25-1046 J.M. v. New York City Dept. of Ed.

In the United States Court of Appeals For the Second Circuit

August Term, 2025

(Argued: October 29, 2025 Decided: December 9, 2025)

Docket No. 25-1046

J.M., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILDREN, J.M.1, T.M., AND D.M., E.W., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILD, Z.K., C.B., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILD, T.O.,

Plaintiffs-Appellants,

L.T., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILD, C.T., M.C., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILD, G.L., K.D., ON BEHALF OF HERSELF AND AS NEXT FRIEND TO HER CHILD, V.D.,

Plaintiffs,

–v.–

NEW YORK CITY DEPARTMENT OF EDUCATION, THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, CHANCELLOR MELISSA AVILES- RAMOS, IN HER OFFICIAL CAPACITY, CITY OF NEW YORK,

Defendants-Appellees. *

*The Clerk of Court is respectfully directed to amend the caption as reflected above, including, per F.R.A.P. 43(c)(2), replacing David Banks, in his official capacity as Chancellor, with Melissa Aviles-Ramos, in her official capacity as Chancellor. Before: CABRANES, CHIN, and ROBINSON, Circuit Judges.

Under the Individuals with Disabilities Education Act (“IDEA”), an aggrieved party generally must exhaust administrative remedies before bringing a civil action in federal or state court.

(i)(2). At issue in this appeal is whether this case falls within an exception to the general rule.

Plaintiffs are parents of disabled children suing for declaratory, injunctive and other relief on behalf of themselves, their children, and a class of similarly situated children. They allege that the New York City Department of Education, the Board of Education of the City School District of The City of New York, and Chancellor Melissa Aviles-Ramos, in her official capacity, violated the IDEA by maintaining a policy of discontinuing services to students with disabilities before their twenty-second birthday. Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (Garnett, J.) dismissing their claims for lack of subject-matter jurisdiction due to their failure to exhaust administrative remedies.

Because we conclude exhaustion would have been futile insofar as Plaintiffs challenge a blanket policy or practice of general applicability that is contrary to law, we VACATE and REMAND for further proceedings consistent with this opinion.

JASON H. KIM, Schneider Wallace Cottrell Kim LLP, Los Angeles, CA; Elisa F. Hyman, The Law Office of Elisa Hyman, P.C., New York, NY, for Plaintiffs-Appellants.

SUSAN PAULSON (Richard Dearing, Melanie T. West, on the brief), for Muriel Goode-Trufant, Corporation Council, New York, NY, for Defendants-Appellees. ROBINSON, Circuit Judge:

Under the Individuals with Disabilities Education Act (“IDEA”), an

aggrieved party generally must exhaust administrative remedies before bringing

a civil action in federal or state court.

(i)(2). At issue in this appeal

is whether this case falls within an exception to the general rule.

Plaintiffs are parents of disabled children suing for declaratory, injunctive

and other relief on behalf of themselves, their children, and a class of similarly

situated children. They allege that the New York City Department of Education,

the Board of Education of the City School District of The City of New York, and

Chancellor Melissa Aviles-Ramos, in her official capacity, (together, the “DOE”)

violated the IDEA by maintaining a policy of discontinuing services to students

with disabilities before their twenty-second birthday. They seek declaratory,

injunctive, and other relief. Plaintiffs appeal from a judgment of the United States

District Court for the Southern District of New York (Garnett, J.) dismissing their

claims for lack of subject-matter jurisdiction due to their failure to exhaust

administrative remedies.

Because we conclude exhaustion would have been futile insofar as Plaintiffs

challenge a blanket policy or practice of general applicability that is contrary to

3 law, we VACATE and REMAND for further proceedings consistent with this

opinion.

BACKGROUND

The IDEA provides for federal funding to help states educate children with

disabilities. J.S. v. New York State Department of Corrections and Community

Supervision,

, 35 (2d Cir. 2023) (J.S. v. DOC). To qualify for federal

funding, each state must have policies and procedures to ensure that “all children

with disabilities . . . between the ages of 3 and 21, inclusive,” can access a “free

appropriate public education” (“FAPE”).

