lacks the authority to grant the relief sought; and four, an emergency situation exists....
Cong.Rec. 21392-93 (1985); see also H.R.Rep. No. 296, 99th Cong., 1st Sess. 7 (1985)
We do not reach the broader question of when a party may challenge the bias of hearing officers prior to the exhaustion of administrative remedies. See Touche Ross & Co. v. SEC,