STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
POLERA, A DISABLED STUDENT, PLAINTIFF-APPELLEE-CROSS-APPELLANT,
THE BOARD OF EDUCATION OF THE NEWBURGH ENLARGED CITY SCHOOL DISTRICT,
DEFENDANT-APPELLANT-CROSS-APPELLEE, WILLIAM J. SWART, INDIVIDUALLY
AND IN HIS CAPACITY AS ASSOCIATE SUPERINTENDENT, THE SARAH N. SNOWDEN
CHAPTER OF THE NATIONAL HONOR SOCIETY, DEFENDANTS.
Smith, Gurda, Gurda & Smith, Middletown, NY (Robert N. Isseks,
Middletown, NY, of counsel), for Plaintiff-Appellee-Cross-Appellant
Mark C. Rushfield, Shaw & Perelson, Highland, NY, for Defendant-Appellant-Cross-Appellee
The Board of Education of the Newburgh Enlarged City School District.
Jay Worona, Albany, NY, for Amicus New York State School Boards Association,
Miner and Straub, Circuit Judges. 
opinion of the court was delivered by: Straub, Circuit Judge
November 7, 2001
Decided: April 29, 2002
from judgment entered by the United States District Court for the
Southern District of New York (Mark D. Fox, Magistrate Judge), which
held that defendant Board of Education of the Newburgh Enlarged City
School District intentionally discriminated against plaintiff Santina
Polera in violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29
U.S.C. § 794, and awarded damages to plaintiff. We hold that
plaintiff was required to exhaust her administrative remedies pursuant
to the Individuals with Disabilities Education Act, 20 U.S.C. §
1400 et seq. Because plaintiff failed to do so, the District Court
lacked subject matter jurisdiction over her claims.
judgment of the District Court is vacated and remanded with an instruction
to dismiss the complaint for lack of subject matter jurisdiction.
appeal requires us to refine our definition of the circumstances in
which a disabled student must exhaust her administrative remedies
before suing a school district for its alleged failure to provide
appropriate educational services. Defendant-Appellant Board of Education
of the Newburgh Enlarged City School District ("Board")
appeals from the partial denial of its motion for summary judgment
and the entry of judgment for Plaintiff-Appellee Santina Polera ("Polera")
following a bench trial in the United States District Court for the
Southern District of New York (Mark D. Fox, Magistrate Judge). Polera
cross-appeals from the District Court's ruling in limine precluding
testimony from her proposed expert witnesses. We hold that the District
Court lacked subject matter jurisdiction over Polera's claims under
the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794, because she failed to exhaust her administrative remedies.
Therefore, we do not reach the merits of Polera's claims or her cross-appeal.
who is visually impaired, was a resident of the Newburgh Enlarged
City School District ("District") in New York State until
her graduation from the District's public high school in 1997. Polera
alleges that the Board, which operates the public schools in the District,
failed to provide her with the free appropriate public education,
including study materials, compensation for tutoring, and recognition
of academic achievements, to which she was entitled as a disabled
Board repeatedly provided Polera's mother with notice of the administrative
remedies available to her for deficiencies in her daughter's education.
But, as both parties agree, Polera never sought relief for her grievances
through the administrative process. Instead, she filed a complaint
in the United States District Court for the Southern District of New
York on December 27, 1996, during her senior year of high school.
She named as defendants the Board, the Sarah H. Snowden Chapter of
the National Honor Society, and William J. Swart, an Associate Superintendent
in the District. 
The complaint includes claims under the ADA, 42 U.S.C. § 12101
et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
the equal protection and due process clauses of the Fourteenth Amendment
to the United States Constitution, the equal protection and due process
clauses of the New York State Constitution, and New York State common
law. As relief, the complaint requests:
(1) a declaratory judgment that Polera's rights have been violated;
(2) injunctive relief bestowing various academic honors of which she
allegedly was deprived;
(3) reimbursement of educational expenses from 1986 to 1996;
(4) attorneys' fees and costs;
(5) unspecified compensatory damages; and
(6) unspecified punitive damages.
August 19, 1999, the District Court granted in part and denied in
part the defendants' motion for summary judgment. As to Polera's claim
that the Board failed to provide educational services, the District
Court excused Polera's failure to exhaust her administrative remedies,
finding that it would have been futile for her to do so. The District
Court found that it therefore had subject matter jurisdiction over
that component of Polera's case. As to all claims except the ADA and
Rehabilitation Act claims against the Board, the District Court granted
summary judgment to the defendants. The dismissed causes of action
included all claims under 42 U.S.C. § 1983.
