In the Matter of East Ramapo Central School District, Appellant,v.John B. King, Jr.,, et al., Respondents.

Brief

N.Y.February 8, 2017

To be Argued by: Randall M. Levine Time Requested: 15 Minutes APL-2015-00324 ~ourt of ~ppeal~ of the ~tate of jF!etu ~ork ------------·------------ EAST RAMAPO CENTRAL SCHOOL DISTRICT, Petitioner-Appellant, - against - MARYELLEN ELlA, in her official capacity as the Commissioner of Education, et a/., Respondents. BRIEF FOR PETITIONER-APPELLANT OF COUNSEL: HARRIS BEACH PLLC Douglas E. Gerhardt 677 Broadway Suite 1101 Albany, NY 12207 Telephone: (518) 701-2738 Facsimile: (518) 701-2701 MORGAN, LEWIS & BOCKIUS LLP David J. Butler Randall M. Levine Stephanie Schuster Judd E. Stone 2020 K Street, NW Washington, DC 20006 Telephone: (202) 373-6000 Facsimile: (202) 373-6001 Attorneys for Petitioner-Appellant Dated: February 16, 2016 Appellate Division, Third Judicial Department No. 519463 Supreme Court, Albany County Index No. 2185-13 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii QUESTION PRESENTED ........................................................................................ 1 STATEMENT OF JURISDICTION .......................................................................... 2 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 3 STATEMENT OF THE CASE ........................................................................ .... .. .... 6 A. The District's Obligations Under The IDEA Leading To The Challenged Compliance Determination .............................................. 6 B. The Education Department's Compliance Determination And Enforcement Actions .................................................... .......................... .. .. 8 C. The District's Article 78 Petition And The Proceedings Below ............. 11 ARGUMENT .......................................................................................................... 13 I. ARTICLE 78 PROVIDES THE DISTRICT AN INDEPENDENT RIGHT TO JUDICIAL REVIEW IN STATE COURT ................................................. 13 A. Judicial Review Of State Agency Decisions Is Different From A Private Right of Action ............................................................................ 16 B. The Third Department's Mistakes Are Unprecedented ............... ...... ..... 19 C. The Third Department's Holding Invites Abuse by Administrative Agencies ................................................................................................... 22 II. CONGRESS DID NOT INTEND THE IDEA TO PREEMPT ARTICLE 78 REVIEW OF IDEA COMPLIANCE DETERMINATIONS ............................ 24 CONCLUSION ....................................................................................................... 28 AFFIRMATION OF SERVICE .................................................................. ............. 29 11 TABLE OF AUTHORITIES CASES PAGE(S) AlohaCare v. Ito, 271 P.3d 621(Haw. 2012) ............................................................................. 21 Antkowiak v. Ambach, 838 F.2d 635 (2d Cir. 1988) ......................................................................... 27 Bd. ofEduc. v. NJ State Dep't ofEduc., 945 A.2d 125 (N.J. Super. Ct. App. Div. 2008) ........................................... 27 Bradford Cent. Sch. Dist. v. Ambach, 56 N.Y.2d 158 (1982) ................................................................................... 15 Cruz v. TD Bank NA., 22 N.Y.3d 61 (2013) ...................................................................................... 4 Dairylea Coop., Inc. v. Walkley, 38 N.Y.2d 6 (1975) .......................................................................................... 4 District of Columbia v. Am. Univ., 2 A.3d 175 (D.C. 2010) ................................................................................ 21 District of Columbia v. Sierra Club, 670 A.2d 354 (D.C. 1996) ............................................................................ 21 Dowler v. Clover Park Sch. Dist. No. 400, 258 P.3d 676 (Wash. 2011) .......................................................................... 27 Ellison v. Creative Learning Ctr., 893 A.2d 12 (N.J. Super. Ct. App. Div. 2006) ............................................. 27 E. Ramapo Cent. Sch. Dist. v. King, et a/., Index No. 6262-14 (N.Y. Sup. Ct. May 8, 2015) ......................................... 23 E. Ramapo Cent. Sch. Dist. v. King, eta/., Index No. 6262-14 (N.Y. Sup. Ct. Oct. 1, 2015) .......................................... 23 Guardian Life Ins. Co. v. Bohlinger, 308 N.Y. 174 (1954) ..................................................................................... 19 Ill Hedgepeth v. NC. Div. ofServs. For the Blind, 543 S.E.2d 169 (N.C. Ct. App. 2001) ........................................................... 21 Hernandez-Avalos v. I.NS., 50 F.3d 842 (lOth Cir. 1995) ........................................................................ 22 Home Care Ass 'n v. Bane, 218 A.D.2d 106 (3d Dep't 1995) .................................................................. 20 Indep. Sch. Dist. No. 281 v. Minn. Dep'tofEduc., No. A06-1617, 2007 WL 2774337 (Minn. App. Sept. 25, 2007) ................ 27 Jackson v. N.Y. State Urban Dev. Corp., 67N.Y.2d400(1986) ............................................................................. 17, 18 Japan Whaling Ass 'n v. Am. Cetacean Soc y, 478 u.s. 221 (1986) .................................................................................. 4, 17 La Rocca v. Lane, 37 N.Y.2d 575 (1975) ............ .. .... ........ ................... ...................................... 14 NA.A. C.P. v. Sec y of H UD., 817 F.2d 149 (1st Cir. 1987) ......................................................................... 16 NY. C. Dep 't of Envtl. Prot. v. NY. C. Civil Serv. Comm 'n, 78 N.Y.2d 318 (1991) ......................................................................... 3, 14, 19 Ore. Nat. Res. Council v. US. Forest Serv., 834 F.2d 842 (9th Cir. 1987) ........................................................................ 22 Pell v. Bd. of Educ., 34 N.Y.2d 222 (1974) ................................................................................... 15 Shackleford-Moten v. Lenoir Cnty Dep't of Social Servs., 573. S.E. 2d 767 (N.C. Ct. App. 2002) ......................................................... 22 St. Margaret's Ctr. v. Novello, 23 A.D.3d 817 (3d Dep't 2005) .................................................................... 