Beth v. Ex Rel. Yvonne v. v. Carroll

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

6-25-1996

Beth V. v. Carroll

Precedential or Non-Precedential:

Docket 95-1097

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________

No. 95-1097

______________

BETH V., A Minor, By Her Parent and Natural Guardian,

Yvonne V.; YVONNE V.,In Her Own Right; BRANDON M., A Minor By His

Parent and Natural Guardian, Frederica M.; FREDERICA M.,

In Her Own Right; PARENTS UNION FOR PUBLIC SCHOOLS,

On Their Own Behalf And

On Behalf of All Others Similarly Situated,

Appellants

v.

DONALD M. CARROLL, JR.,

Secretary of Education, Commonwealth of Pennsylvania;

DEPARTMENT OF EDUCATION; Commonwealth of Pennsylvania;

RICHARD W. RILEY, Secretary of Education,

United States of America

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 93-cv-04418)

Argued September 15, 1995

Before: SLOVITER, Chief Judge,

ALITO and SEITZ, Circuit Judges

(Filed June 25, l996)

________________

Mary G. Scanlon (Argued)

Education Law Center

Philadelphia, PA 19107

Attorney for Appellants

Claudia M. Tesoro (Argued)

Office of Attorney General of Pennsylvania

Philadelphia, PA 19107

Attorney for Appellees

____________________

OPINION OF THE COURT

____________________

SLOVITER, Chief Judge.

The plaintiffs-appellants are two learning-disabled

children and their mothers who, frustrated with their inability

to secure the special educational plans to which they claim they

were entitled by the Commonwealth of Pennsylvania under the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C.

1400-91, filed complaints with the Pennsylvania Department of

Education (PDE). When their complaints were inadequately

addressed or unanswered by the PDE, the plaintiffs, joined by

Parents Union for Public Schools, a non-profit educational

advocacy organization, sought declaratory and injunctive relief

by bringing suit against the PDE and the state Secretary of

Education (jointly PDE), claiming that the Commonwealth had

failed to comply with regulations promulgated by the United

States Department of Education (DOE) governing procedures for

resolution of complaints, and moved for class certification.

Although neither the PDE nor the U.S. Secretary of

Education, who was also sued but has since been dismissed as a

defendant, contended that plaintiffs did not have a private right

of action, the district court directed briefing on that issue.

Thereafter, the court, without reaching any of the substantive

issues raised by the complaint, entered summary judgment against

the plaintiffs on the ground, inter alia, that the plaintiffs did

not have a right of action on their claim that the state had

failed to maintain a timely and effective state-level complaint

resolution system as required by IDEA and by the DOE regulations.

Because we view the court's decision as inconsistent with the

statutory language in IDEA establishing a private right of

action, see 20 U.S.C. 1415(e), we will reverse and remand. We

will therefore not reach the numerous other issues raised by the

parties on appeal.

I.

IDEA, originally enacted in 1970 as the Education of

the Handicapped Act (EHA), Pub. L. No. 91-230, 601-662, 84

Stat. 175, confers on disabled children a substantive right to a

"free appropriate public education." 20 U.S.C. 1400(c); seeHonig v.

Doe, 484 U.S. 305, 308-10 (1988). That free appropriate

education "consists of educational instruction specially designed

to meet the unique needs of the [disabled] child, supported by

such services as are necessary to permit the child 'to benefit'

from the instruction." Board of Educ. v. Rowley, 458 U.S. 176,

188-89 (1982). Under IDEA, a disabled student is entitled to an

Individualized Education Plan (IEP), a specially tailored

educational program detailing the student's present abilities,

educational goals, and specific services designed to achieve

those goals within a stated timeframe. See 20 U.S.C.

1401(a)(20).

IDEA places on the states the primary responsibility

for satisfying the goals of the statute. IDEA, described by

several courts as a model of "cooperative federalism," see, e.g.,

Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 151 (3d Cir.

1994); Town of Burlington v. Dep't of Educ., 736 F.2d 773, 783

(1st Cir. 1984), aff'd, 471 U.S. 359 (1985), authorizes federal

funding for states providing the special education that the

statute requires, but funding is contingent on state compliance

with its array of substantive and procedural requirements, 20

U.S.C. 1412.

