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Kimberly F. v. Northeastern Educational Intermediate Unit 19

May 15, 2007


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are three motions to dismiss. The first was filed by Defendant Susan Comerford Wzorek. (Doc. 5.) The second was filed by Defendants Northeastern Educational Intermediate Unit 19, Fred R. Rosetti, Ed.D. and Clarence Lamanna, Ed.D. (Doc. 6.) The third motion was filed by Defendants The School District of Abington Heights, David Arnold, Ed.D., William McNulty, and Mariellen Sluko. (Doc. 7.)

For the reasons stated below, the motions to dismiss will be granted in part and denied in part, as described in the attached order. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("federal question"). This is a removal action for which federal jurisdiction is predicated upon the counts of Plaintiffs' Complaint that allege violations of the United States Constitution and the Individuals with Disabilities Education Act, codified at Title 20 of the United States Code, sections 1400, et seq. The Court exercises supplemental jurisdiction over Plaintiffs' state-law tort claims pursuant to 28 U.S.C. § 1367.


The allegations of Plaintiffs' Amended Complaint are as follows.

Defendant Susan Comerford Wzorek ("Wzorek") was, at all times relevant to this action, employed by Defendant Northeastern Educational Intermediate Unit 19 ("NEIU") as an autistic support teacher. (Compl. ¶ 2.) NEIU is part of the public school system of the Commonwealth of Pennsylvania and provides statutorily-mandated educational services to school districts in Lackawanna County, including, inter alia, Defendant The School District of Abington Heights ("Abington" or "the School District"), who cannot provide these specialized services themselves. (Id. ¶¶ 3, 5.) Defendant Fred R. Rosetti, Ed.D. ("Rosetti"), at all times relevant to this action, was a policymaker of NEIU, and was authorized by NEIU to perform the duties and functions of NEIU's Executive Director. (Id. ¶ 7.) Defendant Clarence Lamanna, Ed.D. ("Lamanna"), at all times relevant to this action, was employed by NEIU as Director of Special Education. (Id. ¶ 8.) Defendant David Arnold, Ed.D. ("Arnold"), at all times relevant to this action, was employed as Superintendent of the School District, and was authorized as a policymaker therefor. (Id. ¶ 9.) Defendant William McNulty ("McNulty"), at all times relevant to this action, was employed as the Supervisor of Special Education for the School District. (Id. ¶ 10.) Defendant Mariellen Sluko ("Sluko"), at all times relevant to this action, was employed by Abington as the Principal of Clarks Summit Elementary School ("CSES"). (Id. ¶ 11.) It was within the scope of responsibilities of Defendants Rosetti, Lamanna, Arnold, McNulty, and Sluko to supervise and monitor Defendant Wzorek at the time of the events outlined herein below. (Id. ¶¶ 7-11.) Additionally, it was within the responsibilities and duties of Defendant Arnold, as Superintendent of the School District, to supervise the school property where Defendant Wzorek worked and the care and custody of the children being taught there. (Id. ¶ 9.)

Minor-Plaintiff, JB, was born on December 17, 1995. (Id. ¶ 12.) He has been diagnosed as having autism, a disorder that falls under the umbrella of Pervasive Developmental Disorders, and which is a complex developmental disability that impacts development in the areas of social interaction and communication skills. Children with autism, although typically exhibiting difficulty as far as language development and ability to interact socially, can learn and function normally, with appropriate treatment and education. (Id. ¶¶ 13-14.) JB's specific condition renders him mid- to high-functioning and able to verbalize, but he suffers from speech delay. (Id. ¶ 15.)

JB, at all times relevant to this action, was enrolled in the NEIU, and the School District, specifically their Special Education Autistic Support Division, whose purpose is to meet the needs of students with specific interactive/social impairments. (Id. ¶ 16.) At all times relevant hereto, Defendants NEIU and the School District exercised supervisory responsibilities over the autistic support teachers, including Defendant Wzorek. (Id. ¶¶ 17-18.) At all times material and relevant hereto, Defendant Wzorek was minor Plaintiff JB's autistic support teacher, and was an employee of both NEIU and the School District.

