ALEXANDER M. PHILLIPS v. TOWN OF HEBRON ET AL.
(AC 42276)
Connecticut Appellate Court
Argued September 17—officially released December 22, 2020
Alvord, Moll and Bishop, Js.
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The plaintiff, a minor child diagnosed with Down syndrome and without functional speech who was enrolled in the Hebron public school system, brought an action seeking damages from the defendants, the town of Hebron, the Board of Education, and eight of the board‘s employees, for, inter alia, negligence per se and statutory (§§ 46a-58 and 46a-75) discrimination. The plaintiff claimed that the defendants discriminated against him based on his disabilities by segregating him from students without disabilities and breached their duties to educate him in the least restrictive environment. The defendants filed a motion to dismiss the plaintiff‘s complaint on the ground that the plaintiff sought relief for the defendants’ failure to provide special education services under the Individuals with Disabilities Education Act (
- The plaintiff‘s appeal with respect to the defendant town and the board employees M and W was dismissed for lack of subject matter jurisdiction for lack of a final judgment, as the judgment of dismissal did not dispose of all causes of action against these defendants.
- The trial court properly concluded that the plaintiff was required to exhaust his administrative remedies, the plaintiff‘s complaint having clearly sought relief for the denial of a free appropriate public education; this court relied on the framework set forth in the United States Supreme Court decision in Fry v. Napoleon Community Schools (137 S. Ct. 743), and adopted by our Supreme Court in Graham v. Friedlander (334 Conn. 564), in determining that, because the plaintiff‘s claims could not have been brought outside the school setting, the gravamen of the plaintiff‘s claims being that the defendants failed to educate the plaintiff in the least restrictive environment when it placed his desk and chair inside of a coatroom and did not permit him to spend a certain number of hours per week with children without disabilities, as provided for in his Individualized Education Plan, and that because the history of the proceedings prior to the filing of the complaint demonstrated that the plaintiff had invoked the formal procedures for filing a due process complaint under the federal act, the plaintiff sought relief for the denial of a free appropriate public education; moreover, the plaintiff could not avoid the exhaustion requirements under the federal act merely because he sought monetary damages; furthermore, the plaintiff was still required to follow the federal act‘s administrative procedures even though he could not be awarded monetary damages, as the exhaustion requirement requires a party to follow the administrative procedures, not that they be successful at any point in the process and, therefore, the plaintiff did not exhaust his administrative remedies when he began to pursue, but did not complete, the administrative remedies provided for under
the federal act.
Procedural History
Action to recover damages for, inter alia, negligence per se, and for other relief, brought to the Superior Court in the judicial district of Tolland, where the court, Farley, J., granted the defendants’ motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Appeal dismissed in part; affirmed.
Patricia A. Cofrancesco, for the appellant (plaintiff).
Alexandria L. Voccio, for the appellees (defendants).
Andrew A. Feinstein filed a brief for the Council of Parent Attorneys and Advocates, Inc., as amicus curiae.
ALVORD, J. The minor plaintiff, Alexander M. Phillips,1 appeals from the trial court‘s decision granting the motion of the defendants, the town of Hebron (town), the Hebron Board of Education (board), and eight of the board‘s employees,2 to dismiss counts one through twenty of the plaintiff‘s complaint for lack of subject matter jurisdiction on the basis of a failure to exhaust administrative remedies.3 We dismiss the appeal with respect to counts two through six, eight, ten, twelve through sixteen, eighteen, and twenty for lack of a final judgment.4 The judgment is affirmed in all other respects.
The following facts, as alleged in the plaintiff‘s operative complaint dated December 2, 2017, and procedural history are relevant to our review of this appeal. The plaintiff asserted the following allegations in paragraphs 1 through 16 of count one of his complaint. The seven year old plaintiff is a student at Gilead Hill Elementary School in Hebron (school). He has been diagnosed with Down syndrome and is without functional speech, and he has an individualized education program (IEP).5 On February 25, 2015, Ralph E. Phillips, the plaintiff‘s father, visited the school to observe the plaintiff in his therapy session and activities. During his visit to the plaintiff‘s kindergarten classroom, the plaintiff and his assigned paraprofessional went into the coatroom, where there was a desk and chair for the plaintiff.
