B.C., individually and on behalf of her minor child J.C.; T.H., individually and on behalf of her minor child T.H., Plaintiffs-Appellants, v. MOUNT VERNON SCHOOL DISTRICT, et al., Defendants-Appellees.
No. 14-3603-cv
United States Court of Appeals, Second Circuit.
September 16, 2016
August Term 2015
Argued: August 26, 2015
LEWIS R. SILVERMAN, Rutherford & Christie, LLP; New York, N.Y., for Defendants-Appellees Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr. Welton Sawyer, and Shelly Jallow.
BARBARA D. UNDERWOOD, Solicitor General, STEVEN C. Wu, Deputy Solicitor General, PHILIP V. TISNE, Assistant Solicitor General, for ERIC T. SCHNEIDERMAN, Attorney General of the State of New York; New York, N.Y., for Defendants-Appellees New York State Education Department and Roberto Reyes.
Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges.
DEBRA ANN LIVINGSTON, Circuit Judge:
Plaintiffs-Appellants B.C. and T.H., individually and on behalf of their respective daughters J.C. and T.H. (collectively, “Plaintiffs“), brought this action in the United States District Court for the Southern District of New York (Briccetti, J.), asserting various claims against Defendants-Appellees the Mount Vernon School District; the District Board of Trustees; Dr. Welton Sawyer, the Superintendent of the District; Shelly Jallow, the Assistant Superintendent of Curriculum and Instruction of the District (collectively, “District Defendants“); the New York State Education Department (“NYSED“) and Roberto Reyes, Title I, School and Community Services Director of the NYSED (collectively, “NYSED Defendants“).
This opinion addresses one of Plaintiffs’ claims: that the district court erred in concluding that Plaintiffs did not make a prima facie showing of discrimination against the District Defendants pursuant to the Americans with Disabilities Act (“ADA“),
BACKGROUND
I. Factual Background
A.
J.C., daughter of Plaintiff-Appellant B.C., was classified as a child with a disability under the Individuals with Disabilities Education Act (“IDEA“),
To advance from the ninth grade to the tenth grade in the Mount Vernon City School District, a student needed six credits. Although J.C. passed all of her ninth grade courses, including her AIS courses, during her 2008-2009 school year, J.C. earned only four-and-a-half credits, reflecting the fact that her Math AIS and English AIS courses were non-credit-bearing courses. The following school year (2009-2010), J.C. transferred to Nellie A. Thornton High School, which is also part of the Mount Vernon City School District. When J.C.‘s parent B.C. received J.C.‘s class schedule at the beginning of the school year, she was “very much surprise[d]” to discover that the schedule noted that J.C. was enrolled in ninth grade because she had not earned sufficient credits during the 2008-2009 school year to be promoted to the tenth grade.2 J.A. 135. J.C.,
At the start of the 2009-2010 school year, J.C. was enrolled in “English 10 AIS” and “Math AIS 10,” among other courses. J.C.‘s mother, however, insisted that J.C. be removed from the AIS courses and “placed immediately into additional credit bearing classes ... to ensure that [J.C.] would amass enough credits that school year to qualify for the Eleventh Grade” the following year. J.A. 413. In August 2010, B.C.‘s counsel sent a formal complaint to Defendant Roberto Reyes, an official at the NYSED. Reyes agreed to conduct an investigation into B.C.‘s complaints about the District‘s AIS policy, promising to respond by October 15, 2010. According to B.C., however, no investigation occurred.
By the start of the 2010-2011 school year, J.C. had accrued sufficient credits to be classified as being in the eleventh grade. But in March 2011, J.C. left Nellie A. Thornton High School and transferred to The Karafin School, which is not within the Mount Vernon City School District. J.C. completed eleventh grade and twelfth grade at The Karafin School, graduating from The Karafin School in the spring of 2012.
B.
T.H., daughter of Plaintiff-Appellant T.H., was classified as a child with a disability under the IDEA. Pursuant to that Act, T.H. had an IEP that set out certain guidelines for her public school instruction and specified when T.H. should receive special education. During the 2008-2009 school year, T.H. enrolled in the ninth grade at Nellie A. Thornton High School, which is part of the Mount Vernon City School District. Her schedule, like J.C.‘s, consisted of seven classes, two of which were Math AIS 9 and English 9 AIS. As with J.C.‘s AIS courses, T.H.‘s AIS courses were noncredit-bearing courses, and they took place “in an integrated environment with undifferentiated instruction.” J.A. 21.