August 17, 2000, the District Court granted the Board's motion in
limine, precluding testimony by Polera's proposed education experts.
On February 27, 2001, the District Court issued a decision following
a full bench trial. The District Court found intentional discrimination
against Polera by the Board in violation of the ADA and Section 504
of the Rehabilitation Act, granted judgment to Polera, and awarded
her $30,000 in compensatory damages for her emotional distress.
Board filed a timely notice of appeal, claiming the District Court
erred in exercising subject matter jurisdiction and in ruling in Polera's
favor on her claims. Polera cross-appealed, challenging only the District
Court's preclusion of her expert witnesses. Discussion Until we determine
whether the District Court properly exercised subject matter jurisdiction
over Polera's claims against the Board under the ADA and the Rehabilitation
Act, we cannot address the merits of those claims. When reviewing
a district court's determination of whether it has subject matter
jurisdiction, we examine legal conclusions de novo and factual determinations
for plain error. Phillips v. Saratoga Harness Racing, Inc.,
240 F.3d 174, 177 (2d Cir. 2001). Here, the focal point of our inquiry
must be Polera's admitted failure to exhaust the administrative remedies
available to her through the state education system before she filed
suit in federal court. As we discuss below, the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. §§ 1400-1490,
provides that potential plaintiffs with grievances related to the
education of disabled children generally must exhaust their administrative
remedies before filing suit in federal court, even if their claim
is formulated under a statute other than the IDEA (such as the ADA
or the Rehabilitation Act). Therefore, in this case, we must ascertain
whether the IDEA exhaustion requirement applies and, if so, whether
Polera's failure to exhaust administrative remedies deprived the District
Court of subject matter jurisdiction.
The IDEA and Exhaustion of Administrative Remedies
IDEA, previously known as the Education of the Handicapped Act ("EHA")
and amended several times since its inception in 1970, mandates federal
grants to states to provide disabled children  with "a free
appropriate public education" in the least restrictive appropriate
environment. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(8), 1411(a)(1)
& 1412(a)(5)(A). Educators and parents of a child covered by the
IDEA must jointly develop an "individualized education program"
("IEP") for each year of the child's education. See 20 U.S.C.
§§ 1401(11), 1414(d). According to the statute, an IEP must
include, in writing, "a statement of the child's present levels
of educational performance . . . ; a statement of measurable annual
goals, including benchmarks or short-term objectives . . . ; a statement
of the special education and related services and supplementary aids
and services to be provided to the child, or on behalf of the child,
and a statement of the program modifications or supports for school
personnel that will be provided for the child . . . to advance appropriately
toward attaining the annual goals . . . ; [and] the projected date
for the beginning of the services and modifications . . . and the
anticipated frequency, location, and duration of those services and
modifications." Id. § 1414(d)(1)(A). The IEP is the central
mechanism by which public schools ensure that their disabled students
receive a free appropriate public education.
IDEA requires that states offer parents of a disabled student an array
of procedural safeguards designed to help ensure the education of
their child, see id. § 1415(a), including the right "to
examine all records relating to [the] child and to participate in
meetings with respect to the identification, evaluation, and educational
placement of the child, and the provision of a free appropriate public
education to such child, and to obtain an independent educational
evaluation of the child," id. § 1415(b)(1), written notice
prior to any changes in the child's identification, evaluation or
educational placement, id. § 1415(b)(3), "an opportunity
to present complaints with respect to" such matters, id. §
1415(b)(6), and, whenever any such complaint is made, the right to
"an impartial due process hearing . . . by the State educational
agency or by the local educational agency," with corresponding
rights to be accompanied and advised by counsel, to present evidence
and cross-examine witnesses, to receive a written record of proceedings,
and to receive written findings of fact and decisions.  Id. §
1415(f)(1) & (h).
the IDEA provides for a federal cause of action to enforce such rights,
it imposes a broadly applicable requirement that plaintiffs first
exhaust administrative remedies:
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. § 12101 et seq.], title
V of the Rehabilitation Act of 1973 [29 U.S.C. § 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) of this section shall be exhausted to
the same extent as would be required had the action been brought under
this subchapter." Id. § 1415(l) (brackets in original, emphasis
plaintiff's failure to exhaust administrative remedies under the IDEA
deprives a court of subject matter jurisdiction. See Hope v. Cortines,
69 F.3d 687, 688 (2d Cir. 1995). In order to ascertain whether Polera
was required to exhaust administrative remedies before bringing suit,
we must determine whether this action - which includes claims under
the ADA and the Rehabilitation Act - seeks "relief that is also
available under [the IDEA]." 20 U.S.C. § 1415 (l).