(a)(1)(A).

In 2021, this Court held that a Connecticut statute providing that the

obligation of local and regional boards of education to provide special education

terminates when a child graduates from high school or “reaches age twenty-one,”

whichever comes first, violated the IDEA. A.R. v. Connecticut State Board of

Education,

(2d Cir. 2021). 1 We reasoned that the IDEA requires

recipient states to provide a free and appropriate public education until a student’s

twenty-second birthday.

at 157–58. We endorsed the district court’s view that

“public education” is defined as one that is provided at public expense, under the

1In quotations from caselaw and the parties’ briefing, this opinion omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

4 supervision of state educational agencies, and “with the objective of educating

students up to the level of academic proficiency associated with the completion of

secondary school.”

. And we adopted the district court’s conclusion

that several of Connecticut’s state-administered, publicly funded adult education

programs constituted “public education” under the IDEA.

at 166–67. Thus,

Connecticut students’ statutory right to a free and appropriate public education

continued until their twenty-second birthday, at which time the IDEA no longer

applies.

.

In response to A.R., in July 2023 the New York State Education Department

(“State”) issued a formal opinion concluding that A.R. applied throughout New

York. The State reasoned that “New York, like Connecticut, offers publicly funded

adult education programs to non-disabled students in this age group,” so the

IDEA requires districts to provide a FAPE until a student’s twenty-second

birthday. App’x 74.

The DOE did not immediately follow the guidance, and in November 2023

Plaintiffs filed this putative class action, seeking injunctive relief to provide a

FAPE to Plaintiffs until they reach the age of twenty-two, compensatory

education, and a declaratory judgment that the DOE is violating the IDEA, among

other relief. Plaintiffs alleged that the DOE “failed to implement a citywide change

5 in policy, procedure and/or practice to ensure FAPE to children who are not yet

twenty-two, but who have reached the end of the school year in which they turned

twenty-one” and that the DOE’s “application of blanket policies, practices [and]

procedures violate the IDEA.” App’x 29.

The DOE subsequently adopted a policy for the 2024-2025 school year (later

extended to the 2025-2026 school year) extending access to a FAPE to students with

disabilities until the end of the school year in which they turn 22. See NYC DOE,

Special Education Standard Operating Procedures Manual 51 n.59, 122 n.164 (May 29,

2025) [https://perma.cc/37ND-5CUN].

The DOE explains that it adopted this temporary policy “to clarify its

practices while state-court litigation challenging [the State’s] determination played

out.” Appellee’s Brief 6. The temporary policy does not affect any Plaintiffs in

this action because they were already over 22 when the DOE issued the new policy

guidance.

Meanwhile, New York courts are considering whether school districts

throughout the state must provide a FAPE until students turn twenty-two. The

New York Court of Appeals has not yet spoken on the matter, but the Appellate

Division, Third Department, has answered this question in the affirmative. See

Mahopac Central School District v. New York State Education Department,

6 534 (App. Div. 3d Dep’t 2025); Katonah-Lewisboro Union Free School District. v. New

York State Education Department,

(App. Div. 3d Dep’t 2025).

Motions for leave to appeal both decisions are pending before the Court of

Appeals.

In this case, the DOE moved to dismiss the complaint, arguing that the

district court could not hear the case because Plaintiffs had not exhausted their

administrative remedies. Plaintiffs contended that exhaustion was not necessary

because it would be futile under the circumstances. The court agreed with DOE

and dismissed the suit for lack of subject-matter jurisdiction. Plaintiffs appeal.

DISCUSSION

We first clarify that the IDEA’s requirement to exhaust administrative

remedies is a claim-processing rule and not a limit on the court’s jurisdiction.