The plaintiff‘s father met with Joshua T. Martin, the Director of Special Education, on or about March 2, 2015. The plaintiff‘s father asked Martin how much time the plaintiff spends in the coatroom each day. Martin responded that he could not imagine why the plaintiff would have to be in the coatroom unless there was discrete testing going on and that he would look into the matter.
On March 25, 2015, a Planning and Placement Team6 meeting was held. The participants included the plaintiff‘s father, Sheryl Poulin, the plaintiff‘s classroom teacher, and Margaret Ellsworth, the plaintiff‘s special education teacher. During the meeting, Poulin stated that the plaintiff naps in the classroom in the afternoon, wakes up by 2 p.m., and will then use the computer. When the plaintiff‘s father asked Poulin where the plaintiff naps, Ellsworth responded that he naps in the coatroom. A daily communication sheet, used by the plaintiff‘s father and the school, indicated that the plaintiff slept an average of 2.5 hours per day during the kindergarten year.
Also during the March 25 meeting, the plaintiff‘s father asked how much time the plaintiff spends in the coatroom doing his classwork or projects, and Ellsworth responded that he spent an average of about
Prior to March 25, 2015, the plaintiff‘s father had not consented to or been notified of the plaintiff‘s desk and chair having been moved into the coatroom. The complaint alleged that “the practice of placing a child with a learning disability into a room away from nondisabled children is known as ‘warehousing,’ [which] is done due to low expectations by teachers of the child‘s ability to learn.” Although the plaintiff‘s operative IEP, dated April 2, 2014, indicated that the plaintiff “will spend 26.33 hours per week with children/students who do not have disabilities,” the plaintiff was spending approximately nine hours per week with children/students who do not have disabilities.
In the March 30, 2015 daily communication sheet, the plaintiff‘s father read that “Mrs. Poulin and I rearranged some of the furniture and moved [the plaintiff‘s] workspace into the classroom.” On April 30, 2015, the plaintiff‘s father received a report card from the school that was blank, except for information as to the plaintiff‘s name, the classroom teacher‘s name, and the number of days the plaintiff was tardy.
Exhibits submitted to the court by the plaintiff, together with his opposition to the defendants’ motion to dismiss counts one through twenty of his complaint, disclose the following additional facts concerning relevant administrative proceedings that preceded this action.7 The plaintiff‘s counsel submitted to the state Department of Education, Bureau of Special Education (department) a Special Education Complaint Form (state complaint) and a Request for Impartial Special Education Hearing (request for due process hearing), both dated July 27, 2015. The plaintiff‘s counsel attached a complaint, which included the allegations described previously in this opinion and other allegations regarding the implementation of a feeding program for the plaintiff. The state complaint and the request for due process hearing did not identify any specific remedies sought. By way of amendment dated September 16, 2015, the plaintiff sought the following remedies: (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. By way of an e-mail dated September 24, 2015, the plaintiff‘s counsel communicated a request to amend the complaint to seek monetary damages. The plaintiff‘s state complaint was put in abeyance to allow the due process hearing to proceed, in accordance with applicable regulations.
After the board filed its motion to dismiss, the plaintiff‘s father withdrew the request for a due process hearing. He requested that the department proceed with an investigation of the state complaint. The department completed its investigation and issued a report of its findings of fact and conclusions on March 14, 2016. The department concluded that “the district‘s use of the alcove space, its failure to communicate the use of this space to the parent and the miscalculation of the time the student spent with nondisabled peers did not result in a denial of a [free appropriate public education (FAPE)] to the student . . . .” In its final paragraph, the report stated that 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.” Following the issuance of the department‘s report, there was no further request made for a due process hearing. The plaintiff did file a complaint with the Commission on Human Rights and Opportunities (CHRO), which provided a release of jurisdiction on or about June 24, 2016.
