Blair Hornstine
Home                       Court Decision                     Links

Below is the official Court Decision involving Blair and the Moorestown Public Schools and their then-Superintendent Paul Kadri.  In order to clearly understand the decision the word plaintiff has been modified for easier reading for laypersons.  The words in brackets depict the changes.

Select Section->    1->Blair Hornstine: Intro    2->Blair Hornstine: Facts and Procedural History    3->Blair Hornstine: Defendants Motion to Dismiss    

4->Blair Hornstine: Entitled to Temporary Restraints    5->Blair Hornstine: Conclustion


On May 5, 2003, defendants filed a motion to dismiss [Blair Hornstine]'s complaint in its entirety based upon alleged procedural deficiencies. Specifically, defendants maintain that: (i) this matter is the subject of a Tort Claims Notice and is barred by N.J.S.A. 59:8-8; (ii) since the Board had not taken final action, [Blair Hornstine]'s claims are not ripe for review because no justiciable case or controversy exists; (iii) [Blair Hornstine] has failed to exhaust her administrative remedies; and (iv) pursuant to FED. R. CIV. P. 19, [Blair Hornstine] has failed to name an indispensable party. Before addressing the merits of defendants' motion, I find that the intervention of K.M. renders defendants' contention that [Blair Hornstine] has failed to name an indispensable party moot. I will now rule on the remainder of defendants' motion to dismiss.

A. [Blair Hornstine]'s Constitutional Claims Are Not Barred by Their Inclusion in the Tort Claims Notice Filed by [Hornstine] Pursuant to N.J.S.A. 59:8-8.

The New Jersey Tort Claims Act Against Public Entities does not bar [Blair Hornstine] from going forward on her federal claims. The Tort Claims Act provides:

A claim relating to a cause of action for death or for injury or damage to a person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date the notice of claim is received, the claimant may file suit in an appropriate court of law. N.J.S.A. 59:8-8.

 On April 3, 2003, [Blair Hornstine] served on the Board a Tort Claims Notice, pursuant to N.J.S.A. 59:8-7, asserting claims against Superintendent Kadri, both individually and in his official capacity, the Board, and the Moorestown School District. Kadri Cert. at Ex. C. Therein, [Blair Hornstine] stated that:

Mr. Kadri and other members of the Board of Education ... made a concerted effort ... to violate the claimant's legal rights under the following federal and state statutes and constitutional provisions among others: Family Educational Rights and Privacy Act, Individuals with Disabilities in Education Act, Civil Rights Act ... and the guarantees to procedural due process and equal protection of the laws of the Fourteenth Amendment to the United States Constitution. Id. at p. 6. [Blair Hornstine] asserts damages in the amount of $2,700,000.00. Kadri Cert. at ¶ 36.

Defendants contend that [Blair Hornstine] is barred from pursuing the instant action by virtue of the six month repose mandated by service of the Tort Claims Notice. Specifically, defendants maintain that the claims asserted in the instant action "mirror" the claims set forth in the Notice and, thus, are premature because [Blair Hornstine] has failed to wait the statutorily-imposed six month period for investigation and preparation. Defendants assert that the instant action therefore should be dismissed.

While defendants acknowledge this district's decision in Peltack v. Borough of Manville, 547 F.Supp. 770 (D.N.J.1982), which held that the Tort Claims Act's six month period of repose did not preclude [Blair Hornstine]'s civil rights action, defendants contend that Peltack does not apply in the instant action because it is unclear whether the plaintiff there included federal claims in his Notice of Tort Claim. In this connection, defendants state that because …[Blair Hornstine] .. "has in fact included both state and federal claims in the Notice of Tort Claim ... and thereafter sues on the exact claims before the six month period required by the statute has expired, the claims must be procedurally barred."