Availability Under the IDEA of the Relief Sought by Polera
Compensatory and Punitive Damages
her complaint, Polera seeks, inter alia, compensatory and punitive
damages. While this Court has found damages to be an available remedy
in actions brought pursuant to 42 U.S.C. § 1983 for violations
of the IDEA,  this appeal presents a different question: are damages
available under the IDEA itself? 
statute is silent as to the availability of damages. While nothing
in the language of the IDEA limits the types of relief recoverable
for violations of the statute, nor does the statute anywhere mention
damages. See 20 U.S.C. § 1415(i)(2)(B)(iii) (the court "shall
grant such relief as the court determines is appropriate"). The
IDEA's central mechanism for the remedying of perceived harms is for
parents to seek changes to a student's program; as described above,
many provisions of the statute focus on this administrative process.
However, because the statutory language and structure offer no unequivocal
answer to our question regarding damages, we turn to case law.
School Committee v. Massachusetts Department of Education,
471 U.S. 359 (1985), the Supreme Court held that, in granting relief
under the EHA, courts can "order school authorities to reimburse
parents for their expenditures on private special education for a
child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act." Id.
at 369. Some have read the Burlington
opinion as casting doubt on the availability of damages (as distinguished
from equitable remedies such as reimbursement or other restitution)
under the IDEA. See, e.g., Crocker v. Tenn. Secondary Sch. Athletic
Ass'n, 980 F.2d 382, 386 (6th Cir. 1992) ("In Burlington . .
. , the Court appears to interpret § 1415(e)(2) as not allowing
`damages' in general but as allowing `reimbursement [of] . . . expenses
. . . .'"). The Burlington Court did state that while courts
have "broad discretion" to grant relief, that relief must
"be `appropriate' in light of the purpose of the Act" which
is "to provide handicapped children with `a free public education
which emphasizes special education and related services designed to
meet their unique needs.'" Burlington,
471 U.S. at 369. The Court also noted that the reimbursement contemplated
by the Act is not a form of damages: "Reimbursement merely requires
[the defendant] to belatedly pay expenses that it should have paid
all along . . . ." Id. at 370-71. But the Court did not explicitly
address the availability of damages under the EHA.
have not yet squarely confronted the issue of whether damages are
available under the IDEA itself. In Hope v. Cortines, 872 F.
Supp. 14, 15 (E.D.N.Y. 1995), the plaintiffs brought suit under the
ADA and other statutes, not including the IDEA, seeking injunctive
relief and damages. Without addressing the availability of damages
under the IDEA, the District Court held that the injunctive relief
that the plaintiffs sought "is precisely the type of remedy best
fashioned by the educational experts skilled in developing such programs
and provides a textbook example of the types of cases justifying administrative
exhaustion." Id. at 21. Therefore, the District Court held, the
plaintiffs sought relief that was available under the IDEA, and should
be required to exhaust administrative remedies. Id. at 21, 23. Considering
the case on appeal, we noted that the District Court had "determined
that the relief plaintiffs seek is available under the IDEA,"
and we affirmed "on the opinion of the District Court."
Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995). More recently,
the District Court in Wenger v. Canastota Central School District,
979 F. Supp. 147, 152 (N.D.N.Y. 1997), flatly stated that "[t]he
IDEA does not provide for compensatory money damages," and we
affirmed in an unpublished summary order, 208 F.3d 204 (2d Cir. 2000)
courts in our Circuit generally have held that damages are not available
under the IDEA. See Butler v. South Glens Falls Cent. Sch. Dist.,
106 F. Supp. 2d 414, 419 (N.D.N.Y. 2000) (holding that relief available
under the IDEA "does not include compensatory or punitive damages");
Schuler v. Bd. of Educ. of Cent. Islip Union Free Sch. Dist.,
No. 96 Cv. 4702, 2000 WL 134346, at  n.15 (E.D.N.Y. Feb. 1, 2000)
(holding that monetary damages are unavailable under the IDEA); "BD"
v. DeBuono, 130 F. Supp. 2d 401, 427-28 (S.D.N.Y. 2000) (assuming
without discussion that damages are unavailable under the IDEA); Stellato
v. Bd. of Educ. Of the Ellenville Cent. Sch. Dist., 842 F. Supp.