(Id. ¶¶ 24-25.)

As special needs institutions the School District and NEIU, along with their special education teachers, are required to follow the Regulations for Special Education devised by the State Department of Education, codified at Title 22 of the Pennsylvania State Code, Chapter 14. These regulations govern the treatment and education of special needs public school children, including behavior management. (Id. ¶ 19.) The Boards of Directors of both NEIU and the School District have adopted the Child Protective Services Law of 1990 ("CPSL"), codified at 23 PA. CONS. STAT. ANN. ¶ 6301, et seq., to affirm the obligation of their respective employees to assist in identifying possible child abuse, as well as victimization of students by other employees, and to establish procedures for supporting such in compliance with the CPSL and its amendments. (Id. ¶¶ 20-21.) The Pennsylvania Department of Education ("PDE") must approve both the School District and NEIU's annual plans as assurance that they will adhere to the aforementioned regulations and statutes regarding the education of students with disabilities. (Id. ¶¶ 22-23.)

At all times relevant and material hereto, Defendant Wzorek held a teaching certificate issued by the PDE. (Id. ¶ 29.) As a special education teacher, Defendant Wzorek was required by the PDE to maintain her teaching certification active by earning a required number of continued education credits every five years. (Id. ¶ 26.) The PDE, through its Teacher Certification Bureau, ensures that special education teachers are properly trained, and have taken part in an initiative to train special education teachers specifically on autism. (Id. ¶ 27.) At all times material and relevant hereto, Defendant Wzorek's immediate employers and supervisors, i.e., NEIU and the School District, were responsible for ensuring that each teacher, including Wzorek, was adequately trained. (Id. ¶ 28.)

As an autistic support teacher, Defendant Wzorek's duties included, inter alia, keeping safe and secure the autistic children in her care, custody, and control, and attending to all of the daily classroom needs of her autistic students, which include feeding, toileting, academic training, and assisting in independent learning, as well as routinely accompanying NEIU students to Abington's library, gym, cafeteria, art class, music class, computer training center, and mainstream classrooms within the School District. (Id. ¶ 30.) During the course of performing the aforementioned daily duties, Defendant Wzorek continuously and systematically employed the use of aversive techniques, which are deliberate activities designed to establish a negative association with a specific behavior, and which techniques are specifically excluded from the list of positive approaches to behavior management found in Title 22 of the Pennsylvania School Code (PSC), section 14.133(e). (Id. ¶ 31.) Defendant Wzorek used aversive techniques to redirect her autistic students' behavior, including that of Minor-Plaintiff JB. Specifically, these techniques included, but were not limited to: (a) restraining JB in a Rifton chair for discipline, (b) squeezing JB's ears, (c) stepping on the insteps of his feet, (d) grabbing JB's neck violently, (e) forcing JB to the floor, (f) forcing JB to undress in front of her, (g) refusing JB his snack at snack-time, and (h) verbally abusing JB. (Id. ¶ 32.)

Additionally, Defendant Wzorek employed the use of restraints on her autistic students, the proper use of which is specifically reserved for instances where there is a clear and present immediate threat of danger of injury to self or to others, as per Title 22 of the PSC, § 14.133(c). A lawful use of restraints shall cause a meeting of the IEP team to review the current Individualized Educational Program, or IEP, for appropriateness and effectiveness. An IEP is a statement of educational services prepared collaboratively by the local education agency, the parents, teachers, and if applicable, related service providers (e.g., occupational or physical therapists, or speech and language pathologists) for each student. This group is known as the IEP team. (Id. ¶ 33.)