Defendants' reading of Peltack is erroneous. In Peltack, the plaintiff filed a Notice of Tort Claim, pursuant to N.J.S.A. 59:8-8, asserting violations of his constitutional right to due process. Id. at 772. Approximately two months later, when plaintiff filed a federal civil rights suit in the District of New Jersey, defendants moved to dismiss plaintiff's claim for failure to adhere to the six month repose mandated by the Tort Claims Act. Making clear that federal claims cannot be impaired by state statutory requirements, the court ruled that the six month period of repose does not attach to a federal civil rights suit, stating: "[t]o incorporate the procedural provisions of the state statute borrowed for one purpose would unduly infringe upon the assertion of federally created rights." Id. at 773 (citing Gipson v. Twp. of Bass River, 82 F.R.D. 122, 126 (D.N.J.1979); Paschall v. Mayone, 454 F.Supp. 1289, 1298 (S.D.N.Y.1978)). See also Fuchilla v. Layman, 109 N.J. 319, 331, 537 A.2d 652 (1988) (recognizing that New Jersey's Tort Claims Act notice provision cannot bar federal claims); Schneider v. Simonini, 163 N.J. 336, 372, 749 A.2d 336 (2000) (same).

In addition, defendants failed to note the United States Supreme Court decision in Felder v. Casey, 487 U.S. 131, 134-38, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), which held that state tort claims acts cannot impinge upon federal rights brought under 42 U.S.C. § 1983. Defendants also did not cite this District's decision in Forcella v. City of Ocean City, 70 F.Supp.2d 512, 514 (D.N.J.1999), which held that the Tort Claims Act notice provision does not bar claims brought under the New Jersey Law Against Discrimination. Since the Tort Claims Act is totally inapplicable to federal and NJLAD claims, so too, it is immaterial whether [Blair Hornstine] delineated her federal claims in her tort claims notice. Therefore, contrary to defendants' assertions, [Blair Hornstine]'s federal and NJLAD claims may proceed.

B. Justifiability

The exercise of judicial power depends upon the existence of a "case or controversy" under the United States Constitution Article III, Section 2. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). The following factors are to be considered in determining whether plaintiffs can meet the Constitutional requirements of standing:

1. … [Blair Hornstine] must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

2. There must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some party not before the court; and

3. It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Society Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 176 (3d Cir.2000).

Consistent with current policy, the Board should name [Blair Hornstine] the sole valedictorian of her senior class. Instead, defendants have stated an intention to amend that policy and apply it retroactively to diminish [Hornstine]'s accomplishments. Further evidencing the Board's intention is the letter Kadri sent to K.M. on May 6, 2003, informing him that he is "certainly" being considered for the multiple valedictorian award. K.M.'s Motion to Intervene at Exhibit A. These actions demonstrate that [Blair Hornstine] is in imminent danger of being discriminated against in violation of her rights under the ADA and Section 504 of the Rehabilitation Act. Her threatened injury would be redressed by the granting of this TRO. Thus, [Blair Hornstine] has standing to pursue this action.

In addition to standing, [Blair Hornstine]'s "case or controversy" must be ripe for adjudication. Artway v. Attorney General of the State of N.J., 81 F.3d 1235, 1246-47 (3d Cir.1996). "The basic rationale of the ripeness requirement is 'to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements.' " Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). While defendants maintain that this action is not ripe because the Board has yet to issue a decision regarding the valedictorian awards for the class of 2003, their actions belie their contention.

At a Board meeting on May 1, 2003, there was a public reading of the proposed amendment to confer multiple awards, with a May 12 scheduled date for voting on the policy change. Additionally, [Blair Hornstine] did not receive a letter similar to that sent by Kadri to K.M. on May 6, 2003. Albeit Kadri's notice to K.M. is a transparent attempt to confer standing to intervene on this student, this correspondence also reflects that the Board is doing more than merely considering the proposed amendment. Rather, it intends to enact the new policy and apply it retroactively to the class of 2003, to the detriment of [Blair Hornstine]. Moreover, at the hearing on this TRO application, defendants said nothing to contradict that conclusion. Thus, defendants' actions during the week of May 5, 2003 eliminated their ripeness argument.