1512, 1516-17 (N.D.N.Y. 1994) (holding that damages are unavailable
under the IDEA except in two "exceptional circumstances":
where there is a danger to the physical health of the child or where
the school district acts in bad faith).
least five other courts of appeals - the Fourth, Sixth, Seventh, Eighth,
and Ninth Circuits-have found damages unavailable under the IDEA.
For example, in Charlie F. v. Board of Education of Skokie School
District, 98 F.3d 989 (7th Cir. 1996), the Seventh Circuit found
that "the structure of the statute-with its elaborate provision
for educational services and payments to those who deliver them-is
inconsistent with monetary awards to children and parents. . . . [W]e
conclude that damages are not `relief that is available under' the
IDEA. This is the norm for social-welfare programs that specify benefits
in kind at public expense, whether medical care or housing or, under
the IDEA, education." Id. at 991 (citation omitted).
v. School Board of Manassas, Va., 141 F.3d 524, 527 (4th
Cir.), cert. denied, 525 U.S. 871 (1998), the Fourth Circuit rejected
plaintiff's damages claim, holding that "[t]ort-like damages
are simply inconsistent with IDEA's statutory scheme."
touchstone of a traditional tort-like remedy is redress for a broad
range of harms `associated with personal injury, such as pain and
suffering, emotional distress, harm to reputation, or other consequential
damages.' By contrast, the touchstone of IDEA is the actual provision
of a free appropriate public education. . . . Compensatory or punitive
damages would transform IDEA into a remedy for pain and suffering,
emotional distress, and other consequential damages caused by the
lack of a free appropriate public education. Such a result would be
inconsistent with the structure of the statute, which so strongly
favors the provision of and, where appropriate, the restoration of
educational rights. Id. (citation omitted); see also Witte
v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir.
1999) (finding damages unavailable under the IDEA and noting that
the phrase "appropriate relief . . . is usually construed as
a mere grant of jurisdiction to enforce and supplement the administrative
procedures for identification, evaluation, and placement of the child,
and not of authority to award retrospective damages" (citation
and internal quotation marks omitted)); Heidemann v. Rother,
84 F.3d 1021, 1033 (8th Cir. 1996) (holding that "general and
punitive damages for the types of injuries alleged by plaintiffs are
not available under the IDEA"); Crocker v. Tenn. Secondary
Sch. Athletic Ass'n, 980 F.2d 382, 386-87 (6th Cir. 1992) (stating
that "we do not find case authority interpreting the [EHA] to
allow an award of general damages for emotional injury or injury to
a dignitary interest" and holding that the plaintiff "cannot
recover general damages under the EHA" or under Section 1983
for violations of the EHA).
courts of appeals - the Third and Fifth Circuits-have addressed the
issue without endorsing the view that damages are never available
under the IDEA. In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995),
after finding that damages may be sought under Section 1983 for violations
of the IDEA, id. at 494-95, the Third Circuit noted that the "IDEA
itself makes no mention of such relief," id. At 496. However,
the court ultimately held: "In the matter before us, it would
be futile, perhaps even impossible, for plaintiffs to exhaust their
administrative remedies because the relief sought by plaintiffs in
this action"-which included damages-"was unavailable in
IDEA administrative proceedings." Id. The Fifth Circuit, in Salley
v. St. Tammany Parish School Board, 57 F.3d 458 (5th Cir. 1995),
affirmed a damages award for a violation of the IDEA, but the damages
were merely nominal and the court did not discuss the availability
of damages under the IDEA as a general matter. Id. at 466. Because
Matula reached no definitive conclusion on the general availability
of damages under the IDEA and Salley was silent on the issue,
neither case undercuts the position staked out by the Fourth, Sixth,
Seventh, Eighth, and Ninth Circuits: that damages are unavailable
under the IDEA itself.
agree with the prevailing opinion of the other Circuits and the district
courts in our Circuit. The purpose of the IDEA is to provide educational
services, not compensation for personal injury, and a damages remedy
- as contrasted with reimbursement of expenses - is fundamentally
inconsistent with this goal. The availability of damages also would
undercut the IDEA's carefully structured procedure for administrative
remedies, a mechanism that encourages parents to seek relief at the
time that a deficiency occurs and that allows the educational system
to bring its expertise to bear in correcting its own mistakes. We
therefore hold that monetary damages are not available under the IDEA.