Although T.H. passed all of her ninth grade courses during the 2008-2009 school year, including her AIS courses, T.H. did not earn sufficient academic credits to be promoted to the tenth grade because her AIS courses were non credit-bearing courses. J.A. 39. Despite the fact that, based on credits earned, T.H. should have been classified as in the ninth grade, the school enrolled T.H. in the tenth grade for the 2009-2010 school year. T.H. continued receiving English AIS courses during the 2009-2010 school year.
By the 2010-2011 school year, T.H. had earned sufficient credits to be classified as a tenth grader but not as an eleventh grader. T.H. did not take any AIS courses during the 2010-2011 school year. By the 2011-2012 school year, T.H. had earned sufficient credits to be classified as a twelfth grader. T.H. did not take any AIS courses during the 2011-2012 school year. In the spring of 2012, T.H. graduated from Nellie A. Thornton High School.
II. Procedural Background
On July 14, 2011, B.C. and T.H., individually and on behalf of their daughters, filed suit. Plaintiffs asserted various claims against the District Defendants and the NYSED Defendants under the ADA, Section 504, the IDEA, and
On January 16, 2014, the District Defendants moved for summary judgment. In a decision signed on August 27, 2014 and entered on August 28, 2014, the district court (Briccetti, J.) granted District Defendants’ motion for summary judgment. B.C. v. Mount Vernon City Sch. Dist., No. 11 CV 1411 VB, 2014 WL 4468082, at *1 (S.D.N.Y. Aug. 28, 2014). As to Plaintiffs’ ADA and Section 504 claims, the court stated that the IDEA exhaustion requirement applied because Plaintiffs’ claims were related to the provision of special education to J.C. and T.H. under the IDEA. Id. at *5-*6. The court concluded, however, that Plaintiffs’ ADA and Section 504 claims were excused from the IDEA exhaustion requirement, as these claims challenged a “district-wide policy of discrimination,” id. (quoting Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)), and exhausting administrative remedies with respect to the District‘s “framework and procedures” would have been futile, id. (quoting J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004)).
On the merits, the court rejected Plaintiffs’ claim that the District‘s policy of scheduling AIS courses during school hours, rather than outside of school hours, disparately impacted children with a “disability” under the ADA and Section 504. See id. at *6-*9. In support of their disparate impact claim of discrimination, Plaintiffs had offered evidence showing that the District‘s AIS policy affected children with a “disability” under the IDEA at a higher percentage than it affected children without such disability. Id. at *7. This evidence, the court reasoned, at most showed that the District‘s AIS policy disparately impacted children with a “disability” under the IDEA. Id. at *7-*8. It did not, however, show that the District‘s AIS policy disparately impacted individuals with a “disability” under the ADA and Section 504, since the definition of “disability” is different under the IDEA than under the ADA and Section 504. Id. at *8. The court therefore deemed the evidence insufficient to support a prima facie claim of disparate impact discrimination under the ADA and Section 504. Id. at *9. Because Plaintiffs failed to state a prima facie claim of discrimination under the ADA and Section 504, the court also granted summary judgment to the District Defendants on Plaintiffs’ Section 1983 claims, to the extent that such claims were based on alleged violations of the ADA and Section 504. Id.
DISCUSSION3
This Court “review[s] de novo a district court‘s grant or denial of summary judgment.” Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir. 2011) (internal quotation marks omitted). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may ... point[] to an absence of evidence to support an essential element of the nonmoving party‘s claim.” Gummo v. Village of Depew, 75 F.3d 98,
The ADA and Section 504 both protect “qualified individual[s] with a disability.”
To establish a prima facie case of discrimination under either the ADA or Section 504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity‘s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff‘s] disability.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting Hargrave v. Vt., 340 F.3d 27, 34-35 (2d Cir. 2003)). Exclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation. Id. To establish a prima facie case under a disparate impact theory, plaintiff must demonstrate “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant‘s facially neutral acts or practices.” Tsombanidis v. W. Haven Fire Dep‘t, 352 F.3d 565, 574-75 (2d Cir. 2003) (emphasis omitted). Thus, “plaintiffs are ordinarily required to include statistical evidence to show disparity in outcome between groups.” Id. at 575. This can be done by offering evidence showing that a neutral policy adversely affects a much greater percentage of people with a disability than it affects people without a disability. See id. at 577.
