Patrick v. Success Acad. Charter Sch., Inc.Patrick v. Success Acad. Charter Sch., Inc.
MEMORANDUM & ORDER
Pamela K. Chen, United States District Judge
TABLE OF CONTENTS
BACKGROUND ...196
I. RELEVANT FACTS ...196
A. 2016-2017 SCHOOL YEAR ...196
B. 2017-2018 SCHOOL YEAR ...200
II. PROCEDURAL HISTORY ...202
LEGAL STANDARD ...202
DISCUSSION ...203
I. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ...203
A. DEFENDANT DE JONGH ...203
1. UPHOLDING AG'S SEPTEMBER 12, 2017 SUSPENSION ...203
2. CLAIMS REGARDING LACK OF TRANSCRIPT, UNSWORN WITNESSES, AND FAILURE TO CALL THE PARA-PROFESSIONAL AS A WITNESS ...205
B. DEFENDANTS COLE AND SHAINKER ...205
C. DEFENDANT SOLOMON ...206
II. CLAIMS BROUGHT BY PLAINTIFF PATRICK ...208
III. AG's PROCEDURAL DUE PROCESS CLAIM ...209
A. ARTICLE 78 HEARING ...209
B. LEGAL STANDARD ...212
C. WAS AG DEPRIVED OF A PROPERTY INTEREST ? ...213
D. WHAT PROCESS WAS AG DUE ? ...218
1. FEBRUARY 24, 2017 SUSPENSION ...219
2. SEPTEMBER 12, 2017 SUSPENSION ...221
a. HEARING TRANSCRIPT OR RECORDING ...221
b. SWORN TESTIMONY ...224
c. TESTIMONY BY THE PARA-PROFESSIONAL ...224
IV. ADA/REHABILITATION ACT ...225
A. EXHAUSTION ...226
B. MERITS ...228
V. IDEA CLAIMS ...229
A. EXHAUSTION ...229
1. OVERVIEW OF THE IDEA'S EXHAUSTION REQUIREMENT ...229
2. APPLICABLE IDEA EXHAUSTION STANDARD ...229
B. MISUSE OF THE "SERIOUS BODILY INJURY" EXCEPTION ...230
1. EXHAUSTION ...230
a. FEBRUARY 24, 2017 INCIDENT ...230
b. SEPTEMBER 12, 2017 INCIDENT ...231
2. MERITS ...232
C. PROVISION OF APPROPRIATE ALTERNATIVE INSTRUCTION ...234
1. EXHAUSTION ...234
a. FEBRUARY 24, 2017 INCIDENT ...234
b. SEPTEMBER 12, 2017 INCIDENT ...235
2. MERITS ...235
D. FAILURE TO RETURN AG TO SCHOOL ...235E. DEPRIVATION OF DUE PROCESS RIGHTS ...236
1. EXHAUSTION ...236
2. MERITS ...237
CONCLUSION ...238
APPENDIX A ...239
APPENDIX B ...243
APPENDIX C ...245
APPENDIX D ...247
BACKGROUND
I. Relevant Facts
Plaintiff AG is an eight-year-old student at Defendant Success Academy Prospect Heights, a public charter school in Brooklyn, New York. (Complaint ("Compl."), Dkt. 1, at ¶ 55; Defendants' Brief ("Defs.' Br."), Dkt. 41, at 3.) In the two years since AG started at Success Academy, he has been "suspended and excluded from school" over 25 times, for at least 70 school days. (Compl. at ¶ 134); see also Patrick v. Success Acad. Charter Sch., Inc. , No. 17-CV-6846 (PKC)(RLM),
AG is disabled and "other health impaired" due to Beta-thalassemia, a rare blood disorder, which causes him to have "below average academic performance, ... speech[,] and language skills," as well as disruptive and dangerous behavior. (Compl. at ¶¶ 56-58.) As a result, he has an Individualized Education Plan ("IEP"), which entitles him to special education services, including speech and language therapy, counseling, and an individual crisis management para-professional. (Id. at ¶ 57.)
A. 2016-2017 School Year
AG was six years old when he started at Success Academy in the 2016-2017 school year. (Id. at ¶ 55.) At that time, AG was in first grade. (Id. ) Between October 27 and December 20, 2016, AG was suspended from school "on multiple occasions." (Id. at ¶¶ 60-61.)
