Phillips v. Hebron ( 2020 )

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ALEXANDER M. PHILLIPS v. TOWN OF
HEBRON ET AL.
(AC 42276)
Alvord, Moll and Bishop, Js.
Syllabus
The plaintiff, a minor child diagnosed with Down syndrome and without
functional speech who was enrolled in the Hebron public school system,
brought an action seeking damages from the defendants, the town of
Hebron, the Board of Education, and eight of the board’s employees,
for, inter alia, negligence per se and statutory (§§ 46a-58 and 46a-75)
discrimination. The plaintiff claimed that the defendants discriminated
against him based on his disabilities by segregating him from students
without disabilities and breached their duties to educate him in the least
restrictive environment. The defendants filed a motion to dismiss the
plaintiff’s complaint on the ground that the plaintiff sought relief for
the defendants’ failure to provide special education services under the
Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.),
thus triggering an administrative exhaustion requirement contained in
that act and in the applicable state statutory (§ 10-76a et seq.) scheme
that implements the federal act, thereby depriving the trial court of
subject matter jurisdiction. The defendants specifically contended that,
although the plaintiff did not allege a violation of the federal act, he
sought relief for the denial of a free appropriate public education under
the federal act and that, regardless of whether the complaint alleged a
violation of the federal act, the federal act and state law (§ 10-76h)
mandated exhaustion of administrative remedies insofar as the crux of
the complaint was the alleged denial of a free appropriate public educa-
tion. The trial court granted the motion to dismiss and rendered judgment
thereon, concluding that the plaintiff was required to exhaust his admin-
istrative remedies but had failed to do so. On appeal to this court, the
plaintiff claimed, inter alia, that he was not required to exhaust his
administrative remedies because he did not allege a denial of a free
appropriate public education and sought monetary relief, a remedy that
was unavailable under the federal act. Held:
1. The plaintiff’s appeal with respect to the defendant town and the board
employees M and W was dismissed for lack of subject matter jurisdiction
for lack of a final judgment, as the judgment of dismissal did not dispose
of all causes of action against these defendants.
2. The trial court properly concluded that the plaintiff was required to
exhaust his administrative remedies, the plaintiff’s complaint having
clearly sought relief for the denial of a free appropriate public education:
this court relied on the framework set forth in the United States Supreme
Court decision in Fry v. Napoleon Community Schools (137 S. Ct. 743),
and adopted by our Supreme Court in Graham v. Friedlander (334
Conn. 564), in determining that, because the plaintiff’s claims could not
have been brought outside the school setting, the gravamen of the
plaintiff’s claims being that the defendants failed to educate the plaintiff
in the least restrictive environment when it placed his desk and chair
inside of a coatroom and did not permit him to spend a certain number
of hours per week with children without disabilities, as provided for in
his Individualized Education Plan, and that because the history of the
proceedings prior to the filing of the complaint demonstrated that the
plaintiff had invoked the formal procedures for filing a due process
complaint under the federal act, the plaintiff sought relief for the denial
of a free appropriate public education; moreover, the plaintiff could not
avoid the exhaustion requirements under the federal act merely because
he sought monetary damages; furthermore, the plaintiff was still required
to follow the federal act’s administrative procedures even though he
could not be awarded monetary damages, as the exhaustion requirement
requires a party to follow the administrative procedures, not that they
be successful at any point in the process and, therefore, the plaintiff
did not exhaust his administrative remedies when he began to pursue,
but did not complete, the administrative remedies provided for under
the federal act.
Argued September 17—officially released December 22, 2020
Procedural History
Action to recover damages for, inter alia, negligence
per se, and for other relief, brought to the Superior
Court in the judicial district of Tolland, where the court,
Farley, J., granted the defendants’ motion to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Appeal dismissed in part;
affirmed.
Patricia A. Cofrancesco, for the appellant (plaintiff).
Alexandria L. Voccio, for the appellees (defendants).
Andrew A. Feinstein filed a brief for the Council of
Parent Attorneys and Advocates, Inc., as amicus curiae.
Opinion
ALVORD, J. The minor plaintiff, Alexander M. Phil-
lips,1 appeals from the trial court’s decision granting
the motion of the defendants, the town of Hebron
(town), the Hebron Board of Education (board), and
eight of the board’s employees,2 to dismiss counts one
through twenty of the plaintiff’s complaint for lack of
subject matter jurisdiction on the basis of a failure to
exhaust administrative remedies.3 We dismiss the
appeal with respect to counts two through six, eight,
ten, twelve through sixteen, eighteen, and twenty for
lack of a final judgment.4 The judgment is affirmed in
all other respects.
The following facts, as alleged in the plaintiff’s opera-
tive complaint dated December 2, 2017, and procedural
history are relevant to our review of this appeal. The
plaintiff asserted the following allegations in para-
graphs 1 through 16 of count one of his complaint.
The seven year old plaintiff is a student at Gilead Hill
Elementary School in Hebron (school). He has been
diagnosed with Down syndrome and is without func-
tional speech, and he has an individualized education
program (IEP).5 On February 25, 2015, Ralph E. Phillips,
the plaintiff’s father, visited the school to observe the
plaintiff in his therapy session and activities. During
his visit to the plaintiff’s kindergarten classroom, the
plaintiff and his assigned paraprofessional went into
the coatroom, where there was a desk and chair for
the plaintiff.
The plaintiff’s father met with Joshua T. Martin, the
Director of Special Education, on or about March 2,
2015. The plaintiff’s father asked Martin how much time
the plaintiff spends in the coatroom each day. Martin
responded that he could not imagine why the plaintiff
would have to be in the coatroom unless there was
discrete testing going on and that he would look into
the matter.
On March 25, 2015, a Planning and Placement Team6
meeting was held. The participants included the plain-
tiff’s father, Sheryl Poulin, the plaintiff’s classroom
teacher, and Margaret Ellsworth, the plaintiff’s special
education teacher. During the meeting, Poulin stated
that the plaintiff naps in the classroom in the afternoon,
wakes up by 2 p.m., and will then use the computer.
When the plaintiff’s father asked Poulin where the plain-
tiff naps, Ellsworth responded that he naps in the coat-
room. A daily communication sheet, used by the plain-
tiff’s father and the school, indicated that the plaintiff
slept an average of 2.5 hours per day during the kinder-
garten year.
Also during the March 25 meeting, the plaintiff’s
father asked how much time the plaintiff spends in the
coatroom doing his classwork or projects, and Ells-
worth responded that he spent an average of about
forty minutes per day there. Ellsworth told the plaintiff’s
father that the plaintiff works in the coatroom because
his projects require a lot of space, and there is not
enough space in the classroom. She also stated that the
plaintiff can be distracting to other children, and they
can be distracting to him.
Prior to March 25, 2015, the plaintiff’s father had not
consented to or been notified of the plaintiff’s desk
and chair having been moved into the coatroom. The
complaint alleged that ‘‘the practice of placing a child
with a learning disability into a room away from nondis-
abled children is known as ‘warehousing,’ [which] is
done due to low expectations by teachers of the child’s
ability to learn.’’ Although the plaintiff’s operative IEP,
dated April 2, 2014, indicated that the plaintiff ‘‘will
spend 26.33 hours per week with children/students who
do not have disabilities,’’ the plaintiff was spending
approximately nine hours per week with children/stu-
dents who do not have disabilities.
In the March 30, 2015 daily communication sheet, the
plaintiff’s father read that ‘‘Mrs. Poulin and I rearranged
some of the furniture and moved [the plaintiff’s] work-
space into the classroom.’’ On April 30, 2015, the plain-
tiff’s father received a report card from the school that
was blank, except for information as to the plaintiff’s
name, the classroom teacher’s name, and the number
of days the plaintiff was tardy.
Exhibits submitted to the court by the plaintiff,
together with his opposition to the defendants’ motion
to dismiss counts one through twenty of his complaint,
disclose the following additional facts concerning rele-
vant administrative proceedings that preceded this
action.7 The plaintiff’s counsel submitted to the state
Department of Education, Bureau of Special Education
(department) a Special Education Complaint Form
(state complaint) and a Request for Impartial Special
Education Hearing (request for due process hearing),
both dated July 27, 2015. The plaintiff’s counsel attached
a complaint, which included the allegations described
previously in this opinion and other allegations regard-
ing the implementation of a feeding program for the
plaintiff. The state complaint and the request for due
process hearing did not identify any specific remedies
sought. By way of amendment dated September 16,
2015, the plaintiff sought the following remedies: (1) a
written explanation concerning the placement of the
plaintiff in the coatroom; (2) the replacement of the
feeding specialist; (3) unrestricted access to visit the
school without advance notice; and (4) modifications
to the plaintiff’s IEP. By way of an e-mail dated Septem-
ber 24, 2015, the plaintiff’s counsel communicated a
request to amend the complaint to seek monetary dam-
ages. The plaintiff’s state complaint was put in abeyance
to allow the due process hearing to proceed, in accor-
dance with applicable regulations.