Although this is a question that we have previously left open, Ventura de Paulino

v. New York City Department of Education,

, 530 n.44 (2d Cir. 2020), a

recent Supreme Court decision suggests the answer. In particular, the Court has

explained that an “exhaustion requirement . . . is a quintessential claim-processing

rule” and is “typically nonjurisdictional for good reason,” because treating these

requirements as jurisdictional “could undo the benefits of exhaustion” as a

doctrine that promotes efficiency. Santos-Zacaria v. Garland,

, 417–18

7 (2023). To conclude that the exhaustion requirement is jurisdictional, we must

have “unmistakable evidence, on par with express language addressing the court’s

jurisdiction.”

.

Because the IDEA contains no such language, we join our sister circuits that

have addressed this issue in holding that the requirement here is not jurisdictional

but is instead a claim-processing rule. See, e.g., K.I. v. Durham Public Schools Board

of Education,

(4th Cir. 2022); Payne v. Peninsula School District,

(9th Cir. 2011), overruled on other grounds by Albino v. Baca,

(9th Cir. 2014); Mosely v. Board of Education of the City of Chicago,

, 532–33 (7th Cir. 2006); N.B. by D.G. v. Alachua County School Board,

(11th Cir. 1996), abrogated on other grounds by Luna Perez v. Sturgis Public

Schools,

, 147–48 (2023).

We therefore review the District Court’s dismissal under the standard for

failure to state a claim upon which relief can be granted, without deference as to

the district court’s legal conclusions. Muto v. CBS Corp.,

(2d Cir.

2012). At the pleading stage, we accept all material factual allegations in the

complaint as true and draw all reasonable inferences in favor of the plaintiffs.

To provide a free, appropriate public education for students with disabilities

pursuant to the IDEA, school districts and parents follow specified processes to

8 evaluate each student, determine that student’s eligibility and educational need,

and create and maintain an “individualized education program” (“IEP”) for each

child. See generally

. Parents are to be advised of these rights, and

their associated rights to challenge and appeal a district’s evaluation or provision

of supports.

§ 1415(b)–(d).

The IDEA provides an extensive administrative review process. Parents are

entitled to a “due process hearing” before an independent hearing officer to

present complaints relating to the “identification, evaluation, or educational

placement of the child, or the provision of a free appropriate public education.”

Id. § 1415(b)(6), (f). Parents may then appeal an adverse decision to a state review

officer. Id. § 1415(g).

In the normal course, parents may only sue in federal or state court under

the IDEA after exhausting these administrative remedies. Id. § 1415(i)(2); J.S. ex

rel. N.S. v. Attica Central Schools,

(2d Cir. 2004) (J.S. v. Attica).

Exhaustion of the administrative process allows schools and districts to exercise

discretion and apply their educational expertise, “ ‘affords full exploration of

technical educational issues, furthers development of a complete factual record,

and promotes judicial efficiency by giving these agencies the first opportunity to

correct shortcomings in their educational programs for disabled children.’ ”

9 (quoting Polera v. Board of Education of Newburgh Enlarged City School District,

(2d Cir. 2002), abrogated on other grounds by Luna Perez, 598 U.S. at

147–48).

However, exhaustion is not an absolute requirement. See, e.g., Mrs. W. v.

Tirozzi,

, 756–57 (2d Cir. 1987) (reversing dismissal of plaintiffs’ claims

for failure to exhaust and concluding that exhaustion was futile). “Exhaustion will

be excused where it would be futile, the agency has adopted a policy or practice

of general applicability that is contrary to law, or it is improbable that adequate

relief is available in the administrative forum,” or where “the parents have not

been notified that such remedies were available to them.” Weixel v. Board of

Education of City of New York,

(2d Cir. 2002). We must also

consider “whether administrative review would further the goals of developing

facts, making use of available expertise, and promoting efficiency” in evaluating

whether exhaustion is futile in any given case. J.S. v. Attica,

.

Plaintiffs contend that their failure to exhaust in this case is excused for two

reasons: (1) adequate relief would not be available in the administrative forum,

and (2) they challenge a DOE policy or practice of general applicability that is

contrary to law. Weixel,

. We conclude that Plaintiffs’ claims fall

squarely within the latter exception. To explain our conclusion, we consider the

10 scope and limits of the “policy or practice” exception and then consider how it

applies to Plaintiffs’ claims.