Between December 20, 2016 and early February 2017, AG was issued suspensions, all for fewer than 10 school days, for additional behavioral incidents. (Id. at ¶¶ 66-67.) On February 14, 2017, a Success Academy staff member, "Torcivia,"
On February 24, 2017, an unidentified Success Academy employee called EMS when AG exhibited "tantruming behavior." (Id. at ¶ 71.) According to Defendants, AG "caused serious bodily injury and extreme pain by, inter alia , dragging the Assistant Principal down the hall by the hair while using the other hand to hit her, yanking a lanyard around the Assistant Principal's neck, kicking Principal Solomon," and "inflict[ing] serious bodily injury and extreme physical pain upon [his] para[-professional]." (Id. at ¶ 79.) Defendants did not call Patrick until EMS and police officers from the New York City Police Department were at the school. Patrick, who was at work, asked a Success Academy staff member to let her speak to EMS, but the staff member did not allow Patrick to do
That evening, Defendants informed Patrick that AG was suspended for 45 school days for the incident and would be placed in an Interim Alternative Educational Setting ("IAES") for the duration. (Id. at ¶ 79.) Although AG was immediately suspended from attending class at Success Academy, his IAES did not begin until 5 days later. Plaintiffs dispute whether the alternative instruction AG was provided properly constituted an IAES, (Plaintiffs' Brief ("Pls.' Br."), Dkt. 40, at 6), because, under the IDEA, an IAES "shall be determined by the IEP Team,"
Additionally, under the IDEA, "[w]ithin ten school days of a decision changing the child's placement
Plaintiffs allege that they were provided with "no notice or opportunity for a hearing to contest the charge, or any information about their due process rights" before AG was suspended for 45 school days for the February 24, 2017 incident. (Compl., at ¶ 80.) Plaintiffs therefore requested, pursuant to the IDEA, an expedited impartial due process hearing "challenging Defendants' actions as illegal, and asserting [that] the allegations against AG were false and exaggerated." (Id. at ¶ 81.) Under the IDEA, "[t]he parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination ... may request a hearing" overseen by an Impartial Hearing Officer ("IHO").
According to Plaintiffs, on March 29, 2017, the IHO issued a written decision, finding that: (1) Defendants had failed to provide Patrick with notice and an opportunity for a suspension hearing in "plain
AG was subsequently suspended four times, each time for fewer than 10 school days, in April 2017 for "tantruming behaviors." (Id. at ¶ 90.) On April 25, 2017, while Patrick was attending an MDR meeting regarding the April suspensions, Torcivia again contacted Patrick to tell her that Defendants had called EMS due to AG's behavior. (Id. at ¶ 91.) Patrick "ran out" of the meeting and went to Success Academy to prevent AG from being taken to the hospital. (Id. at ¶¶ 92-93.) Patrick spoke with an EMS worker on the phone who "said he would not take [AG] to the hospital and [that] he did not believe there was any legitimate reason to do so." (Id. at ¶ 94.) Patrick took AG home and he was suspended for three school days. (Id. at ¶¶ 95-97.) Plaintiffs allege that "Defendants called EMS to harass, scare, intimidate, and retaliate against [Patrick] for enforcing her rights at the MDR meeting, and to force AG out of the school due to his disability." (Id. at ¶ 93.) AG was suspended three more times, each for fewer than 10 days, between April 25, 2017 and June 6, 2017. (Id. at ¶ 98.)
B. 2017-2018 School Year
On August 16, 2017, AG returned to Success Academy for the 2017-2018 school year. (Id. at ¶ 99.) The suspensions for the 2016-2017 school year resulted in AG missing enough class time-"over half of th[e] academic school year"-at Success Academy that he had to repeat the first grade. (Id. at ¶ 134.)
Over the first two weeks of school, AG was suspended three times for a total of
On September 18, 2017, an "informal" hearing was held at Success Academy before Defendant LaMae de Jongh, the Managing Director of Success Academy Charter Schools, to assess whether the 20-day IAES placement was appropriate. (Id. at ¶¶ 107-08.) Defendant Solomon, AG's teacher, and AG's father all testified at the hearing; none were put under oath and no verbatim record or recording of the hearing was maintained. (Id. at ¶¶ 109, 111-12, 115-16, 118.) The school also introduced as evidence an index card from the allegedly injured para-professional that contained her recitation of the events, but she did testify and no evidence regarding medical treatment for her alleged injuries was introduced. (Id. at ¶¶ 113-14.) On September 20, 2017, Managing Director de Jongh found that "the IAES was appropriate" because AG had "[i]nflicted serious bodily injury upon another person." (Id. at ¶¶ 117-18.) The following day, Plaintiffs filed an expedited hearing request under the IDEA seeking AG's immediate reinstatement. (Id. at ¶ 119.) However, the hearing date was set for October 17, 2017, at which point AG would have already served the full suspension, and the request was subsequently withdrawn without prejudice. (Id. );
On September 26, 2017-10 school days after AG's suspension began-an MDR was conducted regarding the September 12, 2017 incident. (Compl., at ¶¶ 120-23.) AG's behavior was determined to be a manifestation of his disability and the MDR team "directed that AG be returned to school immediately." (Id. at ¶ 123.) The next day, however, when Patrick attempted to take AG to school, Success Academy staff "informed her that [AG] was not allowed to attend school and was required to serve his suspension[,] as he had inflicted serious bodily injury and/or serious bodily harm on the para[-professional], regardless of the MDR finding." (Id. at ¶ 124.) As discussed supra (see note 9), under the IDEA, school personnel may "remove a student to an [IAES] for not more than 45 school days without regard to whether the behavior [at issue] is determined to be a manifestation of the child's disability," inter alia , "where a child has inflicted serious bodily injury upon another person while at school."