20 Trans america Mortg. Advisors, Inc. v. Lewis, 444 u.s. 11 (1979) ....................... .... ...................... .................... ......... .... .. 4, 17 lV Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) ... .. ... .. .......... .. ... .. ................ ... ........... ..... ............ .. 6 Wyeth v. Levine, 555 u.s. 555 (2009) ...................................................................................... 25 STATUTES 8 N.Y.C.R.R. § 200.4(g)(2)(i) ........................................................ ......................... 12 15 u.s.c. § 41 .... ..... .................................. .. ............ ........... ... .. ................................ 17 20 U.S.C. § 1412(a)(l) ............................................................................................... 6 20 U.S.C. § 1412(a)(5)(A) ......................................................................................... 6 20 U.S.C. § 1412(a)(l1)(A)(ii) ............................ .................................. ... .. ... ....... .. 26 20 U.S.C. § 1412(a)(13) .......................................................................................... 26 20 U.S.C. § 1415 ............... : ..................................................................................... 26 20 u.s.c. § 1415(b) ........ .. ..... ... .......................... ................................... ..... ... .. .. ... ..... 7 20 U.S.C. § 1415(f)(l)(B) ........................................................... .. ............................. 7 20 U.S.C. § 1416(a)(l)(A)(i) .... ........... ... .. ...... .............................. ... .... .. .................. 26 20 U.S.C. § 1416(a)(1)(C)(i) .. .. ....... ......... ... ........ .. .... .. .................... ........ .. ... .. .. .. . 8, 26 20 U.S.C. § 1416(b)(l)(A) ...... ................ .. ........ .... ... .. .. ....... ....... ........ .... ...... .............. 8 34 C.F.R. § 300.510(d) ............... ........... .. ...................... ............................................ 7 42 U.S.C. § 1396a ................................................................................................... 20 CPLR § 217(1) .... .... ... .... .... ...... ... ... ..... .... ....... ......... .. .. .... ...... ... ... .............. .... ...... .... ... 2 CPLR § 5513(a) .. ... ............. .. .... .. .... .... .. .... .................... .......... ......... ... ... ... ... .... ... ....... 2 CPLR § 5513(b) ..... .... ... ... .. .... ... ......... ..... .. .. .. ...... .... .. ... ... .. ............. .................... .. ...... 2 CPLR § 5602(a)(1)(i) ........ ..... ..... ... ... ... ... ...... ...... ........... .. .. ... ..... .................. ....... ..... .. 2 v CPLR § 7801 ... .. ...... , ... .. ........... .... .... .......... ,. ....................................................... .. .... 14 CPLR § 7801(1) ......... ....................... ...................................................................... 11 CPLR § 7802(a) .. ........... ............................................... .... ..... .. ............................... 15 CPLR § 7803(1) ......... ....................... ..... ................................................ ... .... .... ... ... 14 CPLR § 7803(2) ............... .................................................. .. ................................... 14 CPLR § 7803(3) .................................................................................. ........ 12, 14, 17 CPLR § 7803(4) ............................................................................. .. ....................... 14 N.Y. Educ. Law§ 305(1) ......................... ........... ... .................................................... 9 N.Y. Educ. Law§ 305(2) .... ....................................................................................... 9 N.Y. Educ. Law§ 306(2) ........... , ..................... .......... ................................................. 9 N.Y. Educ. Law§ 4402(3)(b)(ii) ............................................................................ 12 OTHER AUTHORITIES Assistance to States for the Educ. of Children with Disabilities, 71 Fed. Reg. 46,540 (Aug. 14, 2006) ............................ ... ........................... 11 U.S. Dep't ofEduc., Office of Special Educ., Questions & Answers on Monitoring, Technical Assistance & Enforcement (Revised June 2009) ................................... .............................. .... ....... .. .... ... .. ... ....... 5, 26 Vl QUESTION PRESENTED Petitioner-Appellant the East Ramapo Central School District (the "District") is a public school district charged with providing special education services to students with disabilities under the federal Individuals with Disabilities Education Act ("IDEA") and related State laws. Respondents-Appellees are officials of the New York State Education Department ("Education Department")1 responsible for, among other things, monitoring and enforcing school districts' compliance with these laws. The Education Department determined that the District was out of compliance with the IDEA, ordered the District to take corrective actions, and imposed sanctions. The District sought judicial review of the Education Department's determinations under Article 78. The Third Department did not reach the merits, but instead held that the Education Department's determinations under the IDEA were unreviewable in an Article 78 proceeding because the IDEA does not provide school districts a private right of action for judicial review by State courts. This appeal therefore presents a single question for review: 1. Whether Respondents' regulatory and enforcement determinations pursuant to the IDEA and related State laws and regulations may be reviewed by the courts pursuant to Article 78? Pursuant to CPLR § 1019, current Commissioner of Education MaryEllen Elia, in her official capacity, has been substituted in the caption for former Commissioner John B. King, Jr. 1 STATEMENT OF JURISDICTION The Education Department issued the challenged administrative findings, decisions, and orders on December 19, 2012. A193. 