By motion and accompanying memorandum of law
dated October 6, 2015, the board sought dismissal of
the request for a due process hearing ‘‘to the extent
that such request seeks remedies not available under
the [Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1400 et seq. (2012)] or accompanying state
statutes and/or regulations.’’ Specifically, the board
sought dismissal of any request (1) for money damages,
(2) for a written explanation of why the plaintiff’s educa-
tional program was moved into the coatroom, and (3)
that the board provide the plaintiff’s father with
unrestricted access to visit the school without advance
notice. The motion did not seek the dismissal of the
remaining remedies sought by the plaintiff, including
the requested modifications to the plaintiff’s IEP. In its
accompanying memorandum of law, the board
acknowledged that the plaintiff ‘‘has alleged that the
board provided this young student with special educa-
tion services in a more restrictive educational setting
for part of the school day, instead of wholly within the
regular education classroom. This claim is expressly
based upon the provisions of the IDEA.’’
After the board filed its motion to dismiss, the plain-
tiff’s father withdrew the request for a due process
hearing. He requested that the department proceed with
an investigation of the state complaint. The department
completed its investigation and issued a report of its
findings of fact and conclusions on March 14, 2016. The
department concluded that ‘‘the district’s use of the
alcove space, its failure to communicate the use of this
space to the parent and the miscalculation of the time
the student spent with nondisabled peers did not result
in a denial of a [free appropriate public education
(FAPE)] to the student . . . .’’ In its final paragraph,
the report stated that the parties may ‘‘request a due
process hearing on these same issues through this office
if a party disagrees with the conclusions reached in
this investigation and meet the applicable statute of
limitations.’’ Following the issuance of the department’s
report, there was no further request made for a due
process hearing. The plaintiff did file a complaint with
the Commission on Human Rights and Opportunities
(CHRO), which provided a release of jurisdiction on or
about June 24, 2016.
The plaintiff commenced this action in September,
2016. On October 17, 2016, the defendants removed this
case to the United States District Court for the District
of Connecticut. On August 29, 2017, the District Court
remanded the case back to the Superior Court after
concluding that the complaint did not raise a substantial
question of federal law.8
I
We deviate from our discussion of the facts and pro-
cedural history to address an issue of subject matter
jurisdiction. On September 8, 2020, this court issued an
order to the parties to be prepared to address at oral
argument whether this appeal should be dismissed with
respect to the town, Martin, and Barbara H. Wilson, for
lack of a final judgment.
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final. General Stat-
utes §§ 51-197a and 52-263; Practice Book § [61-1]. . . .
The policy concerns underlying the final judgment rule
are to discourage piecemeal appeals and to facilitate
the speedy and orderly disposition of cases at the trial
court level. . . . The appellate courts have a duty to
dismiss, even on [their] own initiative, any appeal that
[they lack] jurisdiction to hear. . . .
‘‘A judgment that disposes of only a part of a com-
plaint is not a final judgment . . . unless the partial
judgment disposes of all causes of action against a
particular party or parties; see Practice Book § 61-3; or
if the trial court makes a written determination regard-
ing the significance of the issues resolved by the judg-
ment and the chief justice or chief judge of the court
having appellate jurisdiction concurs. See Practice
Book § 61-4 (a).’’ (Citation omitted; internal quotation
marks omitted.) Tyler v. Tyler, 151 Conn. App. 98, 103,
93 A.3d 1179 (2014).
In the present case, the operative complaint, dated
December 2, 2017, contains thirty-two counts. Counts
one, three, five, seven, and nine, all captioned ‘‘Discrimi-
nation,’’ are alleged against the board, Martin, Wilson,
Ellsworth, and Poulin, respectively. Counts eleven, thir-
teen, fifteen, seventeen, and nineteen, all captioned
‘‘Negligence per se,’’ are alleged against the board, Mar-
tin, Wilson, Ellsworth, and Poulin, respectively. In
counts two, four, six, eight, ten, twelve, fourteen, six-
teen, eighteen, and twenty, the plaintiff seeks indemnifi-
cation of the board and the individual defendants from
the town pursuant to General Statutes § 7-465.
The defendants did not seek dismissal of counts
twenty-one through thirty-two of the complaint, and
those counts remain pending in the trial court.9 Of those
twelve counts that remain pending, several seek indem-
nification from the town, one is directed at Martin, and
one is directed at Wilson. Because the judgment of
dismissal did not dispose of all causes of action against
the town, Martin, and Wilson, there is no final judgment
under Practice Book § 61-3 with respect to those defen-
dants. The appeal with respect to them is therefore dis-
missed.
II
Having dismissed the appeal in part, we next set
forth the remaining relevant allegations of the operative
complaint dated December 2, 2017. As noted previously,
counts one, seven, and nine, asserted against the board,
Ellsworth, and Poulin, respectively, are all captioned
‘‘Discrimination’’ (collectively, discrimination counts).
Counts eleven, seventeen, and nineteen, asserted
against the board, Ellsworth, and Poulin, respectively,
are all captioned ‘‘Negligence per se’’ (collectively, neg-
ligence per se counts).
In addition to the allegations set forth previously in
this opinion, count one alleges that the plaintiff is a
‘‘member of a protected class and has a ‘learning disabil-
ity’ and a ‘physical disability’ as defined by . . . Gen-
eral Statutes § 46a-51 (13) and (15).’’ It further alleges
that the board, by and through its employees, ‘‘segre-
gated the . . . plaintiff from other children/students
without disabilities on the basis of the . . . plaintiff’s
disabilities.’’ Count one alleges that the board, by and
through its employees, ‘‘violated . . . General Statutes
§§ 46a-58 (a)10 and 46a-75 (a) and (b)11 when it deprived
the . . . plaintiff of his rights, privileges or immunities,
secured or protected by the constitution or laws of
this state or of the United States on account of the
disabilities of the . . . plaintiff.’’ (Footnotes added.)
Paragraph 20 of count one recites § 1412 (a) (5) (A)
of the IDEA,12 which provides: ‘‘To the maximum extent
appropriate, children with disabilities, including chil-
dren in public or private institutions or other care facili-
ties, are educated with children who are not disabled,
and special classes, separate schooling, or other
removal of children with disabilities from the regular
educational environment occurs only when the nature
or severity of the disability of a child is such that educa-
tion in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.’’
Paragraph 21 alleges that the board, by and through
its employees, ‘‘deprived the . . . plaintiff’s right to be
educated in the least restrictive environment as pro-
vided by law.’’ Paragraph 22 alleges that the plaintiff
filed a complaint alleging discrimination with the CHRO
and received a release of jurisdiction.
Counts seven and nine incorporate by reference para-
graphs 1 through 20 of count one. In counts seven and
nine, the plaintiff alleges that Ellsworth and Poulin
knew or should have known that ‘‘the relocation of the
. . . plaintiff, his desk and chair into a coatroom and
placing him in the coatroom, because he was disabled,
and leaving him to sleep throughout the afternoon while
nondisabled children were educated in the classroom
would deprive the . . . plaintiff of his rights, privileges
or immunities, secured or protected by the constitution
or laws of this state or of the United States.’’ The plaintiff
alleges that Ellsworth and Poulin violated §§ 46a-58 (a)
and 47a-75 (a) and (b) by ‘‘exploiting the fact that the
. . . plaintiff did not have functional speech and could
not tell his father what had been happening to him,
when it started or how it made him feel.’’
With respect to Ellsworth, the plaintiff specifically
alleges in count seven that she created the daily and
weekly schedule for the plaintiff and ‘‘knew where the
. . . plaintiff was at any given time during his school
day based upon the schedule she created.’’ The plaintiff
alleges that Ellsworth met monthly with the plaintiff’s
father for progress meetings and never informed him
that the plaintiff had been segregated from nondisabled
children. With respect to Poulin, the plaintiff alleges in
count nine that she ‘‘knew or should have known that
the . . . plaintiff, his desk and chair were moved from
her classroom into the adjacent coatroom [and that
move] constituted wrongful segregation and violated
the provisions of his IEP.’’