The plaintiff commenced this action in September, 2016. On October 17, 2016, the defendants removed this case to the United States District Court for the District of Connecticut. On August 29, 2017, the District Court remanded the case back to the Superior Court after concluding that the complaint did not raise a substantial question of federal law.8
I
We deviate from our discussion of the facts and procedural history to address an issue of subject matter
“The jurisdiction of the appellate courts is restricted to appeals from judgments that are final.
“A judgment that disposes of only a part of a complaint is not a final judgment . . . unless the partial judgment disposes of all causes of action against a particular party or parties; see Practice Book § 61-3; or if the trial court makes a written determination regarding the significance of the issues resolved by the judgment and the chief justice or chief judge of the court having appellate jurisdiction concurs. See Practice Book § 61-4 (a).” (Citation omitted; internal quotation marks omitted.) Tyler v. Tyler, 151 Conn. App. 98, 103, 93 A.3d 1179 (2014).
In the present case, the operative complaint, dated December 2, 2017, contains thirty-two counts. Counts one, three, five, seven, and nine, all captioned “Discrimination,” are alleged against the board, Martin, Wilson, Ellsworth, and Poulin, respectively. Counts eleven, thirteen, fifteen, seventeen, and nineteen, all captioned “Negligence per se,” are alleged against the board, Martin, Wilson, Ellsworth, and Poulin, respectively. In counts two, four, six, eight, ten, twelve, fourteen, sixteen, eighteen, and twenty, the plaintiff seeks indemnification of the board and the individual defendants from the town pursuant to
The defendants did not seek dismissal of counts twenty-one through thirty-two of the complaint, and those counts remain pending in the trial court.9 Of those twelve counts that remain pending, several seek indemnification from the town, one is directed at Martin, and one is directed at Wilson. Because the judgment of dismissal did not dispose of all causes of action against the town, Martin, and Wilson, there is no final judgment under Practice Book § 61-3 with respect to those defendants. The appeal with respect to them is therefore dismissed.
II
Having dismissed the appeal in part, we next set forth the remaining relevant allegations of the operative complaint dated December 2, 2017. As noted previously, counts one, seven, and nine, asserted against the board, Ellsworth, and Poulin, respectively, are all captioned
In addition to the allegations set forth previously in this opinion, count one alleges that the plaintiff is a “member of a protected class and has a ‘learning disability’ and a ‘physical disability’ as defined by . . .
Paragraph 20 of count one recites § 1412 (a) (5) (A) of the IDEA,12 which provides: “To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, 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.” Paragraph 21 alleges that the board, by and through its employees, “deprived the . . . plaintiff‘s right to be educated in the least restrictive environment as provided by law.” Paragraph 22 alleges that the plaintiff filed a complaint alleging discrimination with the CHRO and received a release of jurisdiction.
Counts seven and nine incorporate by reference paragraphs 1 through 20 of count one. In counts seven and nine, the plaintiff alleges that Ellsworth and Poulin knew or should have known that “the relocation of the . . . plaintiff, his desk and chair into a coatroom and placing him in the coatroom, because he was disabled, and leaving him to sleep throughout the afternoon while nondisabled children were educated in the classroom would deprive the . . . plaintiff of his rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States.” The plaintiff alleges that Ellsworth and Poulin violated §§ 46a-58 (a) and 47a-75 (a) and (b) by “exploiting the fact that the . . . 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.”