2 The District timely commenced this Article 78 proceeding on April 17, 2013. A165; see CPLR § 217(1 ). Supreme Court, Albany County dismissed the petition on December 30, 2013. A125-38. The Education Department served notice of entry of that order by regular mail on February 20, 2014. A124. The District timely appealed to the Third Department on February 27, 2014. A582; see CPLR § 5513(a). The Third Department affirmed Supreme Court's order dismissing the Article 78 petition on June 4, 2015. A117-21. The Education Department served notice of entry of the Third Department's order by regular mail on June 18, 2015. A 115. The District timely moved the Third Department for leave to appeal to this Court July 23, 2015. A598; see CPLR § 5513(b). The Third Department denied the motion on September 2, 2015, A156, and the Education Department served notice of entry of that order by regular mail on September 14, 2015, A154. The District timely served a motion to this Court for leave to appeal on October 19, 2015. A1; see CPLR § 5513(b ). This Court granted leave to appeal on December 17, 2015. A82-83. This Court has jurisdiction under CPLR § 5602(a)(1 )(i). 2 Citations to "A_" refer to pages in the Appendix to this brief. 2 INTRODUCTION AND SUMMARY OF ARGUMENT New York's courts stand watch over the State's administrative agencies to ensure their decisions comport with the law. This obligation may neither be disregarded by the courts nor removed by the legislature. "[J]udicial review is mandated when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction." NY. C. Dep 't of Envtl. Prot. v. NY. C. Civil Serv. Comm 'n, 78 N.Y.2d 318,323 (1991) (emphasis added). The decision below is inconsistent with these fundamental principles. The Third Department held that a school district cannot seek judicial review under Article 78 of an Education Department finding that a school district is out of compliance with the IDEA. This effectively immunizes the Education Department's decisions in this sensitive area from any judicial scrutiny. School districts have no recourse to the courts even for Education Department decisions that are arbitrary, irrational, or inconsistent with the law. That result is untenable. The Third Department erred because it incorrectly assumed that "[t]he dispositive issue" before it was "whether the IDEA grants [the District] a private right of action" to seek judicial review. A 118. The Third Department did not have to look to the federal IDEA for permission to review the Education's Department's determination. Article 78 provides a mechanism for judicial review of agency decisions that is independent of any external source of authority. 3 Whether the IDEA provides a private right of action is a different, immaterial question. Judicial review under Article 78 determines whether a State official has wrongly enforced the law. In contrast, a private right of action allows an individual to sue to enforce the law against someone else. Here, the District seeks only the former-a judicial determination that the Education Department's non-compliance determination against the District was erroneous. The District does not seek to enforce the IDEA. The Third Department confused the two concepts, and so it applied the incorrect analysis. New York and federal law presume the availability of judicial review. See Dairylea Coop., Inc. v. Walkley, 38 N.Y.2d 6, 11 (1975) (ordinary judicial review is presumed to apply absent "clear legislative intent negating review"); Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221,230-31 n.4 (1986) ("A separate indication of congressional intent to make agency action reviewable . . . is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review."). Private rights of action, on the other hand, are relatively rare and must either be explicitly or impliedly granted by the legislature. Cruz v. TD Bank NA., 22 N.Y.3d 61, 71 (2013) (rights of action created either expressly or when demonstrated by legislative intent); Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24 (1979) (same). 4 The Third Department observed that the IDEA provides a private right of action to students with disabilities to enforce the IDEA, but does not provide one to school districts. From this, the Third Department presumed that the District could not seek judicial review of the Education Department's order declaring the District noncompliant with the IDEA and imposing sanctions. But one does not follow from the other. The only way that federal law could compel a different result would be by preempting Article 78 and providing something different in its place. Nothing in the IDEA suggests congressional intent to preempt Article 78 in this context. That is why the U.S. Department of Education's IDEA guidance makes clear that "[w]hether a State's determination about [a school district's] performance may be appealed is a State decision."3 Correction by this Court is warranted. The Third Department's errors have left New York's 698 school districts vulnerable to arbitrary or lawless enforcement actions by the Education Department, without recourse to the courts. The Third Department's judgment should be reversed, and this case should be remanded for consideration of the merits of the District's Article 78 petition. 3 U.S. Dep't of Educ., Office of Special Educ., Questions & Answers on Monitoring, Technical Assistance & Enforcement, at 12 available at www2.ed.gov/policy/spece d/guid/idea/monitoring-q-a.pdf. 5 STATEMENT OF THE CASE The Third Department concluded that the District could not seek judicial review of the Education Department's compliance determinations and enforcement orders under the IDEA. It therefore did not reach the merits of the District's Article 78 petition. Nevertheless, some history of the District's underlying petition is necessary in order to understand the erroneous decision below. A. The District's Obligations Under The IDEA Leading To The Challenged Compliance Determination. The District is a "Local Education Agency" under the IDEA, and so the District must make a free appropriate public education (a "F APE") available to all of its students with disabilities. See 20 U.S.C. § 1412(a)(l). To satisfy its obligation, a school district must offer "special education and related services tailored to meet the unique needs of a particular child." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (internal quotation marks and citation omitted). The IDEA also guarantees that students with disabilities remain a part of the school community to the greatest extent possible (called the "least restrictive environment"). 