During the relevant time period from September 2001 through June 2003, three Rifton Chairs were kept in Defendant Wzorek's classroom, in full and open view of the Minor-Plaintiff JB and all other students in the classroom. One of the Rifton Chairs had straps, and for the other two, Defendant Wzorek used bungee cords as straps. The sole, proper use and purpose of a Rifton Chair is to provide support for those autistic children with little motor control or muscular strength. It looks like a small highchair with straps and a tray, but is low to the ground. During the relevant time frame from September 2001 through June 2003, Defendant Wzorek restrained other students in the presence of Minor-Plaintiff JB in a Rifton Chair in order to punish or abuse them. (Id. ¶ 34.) At no point during the relevant time period was an IEP team meeting convened to address the unlawful use of the restraints, and to propose positive behavioral management techniques should the need for discipline arise in the future. (Id. ¶ 35.)

As part of the administration of her classroom, Defendant Wzorek kept "contact books" for each student in her class, to serve as a communication liaison between her students and their parents. In the contact books, Defendant Wzorek would make comments as to each student's progress, and provide a forum for each student's parents to express their questions and concerns. (Id. ¶ 36.)

Shortly after the 2002-2003 school year began, Plaintiff noticed pronounced changes in her Minor son JB's behavior, and specifically, that a trend of regression as to his development was taking place. Minor-Plaintiff JB exhibited, inter alia, (a) a fear of going to bed alone, (b) throwing himself onto the floor and crying upon returning home from school; (c) regression in regards to his behavior, e.g., hitting himself, hitting others, flailing around uncontrollably, taking off his shoes, throwing items, or laying on the floor and breaking objects; (d) hiding behind others while in the presence of Defendant Wzorek. (Id. ¶ 37.)

During the relevant time frame, Defendant Wzorek's classroom benefitted from the employment of two full-time teacher's assistance, Ms. Jill Celli ("Celli") and Ms. Robin L. Medeiros ("Medeiros"), who worked with Defendant Wzorek in her classroom for two years. (Id. ¶ 38.) In or about October of 2002, Medeiros witnessed Defendant Wzorek backslap one of the children in the Plaintiff's classroom across the face which caused the child to develop a fat lip. When the child wouldn't keep quiet, Defendant Wzorek hit her a second time. Medeiros then witnessed Defendant Wzorek call the child's mother to tell her that the child had just injured herself by falling forward. (Id. ¶ 39.)

In or about May of 2003, teaching assistants Celli and Medeiros confronted Defendant Wzorek in an attempt to stop Wzorek's abusive techniques. Her response to Celli and Medeiros was "I know, but I don't know how to stop." Upon receiving this reply, Celli and Medeiros decided to report Defendant Wzorek to NEIU's Executive Administrators. (Id. ¶ 40.) On or about July 28, 2003, both Celli and Medeiros approached Defendant Lamanna, Defendant NEIU's Director of Special Education, with detailed documentation regarding the treatment Defendant Wzorek displayed towards the autistic students in her classroom. Specifically, they claimed that such treatment was aggressive, abusive, and that use of such aversive techniques was unlawful. (Id. ¶ 41.) Defendant Lamanna's response to Celli and Medeiros was that the situation was "over his head" and that Defendant Rosetti, NEIU's Executive Director, would have to get involved. A subsequent meeting was then scheduled with Mr. Rosetti. (Id. ¶ 42.)

As Celli and Medeiros arrived at NEIU for their meeting with Defendant Rosetti, Ms. Medeiros overheard Defendant Rosetti on the phone with Defendant Wzorek saying, "Don't worry Sue, they are coming in here to shoot their loads but nothing's going to happen and then we'll be done with it." (Id. ¶ 43.) During the meeting with Defendant Rosetti, Celli and Medeiros again presented detailed documentation of their eyewitness accounts of Defendant Wzorek's abusive treatment towards Minor-Plaintiff and other autistic students. (Id. ¶ 44.)