An IEP meeting was held on November 17, 2017, during which Success Academy's employees opposed AG continuing in an integrated co-teaching placement, and asked the Committee on Special Education ("CSE")-a New York City DOE committee that handles the special education process for students enrolled in non-DOE charter schools,
II. Procedural History
On November 22, 2017, Plaintiffs filed their complaint and motion for preliminary injunction in this action. (Dkts. 1, 7.) The motion for preliminary injunction was denied on December 22, 2017 and the Court declined to exercise supplemental jurisdiction over the novel state law issue of whether New York Education Law § 3214 -which, inter alia , establishes the disciplinary procedures for publicly educated students in the state-applies to charter schools like Success Academy. Patrick ,
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
DISCUSSION
Defendants move to dismiss Plaintiffs' complaint in its entirety. Regrettably, Plaintiffs' complaint and opposition brief are woefully unclear as to (1) the contours of Plaintiffs' claims, (2) which claims are being brought against which Defendants, and (3) which claims are being brought by which Plaintiff. The Court, however, has attempted to construe Plaintiffs' claims liberally, given the significant constitutional questions implicated by these claims, Patrick ,
I. Claims Against the Individual Defendants
For the reasons stated herein, the Court dismisses Plaintiffs' claims against the four individual Defendants.
A. Defendant de Jongh
The Court construes Plaintiffs' complaint as alleging that Defendant de Jongh violated AG's Fourteenth Amendment due process rights
1. Upholding AG's September 12, 2017 Suspension
To the extent that Plaintiffs argue that de Jongh's decision was incorrect, that is not a cognizable basis for a procedural due process claim. While Plaintiffs may "express[ ] their dissatisfaction with the outcome of their interactions with Defendants, ... procedural due process guarantees only a process, not a specific outcome."
To the extent that Plaintiffs may also be arguing that Defendant de Jongh was biased against them, this claim fails as well. (See Pls.' Br., at 19-20); Withrow v. Larkin ,
Although the Court finds that AG has stated a due process claim with respect to whether the burden of proof was met for a suspension (see infra Section III(D)(2)(c) ), Defendant de Jongh is entitled to qualified immunity as to Plaintiffs' claims that they were not provided a transcript of the September 12, 2017 suspension hearing, that witnesses were not placed under oath at the hearing, and that the para-professional who allegedly was injured by AG was not called as a witness at the hearing.
"[T]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan ,
Accordingly, all claims against Defendant de Jongh are dismissed.
B. Defendants Cole and Shainker
The Court construes Plaintiffs' complaint as alleging that Defendants Cole and Shainker, Success Academy Board Chair and member, respectively, violated AG's Fourteenth Amendment due process rights by affirming Managing Director de Jongh's suspension decision. The Court finds that this claim fails for two reasons. First, Plaintiffs' claim "runs counter to precedent holding that those subject to school discipline do not enjoy a due process right to any appellate review." Oladokun v. Ryan , No. 06-CV-2330 (KMW),
Second, even assuming AG did have a right to appeal, Plaintiffs do not allege how, or in what way, Defendants Cole and Shainker violated AG's appellate due process rights. Therefore, Defendants' motion to dismiss is granted as to Defendants Cole and Shainker.
C. Defendant Solomon
Plaintiffs allege that the Success Academy Defendants and Defendant Solomon violated AG's Fourth Amendment rights relating to seizure by "physically removing AG from his school to a hospital emergency room when there was no medical necessity to take such action."