20 U.S.C. § 1412(a)(5)(A). Discharging these obligations requires thought, planning, and considered judgment. The District exercises that judgment through a team of doctors, psychologists, teachers, administrators, and parents, who collectively comprise the District's Committee on Special Education ("CSE"). The District's CSE assesses 6 about 2,000 students with disabilities each year to determine the services each child requires. The CSE recommends both an educational placement and the special education services to be provided. Parents play an integral role throughout this process, but they are not required to accept the CSE' s recommendations if they disagree. Parents may file a "due process complaint" setting out their objections and seeking a different setting or different services that the parents believe appropriate. 20 U.S.C. § 1415(b). Like all prospective civil litigation, these disputes can be simple or complex; quick or entrenched; minor or terribly expensive. The IDEA encourages settlement of such disputes to the greatest extent possible. When a parent objects to the CSE's recommendations through a due process complaint, the IDEA requires the school district to convene a meeting with the aggrieved parent to attempt to resolve the issue without litigation. 20 U.S.C. § 1415(t)(l)(B). The school district must be represented in such "resolution session" by an officer with authority to settle the claim. Id. These negotiations function like ordinary settlement talks. When successful, the result is a "written settlement agreement"-a binding, enforceable settlement. I d.; 34 C.F .R. § 300.51 0( d). When unsuccessful, unhappy parents typically pursue litigation. Like every other school district in the State, the District confronts its share of due process complaints. Each year, out of the District's more than 2,000 7 students with disabilities, the parents of about twenty-five to thirty students with disabilities raise due process complaints. Consistent with the IDEA's preference, the District generally attempts to settle these complaints. As relevant here, the District settled twenty-one due process complaints in the 2012-2013 school year. Fourteen of those cases arose because the District's CSE modified the Individualized Education Programs ("IEPs") of children who had been receiving bilingual English/Yiddish special education in a State-approved private school located in the District. Each parent filed a due process complaint, and the District settled them in the ordinary course, typically (though not uniformly) by maintaining the previous placement. Each settlement followed the IDEA's requirements for meetings with parents, and each saved both the parents and the District the trouble and expense of litigation. The Education Department's enforcement action was based upon these settlements. In short, the Education Department concluded that the District's practice of settling parents' due process complaints-the practice encouraged and facilitated by the IDEA-itself violated the IDEA. B. The Education Department's Compliance Determination And Enforcement Actions. The IDEA obligates states to monitor and enforce its prov1s1ons as a condition of receiving federal educational grants. E.g., 20 u.s.c. §§ 1416(a)(1)(C)(i), (b)(l)(A). New York complies with these requirements-and 8 ensures that school districts do the same-by delegating its obligations and the power to enforce them to the State Education Department. N.Y. Educ. Law § 305(1 )-{2). The Education Department holds broad authority over school districts, including the power to withhold public money from a school district for violating Education Department orders. N.Y. Educ. Law§ 306(2). In 2012, staff from the Office of Special Education Quality Assurance-a departmental sub-unit charged with monitoring compliance with the IDEA- reviewed the District's 2012-2013 settlements. Ostensibly based on this review, the Education Department concluded that the District's 2012-2013 settlements violated the IDEA for three principle reasons. First, the Education Department observed that the District's CSE had not recommended bilingual education for twelve of fourteen students, but that the District settled with their parents and agreed to reimburse a portion of the parents' bilingual private school tuition anyway. The Education Department characterized these settlements satisfying the parents' preference for bilingual education as impermissibly "overriding" the CSE's recommendations. A195-96. Second, the Education Department concluded that the District's practice of delegating to a single administrator the authority to settle with parents violated the IDEA. A195. The Education Department believed that permitting the District's 9 representative to negotiate and ultimately settle with parents amounted to an unlawful power to "unilaterally ... override" the CSE's recommendations. A196. Third, the Education Department found that the District's settlements violated the IDEA because they allowed for parents to select private school placements for their children instead of the public school placements that the CSE had recommended. A195. In the Education Department's view, the settlements therefore were inconsistent with the IDEA's "least restrictive environment" requirement because private school placements are more restrictive than public school placements. A198-99. The Education Department ordered the District to cease allowing its representative to settle due process complaints by agreeing to placements that varied from the CSE's recommendation. A196. The Education Department further ordered the District to refer all disputes back to the CSE, A196, threatened to withhold federal special educational grant money from the District, A245--46, and imposed various administrative sanctions. The Education Department's order placed the District in an impossible position. By definition, a due process complaint arises when parents disagree with the CSE's recommendations. In order to resolve such complaints without litigation, the District must agree to some different arrangement that the parents prefer. But the Education Department concluded that the District's settlements 10 were improper precisely because they differed from the CSE' s recommendations to allow for placements or services that parents preferred. Faced with the prospect of violating either the IDEA's settlement requirements or the Education Department's order, the District attempted to comply with the Education Department's order- and sought judicial review. C. The District's Article 78 Petition And The Proceedings Below. The District timely filed a petition for judicial review pursuant to Article 78. A169; see generally CPLR § 7801(1). To summarize-as this appeal does not present the merits of the District's