672 S.E.2d 606
2. “The general rule is that where an administrative remedy is provided by
statute or by rules and regulations having the force and effect of law, relief must be sought
from the administrative body, and such remedy must be exhausted before the courts will act.”
Syllabus Point 1, Daurelle v. Traders Fed. Sav. & Loan Assn., 143 W.Va. 674, 104 S.E.2d
320 (1958).
3. “Where the available administrative remedy is inadequate, this Court
recognizes an exception to the general rule that where a new right is created by statute, the
remedy can be only that which the statute prescribes.” Syllabus Point 2, Wiggins v. Eastern
Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d 745 (1987).
4. “This Court will not require the exhaustion of administrative remedies
where such remedies are duplicative or the effort to obtain them futile.” Syllabus Point 6, Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d 745 (1987).
5. Prior to bringing a civil suit alleging failure to provide a free
appropriate public education under the Regulations for the Education of Students with
Exceptionalities, Policy 2419, 126 C.S.R. § 16, a complainant must first exhaust his or her
administrative remedies provided under the regulations or meet the burden of proving an
exception to the exhaustion requirement.
Maynard, Chief Justice: (See footnote 1)
Thomas Sturm, the appellant, brought several claims against the Kanawha
County Board of Education in which he alleged that the Board provided him with a defective
education. In its April 3, 2007, order, the Circuit Court of Kanawha County dismissed with
prejudice Mr. Sturm's state law claims for failure to exhaust his administrative remedies, and
Mr. Sturm now appeals. For the reasons that follow, we affirm the circuit court's order.
(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 1414(d) of this title.
20 U.S.C. § 1401(9). An individualized education plan or “IEP” is essentially a written plan
developed for each child with a disability that is designed to meet that child's specific
educational needs. 20 U.S.C. § 1414(d)(1)(A). The IDEA does not confer upon parents a
right to immediately seek redress in federal court for the alleged denial of a free appropriate
public education under the Act. Rather, the IDEA contains a detailed administrative scheme
that must be exhausted prior to filing a federal claim. 20 U.S.C. § 1415(l); Doe v. Alfred, 906
F.Supp. 1092 (S.D.W.Va. 1995). The United States Supreme Court has explained that the
IDEA
confers upon disabled students an enforceable substantive right to public
education in participating States and conditions federal financial assistance
upon a State's compliance with the substantive and procedural goals of the
Act. Accordingly, States seeking to qualify for federal funds must develop
policies assuring all disabled children the “right to a free appropriate public
education,” and must file with the Secretary of Education formal plans
mapping out in detail the programs, procedures, and timetables under which
they will effectuate these policies.
Honig v. Doe, 484 U.S. 305, 310-311 (1988) (citations and footnote omitted).
Courts have found that a complainant must exhaust his or her administrative
remedies under the IDEA prior to bringing a civil action. In Doe v. Alfred, supra, relied upon
by the federal district court in dismissing the appellant's federal claims, the plaintiffs filed
suit against several education officials alleging a violation of their child's right to a free
appropriate public education as guaranteed by the IDEA, the 14th Amendment to the United
States Constitution, and Article III, Section 10 of the West Virginia Constitution. The
plaintiffs sought damages and injunctive relief pursuant to 42 U.S.C. § 1983. The defendants
filed a motion to dismiss the plaintiffs' suit primarily on the basis that the plaintiffs failed to
exhaust administrative remedies available to them under the IDEA. The United States
District Court for the Southern District of West Virginia granted the defendants' motion to
dismiss after finding that exhaustion of administrative remedies was required for both the
plaintiffs' IDEA claim and their constitutional claims. The district court based its decision
in part on the language of 20 U.S.C. § 1415(f) providing that,
Any party aggrieved by the findings and decision made . . . [during the
administrative hearing and appeal process described in 20 U.S.C. § 1415(b)(2)
and (c) ] shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section, which action may be brought in
any State court of competent jurisdiction or in a district court of the United
States without regard to the amount in controversy[.]
Doe, 906 F.Supp. at 1096, citing 20 U.S.C. § 1415(e)(2). (See footnote 4) Additional language of the IDEA
relied upon by the district court indicated that,
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, title V of the
Rehabilitation Act of 1973, or other Federal statutes protecting the rights of
children and youth with disabilities, except that before the filing of a civil
action under such laws seeking relief that is also available under this
subchapter, the procedures under subsection (b)(2) and (c) of this section shall
be exhausted to the same extent as would be required had the action been
brought under this subchapter.
Doe, 906 F.Supp. at 1098, citing 20 U.S.C. § 1415(f). (See footnote 5) Therefore, it is clear that an
individual must exhaust his or her administrative remedies under the IDEA prior to bringing
a civil action alleging a violation of the Act.
The West Virginia counterpart to the IDEA is found in W.Va. Code §§ 18-20-
1, et seq., titled “Education of Exceptional Children.” Pursuant to W.Va. Code § 18-20-1
(1990), the State Board of Education is authorized to adopt rules to develop a program to
assure that all exceptional children in the state receive an education in accordance with the
mandates of state and federal laws. Pursuant to this authorization, the State Board developed
Policy 2419 which is found at 126 C.S.R. § 16. Like the IDEA, Policy 2419 provides a
comprehensive administrative scheme for addressing the complaints of parents and students.