Plaintiff's Fourth Amendment claim against Defendant Solomon fails for two reasons. First, although Plaintiffs allege that Solomon called EMS on December 19, 2016, they do not allege that AG was actually "seized," i.e., removed from school, by EMS on that occasion. (See Compl., at ¶ 64.) Second, and more generally, although Fourth Amendment claims for unlawful seizure may be brought against a third-party defendant who is not the seizing government actor, but who affirmatively "request[s]" or "compels" the unlawful seizure, McGugan ,
Plaintiffs cite to two cases, both distinguishable from the facts of this case, in support of their allegation that calling EMS on AG constituted instigating or procuring an unlawful seizure. (Pls.' Br., at 22-23.) In Camac , the Honorable Denis R. Hurley allowed such a claim to survive a motion to dismiss.
Second, Plaintiffs cite to Eze v. Scott , in which a city college's coordinator and psychologist called EMS to take a student to a hospital for psychiatric evaluation.
Aside from the complaint not alleging that Defendant Solomon or any other Success Academy staff member knowingly gave false information to EMS or restrained AG so that he could be seized by EMS, the complaint indicates that EMS had an independent opportunity to observe AG each time they were called to Success Academy, as evidenced by the fact that EMS did not take AG to the hospital three of the four times they were called. (Id. at ¶¶ 64, 68, 72, 93-94).
II. Claims Brought by Plaintiff Patrick
To the extent Plaintiff Patrick seeks to bring her own due process claims (as opposed to ones brought on behalf of her child, AG), the Court finds that Patrick's individual procedural due process claims must be dismissed because she lacks standing. See Irwin v. W. Irondequoit Cent. Sch. Dist. , No. 6:16-CV-6028 (EAW),
III. AG's Procedural Due Process Claim
AG
A. Article 78 Hearing
As an initial matter, Defendants argue that even if the Court could
Where a plaintiff "alleges that the [d]efendant's procedural due process violations are systematic as opposed to random, the Court [may] find[ ] that the [p]laintiff was not required to first initiate an Article 78 proceeding before commen[c]ing [a federal court] action." Reyes v. Cty. of Suffolk ,
Here, AG alleges that he was, at a minimum, deliberately denied due process in connection with his two long-term suspensions. The Court finds that these allegations sufficiently allege a systematic violation.
The Court now turns to the question of what process AG was due in connection with his long-term suspensions on February 24, 2017 and September 12, 2017.
B. Legal Standard
In order to sustain an action for deprivation of property without due process of law, a plaintiff must "first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." Local 342, Long Island Pub. Serv. Emps. v. Town Bd. of Huntington ,
"education is perhaps the most important function of state and local governments," and the total exclusion from the educational process for more than a trivial period ... is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated,28 is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.... The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences.
However, at the same time, the Supreme Court also recognized that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and [the Court] ha[s] respected the value
Therefore, the Court needs to answer the following questions with respect to each long-term suspension imposed on AG: (1) was AG deprived of a property interest; and (2) if so, what process was due?
C. Was AG Deprived of a Property Interest?
Because AG was placed in an IAES during each of his long-term suspensions, there is a serious question as to whether he was deprived of a property interest in connection with those long-term suspensions, as highlighted by this Court in its preliminary injunction decision. See Patrick ,
While no court has addressed the interplay between the procedural due process requirements of the Fourteenth Amendment and the IDEA, on a more general level, courts have addressed, and disagreed about, whether a suspended student placed into an alternative educational setting is deprived of a property interest and, therefore, may maintain a procedural due process claim. The Second Circuit has held that a disabled child does not have "a right, under the IDEA, to graduate ... from a particular educational institution-specifically, the child's original school rather than an IAES [Interim Alternative Educational Setting]."
Courts have used three very different standards to determine whether a suspended
First, courts have found that the suspension itself constitutes a property deprivation. These courts rely on the language from Goss stating that "the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, 'is not decisive of the basic right' to a hearing of some kind."
In the third and final line of cases, courts have found that a student has not
The Court declines to adopt either of the standards advocated by the parties. Taking into consideration Goss 's "total exclusion" language, the Second Circuit's reasoning in Coleman , and "[the] concern for fairness [that] pervades Goss ," Heyne ,
In alleging that the alternative education he received in connection with the first long-term suspension, on February 24, 2017, was inferior, AG points to the fact that it contributed to him "missing enough instructional time to have to repeat the first grade." (Pls.' Br., at 19.)
It is less clear that AG has adequately alleged that he was deprived of a property interest in connection with his second long-term
Accordingly, the Court finds that AG has sufficiently alleged a deprivation of his educational property interest as to both of his long-term suspensions at this stage.