Around mid-August, 2003, Celli and Medeiros were informed that an internal investigation of Defendant Wzorek would be conducted. (Id. ¶ 45.) One week later, Celli and Medeiros were summoned by NEIU to attend another meeting regarding Defendant Wzorek's abuses, and arrived at NEIU to instead be met by NEIU's attorney, Mr. Jeffrey Tucker. Attorney Tucker represented to Celli and Medeiros that they had a right to know neither the results of the NEIU investigation, nor whether NEIU even intended to take any action in response to their allegations against Defendant Wzorek. (Id. ¶ 46.) Around the same time, Celli and Medeiros were advised by NEIU that it had completed its investigation. However, they later learned that no meaningful investigation had ever taken place, i.e., that the documented parents and school employees, who would have been instrumental in conducting an investigation, were never contacted. Additionally, Celli and Medeiros were advised that Defendant Wzorek's classroom conduct would not be reported to law enforcement officials. (Id. ¶ 47.) In October of 2003, Celli and Medeiros approached the Principal of CSES, Defendant Sluko, in order to voice their concerns. During this meeting, Defendant Sluko accused Celli and Medeiros of "breaking a silent code," which she likened to a code among police officers. (Id. ¶ 48.)

NEIU decided that Defendant Wzorek would be transferred to the Scranton School District for the 2003-2004 school year, where she would continue to have contact with special needs students, as a Learning Support teacher at West Scranton High School. (Id. ¶ 49.) In late September of 2003, Defendant Arnold, Superintendent of the School District, wrote a letter to Defendant Lamanna, soliciting his assistance in having Celli and Medeiros transferred to another school district. Specifically, he wrote, " . . . [the teacher's assistants'] behavior has negatively affected the work environment for our teaching staff, and . . . I am asking that they be moved from our building as soon as possible." (Id. ¶ 50.) Defendants Lamanna and Rosetti then advised the School District in the spring of 2004 that they would not oppose the transfer of the entire autistic support classroom, which effectively served to transfer Celli and Medeiros. (Id. ¶ 52.)

On September 26, 2006, Defendants filed a notice of removal from the Court of Common Please of Lackawanna County, Pennsylvania to this Court, based on Plaintiffs' inclusion of federal causes of action in their Amended Complaint. (Doc. 1.) On October 2, 2006, Defendant Wzorek filed her motion to dismiss. (Doc. 5.) On this same date, Defendants NEIU, Rosetti, and Lamanna filed their motion to dismiss (Doc. 6.) On the following day, October 3, 2006, Defendants Arnold, McNulty, Sluko, and the School District filed their motion to dismiss. (Doc. 7.) These three motions to dismiss are fully briefed and ripe for disposition.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all of the facts alleged in the complaint and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In their motions to dismiss, Defendants aver that each of the Counts of Plaintiffs' Complaint fails to state a claim upon which relief can be granted, and seek dismissal pursuant to Rule 12(b)(6).

Further, Defendants' motions to dismiss seek dismissal of Plaintiffs' Complaint on the grounds that Plaintiffs failed to exhaust their administrative remedies. In most circumstances, motions for dismissal based on a failure to exhaust administrative remedies are reviewed under Rule 12(b)(6), rather than under Federal Rule of Civil Procedure 12(b)(1), because the exhaustion requirement normally does not implicate a court's jurisdiction. Anjelino v. New York Times Co., 200 F.3d 73, 87-88 (3d Cir. 2000); see also D'Amico v. CBS Corp., 297 F.3d 287, 290 (3d Cir. 2002). In contrast, the Third Circuit Court of Appeals in W.B. v. Matula determined that exhaustion is jurisdictional in the IDEA context. 67 F.3d 484, 493 (1995). Accordingly, the appropriate device by which to consider this jurisdictional challenge is a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See FED.R.CIV.P. 12(b)(1) (providing for dismissal of complaint where court lacks subject matter jurisdiction). See Falzett v. Pocono Mountain Sch. Dist., 150 F.Supp.2d 699, 701 & n. 2 (M.D. Pa. 2001) (Caputo, J.). Therefore, Defendants' motions to dismiss will be construed as pursuant to Rule 12(b)(1) to the extent that they challenge Plantiffs' failure to exhaust administrative remedies.

Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks the authority to hear the case. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A Rule 12(b)(1) motion may be treated either as a facial or a factual challenge to the court's subject matter jurisdiction. Gould, 220 F.3d at 178 (3d Cir. 2000). If the motion is treated as a facial attack, the court may consider only the allegations contained in the complaint and the exhibits attached to the complaint, matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies, and "undisputably authentic" documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss. See generally Pension Benefit Guar. Corp., 998 F.2d at 1196-97.

