MEMORANDUM AND ORDER
Plaintiffs, parents suing on behalf of four minor children and the special education school the children attend, bring this action pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act of 1973. They seek a declaratory judgment that defendant, the New York State Education Department (“NYSED”), has unlawfully promulgated a policy prohibiting the use of a particular student-teacher ratio. They also seek to permanently enjoin NYSED from carrying out this alleged policy, as well as attorneys’ fees and costs. NYSED has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs’ claims. For the reasons set forth in the following memorandum and order, the Court denies the motion in its entirety.
I. Background
A. Factual Alegations
The following facts are taken from the complaint (“Compl.”), which the Court assumes to be true for the purposes of deciding this motion and construes in the light most favorable to plaintiffs, the non-moving party.
Plaintiff School for Language and Communication Development (“SLCD”) operates non-profit, private schools serving children with handicapping conditions. (Compl. ¶ 17.) An SLCD school for preschool through eighth graders is located in Glen Cove, New York, and a school for sixth through twelfth graders is in Wood-side, New York. (Compl. ¶ 18.) Plaintiffs Dr. Irene D. and Dr. George R.; Peter S.; and Dorothy M. and Louis M. (“the individual plaintiffs”) bring this action on behalf of their children with disabilities, each of whom attends SLCD. (Compl. ¶¶ 2; 14-16.)
Defendant, the New York State Department of Education (“NYSED” or “defendant”), is responsible overseeing the provision of educational services to disabled school-age students in New York State. (Compl. ¶ 19.)
As will be discussed in detail infra, the Individuals with Disabilities Education Act (“IDEA”) entitles disabled children, such as the children of the individual plaintiffs, to a “iree and appropriate public education.” (See Compl. ¶ 2). Pursuant to IDEA and implementing New York state statutes, a Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) for a disabled child to ensure that the child receives such an education. (Compl. ¶¶ 21, 23-26.)
In 1985, SLCD’s pre-school program began combing two groups of students with a “6:1:1” student-teacher staffing ratio— meaning a class with six students, one teacher, and one teacher’s aide. (See Compl. ¶¶ 58-59.) The combined class is known as a “12:2:2” or “6:1:1S” class.
[Tjhere is flexibility within existing regulations and your approved 6:1:1 stu*134 dent/staff option to implement a 12:2:2 instructional model by simply combining two 6:1:1 classes into a 12:2:2 instructional configuration. Local Committees on Special Education (CSE) would [need to] recommend on the student’s Individualized Education Program (IEP) at 6:1:1 class with the IEP annotated to indicate that two 6:1:1 classes would be combined for.instructional purposes appropriate to the individual needs of the students in the class. If a student’s IEP recommended a 12:2:2 student/staff ratio, there would be no disruption in SLCD’s program. Students would be referred back to the CSE and remain in their current class pending the amendment of the IEPs.... There is no further approval necessary from the Department [of Education].
(Compl. ¶¶ 64-65.) In accordance with Payton’s guidance, parents of disabled children and disabled children’s CSEs have “routinely recommended,” as part of the IEP development process, that children be placed in 12:2:2 classes at SLCD. (Compl. ¶ 66.)
In April 2007, Bruce Sehachter, an SED Regional Associate, wrote a letter to SLCD that appeared to tell SLCD that it could not use 12:2:2 classes at its Glen Cove school. (Compl. ¶¶ 69-70.) SLCD appealed the April 2007 letter to the Commissioner of the Department of Education. (Compl. ¶ 71.) The appeal was dismissed for lack of jurisdiction. (Compl. ¶ 72.) In May 2007, however, Sehachter wrote back to SLCD and stated that, “as long as” a student’s IEP indicated that two 6:1:1 classes could be combined for instructional purposes, the school could continue “‘to combine 6:1:1 classes on an individual basis.’ ” (Compl. ¶ 75.)
A few months after SLCD received Schachter’s letter, NYSED began contacting children’s CSEs and told them to stop placing students, including the children of the individual plaintiffs in this case, in 12:2:2 classes. (Compl. ¶ 77.) Additionally, NYSED Regional Associate Susan Bandini told SLCD that each 6:1:1 class would require its own classroom and that 6:1:1 classes could not be combined with each other for the entire school day. (Compl. ¶¶ 77-78, 88-84.) To provide each 6:1:1 class with its own classroom, SLCD would need to spend no less than $600,000.00 modifying its buildings. (Compl. ¶ 80.)
B. Procedural History
Plaintiffs filed the complaint in this action on April 27, 2009. Each of the individual plaintiffs alleges that their children’s IEP’s recommended a 12:2:2 class size and/or that they were assured by their children’s CSEs that the children would be educated in a 12:2:2 class. (See Compl. ¶¶ 99-101; 106-08; 113-15; 120-21). Plaintiffs claim that defendants, by promulgating a policy prohibiting use of the 12:2:2 class size, violated IDEA and the Rehabilitation Act. They seek a declaratory judgment, permanent injunctions, costs, and attorneys’ fees.