However, as discussed below, we do not believe that this holding leads
inexorably to the conclusion that because Polera seeks relief that
is not available under the IDEA, she was not required to exhaust her
addition to damages, Polera's complaint seeks several forms of equitable
relief: a declaration that her rights were violated, injunctive relief
bestowing various academic honors, reimbursement of educational expenses
from 1986 to 1996, and attorneys' fees. Of these forms of relief,
all that are not moot  appear to be available under the IDEA.
relevant state and local administrative agencies have the capacity
to find that an IEP is deficient, has not been complied with, or that
similar wrongs have been committed. See 20 U.S.C. § 1415(h)(4)
(parties to an administrative proceeding under the IDEA have "the
right to written . . . findings of fact and decisions" on any
complaint about the provision of a free appropriate public education).
Similarly, the administrative system, which is designed to ensure
that disabled students receive the free appropriate public education
to which they are entitled, see 20 U.S.C. § 1415(f) & (h),
seems uniquely well positioned to guarantee that Polera receives proper
academic recognition. For example, the administrators could have determined
that Polera's school failed to comply with its policies and procedures
governing academic honors. Reimbursement of educational expenses also
is a form of relief available under the IDEA. See, e.g., Burlington
Sch. Comm. v. Mass. Dep't of Educ., 471 U.S. 359, 369
v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.
1998). Lastly, the IDEA authorizes the award of reasonable attorneys'
fees to the parents of a disabled child who is the prevailing party.
20 U.S.C. § 1415(i)(3)(B).
Applicability of the Exhaustion Requirement
now consider whether the exhaustion requirement of the IDEA should
apply to Polera's claims despite the fact that some of the relief
sought-damages-is not available under the IDEA.
IDEA's exhaustion requirement was intended to channel disputes related
to the education of disabled children into an administrative process
that could apply administrators' expertise in the area and promptly
resolve grievances. The exhaustion requirement "prevents courts
from undermining the administrative process and permits an agency
to bring its expertise to bear on a problem as well as to correct
its own mistakes." Heldman v. Sobol, 962 F.2d 148, 159
(2d Cir. 1992). "Exhaustion of the administrative process allows
for the exercise of discretion and educational expertise by state
and local agencies, affords full exploration of technical educational
issues, furthers development of a complete factual record, and promotes
judicial efficiency by giving these agencies the first opportunity
to correct shortcomings in their educational programs for disabled
children." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d
1298, 1303 (9th Cir. 1992); see also Crocker v. Tenn. Secondary
Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir. 1989) ("States
are given the power to place themselves in compliance with the law
. . . Federal Courts-generalists with no experience in the educational
needs of handicapped students-are given the benefit of expert fact-finding
by a state agency devoted to this very purpose."). In other words,
the administrative system is uniquely well suited to review the content
and implementation of IEPs such as Polera's, and to determine what
changes, if any, are needed. The administrative process would have
been particularly valuable here because, as the record reveals, the
IEPs prepared for Polera were vague and generalized at best, in some
cases offering little detail beyond a requirement that the school
district provide a "curriculum" to Polera.
in the Second Circuit have required exhaustion of administrative remedies
even where damages were held to be unavailable through the administrative
process. In such cases, plaintiffs were not permitted to evade the
IDEA's exhaustion requirement merely by tacking on a request for money
damages. In Buffolino v. Board of Education of Sachem Central School
District at Holbrook, 729 F. Supp. 240 (E.D.N.Y. 1990), the court
rejected just such an argument by the plaintiffs, stating, "[i]f
the Court were to hold that plaintiffs in this case are excused from
exhausting their remedies because adequate relief could not be obtained,
plaintiffs could avoid administrative procedures merely by asking
for relief that administrative authorities could not grant."
Id. at 247; see also "BD" v. DeBuono, 130 F. Supp.
2d 401, 428 (S.D.N.Y. 2000) ("[P]laintiffs should not be allowed
to avoid the administrative requirements of IDEA by claiming only
monetary damages or other relief not available under IDEA.");
Hope v. Cortines, 872 F. Supp. 14, 17 (E.D.N.Y.) (a plaintiff
"cannot escape IDEA's exhaustion requirement by drafting a complaint
artfully avoiding an IDEA claim where IDEA offers plaintiffs the very
relief they seek"), aff'd, 69 F.3d 687 (2d Cir. 1995).
opinion of the Seventh Circuit Court of Appeals in Charlie F. v.