With respect to Ellsworth, the plaintiff specifically alleges in count seven that she created the daily and
The negligence per se counts incorporate by reference paragraphs 1 through 20 of count one. In the negligence per se counts, the plaintiff alleges that the board, Ellsworth, and Poulin had a duty under
The plaintiff alleges in counts seventeen and nineteen that Ellsworth and Poulin breached their duty under
On January 17, 2018, the defendants filed a motion to dismiss counts one through twenty of the complaint and a memorandum in support of the motion, arguing that the court lacked subject matter jurisdiction on the basis that the plaintiff had failed to exhaust the administrative remedies available under the IDEA. Specifically, the defendants argued that because the discrimination and negligence per se counts “allege that the defendants failed to educate the . . . plaintiff in the least restrict[ive] environment, and as a result, caused harm to the . . . plaintiff‘s academic and social development, these counts are governed by the IDEA, and the plaintiff was required to exhaust his administrative remedies under
On March 22, 2018, the plaintiff filed a memorandum of law in opposition to the defendants’ motion to dismiss and attached the exhibits referenced previously. In his opposition, the plaintiff argued, inter alia, that because he sought monetary damages, a remedy that is unavailable under the IDEA, for wrongful segregation, and he did not allege a denial of a FAPE, he was not required to exhaust his administrative remedies under the IDEA. With respect to his discrimination claims, the plaintiff argued, inter alia, that “the IDEA cannot be the sole and exclusive remedy for disability discrimination just because the plaintiff is a student” because “[t]he standard for accommodation by a public school system under the [Americans with Disabilities Act (ADA),
The court, Farley, J., held oral argument on the motion to dismiss on May 29, 2018. On October 5, 2018, the court issued a memorandum of decision granting the defendants’ motion to dismiss counts one through twenty.13 The court concluded that the plaintiff‘s discrimination and negligence per se claims sought relief for a denial of FAPE and therefore were subject to the exhaustion requirement.14 Because the plaintiff failed
On appeal, the plaintiff claims that the court erred in granting the defendants’ motion to dismiss on the basis that he failed to exhaust his administrative remedies.
Before addressing the merits of this appeal, we note that subsequent to the trial court‘s memorandum of decision and the filing of the briefs by the parties, this court sua sponte stayed consideration of this appeal pending our Supreme Court‘s decision in Graham v. Friedlander, 334 Conn. 564, 567, 223 A.3d 796 (2020). On March 3, 2020, this court lifted the appellate stay and ordered the parties to file supplemental briefs addressing the impact of that decision. It is appropriate to start with a discussion of that case, as it provides substantial guidance in resolving the present matter.
In Graham, parents of four children instituted an action against the Board of Education of the city of Norwalk and certain of its members, among other defendants. Id., 566. The plaintiffs brought state law claims in connection with the hiring of Spectrum Kids, LLC, and its owner, Stacy Lore, who had represented at the time she was hired that she “had received various master‘s degrees and was a board certified behavior analyst.” Id., 568. None of the defendants performed a background check on Lore or confirmed her alleged credentials.15 Id. Lore and Spectrum Kids were retained to provide the minor plaintiffs with autism-related services within the Norwalk public schools. Id., 569. The plaintiffs alleged that the “negligent and careless hiring and supervision of Lore proximately caused permanent and ongoing injuries and losses to their four children and to them individually as parents.” Id. The trial court granted the defendants’ motion to dismiss counts one through sixty of the plaintiffs’ complaint on the basis that the plaintiffs had failed to exhaust their administrative remedies. Id., 569–70.
On appeal to the Supreme Court, the plaintiffs in Graham claimed that they were not required to exhaust administrative remedies because “their complaint advances a state law claim that does not allege a violation of the [IDEA]” and that they did “not seek relief for the denial of a FAPE but, rather, [they asserted] common-law claims of negligent hiring and supervision, loss of consortium and negligent infliction of emotional distress—all falling outside the exhaustion requirements contained in the [IDEA].” Id., 570.
“Disputes often arise over whether the special education services provided to children with physical or intellectual disabilities are sufficient to satisfy a child‘s individual education plan. To resolve these disputes, the [IDEA] requires state or local agencies to establish and maintain procedures to ‘ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] by such agencies.’
“The [IDEA] also contains an exhaustion requirement pursuant to which individuals cannot file a civil action under the [IDEA] until they have satisfied the procedural dispute resolution mechanism established by the relevant state agency. See
“The plain language of the [IDEA] provides that exhaustion is required when a civil action is brought ‘under such laws . . . .’
The court in Graham next considered whether state law mandates exhaustion of administrative remedies where state law claims seek relief for the denial of a FAPE. Id., 574. In concluding that it does so mandate, the court looked to
“Upon receipt of the written request, ‘the Department of Education shall appoint an impartial hearing officer who shall schedule a hearing . . . pursuant to the Individuals with Disabilities Education Act . . . .’