On the other hand, if the defendant submits and the court considers evidence that controverts the plaintiff's allegations, the court must treat the motion as a factual challenge under Rule 12(b)(1). Gould, 220 F.3d at 178. In such cases, "the trial court is free to weigh evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. No presumption of truthfulness attaches to the allegations in the plaintiff's complaint, and the burden of proof is on the plaintiff to show that the court possesses jurisdiction. Id. However, the plaintiff must be permitted to respond to the defendant's evidence with evidence supporting jurisdiction. Id. In the present matter, Defendants have submitted no evidence controverting the allegations contained in Plaintiffs' Amended Complaint. Therefore, the Court will consider only the allegations in the Plaintiffs' Amended Complaint, treating the Defendants' motions to dismiss as a facial attack on subject matter jurisdiction pursuant to Rule 12(b)(1) to the extent that they are challenging Plaintiffs' failure to exhaust administrative remedies.


Plaintiffs' Complaint contains fourteen (14) counts. Count I alleges against all Defendants, pursuant to Section 1983 of Title 42 of the United States Code, a violation of Minor-Plaintiff JB's civil rights under the IDEA, for Defendants' failure to provide a free and appropriate education to Minor-Plaintiff, and for the physical and mental abuse inflicted upon JB as a result of Defendants' actions. Count II alleges violations of the Equal Protection Clause and Due Process Clause of the 14th Amendment to the United States Constitution, against all named Defendants. Count III alleges a violation of the IDEA, codified at Title 20 of the United States Code, sections 1400 et seq., against all named Defendants, for their failure to identify, evaluate, and provide a free appropriate public education to JB and for the use of bodily restraints against Minor-Plaintiff without his consent and in disregard of the law.

Count IV alleges assault and battery against Defendant Wzorek for her intentional acts against JB's person, as described above. Count V alleges intentional infliction of emotional distress against Defendant Wzorek for placing the Minor-Plaintiff in apprehension of bodily harm, in assaulting and battering him, and in verbally and emotionally abusing him. Count VI alleges a breach of fiduciary duty against Defendant Wzorek for breaching her duties as a teacher, mentor, and care-giver to Minor-Plaintiff JB as a result of her alleged actions. Count VII alleges the tort of negligence against Defendant Wzorek for negligently, carelessly, and recklessly breaching her duty to render educational and other services with reasonable care for the heightened needs of her special education students, including JB, and that as a proximate result of these breaches of duty, Minor-Plaintiff JB suffered various damages. Count VIII seeks punitive damages against Defendant Wzorek, alleging that her acts were performed outrageously, maliciously, wantonly, and willfully, and resulted in the aforementioned injuries to JB.

Count IX alleges vicarious liability against Defendants NEIU and the School District (hereinafter referred to collectively as "the Organization Defendants"), and Defendants Lamanna, Rosetti, Sluko, McNulty, and Arnold (hereinafter referred to collectively as "the Supervisor Defendants") for the acts of Defenant Wzorek, alleging that all relevant times she was performing her duties and functions within the scope of her employment as an autistic support teacher with the Organization Defendants, and was under the review and supervision of the Supervisor Defendants. Count X alleges intentional infliction of emotional distress against the Organization Defendants and Supervisor Defendants, alleging that the actions or inactions of said Defendants placed Minor-Plaintiff JB in an unreasonable risk of bodily harm that constituted extreme and outrageous conduct. Count XI alleges breach of fiduciary duty against the Organizational Defendants and the Supervisor Defendants, by failing to properly supervise Defendant Wzorek and provide Minor-Plaintiff with the type of specialized education he required. Count XII alleges negligence against the Organizational Defendants and Supervisor Defendants, averring that said Defendants breached their duty owed to properly screen, train, and supervise Defendant Wzorek, and that as a result JB suffered various damages. Count XIII raises a claim for punitive damages against the Organizational Defendants and Supervisor Defendants, claiming that their actions were reckless, extreme, outrageous, wanton, willful, malicious, and in conscious disregard of the risk of harm to Minor-Plaintiff JB. Finally, Count XIV alleges civil conspiracy against all named Defendants, alleging that their concerted actions constituted a wrongful combination or agreement to do unlawful acts, or to do otherwise lawful acts by unlawful means.