This scheme includes providing notice of procedural rights; the right to mediation; dispute
resolution mechanisms consisting of the right to file a complaint with the appropriate state
agency; the right to file a due process complaint with the district superintendent or the State
Department of Education; and the right to have one's complaint heard and decided by an
impartial hearing officer. Any party aggrieved by the decision of the hearing officer may
then bring a civil action.
The general rule in this Court with regard to the exhaustion of administrative
remedies provides “that where an administrative remedy is provided by statute or by rules
and regulations having the force and effect of law, relief must be sought from the
administrative body, and such remedy must be exhausted before the courts will act.”
Syllabus Point 1, Daurelle v. Traders Fed. Sav. & Loan Assn., 143 W.Va. 674, 104 S.E.2d
320 (1958). See also State ex rel. Fields v. McBride, 216 W.Va. 623, 609 S.E.2d 884 (2004)
(same); State ex rel. Miller v. Reed, 203 W.Va. 673, 510 S.E.2d 507 (1998) (same); Hechler
v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985) (same); McGrady v. Callaghan, 161 W.Va.
180, 244 S.E.2d 793 (1978) (same); State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149
S.E.2d 234 (1966) (same). Courts have recognized that this rule serves several useful
functions including:
(1) permitting the exercise of agency discretion and expertise on issues
requiring these characteristics; (2) allowing the full development of technical
issues and a factual record prior to court review; (3) preventing deliberate
disregard and circumvention of agency procedures established by Congress [or
the Legislature]; and (4) avoiding unnecessary judicial decision by giving the
agency the first opportunity to correct any error.
Doe, 906 F.Supp. at 1097, quoting Association for Commun. Living v. Romer, 992 F.2d 1040,
1044 (10th Cir. 1993).
We have also recognized exceptions to the rule requiring the exhaustion of
remedies. In Syllabus Point 2 of Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63,
357 S.E.2d 745 (1987), this Court held that “[w]here the available administrative remedy is
inadequate, this Court recognizes an exception to the general rule that where a new right is
created by statute, the remedy can be only that which the statute prescribes.” Also, “[t]his
Court will not require the exhaustion of administrative remedies where such remedies are
duplicative or the effort to obtain them futile.” Syllabus Point 6, Wiggins. See also Syllabus
Point 1 of State ex rel. Bd. of Educ. v. Casey, 176 W.Va. 733, 349 S.E.2d 436 (1986) (“The
doctrine of exhaustion of administrative remedies is inapplicable where resort to available
procedures would be an exercise in futility.”). Finally, we have stated that “[t]he burden of
proving an exception to the exhaustion requirement rests on the party seeking to avoid the
mandate.” Doe, 906 F.Supp. at 1097 (footnote and citation omitted).
Based on the fact that the IDEA, upon which our Policy 2419 is based,
requires exhaustion of administrative remedies, and our rule that generally requires
exhaustion of remedies where such remedies are available, we now hold that prior to bringing
a civil suit for failure to provide a free appropriate public education under the Regulations
for the Education of Students with Exceptionalities, Policy 2419, 126 C.S.R. § 16, a
complainant must first exhaust his or her administrative remedies provided under the
regulations or meet the burden of proving an exception to the exhaustion requirement. We
will now apply this rule to the facts of this case.
Neither the appellant nor his parents exhausted the administrative remedies
provided for in Policy 2419. (See footnote 6) Therefore, it is incumbent upon the appellant to prove an
exception to the exhaustion requirement. In his brief to this Court, the appellant argues that
the circuit court erred in dismissing his claims for failure to exhaust his administrative
remedies when, in fact, no administrative remedies were available to the appellant after he
graduated. This argument is not well taken. The fact is the appellant and/or his parents had
twelve years in which to utilize their administrative remedies to address any alleged
deficiencies in the appellant's education, and they failed to do so. Obviously, a party cannot
stand mute until the time in which to seek redress of perceived wrongs has passed and then
complain that he or she no longer has a remedy. (See footnote 7)
The appellant alleges in his complaint that even though his grades fell below
a C minus, no reports were issued and no meetings were held to discuss his grades as was
mandated by his IEP. He also asserts that numerous IEP meetings were held in which proper
notice was not given and/or proper and appropriate representatives were not present.