Having determined that plaintiffs must exhaust administrative remedies before filing a claim for the denial of a FAPE under state law,16 the court in Graham “look[ed] to the essence, or the crux, of each of the plaintiffs’ claims within the complaint to evaluate whether each claim seeks relief for the denial of a FAPE.” Id., 577. In so doing, it considered the two factors outlined by the United States Supreme Court in Fry v. Napoleon Community Schools, supra, 137 S. Ct. 756. “The first factor requires consideration of whether the claim could have been brought outside the school setting,” and “[t]he second factor requires consideration of the history of the proceedings prior to the filing of the complaint.” Graham v. Friedlander, supra, 334 Conn. 580–81.
The first factor is evaluated on the basis of two hypothetical questions set forth in Fry v. Napoleon Community Schools, supra, 137 S. Ct. 756: “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?” (Emphasis in original.) The court in Fry explained: “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.” Id.
Under the second factor, the history of the proceed-
The court in Graham, applying the first factor outlined in Fry, answered the two hypothetical questions in the affirmative. It determined that the plaintiffs could have brought the same claim if they had attended a municipal summer camp that advertised a special needs program focused on certain therapies but was run by uncertified and unqualified staff. Id., 581. If the children suffered a regression in their development, they could claim that the negligent hiring of the staff proximately caused their injuries. Id., 581–82. As to the second hypothetical question, the court determined that “an adult participating in a municipally funded behavioral therapy treatment program offered in the evenings at a school could also bring the same claim for regression resulting from services provided by an uncertified and unqualified behavior therapist.” Id., 582.
The court in Graham, viewing the complaint in the light most favorable to the plaintiffs, “read the complaint to allege that the board defendants negligently hired Lore, that the board defendants should have known of Lore‘s inability to provide services, and that Lore‘s failure to provide services directly and proximately caused injury to the children in the form of a regression unique to children suffering from autism spectrum disorder and an inability to communicate effectively. Viewed in this most favorable light, the claim sets forth an allegation for negligent hiring, not the denial of a FAPE, and thus is not subject to dismissal for failure to exhaust administrative remedies.” Id., 586. The court additionally considered that the complaint lacked “any mention of the [IDEA], other laws protecting children with disabilities, or the children‘s education plans.” Id., 587.
Turning to the second factor outlined in Fry, the court in Graham recognized that the plaintiffs never invoked the formal procedures of filing a due process complaint or requesting a hearing. Id., 588. Thus, the
Turning to the claim made in this appeal, we first set forth our standard of review. “Our review of the trial court‘s determination of a jurisdictional question raised by a pretrial motion to dismiss is de novo. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citation omitted; internal quotation marks omitted.) Id., 571.
In his appellate brief, the plaintiff argues that his complaint “does not seek declaratory relief (the basic remedy for a denial of FAPE) nor injunctive relief (for an IDEA obligation) . . . .” He argues that his “educational goals and objectives are not the gravamen of his complaint,” but, rather, that “[h]is claims are based in his wrongful segregation from typical kids: they were in the classroom; he, his desk and chair were in the coatroom—without the knowledge and consent of his father.” The plaintiff addresses the two hypothetical questions outlined in Fry by arguing first that he could have brought a disability discrimination claim against a movie theater that required children with Down syndrome to sit in the balcony, apart from the general audience, and second, that an adult with Down syndrome could bring a claim of disability discrimination against a school for “requiring the disabled adult to use a different, nearby room to listen to the school chorus or band concerts,” apart from the general audience seated in the auditorium.17
The defendants contend that the answers to the two hypothetical questions are no. The defendants argue that “[t]he plaintiff is challenging the provision of educational services to the . . . plaintiff . . . in regards to his IEP, and specifically in regards to the IDEA‘s requirements that students with disabilities be educated in the least restrictive environment, and that parents be notified of any progress and/or changes to their child‘s IEP. As in Fry, such a challenge could not be brought against a public facility other than a school, nor could it be brought by an adult visitor or employee in the school. The plaintiff could not, for instance, sue a library for failing to educate his son in [the] least restrictive environment or for failing to report on his academic progress because a library is not charged with the responsibility of educating his son at all. Similarly, an adult could not bring such a claim against a school.”