petition-the District contends that the Education Department's order was arbitrary, capricious, and inconsistent with the IDEA and its enabling regulations. The IDEA obligates the District to send an agent with settlement authority to meetings with parents raising due process claims; the Education Department found that the District violated the IDEA by doing so. The IDEA encourages and facilitates settlements so that school districts and parents may work out cooperative compromises as alternatives to the CSE' s recommendations; the Education Department found that the District violated the IDEA by compromising with parents. See Assistance to States for the Educ. of Children with Disabilities, 71 Fed. Reg. 46,540, 46,605 (Aug. 14, 2006) (noting that the IDEA "strongly encourage[ s ]" settlements). New York law authorizes an expedited process for 11 amending a student's IEP that only requires parents to submit a written request for an alternative placement or services; the Education Department found that the District violated State and federal law by settling with parents who sent letters requesting alternative placements. N.Y. Educ. Law § 4402(3)(b )(ii); 8 N.Y.C.R.R. § 200.4(g)(2)(i). The District argued that these contradictions meant that the Education Department's non-compliance order necessarily "was affected by an error of law," CPLR § 7803(3), and should be vacated. Supreme Court took briefing on the merits of the District's petition, but ultimately dismissed it in an opinion so terse as to border on a summary disposition. Without analyzing the legal arguments, Supreme Court outlined the Education Department's order and summarily concluded that it was "not irrational." Alll. Supreme Court otherwise deferred to the Education Department's determinations without meaningful analysis. A111-12. The Third Department dismissed the District's appeal on entirely different grounds. The Third Department concluded that the "dispositive issue" of the case was "whether the IDEA grant[ ed] petitioner a private right of action to challenge the State Education Department's determination." A118. The Third Department first noted that the IDEA failed to provide a right of action to school districts to challenge State regulatory decisions. A119. Comparing this absence to the IDEA's express right of action for parents to enforce the right to a FAPE, the Third 12 Department inferred that Congress did not intend for school districts to be able to sue under the IDEA. A119-20. The Third Department then examined the IDEA's "hierarchal regulatory and enforcement structure," which vested certain powers in the federal Secretary of Education, and determined that "Congress specifically intended to deny [to school districts] a right of action to challenge" a State agency's enforcement action under the IDEA. A120. The Third Department concluded that because the IDEA does not provide school districts with a right of action against the Education Department, the District could not challenge the Education Department's determination that the District's settlements violated the IDEA--even in an Article 78 proceeding. A121. The Third Department expressed no opinion on the merits of the District's claims and dismissed the appeal. This Court granted the District's timely petition for leave to appeal. A83. ARGUMENT I. ARTICLE 78 PROVIDES THE DISTRICT AN INDEPENDENT RIGHT TO JUDICIAL REVIEW IN STATE COURT. The Third Department erroneously assumed that federal law controls the District's right to seek judicial review of the Education Department's decision. But Article 78 provides an aggrieved party an independent right to seek judicial review of decisions by New York administrative agencies. Article 78 is a 13 fundamental limitation on the powers New York grants to its administrative officials that neither depends upon nor requires federal authorization. New York courts have always had the power to review decisions of State officials. The common-law writ of prohibition exists to "restrain an unwarranted assumption of jurisdiction and to prevent" an officer from "exceeding [his] authorized powers in a proceeding over which [he] has jurisdiction." La Rocca v. Lane, 37 N.Y.2d 575, 578-79 (1975). These protections were considered a part of courts' inherent power to police government officials who exceeded their lawful authority. The writ of prohibition satisfied the state-law requirement that courts review officers' actions for their illegality, unconstitutionality, or lack of jurisdiction. See NY. C. Dep't of Envir. Protect., 78 N.Y.2d at 323-24 (describing constitutional obligation to provide such review). Article 78 codifies these necessary writs. CPLR § 7801 ("Relief previously obtained by writs of certiorari to review, mandamus, or prohibition shall be obtained in a proceeding under this article."). Article 78 empowers New York courts to set aside an agency's determinations when they exceed the agency's jurisdiction; when they arise in violation of lawful procedures; when they are arbitrary and capricious; when they are an abuse of its discretion; when they lack substantial evidence; and when they are affected by an error of law. CPLR § 7803(2}--{4). This review exists to "make it possible, where warranted, to 14 ameliorate harsh imposition of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate." Pel! v. Bd. of Educ., 34 N.Y.2d 222, 235 (1974). The Education Department is within Article 78's scope. Article 78 relief may be had against "every court, tribunal, board, corporation, officer, or other person, or aggregation of persons." CPLR § 7802(a). This includes suits by school districts against the Education Department and its officials for review of their determinations: "there is no indication that the Legislature intended to preclude in any way school boards from seeking judicial review of decisions rendered by the Commissioner of Education." Bradford Cent. Sch. Dist. v. Ambach, 56 N.Y.2d 158, 164 (1982). Where, as here, the Education Department has interpreted the law or its regulations in a way that "interferes with the discretion granted by ... regulations to local school boards," the school district is "aggrieved" and may seek judicial review. !d. The Third Department had no need to look to the federal IDEA for permission to review the Education Department's determination that the District was noncompliant with the IDEA. The District sought review of a state agency action, in state court, that was alleged to be wrong as a matter of law. That is what Article 78 is for, and no separate authorization in the IDEA was necessary. 