I. Policy-or-Practice Exception

We first recognized the “policy or practice” exception in Tirozzi.

. In that case, we stated, “Exhaustion is not an inflexible rule. Under certain

circumstances, not all [IDEA] administrative remedies must be exhausted prior to

invoking a civil action . . . .”

We explained, “Congress specified the situations

in which before filing suit, exhaustion of the due process and review procedures

set forth in [the IDEA 2] is not a prerequisite,” including where “an agency has

adopted a policy or pursued a practice of general applicability that is contrary to

the law.”

There, the plaintiffs sued without exhausting administrative

remedies, alleging that the Connecticut State Board did not adequately respond to

complaints about a local school board failing to conduct evaluations of

handicapped children, and that the State Board neither communicated with the

plaintiffs during the investigation nor provided them with an opportunity to

respond.

at 752–53. Pointing to both the policy-or-practice exception and the

unlikely-to-receive-adequate-relief exception to the exhaustion requirement, we

2At the time of Tirozzi, the administrative procedures generally subject to exhaustion appeared at

(b)(2) and (c), but now they appear at

(f) and (g).

11 concluded that “plaintiffs have pleaded an entitlement to an exemption from

exhaustion of administrative remedies,” without specifying which exception

applied.

.

We have since identified this exception in two decisions—one precedential

and one non-precedential—but we have not determined its scope and limits, and

we have not applied it since we introduced it in Tirozzi. See Weixel,

;

Z.Q. by G.J. v. New York City Department of Education, No. 22-939,

,

at *2 (2d Cir. Feb. 3, 2023) (summary order). We do so now, considering the

legislative history that prompted our initial recognition of the exception in Tirozzi,

reviewing decisions of sister circuits that have grappled with the policy-or-

practice exception, and concluding with our own articulation of the scope and

limits of the exception.

A. Legislative History

In 1986, Congress amended the Education of the Handicapped Act

(“EHA”)—the prior name for what is now the IDEA—in an effort to override the

effects of the Supreme Court’s decision in Smith v. Robinson,

(1984). 3

In that case, the Court considered claims under the EHA, § 504 of the

3Congress changed the name of the EHA to the IDEA in a 1991 reauthorization. Individuals with Disabilities Education Act,

(b),

, 607 (1991).

12 Rehabilitation Act, and

arising from a school district’s refusal to

continue funding the special education placement of a child who had cerebral

palsy. Smith, 468 U.S. at 994–95. The central issue in the case was whether the

prevailing plaintiff parents were entitled to an award of attorney’s fees against the

state defendant, but the Court’s relevant holdings for purposes of our discussion

here were:

[(1) W]here the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim; [and]

[(2) W]here . . . whatever remedy might be provided under § 504 is provided with more clarity and precision under the EHA, a plaintiff may not circumvent or enlarge on the remedies available under the EHA by resort to § 504.

Smith,

.

Congress sought to override these holdings in the Handicapped Children’s

Protection Act of 1986,

Stat. 796 (1986). Among other

things, that statute added a provision to the EHA providing that the statute:

shall [not] be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act . . . or other Federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under [the EHA] shall be exhausted to the

13 same extent as would be required had the action been brought [under the EHA].

§ 3.

The House Committee on Education and Labor’s report on this amendment

identified several exceptions to this exhaustion requirement, including complaints

that:

(1) it would be futile to use the due process procedures (e.g., an agency has failed to provide services specified in the child’s individualized educational program (IEP) or an agency has abridged a handicapped child’s procedural rights such as the failure to make a child’s records available); (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to law; (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought); and (4) an emergency situation exists (e.g., the failure to take immediate action will adversely affect a child’s mental or physical health).

H.R. Rep. No. 99-296, at 7 (1985).