We begin our analysis with an evaluation of the first factor, whether the plaintiff‘s claims could have been
Applying this analysis to the plaintiff‘s allegations in his complaint, we answer no to both of the hypothetical questions that drive the analysis of the first factor. A plaintiff could not have brought essentially the same claims outside the school setting, nor could an adult at a school have pressed essentially the same grievance. We view the plaintiff‘s claims as falling much closer to those of the student who was deprived of remedial tutoring in mathematics than the contrasting example in Fry of a lack of access to public facilities.
We first discuss the plaintiff‘s discrimination claims. As noted previously, the plaintiff alleges in the discrimination counts that the board, by and through its employees, “segregated the . . . plaintiff from other children/students without disabilities on the basis of the . . . plaintiff‘s disabilities,” in violation of
Moreover, in the negligence per se counts, the plaintiff expressly grounds his claims on the defendants’ breach of their duty under
“The IDEA mandates that [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.
The United States Court of Appeals for the First Circuit recently considered whether an action brought pursuant to Title II of the ADA, and alleging that the school system unnecessarily segregated students with mental health disabilities in a separate school, was subject to the IDEA‘s exhaustion requirement. Parent/Professional Advocacy League v. Springfield, 934 F.3d 13, 18 (1st Cir. 2019). It stated: “On its surface, the complaint pleads disability-based discrimination: it alleges that the defendants are violating the ADA by unnecessarily segregating students with mental health disabilities in a separate and unequal educational program. And the complaint never uses the term FAPE. Yet, the crux of the complaint is that the defendants failed to provide the educational instruction and related services that the class plaintiffs need to access an appropriate education in an appropriate environment. That is not a claim
Here, the plaintiff‘s allegations, read in the light most favorable to him, seek redress for the defendants’ failure to provide a FAPE,19 specifically, their violation of the IDEA‘s provision that the school educate the plaintiff in the least restrictive environment. Accordingly, the answers to the two hypothetical questions set forth in Fry are no—the plaintiff could not sue a public facility for failing to educate him in the least restrictive environment, nor could an adult sue the school on such a basis.20
We next turn to the second factor outlined in Fry, which “requires consideration of the history of the proceedings prior to the filing of the complaint.” Graham v. Friedlander, supra, 334 Conn. 580–81. As noted previously, “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.” Fry v. Napoleon Community Schools, supra, 137 S. Ct. 757. In the present case, the plaintiff initially pursued administrative remedies. He filed with the department a state complaint and request for due process hearing, in which he alleged an abbreviated version of substantially the same factual allegations made in the present action. He also expressly alleged that he was denied a FAPE. Although the plaintiff elected to have his complaint investigated by the department, he withdrew his request for a due process hearing. Furthermore, upon completion of the department‘s investigation, it notified the plaintiff that the parties may “request a due process hearing on these same issues through this office if a party disagrees with the conclusions
This factual framework resembles that which the United States Supreme Court in Fry described as an indicator of a claim requiring exhaustion. As the court in Fry explained, “[a] plaintiff‘s initial choice to pursue [the administrative] 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.” Fry v. Napoleon Community Schools, supra, 137 S. Ct. 757. Accordingly, we conclude that the history of the proceedings in the present case is additional evidence that the plaintiff‘s claims seek relief for the denial of a FAPE. Cf. Graham v. Friedlander, supra, 334 Conn. 588 (history of proceedings, specifically, fact that plaintiffs never invoked formal procedures of filing due process complaint or requesting hearing, supported conclusion that plaintiffs sought relief for something other than denial of FAPE).