In May 2009, defendant notified the Court that it intended to move to dismiss the complaint. The Court set a briefing schedule, and both sides fully briefed the motion. Defendants argue that plaintiffs (1) have failed to exhaust their administrative remedies; (2) have failed to state a claim under IDEA; (3) lack standing under the Rehabilitation Act; and (4) have failed to state a claim under the Rehabilitation Act.
Thereafter, the scheduled oral argument on the motion was adjourned several times based on the Court’s schedule and on the parties’ representations that they were attempting to settle the matter. (See Docket 14-17.) These negotiations were unsuccessful, and oral argument took place on May 26, 2010.
Defendant has moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters.,
The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal,
III. Discussion
Defendant asserts that the complaint must be dismissed because plaintiffs have failed to exhaust their administrative remedies, have failed to state a claim for which relief can be granted, and, for their Rehabilitation Act claim, lack standing. As set forth below, the Court disagrees.
A. IDEA Claim
1. The IDEA Statute
The purpose of IDEA is to provide children with disabilities access to a “free appropriate public education.” 20 U.S.C. §§ 1400(c), (d). In passing IDEA, “Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley,
2. Failure to Exhaust
Defendant argues that the plaintiffs’ IDEA claim must be dismissed because, inter alia, plaintiffs have failed to exhaust their administrative remedies. Defendants also argue that plaintiffs’ Rehabilitation Act claim is subject to the IDEA exhaustion requirement. Although exhaustion is generally required under IDEA and the plaintiffs’ Rehabilitation Act claim in fact also falls within the IDEA exhaustion requirement, the Court concludes that plaintiffs allege the kind of systemic violations for which exhaustion is deemed futile, and, thus, dismissal on this ground is unwarranted.
a. IDEA Exhaustion Generally
Defendants argue that the complaint should be dismissed because plaintiffs have failed to exhaust their administrative remedies. It is well settled that, prior to bringing a suit in federal court under IDEA, plaintiffs must exhaust all available administrative procedures. See 20 U.S.C. § 1415(i)(2); § 1415(Z ).
“[T]he primary reason for an exhaustion requirement is to utilize the expertise of administrators” who are familiar with resolving issues relating to the education of disabled students. SJB v. N.Y.C. Dep’t of Educ., No. 03-CV-6653 (NRB),
Furthermore, the IDEA statute requires plaintiffs with any claims related to the education of disabled children, whether brought under IDEA or another statute (e.g., the Rehabilitation Act), to exhaust the administrative remedies available under IDEA prior to initiating a federal lawsuit. 20 U.S.C. § 1415(i) (“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.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 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.” (citations omitted)); Polera,
In this case, plaintiffs bring both a claim under IDEA and a claim under the Rehabilitation Act. Both claims are based on NYSED’s allegedly depriving the individual plaintiffs’ children of their right to free and appropriate public education. Additionally, the Rehabilitation Act claim seeks relief-specifically equitable relief, attorneys’ fees, and costs — that is also available under IDEA. See 20 U.S.C. § 1415(i)(2)(C)(iii) (in action brought under IDEA, court “shall grant relief as the court determines is appropriate”); 20 U.S.C. § 1415(i)(3)(B)(i) (in action brought under IDEA, court “may award reasonable attorneys’ fees as part of the costs” to a prevailing party); Cave,
b. Futility Exception to Exhaustion Requirement
(1) Standard
However, a party may be excused from the IDEA’S exhaustion requirement where exhaustion would be futile because the administrative procedures available do not provide adequate remedies. Polera,
On the basis of the complaint, the Court must determine whether plaintiffs’ claims meet either of two potential bases for “futility” that would excuse them from IDEA’S exhaustion requirement. The potential bases for futility are: (1) that defendants “failed to implement services that were specified or otherwise clearly stated in an IEP,” Polera,
(2) Application
In the instant case, plaintiffs contend that exhaustion is excused. They focus their argument on the second potential basis for futility: that defendants have engaged in systemic violations that administrative procedures cannot remedy. (See Compl. ¶¶ 125-33; Pis.’ Opp., at 9-16).
The systemic violations exception applies where a plaintiff challenges “the framework and procedures for assessing and placing students in appropriate educational programs ... or [where the] nature and volume of complaints [are] incapable of correction by the administrative hearing process.” J.S.,
Conversely, exhaustion is required when the plaintiffs allegations depend on individual characteristics, such as the sufficiency of a child’s IEP. See, e.g., J.S.,
In this case, plaintiffs are not challenging the adequacy of a particular IEP or IEPs. Instead, they allege that NYSED has adopted a policy that violates IDEA by circumventing the IEP development process. (See Compl. ¶¶ 136-38.) In particular, plaintiffs contend that the NYSED’s alleged policy deprives parents of their rightful place in that process. (See id.) Thus, the focus of this case will be on NYSED’s alleged policy, not whether a particular IEP is appropriate for a particular student. Cf. Bougades v. Pine Plains Cent. Sch. Dist.,
3. Failure to State a Claim
Defendant also argues that the complaint should be dismissed for failure to state' a claim for which relief can be granted. As set forth below, the Court disagrees. Plaintiffs’ complaint states plausible allegations that defendant has violated the procedural and substantive requirements of IDEA.
a. Standard
In determining whether a State has deprived children of free and appropriate public education mandated by IDEA, courts examine whether the State has complied with IDEA’S procedural and substantive requirements. See Grim v. Rhinebeck Cent. Sch. Dist.,
(1) Procedural Inquiry
The procedural inquiry asks if the State has complied with the procedures set forth in IDEA. See Grim,
In Deal, for example, the parents of an autistic child taught the child using a form of therapy known as “one-on-one applied behavioral analysis,” or “ABA.”
