by asserting their complaint in an impartial due process hearing.
Honig v. Doe, 484 U.S. 305, 312, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988), makes it clear that this Act requires any party aggrieved by the findings of the impartial due process hearing, may seek further administrative review and where that proves unsatisfactory, may file a civil action in any state or federal court. Justice Brennan, in Honig at 327, states:
It is true that true that judicial review is normally not available under § 1415(e)(2) until all administrative proceedings are completed, but as we have previously noted, parents may bypass the administrative process where exhaustion would be futile or inadequate. (citing Smith v. Robinson, Supra]
As heretofore pointed out, Michael and his parents, did not appeal the hearing officer's decision. They bypassed the additional administrative remedies set forth in the Education of the Handicapped Act and filed their complaint in this Court.
As pointed out by Justice Brennan in Honig, Sections 1412(1), 1413(a) of the Individuals with Disabilities Act requires to the maximum extent appropriate, that the States "mainstream" the disabled child, i.e., educate the disabled child with children who are not disabled, and will not segregate or otherwise remove the disabled child from the regular classroom setting. As the undisputed facts show, Michael, a disabled child, and his dog, Ashley, are being "mainstreamed" at Chichester Middle School.
In 1990, Congress changed the name of the Education of the Handicapped Act to the "Individuals with Disabilities Education Act." The Individuals with Disabilities Act strengthened and coordinated pre-existing Federal programs and requirements for children and youth with disabilities by extending the prior Act's coverage from the traditionally "handicapped" to all those with disabilities. As the legislative history indicates, provisions relating to "handicapped children," "handicapped child," or "handicapped youth" were replaced with "children with disabilities," "child with a disability," or "youth with a disability." The definition of "children with disabilities" under the IDEA is broader than previous definition of "handicapped children" in the Education of the Handicapped Act. However, the administrative machinery provided by the Act has not been changed.
Instead of pursuing the administrative procedures and remedies provided by the Individuals with Disabilities Act, plaintiffs filed this action under section 504 of the Rehabilitation Act of 1973, which, as heretofore pointed out, the Supreme Court has determined is not a remedy available to the plaintiffs under the facts alleged in their complaint.
Plaintiffs, apparently place great reliance on Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). This Court has determined that Sullivan is not applicable to the facts in this case.
Accordingly, the Court having determined that no genuine issues of material fact exist and that defendants are entitled to judgement as a matter of law, defendants motion for summary judgment will be granted and judgment will be entered in favor of the defendants and against the plaintiffs.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 796 F. Supp. 849.
ORDER - July 24, 1992, Filed
AND NOW, this 24th day of July, 1992, the defendants, Delaware County Intermediate Unit, Rose Tree Media School District, James F. Shields, Harry J. Jamison, Jr., and Douglas Gaston, having filed a motion for summary judgement; for the reasons set forth in the Court's Memorandum of July 24, 1992;
IT IS ORDERED: Defendants' motion for summary judgment is GRANTED and JUDGEMENT IS ENTERED in favor of the defendants Delaware County Intermediate Unit, Rose Tree Media School District, James F. Shields, Harry J. Jamison, Jr., and Douglas Gaston, and against the plaintiffs, Michael A. Gaudiello, Jr., and his parents, Michael A. Gaudiello and Jane Gaudiello.
RAYMOND J. BRODERICK, J.
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