One of those requirements is the provision for

procedural safeguards as outlined in the statute which maximize

parental involvement in decisions affecting their children's

education. See 20 U.S.C. 1415. Those procedures expressly

include, inter alia, an opportunity for the parents or guardian

of a handicapped child to examine all relevant records pertaining

to the education of such child and written prior notice of

proposals or refusals to initiate or change the identification,

evaluation or educational placement of the child. See

1415(b)(1)(A), (C). The statute also includes among the required

procedures an opportunity to present complaints "with respect to

any matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a free

appropriate public education to such child." 1415(b)(1)(E).

Parents or guardians have the statutory right to secure an

impartial due process hearing based on such a complaint to be

conducted by the state, local or intermediate educational agency.

1415(b)(2). Parties aggrieved by the resulting findings and

decision are entitled to bring a civil action in either state or

federal court. 1415(e)(2). The procedures specified in

1415(b) are not exclusive, as the section states at the outset

that "[t]he procedures required by this section shall include,

but shall not be limited to" those specified.

In addition to the procedures specified in the statute,

the states must also establish written procedures for resolving a

complaint filed by an organization or individual that alleges a

public agency has violated a requirement of IDEA or the related

regulations. The requirement to adopt certain minimum state

complaint procedures is contained in regulations promulgated by

the U.S. Department of Education (DOE). These regulations were

initially promulgated by the DOE in 1972 under IDEA's predecessor

statute, the EHA, see 45 C.F.R. 121.109 (1972), and they have

since been reissued twice under other statutory authority: first

in 1980, referring to 20 U.S.C. 1221e-3(a)(1), part of the

General Education Provisions Act, as the enabling statute, and

again in 1993, this time referring to 20 U.S.C. 2831(a), part

of the Elementary and Secondary Education Act of 1965.

Although the current regulations are not in full haecverba with

each of their predecessors, the current regulations,

like the preceding regulations, require the state agency to have

procedures for the receipt and resolution of such complaints and

impose a time limit (60 days since 1980) for the state to carry

out "an independent on-site investigation," if necessary, with an

extension beyond the 60 calendar days, "only if exceptional

circumstances exist with respect to a particular complaint."

See, e.g., 300 C.F.R. 330.661 (1995); 45 C.F.R. 100b.780-

.781 (1980). The current regulations not only require the state

educational agency to conduct any necessary investigation of a

complaint, but also require that the state's complaint resolution

procedures permit complainants to submit additional information,

and that the state educational agency review all relevant

information and issue a written decision addressing all

allegations. 34 C.F.R. 300.661 (1995). The state educational

agency must also adopt, where necessary, "[p]rocedures for

effective implementation" of its final decisions, including

"corrective actions to achieve compliance." 300.661(c).

At this initial stage of the plaintiff's action, the

record is meager with respect to the type of complaints that are

generally the subject of these complaint resolution procedures,

nor do we know with any certainty to what extent they may overlap

with the due process procedures, as plaintiffs' counsel stated at

oral argument. It appears to be conceded by the PDE that the DOE

regulations requiring a complaint resolution system encompass at

least complaints of the type of system-wide deficiencies alleged

here. Oral Argument Transcript at 30-31 (Sept. 15, 1995); seealso Mrs. W.

v. Tirozzi, 832 F.2d 748 (2d Cir. 1987). The PDE

does not deny that it has the obligation to maintain such a

complaint resolution system for the prompt receipt, investigation

and resolution of complaints that a public agency has violated

IDEA or related regulations.

We turn to the allegations of the named plaintiffs,

whose situations illustrate the types of complaints that the

complaint resolution procedures may encompass. Plaintiffs Beth

V. and Brandon M., both of whom have specific learning

disabilities, attend school in Pennsylvania. Beth had had an IEP

devised for her, but her mother, plaintiff Yvonne V., determined

during the 1991-92 school year that Beth's school was not

implementing it. Concerned that her daughter's academic

progress was withering, Yvonne filed two complaints with the PDE

pursuant to the complaint resolution procedures--one in April

1992 and another in February 1993. Despite a directive by the

DOE to the PDE to resolve the matter quickly, the PDE has never

issued a decision and the complaints have never been resolved.

The complaint relating to Brandon M., the second child

plaintiff, deals with his transfer to a different school after a

year of showing academic and behavioral improvement. His mother,

plaintiff Frederica M., was given no prior notice or opportunity

to object, and requested a due process hearing under 1415 of

IDEA. After three months, four such requests, and no hearing,

Frederica filed a complaint with the PDE about his treatment.