C. Exhaustion of State Administrative Remedies

Defendants contend that [Blair Hornstine]'s claims should be dismissed for failure to exhaust state administrative remedies. Before discussing the substance of defendants' argument, the Court notes that defendants did not adequately brief this issue in their opposition or supplemental papers. The Court will nonetheless thoroughly consider this issue out of respect for the state administrative forum and a desire for judicial comity. The Commissioner of Education enjoys broad authority under N.J.S.A. 18A:6-9 to hear "all controversies and disputes arising under the school laws," N.J.S.A. 18A:6-9; see Balsley v. North Hunterdon Reg. Schl. Dist. Bd. of Ed., 117 N.J. 434, 438, 442, 568 A.2d 895 (1990). The Board argues that the question of whether a public school student should be awarded the honor of valedictorian under a school board's policy is an "entirely local" issue, and therefore, that a remand to the Commissioner would be appropriate. If [Blair Hornstine] were only challenging the Board's application of its policy, defendants would likely be correct in their assertion. See T.M. v. Mercer County Junior & Senior High Schl., OAL Dkt. No. EDS 4317-02S, 2002 WL 1589870 (June 21, 2002) available at http:// 1 .html (visited May 5, 2003) (Department of Education ruling on applicability of school district policy). However, in this case, [Blair Hornstine]'s challenges involve more than the mere application of a school board policy. [Hornstine]'s verified complaint pleads several causes of action--discrimination under the ADA and Rehabilitation Act, procedural and substantive due process under the First, Fourth, Ninth and/or Fourteenth Amendment of the U.S. Constitution, equal protection under the Fourteenth Amendment, and discrimination under the New Jersey Law Against Discrimination. [FN5] As remedies, [Hornstine] seeks both injunctive relief and damages. Thus, while her request for injunctive relief focuses on the retroactive application of the proposed Board amendment to her, and whether it is grounded in discrimination, [Hornstine’s] requests for damages implicate additional allegations of disability-based discrimination apart from the amendment and the awarding of valedictorian status.

FN5. [Blair Hornstine] has also brought an invasion of privacy claim under the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g. The Supreme Court has held, however, that there is no private right of action under this Act. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Therefore, this claim will not be considered for the purposes of this exhaustion analysis.

In addition, based on the parties' briefing and comments in a teleconference held on May 6, 2003, the Court does not construe paragraph 23 of Count One in [Blair Hornstine]'s complaint to set forth causes of action based on defamation, breach of contract, or violation of the non-disclosure provisions of N.J.A.C. 6A:14-1.1--6A:14 App. E. Rather, the Court construes these references in paragraph 23 as underlying [Blair Hornstine]'s discrimination claim under the Rehabilitation Act. Compare Complaint at ¶ 23 ("The actions by defendant Paul J. Kadri have defamed  Blair L. Hornstine, invaded her right to privacy as set forth in the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g, et seq. [sic] and N.J.A.C. 6A:14-1.1 et seq. [sic], breached her educational contract, violated all non-disclosure provisions as set forth in N.J.A.C. 6A:14- 1.1, et seq. [sic], and ignored the rules and regulations promulgated by Defendant Moorestown Board of Education in selecting a valedictorian.") with Complaint at ¶ 26 ("The aforementioned conduct of defendant Paul J. Kadri constituted discrimination in violation of the Rehabilitation Act of 1973.").