Presuming these allegations to be true, there is no indication that the appellant's parents were
not informed of their procedural rights under Policy 2419 or that they were prevented by the
Board from knowing or exercising their rights. (See footnote 8) There likewise is no indication that the
appellant and/or his parents were unaware of the appellant's educational progress as reflected
in his grades. Nevertheless, the appellant and/or his parents apparently never took any
affirmative steps via the administrative process to address perceived inadequacies in the
appellant's education prior to his graduation. Therefore, finding no indication that the
numerous administrative remedies provided under Policy 2419 would have been inadequate
or futile had the appellant and/or his parents sought them in a timely manner, we find that the
appellant has failed to meet the burden of proving an exception to the exhaustion
requirement. (See footnote 9)
The appellant further contends that the circuit court erred in dismissing his
claims under the West Virginia Human Rights Act and W.Va. Code §§ 18-1-4 et seq., as
well as his claims for negligence, and the negligent infliction of emotional distress. In
support of his argument, the appellant cites Ronnie Lee S. v. Mingo Co. Bd. of Educ., 201
W.Va. 667, 500 S.E.2d 292 (1997). In Ronnie Lee S., the plaintiffs, who were the parents
of Ronnie Lee S., an autistic child, brought an action for damages and injunctive relief
against the Mingo County Board of Education and several of its employees arising out of the
defendants' alleged conduct in strapping Ronnie Lee S. to a chair while he attended school.
The circuit court granted summary judgment on behalf of the defendants after determining
that the action was precluded by the IDEA and by a written settlement agreement executed
by the plaintiffs and the defendants concerning various matters the plaintiffs had contested
under the IDEA with regard to Ronnie's program of education.
In Ronnie Lee S., this Court found that the circuit court erred in ruling that the
plaintiffs should have litigated the use of the restraint as a part of their administrative
remedies under the IDEA rather than filing an action in circuit court. First, we recognized
that the settlement agreement was reached after the plaintiffs had instituted a “due process”
proceeding before the State Board of Education alleging a failure of the defendants to
provide Ronnie with a free appropriate public education. We explained that “[u]nder the
circumstances herein, the execution of [the settlement agreement] constituted, in effect, an
exhaustion of the appellant's administrative remedies under the Individuals with Disabilities
Education Act.” Ronnie Lee S., 201 W.Va. at 673, 500 S.E.2d at 298. Next, we determined
that the circuit court erred in ruling that the plaintiffs' claims for damages and injunctive
relief should have been settled in the administrative process. This Court reasoned that
the appellants are correct in their assertion that the circuit court action was
essentially a damage claim involving allegations of the intentional or reckless
violation of the appellants' rights, and that, as such, the action was unrelated
to the purpose of the Individuals with Disabilities Education Act. The
complaint filed in the action alleged that, as a result of the [restraining device],
Ronnie Lee S. sustained “great psychological and emotional stress,
developmental delays, trauma, fears and pain and suffering.” Specifically, the
complaint alleged that, because of the use of that device, the appellees (1)
violated Ronnie Lee S.'s rights to due process, to an education and to be free
of excessive punishment; (2) committed assault and battery; (3) intentionally
or recklessly inflicted severe emotional distress; and (4) discriminated against
Ronnie Lee S. because of his disability. The complaint did not make reference
to the Individuals with Disabilities Education Act. Certainly, while it may be
argued that the portion of the complaint concerning the alleged violation of
Ronnie Lee S.'s right to an education was precluded by the Act, the gravamen
of the action clearly falls beyond the general admonition that the Act serves to
assure children with disabilities a free appropriate public education which
emphasizes special education and related services designed to meet their
unique needs.
Ronnie Lee S., 201 W.Va. at 674, 500 S.E.2d at 299 (internal quotation marks and citation
omitted).
Our decision in Ronnie Lee S. is not applicable to the instant facts. Unlike in Ronnie Lee S., all of the appellant's claims arise from the Board's alleged failure to provide
the appellant with a free appropriate public education. Specifically, the appellant alleges that
in his complaint below that the Board “discriminated against [him] under the [Human Rights
Act] on the basis of disability by denying him a free, appropriate public education.” The
appellant also avers that the Board denied him his rights under W.Va. Code § 18-1-4 et seq. which “requires the Board to provide to students a free, public education and to prepare them
to be gainfully employed and to insure that they are not functionally illiterate.” Third, the
appellant's negligence claim arises from the Board's alleged failure “to exercise that degree
of care, skill and learning required or expected of a reasonable, prudent board of education,
by deviating from the standards of care and/or carelessly and negligently failing to manage
and educate Plaintiff.” Finally, the appellant's claim for negligent infliction of emotional
distress is based on the Board's negligent and careless infliction of “severe and emotional
distress upon the plaintiff by holding him up to ridicule, by denying him the right to an
education, and otherwise, all of which resulted in damage and injury to the Plaintiff.” Thus,
it is clear from the appellant's complaint that all of his claims arise from the failure to
provide him with a free appropriate public education under Policy 2419. As such, the
appellant cannot avoid the Policy's exhaustion requirements by pleading separate causes of
action.
In sum, we find that the appellant and/or his parents failed to exhaust their
administrative remedies under Policy 2419. We further find that the appellant has failed to
meet the burden of proving an exception to the exhaustion requirement. Accordingly, the
appellant is now precluded from bringing a claim against the Board for the alleged failure
to provide him with a free appropriate public education. Finally, because the appellant is
precluded from bringing a civil action in circuit court, it appears to this Court beyond doubt
that the appellant's complaint will not support a claim that entitles the appellant to relief.
Affirmed.