She did not receive the PDE's closure report until 190 days later

and, although the PDE ordered Brandon's reinstatement at his

original school, it failed to order the compensatory education he

requested or to address the school district's failure to provide

a due process hearing. In the meantime, Brandon failed most of

his courses.

Parents Union for Public Schools, a non-profit

educational advocacy organization, has filed numerous complaints

with the PDE on behalf of students with disabilities and their

families. It joined the individual plaintiffs in bringing suit

against the PDE "on behalf of all Pennsylvania children with

disabilities, and their parents or representatives, who are

unable to rectify violations of their rights under the

Individuals with Disabilities Education Act."

In their district court complaint, the plaintiffs

alleged that the complaints they filed with the PDE and/or its

Division of Compliance had been inadequately and tardily

processed. More generally, they charged that the PDE's complaint

resolution procedures were deficient in that the PDE failed to

(1) resolve over 40% of its complaints within the required

period; (2) address all allegations raised in complaints; (3)

adequately order or enforce corrective action; or (4) permit

interested parties to submit additional evidence before issuing

reports.

The plaintiffs sought declaratory and injunctive

relief, urging the district court to require the PDE to adopt

measures that would ensure compliance with the requirements of

the regulations; submit a plan to ensure continued compliance and

periodic reports; and publicize the availability and operation of

its complaint procedures. They also sought compensatory

educational services for Beth V. and Brandon M., and

reimbursement for those educational services their parents had

privately secured for them while awaiting complaint resolution.

Finally, the plaintiffs requested compensatory educational

services and reimbursement for all other parties who had

experienced delayed resolution of "founded complaints". App. at

30-32.

The plaintiffs asserted causes of action directly under

IDEA, under the complaint resolution regulations, under 42 U.S.C.

1983, and under section 504 of the Rehabilitation Act of 1973.

They then moved for certification of a plaintiff class composed

of Pennsylvania children, parents, and representatives who had

used, or would use, the complaint resolution procedures.

The PDE stipulated to certification of the class as

proposed. Nonetheless, the district court declined to rule on

the class issue on the ground that the interest shared by the

plaintiffs and the PDE in securing increased state funding and

resources for better complaint resolution "made it no longer

feasible to rely primarily on the litigants to produce and

develop factual materials." Beth V. v. Carroll, 155 F.R.D. 529,

533 (E.D. Pa. 1994). The court stated that it would make an

"independent determination" equipped with "more than a single

perspective on key issues," id. at 534, and sua sponte appointed

a special master, directing him not only to adduce facts relevant

to the propriety of class certification but also to establish the

controversy as one justiciable by an Article III court and to

identify any third parties potentially disadvantaged by or

opposed to the relief sought. Id.

The master, who completed his report in August 1994,

concluded that the relief sought was broader than the district

court was empowered to fashion, and recommended against class

certification. He confirmed that the PDE failed to resolve one-

third of the complaints within the required 60 days, and reported

that the DOE's Office of Special Education Programs (OSEP) had

investigated the PDE's complaint procedures in late 1993 as part

of its yearly review, found them inadequate, and ordered the PDE

to develop and execute a plan for fuller compliance.

The master recommended against the broad injunctive

relief requested by the plaintiffs. He described that relief as

approaching "direct supervisory control" by the district court

over the PDE, concluded that the court's resulting role would

overreach the Article III "case or controversy" requirement, and

believed that the requested intervention was inconsistent with

the U.S. Education Secretary's primary authority over--and

ongoing supervision of--the PDE's compliance with IDEA. He

recommended that the district court limit its adjudication to

particular harms to individual plaintiffs, and that it therefore

decline class certification. App. at 112-34. In their response

to the master's report, the plaintiffs included objections not

only to the substance of the report but also to the appointment

of the master for the purposes directed. That issue is not

raised by the plaintiffs on appeal because the master's report

does not go to the issue of whether plaintiffs have a right of

action

.

The plaintiffs then moved for summary judgment. The

district court, again acting sua sponte, requested briefing on

the existence of a private right of action to seek enforcement of

the complaint resolution procedures. Beth V. v. Carroll, No. 93-

4418, 1994 WL 594267 (E.D. Pa. Oct. 25, 1994). Shortly after

submission of the briefs and without oral argument, the court

concluded that such a right of action did not exist, denied the

plaintiffs' motion for summary judgment, and instead entered

summary judgment for the PDE on the plaintiffs' claims under IDEA

and 1983. Beth V. v. Carroll, 876 F. Supp. 1415 (E.D. Pa.