We don’t consider this legislative history for the purposes of interpreting a

contested statutory provision. Cf. Azar v. Allina Health Services,

, 579–

80 (2019) (considering utility of legislative history in interpreting a statute).

Rather, it reflects Congress’s recognition of a range of circumstances in which

exhaustion of administrative remedies is excused, and has informed this Court’s,

and other Circuits’, approach to the exhaustion requirement under the IDEA. See,

e.g., Association for Community Living in Colorado v. Romer,

(10th 14 Cir. 1993) (citing the above legislative history as supporting the policy-or-practice

exception to the exhaustion requirement); Beth V. by Yvonne V. v. Carroll,

(3d Cir. 1996) (same); Hoeft v. Tucson Unified School District,

,

1303–04 (9th Cir. 1992) (same); Christopher W. v. Portsmouth School Committee,

(1st Cir. 1989) (same).

Significantly, as in our decisions in Tirozzi and Weixel, the House Report lists

the various exceptions to the exhaustion requirement in the disjunctive. That

undercuts the DOE’s suggestion that the policy-or-practice exception applies only

to challenges to policies or practices relating to structural or procedural matters

that cannot be resolved through the administrative hearings process. Such

challenges are squarely encompassed by distinct exceptions to the exhaustion

requirement; the DOE’s approach would render the policy-or-practice exception

completely redundant.

That doesn’t mean that “any plaintiff who interprets a governing statute

differently than the agency charged with implementing it” can “sidestep the

exhaustion requirement simply by saying so.” Appellees’ Brief 22. To probe the

limits of the exception, we first consider how sister Circuits have applied it.

15 B. Sister Circuits

At least two other Circuits have grappled with the policy-or-practice

exception, and their reasoning informs our own analysis. The Tenth Circuit

considered the exception in Association for Community Living in Colorado v. Romer.

. In that case, the plaintiffs brought a putative class action under

the IDEA alleging that the Colorado Department of Education (“CDE”)’s policies

and practices with respect to extended school day and extended school year

services denied children with disabilities individualized programs tailored to their

unique needs.

. The Tenth Circuit declined to consider the merits of the

plaintiffs’ challenges because the plaintiffs had failed to exhaust their

administrative remedies.

at 1044–45.

After concluding that the exceptions to exhaustion for cases in which

pursuing an administrative claim would be futile or would fail to provide

adequate relief did not apply, the Tenth Circuit considered the policy-or-practice

exception.

. It explained that a plaintiff can invoke the exception by

challenging a policy that is “contrary to law” and by showing “that the underlying

purposes of exhaustion would not be served” by applying the requirement.

And it cited approvingly decisions holding that the purposes of exhaustion are not

16 generally served when the contested issue is “a pure matter of law.”

(citing

Christopher W.,

).

Applying this framework, the Court concluded that the plaintiffs’

challenges to Colorado’s eligibility criteria for extended school year services

presented “a classic example of the kind of technical questions of educational

policy best resolved with the benefit of agency expertise and a fully developed

administrative record.”

To determine whether CDE’s policies had denied

children with disabilities appropriate services would require “a factually intensive

inquiry into the circumstances of each individual child’s case.”

The Court

concluded that the purposes of exhaustion would be served in this context and

declined to excuse the plaintiffs’ failure to exhaust.

at 1044–45.

The Court viewed plaintiffs’ allegation that CDE’s policies arbitrarily

predetermined the duration of extended school day and school year services as

presenting a closer case, but concluded that resolution of the plaintiffs’ claims “still

ultimately requires a determination as to whether any individual child was denied

a free appropriate public education”—the kind of determination that is enhanced

by the factual details of a particular child’s case. Id. at 1045.

Later Tenth Circuit cases identified in Association for Community Living two

necessary hallmarks of the policy-or-practice exception to the IDEA exhaustion

17 requirement: (1) the challenge to the policy or procedure “raises only questions of

law, thereby rendering agency expertise and the factual development of an

administrative record less important,” and (2) the underlying purposes of

exhaustion would not be served by requiring it. McQueen ex rel. McQueen v.