15 A. Judicial Review Of State Agency Decisions Is Different From A Private Right Of Action. The Third Department erred because it thought that the District required a separate "private right of action" to seek judicial review of the Education Department's decision via an Article 78 proceeding. This mistakenly combines and conflates two distinct legal concepts. Judicial review exists to prevent government officials from enforcing the law incorrectly: because the enforcement is capricious, it misapprehends the law, it is based on insufficient evidence, and so on. The party seeking judicial review-Article 78 relief-is not itself attempting to enforce a law; the party is attempting to compel a government official to do so in the right way. That is what the District seeks here: an opportunity to show that the Education Department's determination that the District was out of compliance with the IDEA is legally erroneous. In contrast, a private right of action is an individual's right to enforce a law's terms against another party. As then-Judge Breyer explained, a "private right of action" is the power given to "an injured person . . . himself to enforce the ... statute directly against the [other] person." NA.A.C.P. v. Sec'y of HUD., 817 F.2d 149, 152 (1st Cir. 1987) (Breyer, J.). These private rights are contrasted with a government officer's right to enforce a statute-usually an Attorney General or administrative agency. See, e.g., Federal Trade Commission Act of 1914, 16 15 U.S.C. § 41 et seq. (providing for administrative enforcement of competition laws without private right of action). Courts will not find a "private right of action" in a statute unless they conclude that Congress (or the legislature) intended to create such a right, by assessing whether the statute was enacted for the benefit of a specialized class, and whether recognition of a private right of action to enforce the law would promote the underlying purpose of the statute. See Transamerica Mortg. Advisors Inc. v. Lewis, 444 U.S. 11, 23-24 (1979). That is not how courts approach the right to judicial review. Unlike a "private right of action," courts presume that agency action is reviewable, and no statutory authorization--express or implicit-is necessary. See Japan Whaling Ass 'n v. Am. Cetacean Soc'y, 478 U.S. 221,230-31 n.4 (1986) ("[T]he rule is that the cause of action for review of [agency] action is available absent some clear and convincing evidence of legislative intention to preclude review."). Accordingly, this Court holds that when a statute "contains no provision regarding judicial review," the courts must follow the "standards applicable to administrative proceedings generally: 'whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."' Jackson v. N. Y State Urban Dev. Corp., 67 N.Y.2d 400,416 (1986) (quoting CPLR § 7803(3)). 17 This case illustrates the difference between the two concepts. The IDEA guarantees a free appropriate public education to a narrow class of people: students with disabilities. Thus, only such students or their parents may sue to enforce the IDEA if they are denied the IDEA's benefits. This is a "private right of action." The IDEA does not provide any benefits to school districts; it imposes on them the obligation to provide benefits. School districts therefore do not have a private right of action under the IDEA because they cannot have been denied any benefit under the IDEA. But this has nothing to do with the question that was before the Third Department: whether Article 78 permits New York courts to review the Education Department's adverse compliance determination. Anyone aggrieved by an adverse agency decision has the right to judicial review under Article 78. The Third Department should have applied the correct analysis and assumed that judicial review is available because there is no contrary indication in the IDEA or any state law. See Jackson, 67 N.Y.2d at 416. Even if there were some indication of legislative intent to negate all possibility of judicial review, it would make little difference here. This Court holds that even where a statute expressly precludes judicial review of agency action (and the IDEA does not), the courts nonetheless "have the power and the duty to make certain that the administrative official has not acted in excess of the 18 grant of authority given by statute or in disregard of the standard prescribed by the legislature." NY. C. Dep't of Envtl. Prot., 78 N.Y.2d at 323 (citing Guardian Life Ins. Co. v. Bohlinger, 308 N.Y. 174, 183 (1954)). That is precisely what the District contends here-the Education Department's determinations disregard the IDEA's settlement provisions. The Third Department's decision left no avenue even for this more limited form of judicial review. The Education Department's IDEA compliance and enforcement decisions are immunized completely--even if they are irrational or directly contrary to law. But "judicial review cannot be completely precluded." !d. at 323. The courts have an unflagging duty to ensure that New York's administrative agencies adhere to the law, and must "step in if an agency acts in violation of the Constitution, statutes or its own regulations." !d. at 324. The decision below therefore should be reversed. B. The Third Department's Mistakes Are Unprecedented. The Third Department's error is further confirmed by the lack of any support for its analysis or its holding in the precedents of this or any other court. For instance, in opposing the District's motion for leave to appeal, the Education Department could pointed to no decision of this Court that supports the decision below. Instead, the Education Department argued that other decisions of the Third Department reinforce its holding. In fact, none of those cases is on point. 