1995). The district court stated that it "decline[d] to imply a

right of action in favor of private parties such as plaintiffs

directly under the regulations at issue," id. at 1419; see id. at

1426-32, and determined that "in light of the current efforts of

the United States Secretary of Education . . . to resolve the

very problems that are the impetus for this lawsuit, plaintiffs

are foreclosed from enforcing those regulations under 42 U.S.C.

1983," id. at 1419; see id. at 1432-36. Thus, the district court

disposed of the plaintiffs' claims that they had an implied right

of action as well as an action under 1983, but gave no specific

attention to the plaintiffs' invocation (albeit in a somewhat

oblique manner) of an express right of action under 1415 of

IDEA. The court then denied as moot the motion for class

certification. Id. at 1423. After plaintiffs moved to withdraw

their Rehabilitation Act claim, the court dismissed it, seeAddendum II,

and plaintiffs appealed.

The district court had jurisdiction under 28 U.S.C.

1331 and 1343, and we have jurisdiction pursuant to 28 U.S.C.

1291.

II.

The ground on which we decide this appeal requires only

that we consider whether the plaintiffs can rely on the express

right of action contained in 1415 of IDEA. Because the

plaintiffs were blocked at the inception of their action, the

district court never considered the merits of their claims. The

issue of the plaintiffs' right to sue under IDEA based on a claim

that the state has failed to implement DOE's regulations for a

complaint resolution procedure is an important one in the

effectuation of the substantive rights established under IDEA.

Thus, the fact that the district court gave the plaintiffs leave

to refile their 1983 claim in the future is irrelevant to our

review of its decision that the plaintiffs do not have a right of

action under IDEA itself. As the question is one of statutory

construction, our review is plenary. Doherty v. Teamsters

Pension Trust Fund, 16 F.3d 1386, 1389 (3d Cir. 1994).

A.

The express language of IDEA gives disabled children

and their parents substantive and procedural rights as well as

the right to seek judicial enforcement of those rights in a

federal or state court. Section 1415 of the Act provides:

(a) Establishment and maintenance

Any State educational agency . . . which

receives assistance under this subchapter

shall establish and maintain procedures in

accordance with subsection (b) through

subsection (e) of this section to assure that

children with disabilities and their parents

or guardians are guaranteed procedural

safeguards with respect to the provision of

free appropriate public education by such

agencies and units.

(b) Required procedures; hearing

(1) The procedures required by this section

shall include, but shall not be limited to --

. . . .

(E) an opportunity to present

complaints with respect to any matter

relating to the identification,

evaluation, or educational placement of

the child, or the provision of a free

appropriate public education to such

child.

(2) Whenever a complaint has been

received under paragraph (1) of this

subsection, the parents or guardian shall

have an opportunity for an impartial due

process hearing which shall be conducted by

the State educational agency or by the local

educational agency or intermediate

educational unit, as determined by State law

or by the State educational agency . . . .

(c) Review of local decision by State

educational agency

If the hearing required in paragraph (2)

of subsection (b) of this section is

conducted by a local educational agency or an

intermediate educational unit, any party

aggrieved by the findings and decision

rendered in such a hearing may appeal to the

State educational agency which shall conduct

an impartial review of such hearing. The

officer conducting such review shall make an

independent decision upon completion of such

review.

. . . .

(e) Civil action; jurisdiction

. . . .

(2) Any party aggrieved by the findings

and decision made under subsection (b) of

this section who does not have the right to

an appeal under subsection (c) of this

section, and any party aggrieved by the

findings and decision under subsection (c) of

this section, shall have the right to bring a

civil action with respect to the complaint

presented pursuant to this section, which

action may be brought in any State court of

competent jurisdiction or in a district court

of the United States without regard to the

amount in controversy. In any action brought

under this paragraph the court shall receive

the records of the administrative

proceedings, shall hear additional evidence

at the request of a party, and, basing its

decision on the preponderance of the

evidence, shall grant such relief as the

court determines is appropriate.

. . . .