The negligence per se counts incorporate by refer-
ence paragraphs 1 through 20 of count one. In the negli-
gence per se counts, the plaintiff alleges that the board,
Ellsworth, and Poulin had a duty under 20 U.S.C. § 1412(a) (5) to educate the plaintiff in the least restrictive
environment. In count eleven, the plaintiff alleges that
the board, ‘‘by and through its employees, analyzed the
. . . plaintiff’s daily and weekly schedules to calculate
and determine the maximum amount of time wherein he
would be educated with nondisabled children/students
and set forth in the . . . plaintiff’s IEP that he would
spend at least [twenty-six] hours per week with nondis-
abled children.’’ The plaintiff alleges that the board
breached its duty under 20 U.S.C. § 1412 (a) (5) ‘‘by
moving the . . . plaintiff, his desk and chair into a coat-
room and placing him in the coatroom and leaving him
to sleep throughout the afternoon while nondisabled
children were educated in the classroom.’’ The plaintiff
alleges that the board ‘‘failed to act in accordance with
[20 U.S.C. § 1412 (a) (5)] and subjected the . . . plain-
tiff to imminent harm to his academic and social devel-
opment.’’
The plaintiff alleges in counts seventeen and nineteen
that Ellsworth and Poulin breached their duty under
20 U.S.C. § 1412 (a) (5) as they ‘‘knew or should have
known that the . . . plaintiff was not spending time
with nondisabled children/students to the maximum
extent possible.’’ With respect to Ellsworth, the plaintiff
alleges, upon information and belief, in count seventeen
that she attended weekly team meetings regarding the
plaintiff’s progress and compliance with his IEP and
that she ‘‘knew or should have known that, according
to the schedule she set for the . . . plaintiff and her
knowledge of the time the . . . plaintiff spent in the
coatroom each day, he could not spend 26.33 hours per
week with nondisabled children/students.’’ The plaintiff
alleges that Ellsworth’s ‘‘acts and/or omissions sub-
jected the . . . plaintiff to imminent harm and/or detri-
ment to his academic and social development.’’ With
respect to Poulin, the plaintiff alleges in count nineteen
that she ‘‘was a member of the Planning and Placement
Team for the . . . plaintiff, had a duty under [20 U.S.C.
§ 1412 (a) (5)] to ensure the . . . plaintiff was educated
in the least restrictive environment,’’ that she knew
the plaintiff was not ‘‘spending time with nondisabled
children/students to the maximum extent possible in
her own classroom,’’ and that her ‘‘acts and/or omis-
sions subjected the . . . plaintiff to imminent harm
and/or detriment to his academic and social devel-
opment.’’
On January 17, 2018, the defendants filed a motion
to dismiss counts one through twenty of the complaint
and a memorandum in support of the motion, arguing
that the court lacked subject matter jurisdiction on
the basis that the plaintiff had failed to exhaust the
administrative remedies available under the IDEA. Spe-
cifically, the defendants argued that because the dis-
crimination and negligence per se counts ‘‘allege that
the defendants failed to educate the . . . plaintiff in the
least restrict[ive] environment, and as a result, caused
harm to the . . . plaintiff’s academic and social devel-
opment, these counts are governed by the IDEA, and
the plaintiff was required to exhaust his administrative
remedies under 20 U.S.C. §§ 1415 (f) and (g). He has
failed to do so. Therefore, these counts should be dis-
missed.’’
On March 22, 2018, the plaintiff filed a memorandum
of law in opposition to the defendants’ motion to dis-
miss and attached the exhibits referenced previously.
In his opposition, the plaintiff argued, inter alia, that
because he sought monetary damages, a remedy that
is unavailable under the IDEA, for wrongful segregation,
and he did not allege a denial of a FAPE, he was not
required to exhaust his administrative remedies under
the IDEA. With respect to his discrimination claims,
the plaintiff argued, inter alia, that ‘‘the IDEA cannot
be the sole and exclusive remedy for disability discrimi-
nation just because the plaintiff is a student’’ because
‘‘[t]he standard for accommodation by a public school
system under the [Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131 et seq.] are not coextensive
with the FAPE requirements under IDEA . . . .’’ The
plaintiff also argued that the IDEA’s exhaustion require-
ment does not apply to the plaintiff’s disability discrimi-
nation claims ‘‘brought pursuant to Connecticut Gen-
eral Statutes over which the IDEA has no authority or
exhaustion requirement.’’ With respect to his negligence
per se claims, the plaintiff argued, inter alia, that such
counts allege wrongful segregation, not a denial of
FAPE, and that they use the least restrictive environ-
ment provision of the IDEA as the duty element only.
The court, Farley, J., held oral argument on the
motion to dismiss on May 29, 2018. On October 5, 2018,
the court issued a memorandum of decision granting
the defendants’ motion to dismiss counts one through
twenty.13 The court concluded that the plaintiff’s dis-
crimination and negligence per se claims sought relief
for a denial of FAPE and therefore were subject to the
exhaustion requirement.14 Because the plaintiff failed
to exhaust his administrative remedies before filing suit,
the court found that it lacked subject matter jurisdiction
and granted the defendants’ motion to dismiss. On Octo-
ber 23, 2018, the plaintiff filed a motion for reconsidera-
tion. On October 26, 2018, the defendants filed an objec-
tion to the plaintiff’s motion for reconsideration. On
October 29, 2018, the court denied the plaintiff’s motion
for reconsideration. This appeal followed.
On appeal, the plaintiff claims that the court erred
in granting the defendants’ motion to dismiss on the
basis that he failed to exhaust his administrative
remedies.
Before addressing the merits of this appeal, we note
that subsequent to the trial court’s memorandum of
decision and the filing of the briefs by the parties, this
court sua sponte stayed consideration of this appeal
pending our Supreme Court’s decision in Graham v.
Friedlander, 334 Conn. 564, 567, 223 A.3d 796 (2020).
On March 3, 2020, this court lifted the appellate stay
and ordered the parties to file supplemental briefs
addressing the impact of that decision. It is appropriate
to start with a discussion of that case, as it provides
substantial guidance in resolving the present matter.
In Graham, parents of four children instituted an
action against the Board of Education of the city of
Norwalk and certain of its members, among other
defendants. Id., 566. The plaintiffs brought state law
claims in connection with the hiring of Spectrum Kids,
LLC, and its owner, Stacy Lore, who had represented
at the time she was hired that she ‘‘had received various
master’s degrees and was a board certified behavior
analyst.’’ Id., 568. None of the defendants performed a
background check on Lore or confirmed her alleged
credentials.15 Id. Lore and Spectrum Kids were retained
to provide the minor plaintiffs with autism-related ser-
vices within the Norwalk public schools. Id., 569. The
plaintiffs alleged that the ‘‘negligent and careless hiring
and supervision of Lore proximately caused permanent
and ongoing injuries and losses to their four children
and to them individually as parents.’’ Id. The trial court
granted the defendants’ motion to dismiss counts one
through sixty of the plaintiffs’ complaint on the basis
that the plaintiffs had failed to exhaust their administra-
tive remedies. Id., 569–70.
On appeal to the Supreme Court, the plaintiffs in
Graham claimed that they were not required to exhaust
administrative remedies because ‘‘their complaint
advances a state law claim that does not allege a viola-
tion of the [IDEA]’’ and that they did ‘‘not seek relief
for the denial of a FAPE but, rather, [they asserted]
common-law claims of negligent hiring and supervision,
loss of consortium and negligent infliction of emotional
distress—all falling outside the exhaustion require-
ments contained in the [IDEA].’’ Id., 570.
The court in Graham first discussed the IDEA and
its exhaustion requirements. ‘‘The [IDEA] is a federal
statute that ‘ensures that children with disabilities
receive needed special education services.’ Fry v. Napo-
leon Community Schools, U.S. , 137 S. Ct. 743,
748, 197 L. Ed. 2d 46 (2017); see also 20 U.S.C. § 1400(d) (2012). ‘The [IDEA] offers federal funds to [s]tates
in exchange for a commitment: to furnish a . . .
[FAPE] . . . to all children with certain physical or
intellectual disabilities.’ Fry v. Napoleon Community
Schools, supra, 748. Once a state accepts the [IDEA’s]
financial assistance, eligible children acquire a ‘substan-
tive right’ to a FAPE. Id., 749. The primary vehicle for
providing each eligible child with a FAPE takes the
form of an individualized special education plan. 20
U.S.C. § 1414 (d) (2012); Fry v. Napoleon Community
Schools, supra, 749. . . .