Colorado Springs School District No. 11,

(10th Cir. 2007); see also

Urban by Urban v. Jefferson County School District R-1,

(10th Cir.

1996).

The Ninth Circuit has also considered the scope and limits of the policy-

or-practice exception. In Hoeft v. Tucson Unified School District, the Ninth Circuit

considered a putative class action claim by the respective parents of four disabled

students who alleged that the school district’s policies concerning extended school

year services—both written and informal—denied their children the appropriate,

individually tailored education required by the IDEA.

. The Court

rejected the plaintiffs’ argument that any challenge to “policies applied to all

students” excuses exhaustion,

, and instead reasoned that the exception

for challenges to generally applicable policies that are “contrary to law” applies

“when only questions of law are involved in determining the validity of a policy,

as when the policy facially violates the IDEA,”

.

18 Applying that general premise, the Ninth Circuit concluded that the

plaintiffs’ challenge to the school district’s eligibility criteria and methodology for

evaluating which students received extended-year programming raised “the kind

of technical questions of educational policy best resolved with the benefit of

agency expertise and a fully developed administrative record.”

Accordingly,

plaintiffs were not excused from the exhaustion requirement with respect to these

claims.

.

On the other hand, the Ninth Circuit concluded that plaintiffs’ challenges to

the school district’s blanket policy of providing a uniform amount of extended

year programming to eligible children regardless of individual need, and their

contention that the school district’s written notices to parents were inadequate,

were “purely legal” challenges to general practices alleged to be “contrary to law.”

at 1306–07. That determination was not dispositive of the exhaustion question.

Even though resolution of these claims did not require technical expertise or the

benefit of an administrative record—two of the purposes of the exhaustion

requirement—the Ninth Circuit concluded that the purposes of the exhaustion

requirement would be served by enforcing the requirement.

. In

particular, the Court explained that enforcing the exhaustion requirement would

19 serve another purpose of that requirement—giving states a reasonable

opportunity to correct local school policies that violate the IDEA.

Subsequent Ninth Circuit decisions have refined the Hoeft analysis by

identifying additional requirements or considerations. See Doe by and through

Brockhuis v. Arizona Department of Education,

(9th Cir. 1997)

(requiring plaintiffs to name a specific policy or procedure); Student A by and

through Parent A v. San Francisco Unified School District,

, 1084 (9th Cir.

2021) (requiring plaintiffs’ specified policies to be unlawful and not just poor

practices leading to poor outcomes); Martinez v. Newsom,

(9th Cir.

2022) (same).

More recently the Ninth Circuit has categorized the exceptions to the IDEA’s

exhaustion requirement differently from our Circuit. Martinez, 46 F.4th at 973–74

(identifying exceptions (1) for claims seeking “systemic or structural relief,”

(2) when the plaintiffs are not likely to secure adequate relief through

administrative remedies, and (3) “when exhaustion would be futile”). But, like the

Tenth Circuit’s analysis in Association for Community Living, the Ninth Circuit’s

earlier analysis in Hoeft remains persuasive and informative as we consider the

contours of the policy-or-procedure exception in our own Circuit.

20 C. Framing the Policy-or-Practice Exception

To invoke the policy-or-practice exception to the IDEA’s exhaustion

requirement, plaintiffs must identify a specific policy of broad applicability that

they contend is contrary to law. But that’s not enough. As we have held with

respect to other exceptions to IDEA exhaustion, our paramount consideration is

“whether administrative review would further the goals of developing facts,

making use of available expertise, and promoting efficiency.” J.S. v. Attica,

.

The above cases reveal several (non-exclusive) considerations that may

answer that question in a given case. First, the plaintiffs’ challenge to a general

policy must raise a question of law that does not require (or even significantly

benefit from) development of a factual record regarding the impact of a policy on

an individual child’s FAPE. If resolution of the plaintiffs’ challenge to a general

policy or practice calls for “a factually intensive inquiry into the circumstances of

each individual child’s case,” Association for Community Living,

,

exhaustion is not excused pursuant to the policy-or-practice exception.