20 U.S.C. 1415 (emphasis added).

Thus, if the plaintiffs' claim that the PDE failed to

implement or maintain an effective complaint resolution system to

investigate and resolve complaints that there have been

violations of IDEA or related regulations is one "with respect to

any matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a free

appropriate public education to such child" as specified in

1415(b)(1)(E), the language of 1415(e)(2) authorizing filing of

a civil action plainly encompasses this lawsuit. Nothing in the

district court's opinion addressed why that express language

fails to cover these plaintiffs and their claim.

The PDE argues that the plaintiffs' claim falls outside

the subject matter limitation of 1415(b)(1)(E) because it is

"about the sufficiency of a purely regulatory procedure" and does

not involve "anyone's educational program." Brief of Appellees

at 12. The argument is unpersuasive for several reasons.

First, the attempt by the plaintiffs to secure redress

by complaint to the PDE arises out of the inability of the

children involved to secure a satisfactory education and thus

directly implicates "the provision of a free appropriate public

education to such child" as required by 1415(b)(1)(E).

Second, even applying the PDE's stringently literal

approach, we note that the statutory language in 1415(b)(1)(E)

refers to the opportunity to submit not only a complaint that

directly addresses "the provision of a free appropriate public

education," but also one "with respect to any matter relating to"

such provision. Thus, the claim that is the subject of the

judicial action authorized under 1415(e)(2) is broader than

suggested by the PDE.

Third, the procedural safeguards undergirding the IDEA

scheme lie at the core of 1415(e)(2) and its authorization of

suit. See Rowley, 458 U.S. at 205-06 ("It seems to us no

exaggeration to say that Congress placed every bit as much

emphasis upon compliance with procedures giving parents and

guardians a large measure of participation at every stage of the

administrative process, as it did upon the measurement of the

resulting IEP against a substantive standard.") (citation

omitted); Murphy v. Timberlane Regional Sch. Dist., 22 F.3d 1186,

1196 (1st Cir.), cert. denied, 115 S.Ct. 484 (1994) ("It is

plainly true, of course . . . that not every procedural

irregularity gives rise to liability under the IDEA.

Nevertheless, 'procedural inadequacies [that have] compromised

the pupil's right to an appropriate education . . . or caused a

deprivation of educational benefits' are the stuff of successful

IDEA actions.") (alteration in original) (citations omitted); seealso W.G.

v. Board of Trustees, 960 F.2d 1479, 1484 (9th Cir.

1992) ("[P]rocedural inadequacies that result in the loss of

educational opportunity or seriously infringe the parents'

opportunity to participate in the IEP formulation process" give

rise to liability under IDEA's predecessor statute, EHA); Mrs. C.

v. Wheaton, 916 F.2d 69, 72 (2d Cir. 1990) (a party may "seek

redress in the federal courts for the state's failure to provide

any of the EHA procedural safeguards."); Christopher W. v.

Portsmouth Sch. Comm., 877 F.2d 1089, 1095 (1st Cir. 1989) (both

substantive and procedural violations of EHA fall within

1415(b)(1)(E) "matters relating to"); Muth v. Central Bucks Sch.

Dist., 839 F.2d 113, 120-26 (3d Cir. 1988), rev'd on other

grounds sub nom. Delmuth v. Muth, 491 U.S. 223 (1989)

(entertaining and sustaining 1415 claim that Pennsylvania's due

process procedures deviated from requirements of EHA).

Fourth, the PDE's contention that the plaintiffs'

claims involve only the adequacy of a regulatory procedure--and

really involve no one's educational program--suggests that the

plaintiffs are challenging only the abstract sufficiency of the

PDE's complaint procedures with little connection to any

underlying substantive educational concerns. However, the PDE

never suggests that the plaintiffs assert only a generalized

grievance--enforcing the law for the law's sake. Indeed, the PDE

conceded at oral argument that there was no "standing problem"

here. Oral Argument Transcript at 34. The immediacy of the

issue to Beth V. and Brandon M. and their parents is evident from

the treatment they received in their attempts to effectuate the

substantive rights accorded them under the statute.

Fifth, the complaint resolution procedures were

evidently designed by the DOE to afford persons such as the

plaintiffs an opportunity to bring to the attention of a state

agency claims of non-compliance with IDEA or related regulations

without, as the complaint alleges, "having to resort to costly

legal actions" for prompt and expeditious correction. Indeed,

the PDE apparently has promulgated written procedures for a

complaint resolution system under IDEA, and the Master's Report

itself states:

Federal regulations require that states

receiving federal money under the IDEA should

investigate, review and decide individual

complaints within sixty (60) calendar days.

