On August 14, 1991, Mr. Gobel sent Mrs. DeMarco a letter which stated she would be asked to attend a conference and a proposed IEP would be presented. In that letter, he stated that Mrs. DeMarco would have the right to approve or disapprove the proposed IEP and could request an impartial hearing if she disapproved of the proposed program. By letter dated September 19, 1991, Mr. Greco invited the DeMarcos to attend the MDT meeting scheduled for September 23, 1991. A meeting was held on September 23, 1991, which Mr. Wetzel, Mr. Greco, Mr. Gobel, Assistant Superintendent of the School District Joanne Manning, Mrs. Marta Diane McGaughey, Robert's resource room teacher, and the DeMarcos attended. At that meeting, Mrs. DeMarco furnished the School District with a copy of Dr. Cohen's report, and advised the School District that Robert was attending the Lihn Center and receiving the tutoring and psychotherapy. She did not ask the School District to provide these services, nor seek reimbursement. (DeMarco Dep. at 214) An MDT report was prepared, which Mrs. DeMarco stated accurately described the subjects discussed at the conference. (DeMarco Dep. at 220-21)
In about September or October, 1991, Mrs. DeMarco began consulting with her attorney, John C. Fekety. He told her that the School District was required to provide and pay for Robert's tutoring and psychotherapy. Despite Mr. Fekety's advice, Mrs. DeMarco did not ask the School District to include these services on the IEP, nor seek reimbursement for the costs she had incurred. Nor did she initiate a special education due process hearing to obtain these services from the School District. (DeMarco Dep. at 180, 229-30)
By letter dated September 27, 1991, Mr. Greco notified the DeMarcos of an IEP planning conference scheduled for October 7, 1991. The conference was held on that day, and Mrs. DeMarco attended. An IEP for the 1991-92 School year was subsequently developed. Mrs. DeMarco agreed to the IEP, which the School District implemented.
Subsequent to the implementation of the IEP, Mrs. DeMarco became concerned that Robert was not going to Social Studies and Science class. John Keenan of the Lihn Center concluded mainstreaming was not effective and recommended that Robert attend resource room for all subjects. (DeMarco Dep. at 235) Accordingly, Mrs. DeMarco wrote letters to Mr. Wetzel dated November 26, 1991 and Dr. Van Langevald dated December 2, 1991, in which she requested that Robert be assigned to full-time resource room. The School District responded to her request, and after discussions among Mrs. DeMarco, Mr. Wetzel and Mrs. McGaughey, Robert was assigned to a full-time resource room and an IEP was drawn up to reflect the change, which Mrs. DeMarco signed. (DeMarco Dep. at 237-38) Mrs. DeMarco did not seek to have tutoring or psychotherapy included on the new IEP. Mrs. DeMarco did not seek any additional changes on the IEP between December, 1991, and June, 1992. (DeMarco Dep. at 238)
II. STANDARD OF REVIEW
Summary judgment is appropriate where the moving party demonstrates an absence of any evidence to support the non-moving party's case, the non-moving party fails to come forward with such facts that a trier of fact could find in its favor, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514-15, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). The court does not resolve questions of disputed facts, but simply decides whether there is a genuine issue of fact which must be resolved at trial. The facts must be viewed in the light most favorable to the non-moving party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Id.
Nonetheless, a party opposing a motion for summary judgment must designate specific facts showing that there is a genuine issue for trial because summary judgment is designed to go beyond the pleadings to assess whether a genuine issue of material fact exists. Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2552-53. In order to defeat a properly supported motion for summary judgment, the plaintiff can not merely restate the allegations of his complaint, nor rely on self-serving conclusions unsupported by specific facts in the record, but must point to evidence in the record which supports each essential element of his case. Id.; Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988).
Defendants advance five arguments in support of their motion for summary judgment: (1) this Court is without jurisdiction to decide this matter because of plaintiffs' failure to exhaust available administrative remedies; (2) plaintiffs fail to state a claim upon which relief can be granted; (3) plaintiffs are not entitled to an award of compensatory damages; (4) plaintiffs are not entitled to reimbursement of their tutoring and psychotherapy expenses; and (5) the individual defendants are protected by a qualified immunity.
Plaintiffs counter: (1) they should be excused from failing to exhaust administrative remedies because they fit within applicable exceptions; (2) they have stated a claim upon which relief can be granted; (3) compensatory damages are an available remedy to plaintiffs; (4) plaintiffs are entitled to reimbursement for their tutoring and psychotherapy expenses; and (5) the individual defendants should not be protected by qualified immunity.
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The requirement that parents exhaust their administrative remedies at the state level before filing suit under the IDEA or 42 U.S.C. § 1983 is set forth in section 1415(f) of the IDEA, which provides in relevant part:
. . . before the filing of a civil action under such laws seeking relief that it is also available under this subchapter, the procedures under subsection (b)(2) and (c) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(f).
Courts interpreting this statute have uniformly held that parents are precluded from seeking relief in state or federal court under the IDEA or section 1983 until they have exhausted their administrative remedies. See, e.g., Crocker v. Tennessee Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir. 1989) ("every court that has considered the question has read the [IDEA's] statutory scheme as a requirement for the exhaustion of administrative remedies"); Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987) (same); Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F. Supp. 361 (W.D. Mich. 1990) ("no doubt exists that [IDEA] plaintiffs must exhaust their adequate and available state and local administrative remedies before seeking relief in state or federal court . . . accordingly, none of plaintiffs' claims may go forward in this court unless they have exhausted the [IDEA] administrative process").
The Sixth Circuit in Crocker explained the policy behind the exhaustion rule:
To allow parents to come directly to federal courts will rend the entire scheme of [the IDEA] nugatory . . . States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act. Federal courts, which are generalists with no expertise in the educational needs of handicapped students, are given the benefit of expert fact finding by a state agency devoted to this very purpose. Such a mechanism is necessary to give effect to a fundamental policy underlying the [IDEA]: that the needs of handicapped children are best accommodated by having the parents and the local educational agency work together to formulate an IEP for each handicapped child's education . . .