‘‘Disputes often arise over whether the special educa-
tion services provided to children with physical or intel-
lectual disabilities are sufficient to satisfy a child’s indi-
vidual education plan. To resolve these disputes, the
[IDEA] requires state or local agencies to establish and
maintain procedures to ‘ensure that children with disa-
bilities and their parents are guaranteed procedural
safeguards with respect to the provision of a [FAPE]
by such agencies.’ 20 U.S.C. § 1415 (a) (2012); see Fry
v. Napoleon Community Schools, supra, 137 S. Ct. 748.
‘[A] dissatisfied parent may file a complaint as to any
matter concerning the provision of a FAPE with the
local or state education agency (as state law provides).’
Fry v. Napoleon Community Schools, supra, 749; see
20 U.S.C. § 1415 (b) (6) (2012). . . .
‘‘The [IDEA] also contains an exhaustion requirement
pursuant to which individuals cannot file a civil action
under the [IDEA] until they have satisfied the proce-
dural dispute resolution mechanism established by the
relevant state agency. See 20 U.S.C. § 1415 (l) (2012).
In relevant part, the statute provides: ‘Nothing in this
chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitu-
tion, the Americans with Disabilities Act of 1990 . . .
title V of the Rehabilitation Act of 1973 . . . or other
Federal laws protecting the rights of children with disa-
bilities, except that before the filing of a civil action
under such laws seeking relief that is also available
under this subchapter, the procedures . . . shall be
exhausted to the same extent as would be required
had the action been brought under this subchapter.’ 20
U.S.C. § 1415 (l) (2012).
‘‘The plain language of the [IDEA] provides that
exhaustion is required when a civil action is brought
‘under such laws . . . .’ . . . 20 U.S.C. § 1415 (l)
(2012). ‘[S]uch laws’ plainly encompass the federal pro-
tections of the rights of children with disabilities
embodied in the United States ‘Constitution, the Ameri-
cans with Disabilities Act of 1990 . . . title V of the
Rehabilitation Act of 1973,’ and the act itself. 20 U.S.C.
§ 1415 (l) (2012); accord Moore v. Kansas City Public
Schools, 828 F.3d 687, 693 (8th Cir. 2016).’’ Graham
v. Friedlander, supra, 334 Conn. 572–73. Because the
plaintiffs in Graham did not allege violations of the
constitution or the IDEA or any other federal statute
protecting the rights of children with disabilities, but
rather alleged state common-law negligence claims, the
court concluded that the plaintiff’s claims were not
subject to the federal exhaustion requirements. Id.,573–74.
The court in Graham next considered whether state
law mandates exhaustion of administrative remedies
where state law claims seek relief for the denial of a
FAPE. Id., 574. In concluding that it does so mandate,
the court looked to General Statutes § 10-76a et seq.,
which implements the substantive and procedural
requirements of the IDEA. Id. ‘‘The specific procedures
for resolving disputes are set forth in § 10-76h. Under
§ 10-76h (a) (1), a parent of a child requiring special
education and related services ‘may request a hearing
of the local or regional board of education or the unified
school district responsible for providing such services
whenever such board or district proposes or refuses
to initiate or change the identification, evaluation or
educational placement of or provision of a [FAPE] to
such child or pupil.’ The request must be made in writ-
ing, contain a statement of the specific issues in dispute,
and be requested within two years of the board’s pro-
posal or refusal to initiate a change in the child’s educa-
tion plan. General Statutes § 10-76h (a) (1) through (4).
‘‘Upon receipt of the written request, ‘the Department
of Education shall appoint an impartial hearing officer
who shall schedule a hearing . . . pursuant to the Indi-
viduals with Disabilities Education Act . . . .’ General
Statutes § 10-76h (b). Section 10-76h requires the
Department of Education to provide training to hearing
officers, delineates who may act as hearing officers and
members of hearing boards, identifies the parties that
shall participate in a prehearing conference to attempt
to resolve the dispute, and describes the authority that
the hearing officer or board of education shall have.
See General Statutes § 10-76h (c) and (d). Section 10-
76h also establishes the processes for appealing from
decisions of the hearing officer or the board of educa-
tion. Section 10-76h (d) (4) provides in relevant part:
‘Appeals from the decision of the hearing officer or
board shall be taken in the manner set forth in section
4-183’ . . . . A plain reading of General Statutes § 4-
183 of the Uniform Administrative Procedure Act, Gen-
eral Statutes § 4-166 et seq., informs us that, prior to
bringing a claim in Superior Court, individuals must
exhaust all administrative remedies available within the
relevant agency.’’ (Footnote omitted.) Graham v. Fried-
lander, supra, 334 Conn. 574–75.
The court in Graham also emphasized that ‘‘the
extensive administrative scheme established by the leg-
islature supports our conclusion that parties asserting
a state law claim and seeking relief for the denial of a
FAPE must first exhaust administrative remedies pursu-
ant to § 10-76h. It is a settled principle of administrative
law that if an adequate administrative remedy exists,
it must be exhausted before the Superior Court will
obtain jurisdiction to act in the matter. . . . The
exhaustion requirement serves dual functions: it pro-
tects the courts from becoming unnecessarily burdened
with administrative appeals and it ensures the integrity
of the agency’s role in administering its statutory
responsibilities.’’ (Citation omitted; internal quotation
marks omitted.) Id., 575–76. The court concluded ‘‘[o]n
the basis of the statute’s clear and unambiguous lan-
guage, as well as the established and extensive adminis-
trative scheme . . . that the plaintiffs must exhaust
administrative remedies before filing a claim for the
denial of a FAPE under state law.’’ Id., 576.
Having determined that plaintiffs must exhaust
administrative remedies before filing a claim for the
denial of a FAPE under state law,16 the court in Graham
‘‘look[ed] to the essence, or the crux, of each of the
plaintiffs’ claims within the complaint to evaluate
whether each claim seeks relief for the denial of a
FAPE.’’ Id., 577. In so doing, it considered the two fac-
tors outlined by the United States Supreme Court in
Fry v. Napoleon Community Schools, supra, 137 S. Ct.
756. ‘‘The first factor requires consideration of whether
the claim could have been brought outside the school
setting,’’ and ‘‘[t]he second factor requires consider-
ation of the history of the proceedings prior to the filing
of the complaint.’’ Graham v. Friedlander, supra, 334
Conn. 580–81.
The first factor is evaluated on the basis of two hypo-
thetical questions set forth in Fry v. Napoleon Commu-
nity Schools, supra, 137 S. Ct. 756: ‘‘First, could the
plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that
was not a school—say, a public theater or library? And
second, could an adult at the school—say, an employee
or visitor—have pressed essentially the same griev-
ance?’’ (Emphasis in original.) The court in Fry
explained: ‘‘When the answer to those questions is yes,
a complaint that does not expressly allege the denial
of a FAPE is also unlikely to be truly about that subject;
after all, in those other situations there is no FAPE
obligation and yet the same basic suit could go forward.
But when the answer is no, then the complaint probably
does concern a FAPE, even if it does not explicitly say
so; for the FAPE requirement is all that explains why
only a child in the school setting (not an adult in that
setting or a child in some other) has a viable claim.’’ Id.Under the second factor, the history of the proceed-
ings, ‘‘a court may consider that a plaintiff has pre-
viously invoked the IDEA’s formal procedures to handle
the dispute—thus starting to exhaust the [a]ct’s reme-
dies before switching mainstream.’’ Id., 757. The initial
choice to pursue the administrative process ‘‘may sug-
gest that she is indeed seeking relief for the denial of
a FAPE—with the shift to judicial proceedings prior
to full exhaustion reflecting only strategic calculations
about how to maximize the prospects of such a rem-
edy.’’ Id. This inquiry depends on the facts. Id. ‘‘[A]
court may conclude, for example, that the move to a
courtroom came from a late-acquired awareness that
the school had fulfilled its FAPE obligation and that
the grievance involves something else entirely. But prior
pursuit of the IDEA’s administrative remedies will often
provide strong evidence that the substance of a plain-
tiff’s claim concerns the denial of a FAPE, even if the
complaint never explicitly uses that term.’’ Id.The court in Graham, applying the first factor out-
lined in Fry, answered the two hypothetical questions
in the affirmative. It determined that the plaintiffs could
have brought the same claim if they had attended a
municipal summer camp that advertised a special needs
program focused on certain therapies but was run by
uncertified and unqualified staff. Id., 581. If the children
suffered a regression in their development, they could
claim that the negligent hiring of the staff proximately
caused their injuries. Id., 581–82. As to the second hypo-
thetical question, the court determined that ‘‘an adult
participating in a municipally funded behavioral therapy
treatment program offered in the evenings at a school
could also bring the same claim for regression resulting
from services provided by an uncertified and unquali-
fied behavior therapist.’’ Id., 582.