Both the plain language of N.J.S.A. 18A:6-9 and New Jersey case law compel the conclusion that the Commissioner does not have jurisdiction over [Blair Hornstine]'s myriad claims. Because none of [Hornstine]'s claims "aris[e] under the school laws" of New Jersey, it follows that N.J.S.A. 18A:6-9 does not grant the Commissioner authority to adjudicate the types of claims raised here. New Jersey case law further supports this literal interpretation of N.J.S.A. 18A:6-9. For example, the court in Picogna v. Bd. of Ed. of the Twp. of Cherry Hill, 249 N.J.Super. 332, 592 A.2d 570 (App.Div.1991), addressed the Commissioner's authority under N.J.S.A. 18A:6-9 to adjudicate a breach of contract claim brought by a public school employee. In rejecting the argument that the Commissioner was authorized to hear the claim because it was related to school laws and personnel, the Court employed a literal interpretation of N.J.S.A. 18A:6-9 to conclude that the Commissioner does not have authority to hear these sorts of claims. Id. at 335, 592 A.2d 570 ("Whether the petitioner's employment was wrongfully terminated under the contract ... is for the court, not the Commissioner, to decide."). Similarly, the court in Galbraith v. Lenape Reg. High Schl. Dist., 964 F.Supp. 889 (D.N.J.1997), concluded that "the Commissioner of Education is not competent to decide [New Jersey Law Against Discrimination] or breach of contract claims since the claims do not 'arise under the school laws.' " Id. at 895. This Court sees no reason why the literal interpretation employed by these courts would not apply to each of [Blair Hornstine]'s claims here. [FN6] Accordingly, the Commissioner of Education does not have jurisdiction under N.J.S.A. 18A:6-9 to hear [Hornstine]'s claims.

FN6. This holding is not in conflict with the New Jersey Supreme Court statement in Balsley v. North Hunterdon Reg. Schl. Dist. Bd. of Ed., that the Department of Education has jurisdiction to hear discrimination cases brought by public school students or employees under N.J.S.A. 18A:6-9. As implicitly recognized by that Court, the Commissioner has jurisdiction to hear only those discrimination cases brought under New Jersey education law N.J.S.A. 18A:36-20, which prohibits discrimination in the obtaining of "any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin." See Balsley, 117 N.J. at 441-42, 568 A.2d 895. See also Jenkins v. Morris Tp. Schl. Dist., 58 N.J. 483, 279 A.2d 619 (1971); Booker v. Plainfield Bd. of Ed., 45 N.J. 161, 212 A.2d 1 (1965) (racial segregation cases). Disability-based discrimination claims, such as those presented here, are noticeably absent from the types of claims listed in N.J.S.A. 18A:36-20 and, therefore, are not within the Commissioner's jurisdiction.

Rejection of defendants' exhaustion argument is further grounded in case law governing federal claims brought by students entitled to protection under the IDEA. There are no state exhaustion requirements for actions brought under the ADA or Section 504 of the Rehabilitation Act, or under 42 U.S.C. § 1983 to enforce a federal constitutional claim. See Jeremy H. v. Mount Lebanon Schl. Dist., 95 F.3d 272, 281-82 (3d Cir.1996) (ADA and Rehabilitation Act claims); Hochman v. Bd. of Ed., 534 F.2d 1094, 1097 (3d Cir.1976) (section 1983 claims). However, in cases in which it appears that a plaintiff has cloaked an IDEA claim as an ADA, Rehabilitation Act, or Section 1983 action in an effort to avoid application of the IDEA's distinct exhaustion requirement, courts will require that plaintiff must exhaust the state administrative remedies mandated for IDEA claims. Jeremy H., 95 F.3d at 281-82. Courts look unfavorably upon plaintiffs and attorneys who employ this strategy because it undermines Congress' goal of providing comprehensive protections and benefits for disabled students under the IDEA. Rose v. Yeaw, 214 F.3d 206, 209 (1st Cir.2000); O'Hayre v. Bd. of Ed. Of Jefferson Cty., 109 F.Supp.2d 1284, 1292 (D.Colo.2000).

To determine whether a plaintiff should be subjected to the IDEA's exhaustion requirement, courts focus on whether the relief sought by the plaintiff is available under the IDEA. [FN7] See, e.g., W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.1995). While seemingly simple, this analysis can become complex in disability-based discrimination cases because of the significant overlap between the IDEA, the ADA, and the Rehabilitation Act. See Weixel v. Bd. of Ed. of the City of New York, 287 F.3d 138, 150-51 (2d Cir.2002) (analyzing whether complaint alleging discrimination in denial of admittance into honors-level placement also stated IDEA claim for inappropriate educational placement). This Court has been spared from such delicate dissection in this case, however, because defendants do not argue that [Blair Hornstine]'s harm could be redressed by the IDEA, nor does it appear that such an argument would be meritorious.