Here, plaintiffs seek to establish their prima facie disparate impact claim by comparing (1) the percentage rate at which high school students classified as having a “disability” under the IDEA receive AIS courses to (2) the percentage rate at which high school students not classified as having such a disability receive AIS courses. During the 2008-2009 school year in the Mount Vernon City School District, high school students who were classified as having a “disability” under the IDEA (i.e., special education students) took AIS courses at a rate that was almost three times the rate at which high school students not classified as having a disability received AIS instruction. Approximately 23.02% of high school students receiving special education support took AIS classes, as compared to 8.62% of the rest of the student body. During the 2009-2010 school year in the Mount Vernon City School District, high school students receiving
Plaintiffs do not rely upon and have not placed into the record any particularized evidence to show that individual students included in their data who are classified as having a “disability” pursuant to the IDEA also satisfy the ADA and Section 504 “disability” definitions. Nor have they identified any generalized evidence tending to establish this point. Plaintiffs’ statistical evidence, therefore, shows disparate impact under the ADA and Section 504 only if, as a matter of law, a child with a disability under the IDEA necessarily qualifies as an individual with a disability under the ADA and Section 504, such that Plaintiffs’ data on children with a disability under the IDEA suffice as data on individuals with a disability under the ADA and Section 504. We conclude that this is not the case.
*
We begin with the statutory text. The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.”
These are distinct legal standards. Although both define “disability” by reference to the effects of an individual‘s impairment, the statutes provide for different inquiries. The ADA asks whether an impairment “substantially limits” a major life activity,
Although many, if not most, IDEA-eligible individuals may “also [be] handicapped under [the ADA],” id. at 823, we agree with the Tenth Circuit that Plaintiffs’ approach reads the ADA‘s substantial limitation requirement, which we have consis-
We have taken care to distinguish between “substantially overlap[ping]” definitions in a similar context. Ellenberg, 572 F.3d at 822. In Rodriguez v. Village Green Realty, Inc., the plaintiff, whose child had a “disability” within the meaning of the IDEA, alleged discrimination under the Fair Housing Act (“FHA“). 788 F.3d 31, 44 (2d Cir. 2015). The FHA prohibits discrimination on the basis of “handicap,”
For these reasons, an IDEA disability is not equivalent to a disability as cognizable under the ADA and Section 504. Plaintiffs, therefore, cannot rely solely on “receipt of special education” to establish an ADA or Section 504 disability. Ellenberg, 572 F.3d at 819. Those seeking relief pursuant to ADA or Section 504 must come forward with “additional evidence“—beyond simply their eligibility for IDEA coverage—showing their eligibility for the remedies afforded by the ADA and Section 504. Rodriguez, 788 F.3d at 45. Under a statistics-based disparate impact theory, this means that a plaintiff may not rely solely on statistics concerning individuals “disabled” within the meaning of the IDEA to establish a prima facie claim under the ADA or Section 504.
Here, Plaintiffs’ disparate impact claim relies exclusively on data concerning students with disabilities under the IDEA. Aside from their receipt of special education services, the record is devoid of any evidence as to whether the students included in the data qualify as disabled under the ADA or Section 504. Because, as a matter of law, an IDEA disability does not necessarily constitute a disability under the ADA or Section 504, Plaintiffs’ data do not establish “a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant‘s facially neutral acts or practices.” Tsombanidis, 352 F.3d at 575. Plaintiffs have therefore failed to make their prima facie showing that District Defendants’ AIS policy adversely impacted individuals protected by the ADA and Section 504. Because Plaintiffs “fail[ed] to make a showing sufficient to establish the existence of an element essential to [their] case, and on which [they] will bear the burden of proof at trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), the district court properly entered summary judgment in favor of District Defendants as to Plaintiffs’ ADA and Section 504 claims. Likewise, because Plaintiffs failed to make their prima facie showing under the ADA and Section 504, the district court properly entered summary judgment on their derivative Section 1983 claim against the District Defendants.
For the foregoing reasons and for the reasons stated in the accompanying summary order, we AFFIRM the district court‘s judgment.
DEBRA ANN LIVINGSTON
UNITED STATES CIRCUIT JUDGE