See 34 CFR 300.661 (1993). The DOC's

Complaint Management System accepts this

sixty day requirement as the applicable

timeline (subject to extension where

appropriate). See DOC Procedures in Appendix

Exhibit "B" at 11.

App. at 113-14. If the PDE's position is sustained, those

children and parents who are confronted with pervasive and

entrenched obstacles to securing an adequate education would be

precluded from seeking judicial relief in their effort to enforce

the complaint resolution system which provides the opportunity to

bring violations of IDEA to the attention of the state agency.

Finally, we note the coherence of purpose between the

complaint resolution procedures and the IDEA scheme. The nexus

between the complaint resolution system and IDEA's mandate is

evident by reference to the statutory language of IDEA. Section

1412(6) of IDEA imposes upon the state agency a broad obligation

as follows:

The State educational agency shall be

responsible for assuring that the

requirements of this subchapter are carried

out and that all educational programs for

children with disabilities within the State,

including all such programs administered by

any other State or local agency, will be

under the general supervision of the persons

responsible for educational programs for

children with disabilities in the State

educational agency and shall meet education

standards of the State educational agency.

20 U.S.C. 1412(6).

The PDE suggests that this mandate of 1412(6) is a

limited one, requiring that states assure only that "the

requirements of this subchapter are carried out." The PDE argues

that because "this subchapter" includes only 1411 through 1420

of IDEA, 1412(6) cannot be read to command compliance with

nonstatutory complaint procedures. This argument neglects the

fact that the relevant "subchapter" also includes 1412(1), a

provision that requires that each "state ha[ve] in effect a

policy that assures all children with disabilities the right to a

free appropriate public education." 20 U.S.C. 1412(1) (1995).

The "purpose" clause of the DOE regulations in their

current form is as follows:

To ensure that all children with disabilities have

available to them a free appropriate public education

that includes special education and related services to

meet their unique needs [and] [t]o ensure that the

rights of children with disabilities and their parents

are protected . . . .

34 C.F.R. 300.1(a)-(b) (1995).

This language is strikingly parallel with that of

IDEA's 1412(1), and makes clear the link between the need to

maintain an operational complaint resolution system, the

requirement of 1412(1) of IDEA that states maintain policies

assuring the right to a free appropriate public education, and

the mandate of 1412(6) of IDEA that the state educational

agency ensure execution and compliance of these policies.

The only other appellate decision of which we are aware

to consider a comparable issue upheld the plaintiffs' right to

sue on allegations that their state had systematically failed to

implement the regulatory complaint procedures of 34 C.F.R.

300.660-.662. See Mrs. W. v. Tirozzi, 832 F.2d 748, 759 (2d Cir.

1987) (permitting plaintiffs "to pursue claimed EHA violations"

through suit under 42 U.S.C. 1983 where "the pleadings indicate

that defendants refused to consider and resolve complaints of

system-wide violations of the EHA"). The Second Circuit reached

that conclusion after a comprehensive review of the legislative

history accompanying 1415(f) of the EHA, because it found that

Congress' intent to permit private actions to enforce the EHA's

provisions was clear. Id. at 754-55.

On remand, the district court denied the defendants'

renewed motion for judgment on the pleadings, reasoning that

inasmuch as the state agency has the statutory responsibility to

assure that educational programs in the state for disabled

persons are operated in accordance with the applicable statute,

the state agency is required to provide complaint resolution

procedures to address complaints of violations of federal law.

Mrs. W. v. Tirozzi, 706 Supp. 164, 168 (D. Conn. 1989). That

court further observed that the plaintiffs' claim asserted not

simply a "violation of the [complaint resolution procedures] nor

the underlying authorizing statute," but rather a "violation of

the State Board's obligation to monitor and ensure compliance

with the EHA by state and local educational agencies," a

statutory obligation. Id. at 166.

We note furthermore that our holding is consistent with

Congress' view that private suits are integral to enforcement of

IDEA. Congress' reliance on a private action as one of the

principal enforcement mechanisms of the rights guaranteed under

IDEA is demonstrated by its prompt enactment of a 1989 amendment

to IDEA which makes express its abrogation of the states'

Eleventh Amendment immunity from suit. See 20 U.S.C. 1403

(overturning the decision in Dellmuth v. Muth, 491 U.S. 223

(1989)).