Board of Education of Skokie School District, 98 F.3d 989 (7th
Cir. 1996) is particularly instructive. In Charlie F., the plaintiff,
like Polera, sued for damages under the ADA, the Rehabilitation Act,
Section 1983, and state tort law, but did not bring an IDEA claim.
The Seventh Circuit held that damages are not available under the
IDEA, but nevertheless applied the IDEA's exhaustion requirement to
the plaintiff's claim. Id. at 991-93. The court noted that "[t]he
statute speaks of available relief, and what relief is `available'
does not necessarily depend on what the aggrieved party wants."
Id. at 991. Giving a practical interpretation to the meaning of "available
relief," the court stated: "[T]he theory behind the grievance
may activate the IDEA's process, even if the plaintiff wants a form
of relief that the IDEA does not supply. . . . We read `relief available'
to mean relief for the events, condition, or consequences of which
the person complains, not necessarily relief of the kind the person
prefers." Id. at 991-92. The court then considered a hypothetical
that parallels the facts of Polera's case:
a school fails to provide a reader for a blind pupil, who as a result
falls behind. The IDEA provides relief: the school can assign a reader
to the pupil for the future and can provide tutors and other special
instruction until the pupil catches up. If disgruntled parents spurn
this solution and demand compensation, the response should be that
they cannot ignore remedies available under the IDEA and insist on
those of their own devising; under the IDEA, educational professionals
are supposed to have at least the first crack at formulating a plan
to overcome the consequences of educational shortfalls. That the educational
problem has consequences outside school . . . can't be enough to avoid
the statutory system. . . . By making an unreasonable or unattainable
demand parents cannot opt out of the IDEA." Id. at 992.
court held that the plaintiff's demand for damages did not excuse
him from the IDEA's exhaustion requirement, and remanded with instructions
to dismiss the plaintiff's claim for failure to pursue administrative
remedies. Id. at 993.
find Polera's situation materially indistinguishable from that of
the plaintiff in Charlie F., and we apply the same reasoning.
The IDEA is intended to remedy precisely the sort of claim made by
Polera: that a school district failed to provide her with appropriate
educational services. The fact that Polera seeks damages, in addition
to relief that is available under the IDEA, does not enable her to
sidestep the exhaustion requirements of the IDEA. Where, as here,
a full remedy is available at the time of injury, a disabled student
claiming deficiencies in his or her education may not ignore the administrative
process, then later sue for damages. Therefore, we hold that, absent
an applicable exception, Polera was required to exhaust her administrative
The Futility Exception to the Exhaustion Requirement
recognize that the IDEA's exhaustion requirement does not apply "in
situations in which exhaustion would be futile because administrative
procedures do not provide adequate remedies." Heldman v. Sobol,
962 F.3d 148, 158 (2d Cir. 1992); see also H.R. Rep. No. 99-296, at
7 (1985); Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987).
Polera argues that this "futility" exception applies to
her claims for several reasons: according to her, it would have been
pointless to seek administrative relief from the very entities that
had failed to implement the clearly-stated requirements of the IEPs,
the administrative process could not provide the relief that she sought,
and, in any case, relief would not have been made available promptly.
 But, as we discuss below, Polera's IEPs in fact did not clearly
state the obligations of the school, and the administrative process
could have provided appropriate and expeditious relief.
arguing that the futility exception should apply in this case, Polera
relies on the following statement of Senator Paul Simon, a co-sponsor
of two of the acts that formed the foundation of the IDEA: "It
is important to note that there are certain situations in which it
is not appropriate to require the exhaustion of [IDEA] administrative
remedies before filing a civil law suit. These include complaints
that . . . an agency has failed to provide services specified in the
child's individualized educational program." 131 Cong. Rec. §
10396-01 (1985); see also H.R. Rep. 99-296, at 7 (1985) (exhaustion
not required where "it would be futile to use the due process
procedures (e.g., an agency has failed to provide services specified
in the child's individualized educational program . . . "). The
District Court in this case, noting Senator Simon's views, excused
exhaustion to the extent that Polera's claim was based on the "district's
failure to provide promised services."
