The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on the parties' cross-motions for summary judgment on Plaintiffs' claims arising under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 504(a), and 42 U.S.C. § 1983. Previous to these cross-motions, Defendant had filed a motion for summary judgment, and oral argument was heard on Defendant's motion on December 13, 2006. At oral argument, the Court granted in part and denied in part Defendant's motion. The Court also permitted Plaintiffs to conduct additional discovery. Discovery is now complete, and Defendant has renewed its motion for summary judgment on Plaintiffs' remaining claims. Plaintiffs have cross-moved for judgment in their favor. For the reasons expressed below, the motions will be continued for further briefing, except that Defendant's motion on Plaintiffs' § 1983 claims will be granted.
The facts in this case are mostly uncontested. B.T. is disabled with Asberger's syndrome, bipolar disorder, ADHD, sensory integration dysfunction, central auditory processing difficulties, and dysgraphia. Prior to moving to Mansfield Township, B.T. had been classified as eligible for IDEA services, and his previous school district had sent B.T. to the Yale Academy ("Yale"), a private institution. When B.T. moved to Mansfield, the Mansfield Township Board of Education continued the placement at Yale for the first year he was in Mansfield, which was third grade.
For the following school year, 2002-03, B.T.'s parents no longer wanted B.T. to attend Yale. Instead of Yale, B.T.'s parents wanted B.T. to attend the Access School ("Access"), another private institution. The school district did not believe that Access was appropriate for B.T. The parents filed a due process petition seeking to have B.T. go to Access. That matter was settled, and the parents and the school district agreed that
B.T would attend Access for 2002-03, and that the parents would assume all responsibility for transportation for as long as B.T. attended Access. The parents were paid $3,000 for all expenses. The Board provided a program for B.T. in the summer of 2003, but transportation was not provided.
In early September of 2003, the parents sought to have B.T. return to the Board's own schools. As this was not done until after the start of the school year, and there was no program in place for B.T. in-district, it was proposed to the parents that he be temporarily placed on home instruction pending the hiring of a teacher solely to help educate B.T. Because the parents did not agree, the delay resulted in the teacher in question finding employment elsewhere. Home instruction was offered and rejected, and B.T. returned to Access in September for that year. B.T., however, had missed seventeen days of school prior to returning to Access.
B.T.'s parents filed another due process petition, which was also settled. This settlement provided that the Board would transport B.T. to Access for 2003-04 by mini-van/bus at the Board's expense, that his June 2003 IEP remained in effect, and that an extended year program would be discussed in January 2004. In the summer of 2004, the Board provided B.T. with an extended year program. Transportation was not provided. Thereafter, B.T. was no longer the responsibility of the Board because due to his increasing grade level, the Northern Burlington Regional School District became the local educational agency responsible for educating B.T.
Plaintiffs claim that the Board violated the IDEA and the Rehabilitation Act by: 1) not providing a proper extended year program (ESY) during the summers of 2001, 2002, and 2003 to meet B.T.'s needs in speech and occupational therapy; 2) not providing transportation services; and 3) not providing a free appropriate education for the seventeen days during September 2003.
On Defendant's first summary judgment motion the Court granted Defendant's motion on Plaintiffs' claims under the "Child Find" obligation of the IDEA and their claims for punitive damages under the Rehabilitation Act section 504(a) and 42 U.S.C. § 1983. Defendant has now moved for summary judgment on Plaintiffs' remaining claims for direct violations of the IDEA and the Rehabilitation Act by arguing that section 504 damages are only available for intentional violations and Plaintiffs have failed to exhaust their administrative remedies. With regard to Plaintiffs' claims for violations of the IDEA brought pursuant to § 1983, Defendant argues that recent precedent bars any recovery pursuant to § 1983.
A. Plaintiffs' Direct Claims for Violations of the IDEA and Section 504 of the Rehabilitation Act
Plaintiffs' claims, the statutes under which they bring their claims, and Defendant's arguments for judgment in its favor are all intertwined. Plaintiffs have brought their claims pursuant to both the IDEA and the Rehabilitation Act, which address similar issues. The IDEA focuses on the appropriateness of the public education afforded special needs students, while the Rehabilitation Act focuses on disability-based discrimination against special needs students. Hornstine v. Township of Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 2003) (citations omitted). Thus, while the Rehabilitation Act provides relief from discrimination, the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination. Id.
Here, Plaintiffs claim that Defendant's conduct has violated both the IDEA and the Rehabilitation Act. Plaintiffs claim that Defendant's unilateral decision to exclude B.T. from school in September 2003, which resulted in him missing seventeen days of school, violated section 504 of the Rehabilitation Act because he was not afforded a free appropriate education (FAPE) as required by the IDEA. Plaintiffs also claim that Defendant's failure to provide an ESY summer program and transportation violated his right to a FAPE under the IDEA.
Defendant argues that Plaintiffs' claims for violations of section 504 of the Rehabilitation Act are not actionable because damages are limited to recovery for intentional acts. Defendant also argues that Plaintiffs' claims arising under the IDEA and prosecuted through section 504 of the Rehabilitation Act must be dismissed for failure to exhaust administrative remedies. Each argument will be addressed in turn.
1. Rehabilitation Act Claim
Defendant claims that Plaintiffs' Rehabilitation Act claim must fail because Plaintiffs have not alleged that Defendant intentionally violated Plaintiffs' rights. Defendant argues that Plaintiffs have only alleged that Defendant failed to provide B.T. with a FAPE, and that claim does not rise to the level of intentional conduct required for a Rehabilitation Act violation. To support its argument, Defendant cites to one in-district case, which cites to another in-district case, both holding that in order to maintain a claim under the Rehabilitation Act, a plaintiff must allege intentional discrimination. See Meadows v. Hudson County Bd. of Elections, 2006 WL 2482956, *11 (D.N.J. Aug. 24, 2006) (quoting Bowers v. NCAA, 118 F. Supp. 2d 494, 507-08 (D.N.J. 2000)). In further support of the contention that a plaintiff must allege intentional discrimination in order to sustain a claim under the Rehabilitation Act, Defendant has also cited to a Fourth Circuit case, Sellers v. School Bd. of City of Mannassas, Va., 141 F.3d 524, 529 (4th Cir. 1998), and a First Circuit Case, Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003), which have both held that either bad faith or gross misjudgment should be shown before a section 504 violation can be made out, at least in the context of education of handicapped children.
These courts, as well as other circuit courts,*fn1 have determined that an allegation of intentional conduct is necessary because the Supreme Court held that compensatory damages are available under Title VI of Civil Rights Act of 1964 only for intentional discrimination, and the Rehabilitation Act borrows its remedies from Title VI. See Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001); 29 U.S.C. § 794a(a)(2) (Rehabilitation Act borrows remedies from Title VI). The Supreme ...