The court in Graham, viewing the complaint in the
light most favorable to the plaintiffs, ‘‘read the com-
plaint to allege that the board defendants negligently
hired Lore, that the board defendants should have
known of Lore’s inability to provide services, and that
Lore’s failure to provide services directly and proxi-
mately caused injury to the children in the form of
a regression unique to children suffering from autism
spectrum disorder and an inability to communicate
effectively. Viewed in this most favorable light, the
claim sets forth an allegation for negligent hiring, not
the denial of a FAPE, and thus is not subject to dismissal
for failure to exhaust administrative remedies.’’ Id., 586.
The court additionally considered that the complaint
lacked ‘‘any mention of the [IDEA], other laws pro-
tecting children with disabilities, or the children’s edu-
cation plans.’’ Id., 587.
Turning to the second factor outlined in Fry, the
court in Graham recognized that the plaintiffs never
invoked the formal procedures of filing a due process
complaint or requesting a hearing. Id., 588. Thus, the
history of the proceedings supported the court’s conclu-
sion that the plaintiffs sought relief for something other
than a denial of a FAPE. Id.Turning to the claim made in this appeal, we first set
forth our standard of review. ‘‘Our review of the trial
court’s determination of a jurisdictional question raised
by a pretrial motion to dismiss is de novo. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . In undertaking this
review, we are mindful of the well established notion
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 571.
In his appellate brief, the plaintiff argues that his
complaint ‘‘does not seek declaratory relief (the basic
remedy for a denial of FAPE) nor injunctive relief (for
an IDEA obligation) . . . .’’ He argues that his ‘‘educa-
tional goals and objectives are not the gravamen of his
complaint,’’ but, rather, that ‘‘[h]is claims are based in
his wrongful segregation from typical kids: they were
in the classroom; he, his desk and chair were in the
coatroom–without the knowledge and consent of his
father.’’ The plaintiff addresses the two hypothetical
questions outlined in Fry by arguing first that he could
have brought a disability discrimination claim against
a movie theater that required children with Down syn-
drome to sit in the balcony, apart from the general
audience, and second, that an adult with Down syn-
drome could bring a claim of disability discrimination
against a school for ‘‘requiring the disabled adult to use
a different, nearby room to listen to the school chorus
or band concerts,’’ apart from the general audience
seated in the auditorium.17
The defendants contend that the answers to the two
hypothetical questions are no. The defendants argue
that ‘‘[t]he plaintiff is challenging the provision of educa-
tional services to the . . . plaintiff . . . in regards to
his IEP, and specifically in regards to the IDEA’s
requirements that students with disabilities be educated
in the least restrictive environment, and that parents
be notified of any progress and/or changes to their
child’s IEP. As in Fry, such a challenge could not be
brought against a public facility other than a school,
nor could it be brought by an adult visitor or employee
in the school. The plaintiff could not, for instance, sue
a library for failing to educate his son in [the] least
restrictive environment or for failing to report on his
academic progress because a library is not charged with
the responsibility of educating his son at all. Similarly,
an adult could not bring such a claim against a school.’’
We begin our analysis with an evaluation of the first
factor, whether the plaintiff’s claims could have been
brought outside of the school setting, as set forth in
Fry v. Napoleon Community Schools, supra, 137 S. Ct.
756, and applied in Graham. The court in Fry offered
two contrasting examples to illustrate whether the gra-
vamen of a complaint against a school concerns the
denial of a FAPE or instead addresses disability-based
discrimination. Id. The court in Fry offered the example
of a wheelchair-bound student suing his school for dis-
crimination under Title II of the ADA because the build-
ing lacked access ramps. Id. Although the court recog-
nized that the architectural feature has educational
consequences, and therefore a different suit could
allege that it violates the IDEA, the denial of a FAPE
was not the essence of the Title II complaint. Id. It
reasoned: ‘‘Consider that the child could file the same
basic complaint if a municipal library or theater had
no ramps. And similarly, an employee or visitor could
bring a mostly identical complaint against the school.
That the claim can stay the same in those alternative
scenarios suggests that its essence is equality of access
to public facilities, not adequacy of special education.’’
Id. The court contrasted this example with one of a
child with a learning disability who sues his school
under Title II for failing to provide him with remedial
tutoring in mathematics. Id., 756–57. The court
explained: ‘‘That suit, too, might be cast as one for
disability-based discrimination, grounded on the
school’s refusal to make a reasonable accommodation;
the complaint might make no reference at all to a FAPE
or an IEP. But can anyone imagine the student making
the same claim against a public theater or library? Or,
similarly, imagine an adult visitor or employee suing
the school to obtain a math tutorial? The difficulty of
transplanting the complaint to those other contexts sug-
gests that its essence—even though not its wording—
is the provision of a FAPE . . . .’’ Id., 757.
Applying this analysis to the plaintiff’s allegations in
his complaint, we answer no to both of the hypothetical
questions that drive the analysis of the first factor. A
plaintiff could not have brought essentially the same
claims outside the school setting, nor could an adult at
a school have pressed essentially the same grievance.
We view the plaintiff’s claims as falling much closer to
those of the student who was deprived of remedial
tutoring in mathematics than the contrasting example
in Fry of a lack of access to public facilities.
We first discuss the plaintiff’s discrimination claims.
As noted previously, the plaintiff alleges in the discrimi-
nation counts that the board, by and through its employ-
ees, ‘‘segregated the . . . plaintiff from other children/
students without disabilities on the basis of the . . .
plaintiff’s disabilities,’’ in violation of §§ 46a-58 (a) and
46a-75 (a) and (b). He further alleges that Ellsworth
and Poulin violated §§ 46a-58 (a) and 47a-75 (a) and (b)
by ‘‘exploiting the fact that the . . . plaintiff did not
have functional speech and could not tell his father
what had been happening to him, when it started or
how it made him feel.’’ Although these allegations, taken
alone, could be made outside of the school setting, they
must be read in context of the core allegations of the
plaintiff’s discrimination claims. In the discrimination
counts, the plaintiff alleges that his operative IEP indi-
cated that the plaintiff ‘‘will spend 26.33 hours per week
with children/students who do not have disabilities,’’
but that the plaintiff was spending approximately nine
hours per week with children/students who do not have
disabilities. The plaintiff recites § 1412 (a) (5) (A) of
the IDEA, which provides that children with disabilities
are to be educated, to the maximum extent appropriate,
together with their nondisabled peers, and he incorpo-
rates the citation to 20 U.S.C. § 1412 (a) (5) (A) into
each of his counts alleging discrimination. He further
alleges in count one that the board, by and through
its employees, ‘‘deprived the . . . plaintiff’s right to be
educated in the least restrictive environment as pro-
vided by law.’’ The allegations against each employee
defendant in counts seven and nine likewise incorpo-
rate, and expand upon, the allegation that the plaintiff
was not spending the specified amount of time with
nondisabled children set forth in his IEP. The plaintiff
alleges that Ellsworth, having created the plaintiff’s
schedule, knew where the plaintiff was situated but
failed to report this information to the plaintiff’s father
during monthly progress meetings. With respect to Pou-
lin, the plaintiff alleges that the plaintiff’s placement in
the coatroom ‘‘constituted wrongful segregation and
violated the provisions of his lEP.’’
Moreover, in the negligence per se counts, the plain-
tiff expressly grounds his claims on the defendants’
breach of their duty under 20 U.S.C. § 1412 (a) (5) to
educate the plaintiff in the least restrictive environment.
In count eleven, the plaintiff alleges that the board
‘‘failed to act in accordance with [20 U.S.C. § 1412 (a)
(5)] and subjected the . . . plaintiff to imminent harm
to his academic and social development.’’ He also
alleges in counts seventeen and nineteen that Ellsworth
and Poulin breached their duty under 20 U.S.C. § 1412(a) (5), as they ‘‘knew or should have known that the
. . . plaintiff was not spending time with nondisabled
children/students to the maximum extent possible.’’
Specifically, the allegations in count seventeen against
Ellsworth reference her attendance at weekly team
meetings regarding compliance with the plaintiff’s IEP,
and assert that she ‘‘knew or should have known that,
according to the schedule she set for the . . . plaintiff
and her knowledge of the time the . . . plaintiff spent
in the coatroom each day, he could not spend 26.33
hours per week with nondisabled children/students.’’
With respect to Poulin, the plaintiff alleges in count
nineteen that she ‘‘was a member of the Planning and
Placement Team for the . . . plaintiff [and] had a duty
under [20 U.S.C. § 1412 (a) (5)] to ensure the . . . plain-
tiff was educated in the least restrictive environment.’’