we to accept Senator Simon's broad language without qualification,
a plaintiff could plausibly frame any IEP-related claim as one of
"implementation" and thereby sidestep the IDEA's exhaustion
requirement. Under such an interpretation, the futility exception
would swallow the exhaustion requirement. Moreover, the exhaustion
requirement is predicated on Congress's belief, expressed through
the statutory scheme, that administrative agencies can "get it
right": that the agencies themselves are in the optimal position
to identify and correct their errors and to fine-tune the design of
their programs. Sweeping exceptions to the exhaustion requirement
are at odds with this belief.
a court must closely examine a plaintiff's claims before concluding
that they involve nothing more than "implementation" of
services already spelled out in an IEP. Here, Polera's assertion that
her claim relates solely to implementation does not make it so. A
review of the record reveals that the Board's alleged failure to provide
services is inextricably tied to the content of the IEPs and therefore
is much more than a failure of implementation. Simply put, Polera's
IEPs failed to spell out the services to be provided. The three relevant
IEPs - those that the District Court found to have been violated by
the Board-include long lists of abstract goals (for example, "will
successfully accomplish the required language arts skills necessary
to complete the grade 12 curriculum") but are virtually silent
as to what materials or services the school should provide. In order
to identify those services (for example, to ascertain the content
of a "curriculum"), we are left either to speculation or
to reliance on extrinsic evidence, as illustrated by the opinion of
the District Court. This is not the sort of case described by Senator
Simon, in which a school has failed to implement services that were
specified or otherwise clearly stated in an IEP. Polera's claim unavoidably
encompasses both a failure to provide services and a significant underlying
failure to specify what services were to be provided.
also relies on the Sixth Circuit's decision in Covington
v. Knox County School System, 205 F.3d 912 (6th Cir. 2000).
the mother of a disabled student sued the school district under 42
U.S.C. § 1983, alleging constitutional violations of her son's
rights but not raising IDEA claims. In her complaint, the plaintiff
asserted that school officials had locked the student inside a small,
dark, unheated, unventilated cell for long periods of time as a disciplinary
measure. In considering the applicability of the IDEA exhaustion requirement,
the court held "that in the unique circumstances of this case
in which the injured child has already graduated from the special
education school, his injuries are wholly in the past, and therefore
money damages are the only remedy that can make him whole-proceeding
through the state's administrative process would be futile and is
not required before the plaintiff can file suit in federal court."
at 917. Despite certain similarities between Covington and the instant
case - both Polera and the plaintiff in Covington had already graduated
and complain of past, not ongoing, conduct-Polera's claim is distinguishable
from the "unique circumstances" of Covington, which in any
case is not binding on this Court. Although the Sixth Circuit focused
on the fact that the plaintiff student had graduated, damages would
have been the only adequate remedy even had he sought immediate relief
at the time of the wrongdoing. Nothing could "undo" the
harm that he had suffered. In contrast, had Polera pursued administrative
procedures at the time of the alleged wrongdoing, she could have obtained
the materials she needed and, perhaps, remedial tutoring or schedule
adjustments to undo the effects of the wrong. For Polera, unlike the
plaintiff in Covington, a fully effective remedy was available at
the time; she simply chose not to pursue it.
supposed slowness of the administrative process also does not justify
a finding of futility in this case. Under New York State's regulations,
a hearing officer must render a decision within 45 days of the receipt
by the board of education of a parent's request for a hearing. See
8 N.Y.C.R.R. § 200.5(i)(4). In contrast, Polera's federal case
is still pending, more than five years after she filed suit. While
the administrative process might not have delivered relief as swiftly
as Polera hoped, it certainly could have compensated for the relatively
minor delay with additional remedial educational services. We also
consider it incongruous that Polera waited years before pursuing any
remedy, yet now claims that the remedy available to her at the time-the
administrative process-would have been too slow.
we reiterate our holding that disabled-student plaintiffs, like Polera,
should not be permitted to "sit on" live claims and spurn
the administrative process that could provide the educational services
they seek, then later sue for damages. Were we to condone such conduct,
we would frustrate the IDEA's carefully crafted process for the prompt
resolution of grievances through interaction between parents of disabled
children and the agencies responsible for educating those children.