FN7. This inquiry is rooted in the text of the IDEA, which explains that [n]othing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, 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 disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [subchapter II of the IDEA], the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

See, e.g., Frazier v. Fairhaven Schl. Comm., 276 F.3d 52, 59 (1st Cir.2002) (quoting 20 U.S.C. § 1415(i)(2)) (alterations in original). See also Susan N. v. Wilson Schl. Dist., 70 F.3d 751, 763 (3d Cir.1995) ("[This section] was enacted to reaffirm the viability of section 504 [of the Rehabilitation Act], 42 U.S.C. § 1983, and other statutes as separate vehicles for ensuring the rights of handicapped children.").

The IDEA focuses on the appropriateness of the public education afforded special needs students whereas both the Rehabilitation Act and the ADA focus on disability-based discrimination against special needs students and are intended to reach "grosser kinds of misconduct" than the IDEA. Timms v. Metrop. Schl. Dist. of Wabash Cty., Indiana, 722 F.2d 1310, 1318 (7th Cir.1983). See Walker v. Dist. of Columbia, 157 F.Supp.2d 11, 36 (D.D.C.2001) (affirming this principle); A.W. v. Marlborough Co., 25 F.Supp.2d 27, 31-32 (D.Conn.1998) (same). See also N.L. v. Knox Cty. Schls., 315 F.3d 688, 695 (6th Cir.2003) (noting distinction between the IDEA and the Rehabilitation Act); McGraw v. Bd. of Ed. of Montgomery Co., 952 F.Supp. 248, 252-54 (D.Md.1997) (analyzing separately plaintiff's same allegations under the IDEA and, together, the ADA and the Rehabilitation Act). The ADA and Rehabilitation Act provide relief from discrimination while the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination. J.D. v. Pawlet Schl. Dist., 224 F.3d 60, 70 (2d Cir.2000); Sellers v. Schl. Bd. of the City of Manassas, 141 F.3d 524, 528-29 (4th Cir.1998); A.W., 25 F.Supp.2d at 31. This distinction is illustrated in the instant case by the fact that [Blair Hornstine] was afforded the key benefit secured by the IDEA--a free, appropriate public education-yet [Hornstine] will be precluded, on account of her disability, from fully enjoying a benefit she rightfully earned unless this Court grants the requested relief. [Hornstine] has not linked her request to be named sole valedictorian, nor her request for damages, with the accommodations to which she was entitled under the IDEA. [FN8] Rather, it is defendants who rely upon [Blair Hornstine]'s accommodations in their ill-conceived attempt to justify the actions she asserts constitute discrimination under the ADA and the Rehabilitation Act. Therefore, this Court holds that [Blair Hornstine] is not seeking redress under the IDEA and is not subject to its exhaustion requirement. Accord O'Hayre, 109 F.Supp.2d at 1294 (excusing exhaustion because discrimination claims "not provided for in the IDEA.").

FN8. The Second Circuit's decision in Polera v. Bd. of Ed. of Newburgh Enlarged City Schl. Dist., 288 F.3d 478 (2d Cir.2002), is factually distinguishable for this reason. The plaintiff in that case was seeking redress under the IDEA for "failure to provide her with the free appropriate public education, including study materials, compensation for tutoring, and recognition of academic achievements, to which she was entitled as a disabled student." Id. at 480. The court viewed the plaintiff's request for academic honors as an outgrowth of her free, appropriate public education claim and, thus, subject to the IDEA. Id. at 486. … [Blair Hornstine] …, by contrast, does not allege that she was denied a free, appropriate public education or the right to compete for academic honors, but that, after she qualified for an honor, she was then subjected to discriminatory treatment on account of the accommodations she had been afforded throughout her education. Moreover, this Court questions the Second Circuit's conclusion that a complaint regarding academic honors is redressable under the IDEA because the accordance of such honors goes beyond the "basic floor of opportunity" that Congress intended to provide disabled students through the IDEA. See Bd. of Ed. of the Hendrick Hudson Ctrl. Schl. Dist. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("[T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside."); Polk v. Ctrl. Susquehanna Intermed. Unit 16, 853 F.2d 171, 182 (3d Cir.1988) (stating that IDEA assures only that special needs students receive more than a de minimis educational experience). See also 20 U.S.C. § 1415(b)(1)(E) (stating that students shall be granted an opportunity to present complaints under the IDEA only "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.").