The plaintiff alleges in counts seventeen and nineteen
that Ellsworth and Poulin’s ‘‘acts and/or omissions sub-
jected the . . . plaintiff to imminent harm and/or detri-
ment to his academic and social development.’’ We con-
clude that the gravamen of the plaintiff’s claims—that
the defendants failed to educate the plaintiff in the least
restrictive environment—is a denial of a FAPE.
‘‘The IDEA mandates that [t]o the maximum extent
appropriate, children with disabilities . . . are edu-
cated with children who are not disabled, and special
classes, separate schooling, or other removal of chil-
dren with disabilities from the regular educational envi-
ronment occurs only when the nature or severity of the
disability of a child is such that education in regular
classes with the use of supplementary aids and services
cannot be achieved satisfactorily. 20 U.S.C. § 1412 (a)
(5) (A) . . . . Educating a handicapped child in a regu-
lar education classroom . . . is familiarly known as
mainstreaming. . . . We have underscored the IDEA’s
strong preference for children with disabilities to be
educated, to the maximum extent appropriate, together
with their [nondisabled] peers. . . . Nevertheless, we
have also acknowledged that, [w]hile mainstreaming is
an important objective, we are mindful that the pre-
sumption in favor of mainstreaming must be weighed
against the importance of providing an appropriate edu-
cation to handicapped students. Under the [IDEA],
where the nature or severity of the handicap is such
that education in regular classes cannot be achieved
satisfactorily, mainstreaming is inappropriate. . . .
Understandably, courts have recognized some tension
between the IDEA’s goal of providing an education
suited to a student’s particular needs and its goal of
educating that student with his [nondisabled] peers as
much as circumstances allow.’’ (Citations omitted;
internal quotation marks omitted.) P. ex rel. Mr. & Mrs.
P. v. Newington Board of Education, 546 F.3d 111, 119
(2d Cir. 2008).
The United States Court of Appeals for the First Cir-
cuit recently considered whether an action brought pur-
suant to Title II of the ADA, and alleging that the school
system unnecessarily segregated students with mental
health disabilities in a separate school, was subject to
the IDEA’s exhaustion requirement. Parent/Profes-
sional Advocacy League v. Springfield, 934 F.3d 13, 18
(1st Cir. 2019). It stated: ‘‘On its surface, the complaint
pleads disability-based discrimination: it alleges that
the defendants are violating the ADA by unnecessarily
segregating students with mental health disabilities in
a separate and unequal educational program. And the
complaint never uses the term FAPE. Yet, the crux of
the complaint is that the defendants failed to provide
the educational instruction and related services that
the class plaintiffs need to access an appropriate educa-
tion in an appropriate environment. That is not a claim
of simple discrimination; it is a claim contesting the
adequacy of a special education program.’’ (Internal
quotation marks omitted.) Id., 25. The court further
looked to the complaint’s allegations that the defen-
dants were denying students the ‘‘ ‘opportunity to
receive educational programs and services in the most
integrated setting appropriate to their needs’ ’’ and that
the school system was denying students the opportunity
to benefit from educational services. Id. The court deter-
mined that such claims were ‘‘about obligations under
the IDEA to educate students in the regular classroom
with their nondisabled peers ‘[t]o the maximum extent
appropriate,’ ’’ and ‘‘to offer students an appropriate
educational benefit . . . .’’ Id. It explained: ‘‘These alle-
gations are, in great part, simply another way of saying,
in IDEA terms, that the school system has not provided
the necessary special educational services to allow stu-
dents to be educated in the [least restrictive environ-
ment].’’18 Id.; see also M.A. v. New York Dept. of Educa-
tion, 1 F. Supp. 3d 125, 144 (S.D.N.Y. 2014) (claims that
student was removed to hallway for separate instruc-
tion and was excluded from music class related to
appropriate level of mainstreaming and were subject
to exhaustion requirement).
Here, the plaintiff’s allegations, read in the light most
favorable to him, seek redress for the defendants’ fail-
ure to provide a FAPE,19 specifically, their violation of
the IDEA’s provision that the school educate the plain-
tiff in the least restrictive environment. Accordingly,
the answers to the two hypothetical questions set forth
in Fry are no—the plaintiff could not sue a public facil-
ity for failing to educate him in the least restrictive
environment, nor could an adult sue the school on such
a basis.20
We next turn to the second factor outlined in Fry,
which ‘‘requires consideration of the history of the pro-
ceedings prior to the filing of the complaint.’’ Graham
v. Friedlander, supra, 334 Conn. 580–81. As noted pre-
viously, ‘‘prior pursuit of the IDEA’s administrative rem-
edies will often provide strong evidence that the sub-
stance of a plaintiff’s claim concerns the denial of a
FAPE, even if the complaint never explicitly uses that
term.’’ Fry v. Napoleon Community Schools, supra, 137
S. Ct. 757. In the present case, the plaintiff initially
pursued administrative remedies. He filed with the
department a state complaint and request for due pro-
cess hearing, in which he alleged an abbreviated version
of substantially the same factual allegations made in
the present action. He also expressly alleged that he
was denied a FAPE. Although the plaintiff elected to
have his complaint investigated by the department, he
withdrew his request for a due process hearing. Further-
more, upon completion of the department’s investiga-
tion, it notified the plaintiff that the parties may ‘‘request
a due process hearing on these same issues through
this office if a party disagrees with the conclusions
reached in this investigation and meet the applicable
statute of limitations.’’ The plaintiff made no such
request and instead filed the present action.
This factual framework resembles that which the
United States Supreme Court in Fry described as an
indicator of a claim requiring exhaustion. As the court
in Fry explained, ‘‘[a] plaintiff’s initial choice to pursue
[the administrative] process may suggest that she is
indeed seeking relief for the denial of a FAPE—with
the shift to judicial proceedings prior to full exhaustion
reflecting only strategic calculations about how to max-
imize the prospects of such a remedy.’’ Fry v. Napoleon
Community Schools, supra, 137 S. Ct. 757. Accordingly,
we conclude that the history of the proceedings in the
present case is additional evidence that the plaintiff’s
claims seek relief for the denial of a FAPE. Cf. Graham
v. Friedlander, supra, 334 Conn. 588 (history of pro-
ceedings, specifically, fact that plaintiffs never invoked
formal procedures of filing due process complaint or
requesting hearing, supported conclusion that plaintiffs
sought relief for something other than denial of FAPE).
Although not expressly claiming that an exception
to the exhaustion requirement applies,21 the plaintiff
argues that exhaustion is not required because he
‘‘seeks no remedies available under the IDEA.’’ He con-
tends that his requests for monetary damages and attor-
ney’s fees compel the conclusion that he is not making
a claim for the denial a FAPE. He maintains that ‘‘[i]f
a plaintiff is seeking monetary damages, he or she
couldn’t possibly be making a claim for the denial of a
FAPE, because only declaratory or injunctive relief is
allowed.’’22 The defendants respond that ‘‘[n]either the
IDEA, nor Connecticut’s implementing statutes, nor the
corresponding regulations, carve[s] out an exception to
the IDEA’s exhaustion requirement for parents seeking
monetary damages.’’23
‘‘Despite the important public policy considerations
underlying the exhaustion requirement, [our Supreme
Court has] grudgingly carved several exceptions from
the exhaustion doctrine. . . . [It has] recognized such
exceptions, however, only infrequently and only for
narrowly defined purposes. . . . One of the limited
exceptions to the exhaustion rule arises when recourse
to the administrative remedy would be demonstrably
futile or inadequate.’’ (Citations omitted; internal quota-
tion marks omitted.) Hunt v. Prior, 236 Conn. 421, 432,
673 A.2d 514 (1996).
We disagree that the plaintiff was not required to
exhaust his administrative remedies merely because
he seeks monetary damages and attorney’s fees. The
United States Court of Appeals for the Second Circuit
has held that the mere addition of a claim for damages
‘‘does not enable [a plaintiff] to sidestep the exhaustion
requirements of the IDEA.’’ Polera v. Board of Educa-
tion, 288 F.3d 478, 488 (2d Cir. 2002); see also Nelson
v. Charles City Community School District, 900 F.3d
587, 594 (8th Cir. 2018) (‘‘[T]he IDEA’s exhaustion
requirement remains the general rule, regardless of
whether the administrative process offers the particular
type of relief that is being sought. . . . As others have
explained, if the [plaintiffs’] position were to prevail,
then future litigants could avoid the exhaustion require-
ment simply by asking for relief that administrative
authorities could not grant.’’ (Citation omitted; internal
quotation marks omitted.)); Wellman v. Butler Area
School District, 877 F.3d 125, 136 n.10 (3d Cir. 2017)
(fact that plaintiff could not recover compensatory dam-
ages he sought in lawsuit as part of administrative pro-
ceedings does not convert his claims into non-IDEA
claims); Z.G. v. Pamlico County Public Schools Board
of Education, 744 F. Appx. 769, 777 n.14 (4th Cir. 2018)
(fact that plaintiffs also seek damages does not free
them from obligation to exhaust administrative reme-
dies).24 This analysis, albeit derivative of the comple-
mentary federal jurisprudence, persuades us that the
plaintiff’s request for monetary damages in the present
case does not permit him to avoid the exhaustion
requirement.