19 Both St. Margaret's Center v. Novello, 23 A.D.3d 817, 819-20 (3d Dep't 2005), and Home Care Association v. Bane, 218 A.D.2d 106, 110-11 (3d Dep't 1995), on which the Education Department has relied, involved hybrid proceedings--each case was part special proceeding and part civil action. In both cases, the special proceeding was brought under Article 78, challenging the reasonableness of a state agency's calculation of Medicaid reimbursements. See St. Margaret's Ctr., 23 A.D.3d at 819; Home Care Ass 'n, 218 A.D.2d at 110. In both cases, the Article-78-petitioner also was a civil plaintiff pursuing a separate claim directly under the federal Medicaid Act (42 U.S.C. § 1396a). St. Margaret's Ctr., 23 A.D.3d at 820; Home Care Ass 'n, 218 A.D.2d at 111. The Third Department affirmed orders dismissing both claims: the Article 78 claim because the agency's action was reasonable; and the federal Medicaid Act claim because the act provides no private right of action. See St. Margaret's Ctr., 23 A.D.3d at 819-20; Home Care Ass 'n, 218 A.D.2d at 110-11. In neither case did the Third Department hold that a private right of action under a federal law is a necessary prerequisite to judicial review under Article 78. The cases actually stand for the opposite proposition: a right to judicial review under Article 78 does not supply a missing private right of action to sue directly under a federal law. That rule has no application here, since the District has not 20 attempted to bootstrap its claim for judicial review of the Education Department's orders into a claim to enforce the substantive provisions of the IDEA. Research reveals no decisions by the highest courts of any other state that accord with the Third Department's decision below. Applying their own analogous bodies of administrative law, all agree that a separate private right of action under some other state or federal law is unnecessary, because the right to seek judicial review is presumed. See, e.g., AlohaCare v. Ito, 271 P.3d 621, 639 n.31 (Haw. 2012) (rejecting argument that aggrieved party could not seek administrative review because relevant statute did not provide for private cause of action as "without merit"); District of Columbia v. Am. Univ., 2 A.3d 175, 183 (D.C. 2010) ("We have never suggested ... that an aggrieved party's right to judicial review of the agency's decision is conditioned on the existence of a private right of action in the statutes that the agencies are alleged to have violated."); District of Columbia v. Sierra Club, 670 A.2d 354, 359 (D.C. 1996) ("Judicial reviewability of agency action does not depend on the creation of a private right of action in the statute sought to be enforced."); Hedgepeth v. N C. Div. of Servs. For the Blind, 543 S.E.2d 169, 172 (N.C. Ct. App. 2001) (whether federal Rehabilitation Act provided right of action did "not speak to a trial court's judicial review of an agency decision"), abrogated on other grounds as recognized in 21 Shackleford-Moten v. Lenoir Cnty Dep't of Social Servs., 573. S.E. 2d 767, 770 (N.C. Ct. App. 2002). The same is true of federal courts applying the analogous judicial review provision of the federal Administrative Procedure Act. See Hernandez-Avalos v. I.NS., 50 F.3d 842, 846 (lOth Cir. 1995) (stating that plaintiff"need not rely upon an implied right of action under any other statute" to obtain judicial review) (quotations omitted); Ore. Nat. Res. Council v. US. Forest Serv., 834 F .2d 842, 851 (9th Cir. 1987) ("[A ]n implied right of action under a violated statute is not a necessary predicate to a right of action under the [Administrative Procedure Act]."). The Third Department's conclusion and reasoning are irreconcilable with both this Court's past precedents and numerous sister States' similar regimes. This Court should reverse and bring the law of the Third Department back into step with the governing law of this State and the rest of the country. C. The Third Department's Holding Invites Abuse by Administrative Agencies. Unless corrected, the Third Department's reasomng will undermine the function of Article 78. Under the Third Department's logic, no violation of any kind may be remedied in an Article 78 proceeding unless there is also a private right of action under some other law. But private rights of action are the exception to the rule. This erects an unnecessary roadblock to review of all agency decisions. 22 In the IDEA context, the decision below frees the Education Department to render arbitrary determinations against school districts with impunity. This is no mere hypothetical. Since the Third Department's order immunized the Education Department's IDEA enforcement from judicial review, the Education Department has made use of its newly limitless powers. In a similar Article 78 case arising from an allegedly arbitrary regulatory determination by the Education Department pursuant to the IDEA, Albany County Supreme Court Justice McGrath applied the decision below and concluded that school districts have no means of challenging such enforcement determinations. E. Ramapo Cent. Sch. Dist. v. King, et al., Index No. 6262-14 (N.Y. Sup. Ct. Oct. 1, 2015). That case involved an allegation that the Education Department had held the District noncompliant with the IDEA for failing to adhere to an administrative order the Education Department had never, in fact, issued. Id. Justice McGrath initially rejected the Education Department's argument that school districts lack a right of action for Article 78 review. A145 (E. Ramapo Cent. Sch. Dist. v. King, et al., Index No. 6262-14 (N.Y. Sup. Ct. May 8, 2015)). In so holding, Justice McGrath had no trouble perceiving that "there is a difference between a private right for enforcement and an action seeking judicial review of an administrative action, which is appropriately challenged by proceeding under Article 78 of the CPLR." A151. However, shortly after Justice McGrath's 23 original optmon, the Third Department issued the opmwn below, and the Education Department moved for leave to renew. Upon renewal, and considering the Third Department's decision below, Justice McGrath concluded that he was constrained to dismiss the District's Article 78 petition, even though it appeared to show arbitrary conduct by the Education Department. A162. Justice McGrath had serious misgivings about that result: This Court acknowledges that the recent Third Department authority cited by the respondent contains expansive language concerning whether the petitioner has a right to challenge respondents' regulatory and enforcement actions. . .. The implication here is that the petitioner has no right of action to challenge [the Education Department's] regulatory and enforcement action. This Court is concerned by this expansive language, as it would preclude the petitioner's instant claim that the respondents made a factual error, and sought to enforce a non-existent order. Without coming to any conclusion as to which side was correct herein, it remains unclear as to what [a school district] can do when confronted with these facts? Was it the intention of the IDEA to permit respondent unbridled authority