Consistent with the palpable nexus between the

provision of a free appropriate public education mandated by IDEA

and the DOE regulations requiring procedures for bringing

complaints of violations of IDEA and related regulations to the

attention of the state agency, we hold that the plaintiffs, who

allege that the PDE has consistently failed to investigate and

timely resolve such complaints, enjoy an express right of action

under 1415 of IDEA. It is therefore unnecessary for us to

consider the plaintiffs' contention that they also have an

implied right of action under IDEA or may sue under 42 U.S.C.

1983.

B.

Admittedly, the plaintiffs failed to meet the

requirement of 1415 that complainants filing suit must first

secure a due process hearing and exhaust opportunity for

administrative appeal. 20 U.S.C. 1415(b)(2) & (e)(2); seeKomninos v.

Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d

Cir. 1994). The plaintiffs contend that they should be excused

from the administrative exhaustion requirement because they fall

within one of the exceptions recognized by this court.

In Komninos, where we addressed exhaustion specifically

in the IDEA 1415 context, we stated that claimants may "bypass

the administrative process" (1) "where exhaustion would be futile

or inadequate," id. (quoting Honig, 484 U.S. at 327); see alsoH.R. Rep.

No. 296, 99th Cong., 1st Sess. 7 (1985) [hereinafter

1985 House Report] (no exhaustion required where "it would be

futile to use the due process procedures"); (2) "where the issue

presented is purely a legal question," Komninos, 13 F.3d at 778

(citing Lester H., 916 F.2d at 869-70); (3) "where the

administrative agency cannot grant relief," id.; see also 1995

House Report at 7 (no exhaustion required where "it is improbable

that adequate relief can be obtained by pursuing administrative

remedies"); and (4) "when exhaustion would work 'severe or

irreparable harm' upon a litigant," Komninos, 13 F.3d at 778

(quoting Christopher W., 877 F.2d at 1097).

In the IDEA 1415 context, plaintiffs may thus be

excused from the pursuit of administrative remedies where they

allege systemic legal deficiencies and, correspondingly, request

system-wide relief that cannot be provided (or even addressed)

through the administrative process. See Mrs. W., 832 F.2d at

756-57 (waiving IDEA exhaustion requirement for plaintiffs who

challenged adequacy of state's complaint resolution procedures

under 42 U.S.C. 1983 where plaintiffs alleged that violations

were "unable to be addressed at the due process hearings provided

in Connecticut" and that the hearing officer lacked the authority

to provide system-wide relief); 1985 House Report at 7 (no

exhaustion required where "an agency has adopted a policy or

pursued a practice of general applicability that is contrary to

the law"). To the extent that this exception merely flows

implicitly from, or is in fact subsumed by, the futility and no-

administrative-relief exceptions, we view it as among

traditionally respected bases for a waiver of 1415's exhaustion

requirement.

The plaintiffs' claim in this case is, in essence, that

the safeguards to ensure timely and adequate resolution of

complaints that were the object of the DOE regulations requiring

complaint resolution procedures have failed on a system-wide

basis and thus the sufficiency of the state's complaint

procedures itself must be challenged. Their claim may contain

elements of one or more of the recognized exceptions to

exhaustion. However, we do not decide that issue in the first

instance. Because the district court failed to address directly

the plaintiffs' assertion of an express right of action under

1415, that court never discussed whether the plaintiffs may

qualify for a waiver of 1415's exhaustion requirement. We are

certainly not prepared to say they do not. Instead, we will

remand the case to the district court to determine, inter alia,

whether the plaintiffs need exhaust the administrative remedies

specified in 1415.

III.

In light of the foregoing discussion, we will reverse

the district court's grant of summary judgment against the

plaintiffs' direct IDEA claim under 1415, and remand for

further proceedings, including reconsideration of the class

certification issue. In doing so we do not decide what relief,

if any, the plaintiffs may be entitled to at this time should

they prove, or the defendants concede, the relevant allegations.

The plaintiffs originally requested injunctive relief, a

declaratory judgment and compensatory education. The district

court is free to consider whether the situation at the present

time has substantially altered the need for any of this relief.