(2) Substantive Inquiry
In the substantive inquiry, the Court asks whether the IEP(s) “ ‘developed through the Act’s procedures [are] reasonably calculated to enable the child to receive educational benefits.’ ” Grim,
b. Application
In this case, the complaint alleges that NYSED instructed CSE members to cease recommending the 12:2:2 class size. (See Compl. ¶¶ 77, 82.) Accepting this fact as true, which the Court must for purposes of a motion to dismiss, the complaint states a plausible claim that, similar to Deal, the state has promulgated a policy that prevents CSE members from even considering that a 12:2:2 class size might be appropriate in at least some cases. In particular, plaintiffs may be able to demonstrate that such a policy could constitute a “predetermination” that is a procedural violation of IDEA. Therefore, the complaint states a plausible claim that defendant has failed to comply with IDEA’S procedural requirements.
Additionally, while the gravamen of the complaint concerns NYSED’s interference with IDEA’S procedures, the complaint also alleges that the 12:2:2 student-teacher ratio is necessary to allow students “to make a reasonable rate of progress toward achievement of the goals on their IEP.” (See Compl. ¶ 137.) The complaint also claims that NYSED has directed CSEs “to change IEP’s ... for reasons other than the unique needs of children” and that NYSED has interfered with children’s access to SLCD, even though the CSEs have determined “that SLCD was the appropriate educational placement.” (See Compl. ¶¶ 139-41.) These allegations state a plausible claim that NYSED’s interference with the IEP process has hampered the progress of the individual plaintiffs’ children and the other children attending SLCD, and thereby substantively violated IDEA.
B. Rehabilitation Act Claim
Defendant has also moved to dismiss plaintiffs’ Rehabilitation Act claim.
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination against “otherwise qualified” disabled individuals on the basis of a disability. Although Rehabilitation Act claims are often brought in conjunction with IDEA claims, the two statutes serve somewhat different purposes. IDEA requires states to provide special education to qualified students; the Rehabilitation Act assures equal treatment of the disabled and the non-disabled. J.D. v. Pawlet Sch. Dist.,
1. Standing
As an initial matter, NYSED argues that, to bring a claim under Section 504 of the Rehabilitation Act, plaintiff SLCD must “assert standing as an individual with a disability, which it clearly cannot.” (Def.’s Mem. of Law, at 15.). As set forth below, the Court disagrees.
Although the Rehabilitation Act prohibits discrimination against “individuals] with a disability,” see 29 U.S.C. § 794(a), the Act’s remedies extend “to ‘any person aggrieved’ by the discrimination of a person on the basis of his or her disability.” Innovative Health Sys., Inc. v. City of White Plains,
2. Failure to State a Claim
Defendant also argues that the complaint fails to state a Rehabilitation Act claim.
a. Standard
A prima facie violation of Section 504 of the Rehabilitation Act occurs when someone who is (i) disabled and (ii) “otherwise qualified” to participate in an offered activity or to enjoy the activity’s benefits (iii) is “excluded from participation or enjoyment “solely by reason of his or her disability” and (iv) the activity receives federal financial assistance. See 29 U.S.C. § 794; Loeffler v. Staten Island Univ. Hosp.,
“Since Section 504 relief is conditioned on a showing of discrimination, it requires something more than proof of a mere violation of IDEA — i.e., more than a faulty IEP.” Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Central School Dist.,
b. Application
NYSED argues that plaintiffs have not adequately alleged bad faith or gross misjudgment. As set forth below, the Court disagrees.
Gross misjudgment or bad faith may be found when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary. See Gabel,
IV. Conclusion
For the reasons set forth above, defendant’s motion to dismiss is denied in its entirety. The parties shall begin discovery at the direction of Magistrate Judge Lindsay.
SO ORDERED.
Notes
. For brevity's sake, the Court will hereinafter refer to this class size as "12:2:2.”
. In Coleman v. Newburgh Enlarged City School District,
. At oral argument, defendant's counsel argued that plaintiffs' claim improperly intrudes on NYSED’s ability to promulgate policies and standards for the education of children and that a local educational agency — not the state education department — is the proper defendant in an IDEA case. This argument is without merit given the circumstances here. Of course, courts have dismissed cases against state educational agencies in which plaintiffs sought review of an administrative decision regarding a particular IEP development process. See, e.g., B.J.S. v. State Education Dept.,