Even if [Blair Hornstine] should have exhausted state administrative remedies before instituting this suit, this case falls squarely within the futility exceptions to both New Jersey's and the IDEA's exhaustion requirements. See Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir.1996) (discussing IDEA's futility exception); Taylor v. Vermont Dept. of Ed., 313 F.3d 768, 789 (2d Cir.2002) (same); River Dell Educ'l Ass'n v. River Dell Bd. of Ed., 122 N.J.Super. 350, 353, 300 A.2d 361 (Law Div.1973) (discussing New Jersey's futility exception); Valent v. New Jersey State Bd. of Ed., 114 N.J.Super. 63, 70, 274 A.2d 832 (Ch.Div.1971) (citing Matawan v. Monmouth County Bd. of Taxation, 51 N.J. 291, 296, 240 A.2d 8 (1968)) (same). It is undisputed that the Department of Education rebuffed [Blair Hornstine]'s attempt to obtain relief. In its letter responding to [Hornstine]'s application for emergent relief, the Department of Education stated that her request does not fall within the [Department's] limited jurisdiction for due process hearings. Therefore, the request for due process cannot be processed because it does not seek a final determination concerning "identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action according to 34 C.F.R. §§ 300.520 through 300.528." See, N.J.A.C. 6A:14-2.7(a).

Your discrimination claims pursuant to Section 504 of the Rehabilitation Act ... appear more appropriate for ... a civil action in a court of appropriate jurisdiction. Adjudication of such claims, and awarding of injunctive relief such as that sought in this matter, are not appropriate for a due process hearing. Complaint at Exhibit F. This letter makes clear that a remand by this Court to the Department of Education to hear [Blair Hornstine]'s discrimination claims under the Rehabilitation Act would be futile given the Department's interpretation of its jurisdiction under its own implementing statute. See Taylor, 313 F.3d at 789 (excusing exhaustion on futility grounds where hearing officer held that due process proceeding was not the proper forum for party's claims); cf. Kerr Ctr. Parents Ass'n v. Charles, 897 F.2d 1463, 1470 (9th Cir.1990) (excusing exhaustion on futility grounds where where school district refused to provide hearing); Valent, 114 N.J.Super. at 70, 274 A.2d 832 (holding that remand would be futile where agency had informally expressed its opinion on the issue raised by the policy challenged). The Department's statement also strongly suggests that it does not believe that it has jurisdiction over [Blair Hornstine]'s remaining claims because they, like her discrimination claims, do not concern "identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action." Hence [Blair Hornstine] had no recourse but to seek judicial relief and, therefore, should not be required to attempt to exhaust a second time even if the Department was incorrect in its understanding of its jurisdiction. [FN9] Accord Diamond v. McKenzie, 602 F.Supp. 632, 635-36 (D.D.C.1985) (excusing failure to exhaust where hearing officer mistakenly believed that she could not redress petitioner's claim). "To hold otherwise, would impose an unnecessary and unjustified burden on the parents and guardians of handicapped children." Charles, 897 F.2d at 1469- 70.

FN9. The Court acknowledges defendants' argument that [Blair Hornstine] may have filed her application with the wrong office within the Department of Education. Even assuming this is true, it does not negate the fact that the Department instructed [Blair Hornstine] to file a complaint "in a court of appropriate jurisdiction" rather than with another Departmental office.

For these reasons, defendants' motion to dismiss on exhaustion grounds is denied.

Select Section->    1->Introduction    2->Facts and Procedural History    3->Defendants Motion to Dismiss    

4->[Blair] is Entitled to Temporarey Restraints    5->Conclustion     Top of Page