In Z.Q. v. New York City Department of Education, No. 22-939-CV, 2023 WL 1486387, 123 LRP 3917 (2d Cir. Feb. 3, 2023) (unpublished), the Second Circuit addressed administrative exhaustion under the IDEA—a topic typically viewed as outside the scope of an impartial hearing officer’s role. If exhaustion is excused, the matter never reaches an IHO; if exhaustion is required, the issue is resolved before the IHO becomes involved. The decision is nonetheless relevant to hearing officers because it recognizes that pervasive and persistent delays in the due process system itself may render exhaustion futile.
The Second Circuit reversed the district court’s dismissal of a class action complaint alleging violations of the IDEA, Section 504 of the Rehabilitation Act, the Equal Educational Opportunities Act, and state law, with some claims brought under 42 U.S.C. § 1983. The plaintiffs alleged that entities and officials of the New York City Department of Education, the New York City Board of Education, and the State failed to provide a free appropriate public education to thousands of students with disabilities during the period of remote instruction caused by the COVID-19 pandemic.
The plaintiffs conceded that they did not exhaust IDEA due process procedures but alleged that exhaustion should be excused as futile. They argued, in part, that the administrative process could not award the relief they sought—namely, the appointment of a special master to oversee a non-adversarial, streamlined process for obtaining compensatory services independent of the due process system.
The court rejected that argument. Although 20 U.S.C. § 1415(l) requires exhaustion only when plaintiffs seek relief that is also available under the IDEA, the Second Circuit reiterated its longstanding position that the unavailability of a particular remedy in the administrative process does not, by itself, excuse exhaustion. Z.Q., 2023 WL 1486387, at *2.
The court reached a different conclusion, however, with respect to the plaintiffs’ allegations of systemic delay. Systemic violations may excuse exhaustion on futility grounds, and pervasive delay in the adjudication of due process complaints qualifies as such a violation. The plaintiffs alleged that, at the outset of the pandemic, New York City had more than 10,000 open due process complaints, nearly 70 percent of which had exceeded regulatory timelines. Because the IDEA regulations generally contemplate resolution of due process complaints within 75 days of filing, the court concluded that these allegations were sufficient to invoke the futility exception at the pleading stage. Id.
The court acknowledged that pandemic-related disruptions might affect compliance but explained that such considerations would need to be addressed on a fuller evidentiary record, not on a motion to dismiss.
The defendants pointed to a newly implemented program intended to provide compensatory services to students affected by remote learning, including mandatory consideration of compensatory education when developing IEPs for the 2022-23 school year. The plaintiffs responded that critical details about the program—including the scope, duration, and availability of services—had not been disclosed. They further alleged that parents were unaware of any IEPs actually providing such services despite requests, that funding for the program was insufficient, and that disputes concerning the services would still be subject to the same delayed due process system.
The court concluded that the record was insufficient to support dismissal on mootness grounds or to defeat the plaintiffs’ futility allegations.
Although Z.Q. concerns circumstances under which parties may bypass the due process system, the decision ultimately underscores the importance of the hearing process itself. The Second Circuit made clear that pervasive and persistent delays in the due process hearing system may excuse exhaustion, at least where plaintiffs seek compensatory services and allege systemic failure of the administrative framework.