Lastly, the plaintiff briefly argues that he did exhaust
his administrative remedies.25 As noted previously, § 10-
76h (b) provides that, upon receipt of written request
pursuant to subsection (a), ‘‘the Department . . . shall
appoint an impartial hearing officer who shall schedule
a hearing . . . pursuant to the Individuals with Disabil-
ities Education Act . . . .’’ Following the due process
hearing, an aggrieved party may bring a civil action in
state court seeking judicial review of the decision. See
§ 10-76h (d) (4). Specifically, § 10-76h (d) (4) provides in
relevant part: ‘‘Appeals from the decision of the hearing
officer or board shall be taken in the manner set forth in
[General Statutes § 4-183 of the Uniform Administrative
Procedure Act, General Statutes § 4-166 et seq.].’’ Sec-
tion 4-183 ‘‘informs us that, prior to bringing a claim in
Superior Court, individuals must exhaust all administra-
tive remedies available within the relevant agency.’’
Graham v. Friedlander, supra, 334 Conn. 575.
The plaintiff argues that he ‘‘did seek administrative
redress until it was apparent that an IDEA hearing offi-
cer could not award the one last remaining remedy he
sought, so the claim for a due process hearing was
withdrawn but the Connecticut State Department of
Education was charged with investigating his claim. The
. . . plaintiff . . . unlike [the plaintiff in Fry], gave the
administrative process a chance, not once but twice,
and yet the trial court still ruled he was required to
exhaust administrative remedies ‘regardless of the rem-
edy requested.’ ’’ (Footnote omitted.) As the United
States District Court for the District of Connecticut
recently explained, however, ‘‘[t]o satisfy [the exhaus-
tion] requirement, parties must simply follow IDEA’s
administrative procedures; they need not be successful
at any point of that process.’’ Doe v. Westport Board of
Education, United States District Court, Docket No.
3:18-CV-01683 (KAD) (D. Conn. February 21, 2020); see
id. (finding nothing inconsistent about requiring parties
to exhaust IDEA’s administrative procedures when
seeking relief for denial of FAPE before bringing Sec-
tion 504/ADA claims if Section 504/ADA claims also
seek relief for denial of FAPE). Accordingly, we reject
the plaintiff’s argument that he exhausted his adminis-
trative remedies.
The appeal is dismissed with respect to counts two
through six, eight, ten, twelve through sixteen, eighteen,
and twenty; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
We note that the present action was commenced on behalf of Alexander
M. Phillips, through his father, Ralph E. Phillips. We hereinafter refer to
Alexander M. Phillips as the plaintiff.
2
The eight employees named as defendants are Timothy Van Tasel, Patri-
cia Buell, Eric Brody, Margaret Ellsworth, Ellen Kirkpatrick, Joshua T. Mar-
tin, Barbara H. Wilson, and Sheryl Poulin.
3
The Council of Parent Attorneys and Advocates, Inc., filed an amicus
brief, in which it argued, inter alia, that exhaustion of administrative reme-
dies was not required in the present case.
4
See part I of this opinion.
5
‘‘‘Individualized education program’ or ‘IEP’ means a written statement
for a child with a disability that is developed, reviewed and revised by an
individualized education program team in accordance with the [Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2012)] and
section 10-76d-11 of the Regulations of Connecticut State Agencies.’’ Regs.,
Conn. State Agencies § 10-76a-1 (10).
‘‘The IEP is the centerpiece of the [IDEA’s] education delivery system for
disabled children. . . . The IEP, the result of collaborations between par-
ents, educators, and representatives of the school district, sets out the
child’s present educational performance, establishes annual and short-term
objectives for improvements in that performance, and describes the specially
designed instruction and services that will enable the child to meet those
objectives. . . .
‘‘Connecticut must deliver each disabled child a [free appropriate public
education (FAPE)] pursuant to the child’s IEP. . . . Connecticut accom-
plishes this through its State Department of Education and the Board of
Education for each school district in the [s]tate, each of which is responsible
for developing an IEP for disabled children in its district.’’ (Citations omitted;
internal quotation marks omitted.) Mr. P. v. West Hartford Board of Educa-
tion, 885 F.3d 735, 741 (2d Cir.), cert. denied, U.S. , 139 S. Ct. 322, 202
L. Ed. 2d 219 (2018).
6
‘‘ ‘Planning and placement team’ or ‘PPT’ means the individualized educa-
tion program team as defined in the IDEA and who participate equally in
the decision making process to determine the specific educational needs
of a child with a disability and develop an individualized education program
for the child.’’ Regs., Conn. State Agencies § 10-76a-1 (14).
7
The defendants had no objection to the court considering the exhibits
attached to the plaintiff’s opposition in adjudicating the motion to dismiss.
8
In remanding the matter, the District Court noted that, because it lacked
jurisdiction, it ‘‘need not consider the issue whether [the] plaintiff has
exhausted his remedies under the IDEA.’’
9
The trial court summarized counts twenty-one through thirty-two as
follows: ‘‘Some of counts twenty-one through thirty-two arise out of allegedly
intrusive photographs taken by [board] employee Ellen Kirkpatrick and
shared with a third party in May, 2016. In connection with this incident
there are counts alleging civil assault by two defendants and negligence on
the part of other defendants, who allegedly violated their duties to supervise
others. There are also several counts incorporating the core factual allega-
tions of counts one through twenty and alleging negligent supervision for
both those events and the events underlying the claims of civil assault. The
plaintiff asserts claims for indemnification against the defendant [town] in
connection with all of the claims of negligence in counts twenty one through
thirty two.’’
10
General Statutes § 46a-58 (a) provides: ‘‘It shall be a discriminatory
practice in violation of this section for any person to subject, or cause to
be subjected, any other person to the deprivation of any rights, privileges
or immunities, secured or protected by the Constitution or laws of this state
or of the United States, on account of religion, national origin, alienage,
color, race, sex, gender identity or expression, sexual orientation, blindness,
mental disability, physical disability or status as a veteran.’’
11
General Statutes § 46a-75 provides in relevant part: ‘‘(a) All educational,
counseling, and vocational guidance programs and all apprenticeship and
on-the-job training programs of state agencies, or in which state agencies
participate, shall be open to all qualified persons, without regard to race,
color, religious creed, sex, gender identity or expression, marital status, age,
national origin, ancestry, intellectual disability, mental disability, learning
disability, physical disability, including, but not limited to, blindness, or
status as a veteran.
‘‘(b) Such programs shall be conducted to encourage the fullest develop-
ment of the interests, aptitudes, skills, and capacities of all students and
trainees, with special attention to the problems of culturally deprived, educa-
tionally handicapped, learning disabled, economically disadvantaged, or
physically disabled, including, but not limited to, blind persons. . . .’’
12
The complaint contains an apparent typographical error identifying the
relevant section as 20 U.S.C. § 1412 (C) (5).
13
The court first determined that the state statutes implementing the IDEA
contain an exhaustion requirement. See Graham v. Friedlander, 334 Conn.
564, 574, 223 A.3d 796 (2020) (state law mandates exhaustion of administra-
tive remedies where state law claims seek relief for denial of FAPE).
14
The plaintiff also argued that the defendants were barred by the doctrine
of judicial estoppel from arguing that the plaintiff was required to exhaust
his administrative remedies. The board previously had moved to dismiss
the request for due process hearing ‘‘to the extent that such request seeks
remedies not available under the IDEA or accompanying state statutes and/
or regulations.’’ The court rejected the plaintiff’s judicial estoppel argument
on the basis that a failure to exhaust administrative remedies deprives the
court of subject matter jurisdiction and a party cannot waive the absence
of subject matter jurisdiction. The court further stated that even if the
doctrine of judicial estoppel could be invoked to preclude a challenge to a
court’s subject matter jurisdiction, the first and second requirements of the
doctrine were not met in this case. The plaintiff does not challenge on
appeal this aspect of the court’s ruling.