A. Plaintiffs' Federal Claims - Counts I-III

I. The IDEA - Count III

In 1970, Congress enacted the Education of the Handicapped Act (EHA), later renamed the Individuals with Disabilities Education Act (hereinafter, "the IDEA"), codified at Title 20 of the United States Code, sections 1400 et seq., to assure that all children with disabilities have available to them a free appropriate public education, which emphasizes special education and related services designed to meet their unique needs. The central purpose of the IDEA is to ensure that children with disabilities have a free appropriate public education (FAPE) and that their rights are protected. 20 U.S.C. § 1400(d).

The IDEA conditions a state's receipt of federal funds for special education programs on its implementation of "policies and procedures to ensure that ... [a] free appropriate public education is available to all children with disabilities. . . ." 20 U.S.C. § 1412(a)(1)(A); Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004). A free appropriate public education " 'consists of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to 'benefit' from the instruction.' " W.B. v. Matula, 67 F.3d 484, 491 (3d Cir. 1995) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 188-89 (1982)). The "primary vehicle" for implementing a free appropriate public education is the Individualized Educational Program (IEP). "The IEP consists of a detailed written statement arrived at by a multi-disciplinary team summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive." Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988) (citing 30 C.F.R. § 300.347), cert. denied, 488 U.S. 1030 (1989). Melissa S. v. School Dist. of Pittsburgh, 183 Fed. Appx. 184, 186-87 (3d Cir. 2006).

To prevail on a claim that a school district failed to implement an IEP, a plaintiff must show that the school failed to implement substantial or significant provisions of the IEP, as opposed to a mere de minimis failure, such that the disabled child was denied a meaningful educational benefit. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000). Flexibility to implement an IEP is maintained, yet the school district is accountable for "confer[ring] some educational benefit upon the handicapped child," as required by the IDEA. T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000) (citing Rowley, 458 U.S. at 188-89). Melissa S., 183 Fed. Appx. at 187.

a. Exhaustion of Administrative Remedies

The IDEA creates a "right, enforceable in federal court, to the free appropriate public education required by the statute." Smith v. Robinson, 468 U.S. 992, 1002 n. 6 (1984), superseded by statute on other grounds by Pub. L. No. 99-372, 100 Stat. 796 (1986); accord Honig v. Doe,484 U.S. 305, 310 (1988) (describing the right to a free appropriate public education as "an enforceable substantive right"). Before a plaintiff can bring a claim in federal court for an IDEA violation, however, he must exhaust his administrative remedies, including, in Pennsylvania, a local due process hearing and an appeal to the state educational agency. 20 U.S.C. § 1415(f). Any party dissatisfied with the state administrative hearing may bring a civil action in state or federal court, in which the court must conduct an independent review based on the preponderance of the evidence, while giving "due weight" to the state administrative findings. Polk, 853 F.2d at 173 (citing Rowley, 458 U.S. at 206-07).

The IDEA's exhaustion requirement applies to all claims for relief available under the IDEA, even if a claim arises under a different cause of action. Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996). That is to say, Plaintiffs may not avoid the exhaustion requirement by alleging an IDEA violation in a § 1983 claim predicated upon the IDEA.

b. 'Futile or Inadequate' Exception to IDEA Exhaustion Requirement

As stated above, the IDEA requires a party to exhaust administrative remedies before they may sue in federal court. 20 U.S.C. § 1415(l); Lester H. by Octavia P. v. Gilhool, 916 F.2d 865, 869 (3d Cir. 1990). Plaintiffs concede that they did not satisfy the IDEA's exhaustion requirements. They argue, however, that their ...

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