to enforce orders that were never in fact issued, without any recourse? A162 (emphases added). In fact, that was not the intent ofthe IDEA at all. II. CONGRESS DID NOT INTEND TO PREEMPT ARTICLE 78 REVIEW OF IDEA COMPLIANCE DETERMINATIONS. The Third Department mistakenly inferred from the IDEA's lack of an express right to judicial review in state court that "Congress did not intend to grant 24 petitioner a right of action to challenge the State Education Department's enforcement of state laws and regulations." A98. Congress would have to do far more to abrogate Article 78 than remain silent on the subject. Federal law could only displace a State remedy like Article 78 through preemption. Whether federal law preempts state law depends, ultimately, on the intent of Congress-the analysis of which begins "with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose" of the law. Wyeth v. Levine, 555 U.S. 555, 565 (2009). This is the reverse of the question that the Third Department asked: not whether Congress intended to provide the District with a right of action, but whether Congress intended to invade the State's power to provide the District with a right to judicial review of the Education Department's actions. Neither the Third Department nor the Education Department sought to demonstrate that Congress intended preempt Article 78 in this context. Just as well: there is no basis for concluding that Congress intended such an outcome. Nothing in the IDEA suggests specific procedures that States must apply in monitoring local school districts that are inconsistent with Article 78. Rather, the IDEA requires States generally to monitor school districts for compliance with 25 the IDEA's requirements. 20 U.S.C. § 1416(a)(l)(C)(i). And though the IDEA contains detailed procedural requirements that school districts must observe in determining the appropriate educational setting for a child with special needs, 20 U.S.C. § 1415, and directions for the federal Secretary of Education to oversee States' monitoring efforts, 20 U.S.C. § 1416(a)(l)(A)(i), it contains no particular requirements that States must observe with regard to monitoring school districts. Instead, the IDEA broadly leaves that matter to the States. As United States Department of Education Guidance explains, "[w]hether a State's determination about [a school district's] performance may be appealed is a State decision." U.S. Dep't of Educ., Office of Special Educ., Questions & Answers on Monitoring, Technical Assistance, & Enforcement (Revised June 2009). The one IDEA provision dictating procedural requirements for a State's enforcement actions against school districts speaks in only the bare minima of due process: "The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under [IDEA] without first affording that agency reasonable notice and an opportunity for a hearing." 20 U.S.C. § 1412(a)(11 )(A)(ii), (a)(13). None of this suggests congressional intent to preclude State courts from reviewing arbitrary or irrational enforcement actions by State agencies. Indeed, Congress has no conceivable interest in allowing State agencies to enforce the 26 IDEA incorrectly. Yet that is the illogical assumption underlying the Third Department's conclusion that "Congress specifically intended to deny [to school districts] a right of action to challenge" a State agency's enforcement actions under the IDEA. A120. Immunizing State agencies from judicial review would do nothing to advance the purposes of the IDEA. That is why research reveals no other State appellate court that has ever concluded that the IDEA preempts school districts from seeking judicial review in State court of State agency actions. See, e.g., Dowler v. Clover Park Sch. Dist. No. 400, 258 P.3d 676, 683 (Wash. 2011) ("[T]here is no indication from the statutory scheme of IDEA as a whole that it preempts state-law claims in any way .... "); Ellison v. Creative Learning Ctr., 893 A.2d 12, 17-18 (N.J. Super. Ct. App. Div. 2006) (IDEA did not preempt New Jersey law); see also Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir. 1988) (IDEA preempts State laws only to the extent they impose educational requirements below federal minima). And, other states' courts have entertained appeals similar to the District's without controversy. E.g., Indep. Sch. Dist. No. 281 v. Minn. Dep't ofEduc., No. 06-1617, 2007 WL 2774337, at *4 (Minn. App. Sept. 25, 2007) (reviewing State agency action under State Administrative Procedure Act). Indeed, New Jersey has already firmly rejected the argument that the Third Department accepted below. Bd. of Educ. v. N.J. State Dep't of Educ., 945 A.2d 125, 132 n.5 (N.J. Super. Ct. 27 App. Div. 2008) ("[The] contention that the School Board lacks standing to challenge [the State agency's] decision at all is without sufficient merit to warrant discussion here."). There is no reason for a different rule in New York. CONCLUSION For all of the foregoing reasons, the Third Department's judgment should be reversed. The District may seek and obtain judicial review of the Education Department's adverse compliance determination and enforcement order pursuant to Article 78. This cause should be remanded for consideration of the merits of the District's petition for Article 78 review. Dated: February 16, 2016 Of Counsel: HARRIS BEACH PLLC Douglas E. Gerhardt 677 Broadway Suite 1101 Albany, NY 12207 Telephone: (518) 701-2738 Facsimile: (518) 701-2701 dgerhardt@harrisbeach.com Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP Uav~{ £iuiC 28 David J. Butler Randall M. Levine Stephanie Schuster Judd E. Stone 1 0 1 Park A venue New York, NY 10178 -and- 2020 K Street, NW Washington, DC 20006 Telephone: 202.373.6000 Facsimile: 202.373.6001 david. butler@morganlewis.com randall.levine@morganlewis.com stephanie.schuster@morganlewis.com judd.stone@morganlewis.com Attorneys for Petitioner-Appellant AFFIRMATION OF SERVICE I, Stephanie Schuster, an attorney admitted to practice before the Courts of the State of New York, hereby affirm under penalty of perjury that on, February 12, 2016, I caused three true and correct copies of the (i) foregoing Brief for Petitioner-Appellant and the (ii) Appendix thereto to be served upon counsel for Respondents via overnight delivery pursuant to CPLR § 2103(b)(6) at: Eric T. Schneiderman, Attorney General Jeffery W. Lang, Assistant Attorney General Office of the Attorney General Department of Law The Capitol Albany, NY 12225 Attorneys for Respondents S!lp&~~ Stepharue Schuster 29