The fact that the administrative process could not provide damages
does not render Polera's claim futile; she could have obtained complete
relief at the time, through changes to her IEPs, additional educational
services, and, if necessary, remedial education. See Charlie F., 98
F.3d at 992 ("relief available" means "relief for the
events, condition, or consequences of which the person complains,"
not necessarily "the kind of relief the complaint demands").
we find that the District Court lacked subject matter jurisdiction
over Polera's claims, we need not address the Board's arguments challenging
the District Court's finding of intentional discrimination and entry
of judgment for Polera. Nor need we consider Polera's cross-appeal
regarding the preclusion of her expert witnesses.
was required to exhaust her administrative remedies before bringing
a claim in federal court. She admittedly failed to do so. Therefore,
the District Court lacked subject matter jurisdiction over her claims.
We vacate the judgment and remand to the District Court with an instruction
to dismiss the complaint.
 Judge Barrington D. Parker, Jr., who was originally assigned to
the panel for this appeal, recused himself and did not participate.
The appeal was heard and decided by the panel's remaining two judges
pursuant to this Court's Local Rule § 0.14(b).
Polera voluntarily discontinued her claims against the National Honor
Society. The District Court granted Swart's motion for summary judgment
and dismissed all claims against him, and Polera has not appealed
Neither party disputes that during her primary and secondary education,
Polera was a disabled child within the meaning of the IDEA.
Under New York State's regulations, either "[a] parent or a school
district may initiate a hearing on matters relating to the identification,
evaluation or educational placement of a student with a disability,
or the provision of a free appropriate public education to the child."
8 N.Y.C.R.R. § 200.5(i)(1). The parent or attorney representing
the student must provide detailed written notice of their complaint
to the school district, id. § 200.5(i)(1)(i), whereupon "[t]he
board of education shall arrange for such a hearing to be conducted"
and shall "immediately appoint an impartial hearing officer"
from a rotating list of officers, id. § 200.5(i)(3). Several
rules apply to the conduct of the hearing: for example, the parties
"may be accompanied and advised by legal counsel," the parties
"shall have an opportunity to present evidence, compel the attendance
of witnesses and to confront and question all witnesses at the hearing,"
a written record of proceedings shall be maintained and made available
to the parties, interpreters shall be provided at district expense,
the hearing shall be closed to the public unless the parent requests
otherwise, and the hearing officer shall render a written decision
"not later than 45 days after the receipt by the board of education
of a request for a hearing or after the initiation of such a hearing
by the board." Id. §§ 200.5(i)(3)(iii) - (xiv); 200.5(i)(4).
New York also provides an appeals process: "[a] review of the
decision of a hearing officer . . . may be obtained by either the
parent or the board of education by an appeal to a State review officer
of the State Education Department." Id. § 200.5(j)(1). Generally,
a final written decision by the review officer must be rendered within
thirty days of the receipt of a request for a review. Id. § 200.5(j)(2).
We have held that monetary damages are available in claims brought
pursuant to 42 U.S.C. § 1983 for denial of access to administrative
remedies under the IDEA's predecessor statute, the EHA. Quackenbush
v. Johnson City Sch. Dist., 716 F.2d 141, 148 (2d Cir. 1983),
cert. denied, 465 U.S. 1071 (1984). District courts in this Circuit
have followed Quackenbush, holding that damages are available
on claims brought under Section 1983 for violations of the IDEA. See,
e.g., M.H. v. Bristol Bd. of Educ., 169 F. Supp. 2d 21, 29-30
(D. Conn. 2001); R.B. v. Bd. of Educ. Of the City of New York,
99 F. Supp. 2d 411, 418 (S.D. N.Y. 2000); Cappillino v. Hyde Park
Cent. Sch. Dist., 40 F. Supp. 2d 513, 515-16 (S.D.N.Y. 1999).
However, as noted above, all of Polera's Section 1983 claims were
dismissed on summary judgment, and she has not appealed that decision.
Hence, Quackenbush and its progeny do not dictate the outcome
of this appeal.
Although the Board conceded at oral argument that damages are not
available under the IDEA, our inquiry does not end with that concession.
Polera's request for admission into the Sarah N. Snowden Chapter of
the National Honor Society is moot because Polera voluntarily discontinued
her claims against the National Honor Society.
v. Doe, 484 U.S. 305, 327 (1988), which was decided under
the EHA, the Supreme Court indicated that the burden of demonstrating
futility rests with the party seeking to avoid the exhaustion requirement.
See also, e.g., Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000).
Although it appears that we have not yet addressed this issue under
either the EHA or the IDEA, we consider the Honig rule fully
applicable. Accordingly, Polera bears the burden of proving that it
would have been futile for her to seek relief through the administrative
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