Although not expressly claiming that an exception to the exhaustion requirement applies,21 the plaintiff argues that exhaustion is not required because he “seeks no remedies available under the IDEA.” He contends that his requests for monetary damages and attorney‘s fees compel the conclusion that he is not making a claim for the denial a FAPE. He maintains that “[i]f a plaintiff is seeking monetary damages, he or she couldn‘t possibly be making a claim for the denial of a FAPE, because only declaratory or injunctive relief is allowed.”22 The defendants respond that “[n]either the IDEA, nor Connecticut‘s implementing statutes, nor the corresponding regulations, carve[s] out an exception to the IDEA‘s exhaustion requirement for parents seeking monetary damages.”23
“Despite the important public policy considerations underlying the exhaustion requirement, [our Supreme Court has] grudgingly carved several exceptions from the exhaustion doctrine. . . . [It has] recognized such exceptions, however, only infrequently and only for narrowly defined purposes. . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate.” (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996).
We disagree that the plaintiff was not required to exhaust his administrative remedies merely because he seeks monetary damages and attorney‘s fees. The United States Court of Appeals for the Second Circuit has held that the mere addition of a claim for damages “does not enable [a plaintiff] to sidestep the exhaustion requirements of the IDEA.” Polera v. Board of Education, 288 F.3d 478, 488 (2d Cir. 2002); see also
Lastly, the plaintiff briefly argues that he did exhaust his administrative remedies.25 As noted previously,
The plaintiff argues that he “did seek administrative redress until it was apparent that an IDEA hearing officer could not award the one last remaining remedy he sought, so the claim for a due process hearing was withdrawn but the Connecticut State Department of Education was charged with investigating his claim. The plaintiff . . . unlike [the plaintiff in Fry], gave the administrative process a chance, not once but twice, and yet the trial court still ruled he was required to exhaust administrative remedies ‘regardless of the remedy requested.’ ” (Footnote omitted.) As the United States District Court for the District of Connecticut recently explained, however, “[t]o satisfy [the exhaustion] requirement, parties must simply follow IDEA‘s administrative procedures; they need not be successful
The appeal is dismissed with respect to counts two through six, eight, ten, twelve through sixteen, eighteen, and twenty; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
ALVORD, J.
Notes
“The IEP is the centerpiece of the [IDEA‘s] education delivery system for disabled children. . . . The IEP, the result of collaborations between parents, educators, and representatives of the school district, sets out the child‘s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.
“Connecticut must deliver each disabled child a [free appropriate public education (FAPE)] pursuant to the child‘s IEP. . . . Connecticut accomplishes this through its State Department of Education and the Board of Education for each school district in the [s]tate, each of which is responsible for developing an IEP for disabled children in its district.” (Citations omitted; internal quotation marks omitted.) Mr. P. v. West Hartford Board of Education, 885 F.3d 735, 741 (2d Cir.), cert. denied, U.S. , 139 S. Ct. 322, 202 L. Ed. 2d 219 (2018).
“(b) Such programs shall be conducted to encourage the fullest development of the interests, aptitudes, skills, and capacities of all students and trainees, with special attention to the problems of culturally deprived, educationally handicapped, learning disabled, economically disadvantaged, or physically disabled, including, but not limited to, blind persons . . . .”
It next considered the claim that the school violated the IDEA by failing to follow the plaintiff‘s IEP, in that it changed the plaintiff‘s placement and began providing her with more instruction hours in the ICSC than was provided for in her IEP. Id. The court concluded that increasing the plaintiff‘s hours in the ICSC beyond those specified in her IEP without giving notice to her parents amounted to a procedural violation of the IDEA, but that it did not constitute a substantive violation because the plaintiff was not denied a FAPE as a result. Id., 248.
We fail to see how R.F. v. Cecil County Public Schools, supra, 919 F.3d 237, advances the plaintiff‘s position. Indeed, in that case, the plaintiff had exhausted her administrative remedies. Id. The court noted that “[a]s required under the IDEA, [the plaintiff‘s parents] first filed a due process complaint with Maryland‘s Office of Administrative Hearings, resulting in a hearing before an [administrative law judge],” which hearing addressed whether the school denied the plaintiff a FAPE or failed to offer her an IEP that would provide her with a FAPE. Id., 244. Following issuance of the administrative law judge‘s decision, the plaintiff challenged that decision in the federal district court. Id.