15
‘‘[I]n a criminal action, Lore was charged with larceny, to which she
pleaded guilty and was sentenced to three years in prison and five years of
probation. See State v. Lore, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CR-XX-XXXXXXX-T (September 2, 2010).’’ Graham v.
Friedlander, supra, 334 Conn. 568.
16
In his principal appellate brief, which was filed prior to the release of
our Supreme Court’s decision in Graham v. Friedlander, supra, 334 Conn.
564, the plaintiff suggests that exhaustion of administrative remedies is not
required simply because he ‘‘has not brought any federal claims against the
defendants.’’ (Emphasis added.) During oral argument before this court,
however, the plaintiff’s counsel stated that she does not dispute that there
is a state exhaustion requirement. See Graham v. Friedlander, supra, 567
(state law mandates exhaustion of administrative remedies where state law
claims seek relief for denial of FAPE).
17
The plaintiff additionally argues in his brief that the District Court’s
memorandum of decision remanding the matter to the Superior Court, which
stated that the plaintiff’s claims ‘‘do not necessarily raise a question of
federal law,’’ should have ‘‘guided the resolution of the defendants’ motion
to dismiss.’’ We disagree that the District Court’s construction of the com-
plaint for purposes of determining whether it possessed removal jurisdic-
tion should have guided the trial court’s resolution of the defendants’ motion
to dismiss, specifically, its determination of the gravamen of the plaintiff’s
claims for purposes of deciding whether state law required that the plaintiff
exhaust his administrative remedies. The District Court’s decision deter-
mined only that the plaintiff’s case did not fall within the ‘‘special and small
category of cases’’ in which a federal court must resolve a ‘‘substantial
question of federal law in dispute between the parties.’’ Moreover, the Dis-
trict Court expressly stated that it was making no determination of ‘‘whether
[the] plaintiff has exhausted his remedies under the IDEA.’’ Whether the
plaintiff was required to exhaust his administrative remedies clearly was a
question for the Superior Court in the present case.
18
The court in Parent/Professional Advocacy League v. Springfield, supra,
934 F.3d 26, noted that ‘‘claims that schools isolated or separated disabled
students have been subjected to IDEA exhaustion where those claims allege
that the effects of the isolation or separation were educational.’’ We note
that in the present case, the discrimination counts lack clear allegations of
the effects of the segregation. The plaintiff alleges generally that the board,
by and through its employees, violated ‘‘§§ 46a-58 (a) and 46a-75 (a) and
(b) when it deprived [him] of his rights, privileges or immunities, secured
or protected by the constitution or laws of this state or of the United States
on account of the disabilities of the . . . plaintiff’’ and that that the board,
by and through its employees, deprived him of his ‘‘right to be educated in
the least restrictive environment as provided by law.’’ The negligence per
se counts, however, specifically allege that the board, by and through its
employees, ‘‘failed to act in accordance with [20 U.S.C. § 1412 (a) (5)]
and subjected the . . . plaintiff to imminent harm to his academic and
social development.’’
19
Accordingly, we reject the plaintiff’s argument, made on appeal, that,
because the department’s investigator concluded that the plaintiff had not
been denied a FAPE and this finding of fact was unchallenged by the plaintiff
and the defendants, the ‘‘trial court was bound to defer to that finding of
fact.’’ The lack of an express allegation that the plaintiff was denied a FAPE
does not foreclose the conclusion that the gravamen of the plaintiff’s claims
is the denial of a FAPE. As explained by our Supreme Court in Graham,
the framework set forth in Fry v. Napoleon Community Schools, supra, 137
S. Ct. 743, provides guidance ‘‘in determining what types of allegations
should be construed as claims for the denial of a FAPE, even if the plaintiff,
through artful pleading, does not allege the denial of a FAPE in the com-
plaint.’’ Graham v. Friedlander, supra, 334 Conn. 580.
20
The plaintiff contends that ‘‘[t]he defendants mistakenly believe that a
violation of [least restrictive environment] equates to a denial of FAPE,’’
and cites R.F. v. Cecil County Public Schools, 919 F.3d 237, 246 (4th Cir.),
cert. denied, U.S. , 140 S. Ct. 156, 205 L. Ed. 2d 46 (2019). In that case,
the United States Court of Appeals for the Fourth Circuit first considered
the claim that the school had failed to educate the plaintiff in the least
restrictive environment, where it provided most of her instruction in an
intensive communication support classroom (ICSC) in which she was the
only student. Id. The court determined that the plaintiff’s placement in the
ICSC was ‘‘reasonably calculated to enable [her] to make progress appro-
priate in light of [her] circumstances’’ and that she was afforded opportuni-
ties to interact with other first graders. (Internal quotation marks omitted.)
Id., 246–47. The court concluded that she was not denied a FAPE, particularly
in light of the special education teacher’s position that the plaintiff ‘‘had
trouble concentrating and accessing material in the general education popu-
lation.’’ Id., 247. The court concluded that the plaintiff ‘‘had opportunities
to interact with her peers ‘[t]o the maximum extent appropriate,’ given [her]
unique circumstances and academic and behavioral needs.’’ Id.It next considered the claim that the school violated the IDEA by failing
to follow the plaintiff’s IEP, in that it changed the plaintiff’s placement and
began providing her with more instruction hours in the ICSC than was
provided for in her IEP. Id. The court concluded that increasing the plaintiff’s
hours in the ICSC beyond those specified in her IEP without giving notice
to her parents amounted to a procedural violation of the IDEA, but that it
did not constitute a substantive violation because the plaintiff was not denied
a FAPE as a result. Id., 248.
We fail to see how R.F. v. Cecil County Public Schools, supra, 919 F.3d
237, advances the plaintiff’s position. Indeed, in that case, the plaintiff had
exhausted her administrative remedies. Id. The court noted that ‘‘[a]s
required under the IDEA, [the plaintiff’s parents] first filed a due process
complaint with Maryland’s Office of Administrative Hearings, resulting in
a hearing before an [administrative law judge],’’ which hearing addressed
whether the school denied the plaintiff a FAPE or failed to offer her an IEP
that would provide her with a FAPE. Id., 244. Following issuance of the
administrative law judge’s decision, the plaintiff challenged that decision in
the federal district court. Id.21
The trial court likewise noted that ‘‘[t]he plaintiff has argued that the
exhaustion requirement is not applicable to his claims, but has not alterna-
tively asserted that any known exception applies.’’
22
The plaintiff also argues that the trial court improperly used the ‘‘ ‘injury
centered approach’ that was rejected by the United States Supreme Court
in Fry [v. Napoleon Community Schools, supra, 137 S. Ct. 752].’’ In Fry,
the court stated that ‘‘a suit must seek relief for the denial of a FAPE,
because that is the only ‘relief’ the IDEA makes ‘available,’ ’’ and, ‘‘in
determining whether a suit indeed ‘seeks’ relief for such a denial, a court
should look to the substance, or gravamen, of the plaintiff’s complaint.’’
Id. The trial court performed this analysis and, accordingly, we reject the
plaintiff’s argument.
23
The United States Supreme Court declined to address the question of
whether exhaustion is ‘‘required when the plaintiff complains of the denial
of a FAPE, but the specific remedy she requests—here, money damages for
emotional distress—is not one that an IDEA hearing officer may award?’’
Fry v. Napoleon Community Schools, supra, 137 S. Ct. 752 n.4.
24
See also Donohue v. Lloyd, United States District Court, Docket No.
18-CV-9712 (JPO) (S.D.N.Y. June 1, 2020) (‘‘the mere addition of a claim for
damages (which are not available under the IDEA) does not enable [a
plaintiff] to sidestep the exhaustion requirements of the IDEA’’ (internal
quotation marks omitted)); Ziegler v. Multer, United States District Court,
Docket No. 1:18-CV-0881 (GTS/CFH) (N.D.N.Y. November 14, 2018) (‘‘plain-
tiff’s request for monetary damages does not negate her obligation to request
an impartial due process hearing prior to commencing this action’’), report
and recommendation adopted, United States District Court, Docket No. 1:18-
CV-0881 (GTS/CFH) (N.D.N.Y. March 6, 2019).
25
The plaintiff’s obtaining of a release of jurisdiction from the CHRO does
not lead to the conclusion that he exhausted his administrative remedies.
Because we conclude that the plaintiff alleges denial of a FAPE, the Depart-
ment of Education is the relevant administrative agency through which the
plaintiff was required to proceed. See General Statutes § 10-76 (h); see also
Avoletta v. Torrington, United States District Court, Docket No. 3:07-CV-
841 (AHN) (D. Conn. March 31, 2008) (failure to request due process hearings
under IDEA not excused by complaints filed with other agencies).