Second, if the legal challenge turns on “the kind of technical questions of

educational policy best resolved with the benefit of agency expertise and a fully

developed administrative record,”

the exception generally does not apply.

21 And finally, if excusing the exhaustion requirement undermines rather than

promotes efficiency, a court may decline to apply the policy-or-practice exception.

II. Application Here

With these factors in mind, we consider Plaintiffs’ allegations. Because this

case comes to us from dismissal on the pleadings, we accept the material factual

allegations in the complaint as true and draw all reasonable inferences in favor of

the plaintiffs. Muto,

.

The complaint sets out the following factual allegations. Plaintiffs’ children

with disabilities are (or were) “twenty-one years old and continue to be eligible for

special education in New York because they have not yet reached the age of

twenty-two.” App’x 16. None of the children have yet earned a regular high

school diploma. App’x 16. And each of them was denied a FAPE after the

conclusion of the school year or summer session in which they turned twenty-one.

App’x 24–27.

The complaint also sets forth the following propositions. New York State

law requires that districts provide public education to adults between the ages of

twenty-one and twenty-two. App’x 21–22. New York State and New York City

law and regulations purport to “limit the provision of FAPE until the conclusion

of the school year in which that resident turns 21, or upon receipt of a Regents or

22 local high school diploma,” with provisions for summer programming. App’x 23.

Notwithstanding this Court’s decision in A.R., DOE has followed these state and

local laws and regulations, thereby denying their disabled children a FAPE

“beyond the end of the year in which they turn twenty-one and until such time as

they turn twenty-two” in violation of the IDEA. App’x 29.

The complaint seeks a wide variety of relief. Plaintiffs seek emergency

injunctive relief for those seeking pendency and a FAPE, a declaratory judgment

that the “policies, procedures, and practices as alleged herein violate the applicable

federal laws,” a final judgment ordering the DOE to “modify their policies,

practices and procedures,” compensatory education, damages, and equitable

relief. App’x 31–32.

Based on the above considerations, we conclude that exhaustion is excused

on the basis of the policy-or-practice exception. Plaintiffs have pointed to a specific

policy and practice they contend is contrary to law: DOE’s across-the-board policy

of providing a FAPE to students only until they turn twenty-one, and not until the

end of those students’ twenty-first years (i.e., their twenty-second birthday).

And the purposes of exhaustion would not be served by requiring it here.

Plaintiffs’ central claim for declaratory relief turns on a question of law that is

untethered from the individual circumstances of any individual student, and the

23 resolution of which would not benefit from an administrative record in an

individual case or cases. Plaintiffs clarify that this litigation, at this stage,

essentially seeks the answers to two questions: “(1) whether special education

students in New York City are entitled to education until the age of 22; and (2) if

so, whether [DOE’s] failure to provide it entitles such students to compensatory

education in general.” Appellants’ Reply Brief 11. No student-specific factual

development is necessary to answer these questions. (Likely, no factual

development at all is required, as New York City’s laws and practices with respect

to adult education are most likely to be embodied in statutes and regulations.)

Moreover, the strictly legal questions at issue here do not require the

“exercise of discretion and educational expertise by state and local agencies.” J.S.

v. Attica,

. And, finally, requiring many hundreds of individual

hearings would not promote efficiency. Thus, we conclude that Plaintiffs’ claims

fall within the policy-or-practice exception to the IDEA’s exhaustion requirement.

In its arguments to the contrary, the DOE emphasizes that exhaustion would

not be futile here in that Plaintiffs’ claims can be, and in fact have been, effectively

litigated in individual administrative proceedings. We express no opinion on the

applicability of that distinct exception to the exhaustion requirement because, for

24 the above reasons, we conclude that exhaustion is excused on the basis of the

policy-or-practice exception.

***

Accordingly, we VACATE and REMAND for further proceedings

consistent with this opinion.

25