D. What Process Was AG Due?
Having found the existence of a property interest, the Court must now determine what process was due with respect to AG's two long-term suspensions. See Goss ,
First, in Dixon , the Fifth Circuit held that procedural due process requires that a student be notified in writing "of the specific charges" against him, "be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies," and "be given the opportunity to present to the Board [of Education], or at least to an administrative official[,] ... his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf."
The Second Circuit has not established which test to utilize in a school suspension case. Rubino ,
1. February 24, 2017 Suspension
With respect to the February 24, 2017 suspension, the Court need not resolve which test applies because, under any of the three tests, AG has sufficiently alleged that the Success Academy Defendants failed to provide him with adequate due process, since AG was not given a disciplinary hearing at any time in connection with that suspension.
The Court further finds that, contrary to Defendants' arguments (Defs.' Br., at 16-17), the additional procedural protections afforded to AG under the IDEA do not satisfy constitutional due process requirements for suspensions in excess of 10 school days. "[Disabled] children have a constitutional right to procedural due process independent of the due process rights provided in the [IDEA]." Kaelin v. Grubbs ,
Moreover, in Goss , the Supreme Court was concerned with ensuring that accused students are able to fairly and accurately present their "side of the story."
Therefore, the Court finds that AG has stated a due process claim with respect to his first long-term suspension, on February 24, 2017.
2. September 12, 2017 Suspension
With respect to the second long-term suspension on September 12, 2017, the Court finds that it would apply the Mathews balancing test, but, as discussed infra , the settled caselaw makes doing so unnecessary. AG's due process claim with respect to this suspension is complicated by the fact that Success Academy provided him with a hearing (entirely separate from, and in addition to, his MDR under the IDEA), for the purpose of determining whether AG had, in fact, engaged in any misconduct. AG nonetheless challenges the hearing process that he was afforded, alleging that it did not satisfy the minimum requirements of due process. The Court analyzes each of the claimed deficiencies in that process in turn.
a. Hearing Transcript or Recording
AG alleges that his due process rights were violated because "no verbatim record or recording of the hearing relating to the September 12, 2017 suspension was maintained" (Compl., at ¶¶ 109, 118), thereby denying him "the option to pursue a meaningful suspension appeal that could [have] include[d] review of any evidence relied upon and credibility determinations made," (Pls.' Br., at 21). However, AG has cited no case law to support his claim that due process requires a hearing transcript or recording.
Although "several courts have required some form of record," "the absence of a written transcript has not been a ground for reversing disciplinary action." Gorman ,
While AG has cited cases holding that the provision of a hearing transcript or record satisfies due process (Pls.' Br., at 20-21), he has not cited any cases holding that the failure to have them does not. See, e.g., Hess ,
While the Court finds disconcerting Success Academy's failure to "create a contemporaneous record of the only fact finding proceeding in its disciplinary process, ostensibly rendering a de novo review impossible," there is simply no legal authority that would require Success Academy to "maintain a complete record of Plaintiff's disciplinary proceeding." Knoch ,
b. Sworn Testimony
AG alleges that his due process rights were violated because "[n]o oaths were taken prior to testimony being offered." (Compl., at ¶ 109.) However, "[c]ourts have generally been unanimous ... in concluding that ... neither rules of evidence nor rules of civil or criminal procedure need be applied [to school suspension hearings], and witnesses need not be placed under oath." Flaim ,
c. Testimony by the Para-Professional
The Court construes the complaint as alleging that because the para-professional who was allegedly injured did not testify at the September 12, 2017 hearing, Defendants failed to meet their burden of proof to justify AG's suspension.
The Court finds that AG has stated a due process claim based on Defendants' alleged failure to meet their evidentiary burden. "The failure of [a school] to call essential witnesses may ... have a direct bearing on whether it can sustain its burden of proof[.]" Gonzales ,
* * *
Accordingly, the Court concludes that AG has stated due process claims with respect to both of his long-term suspensions, on February 24, 2017 and September 12, 2017. The former claim is based on Defendants' failure to conduct a suspension hearing, as required by Goss , while the latter claim is based on Defendants' alleged failure to meet their burden of proof at the hearing to show that AG had engaged in the alleged misconduct for which he was suspended.
IV. ADA/Rehabilitation Act
Plaintiffs argue that the totality of the behavior by the Success Academy Defendants was tantamount to discrimination and retaliation under the ADA and Rehabilitation Act. (See, e.g. , Compl., at ¶ 93 (alleging that Success Academy "called EMS to harass, scare, intimidate, and retaliate against [Patrick] for enforcing her rights ... and to force AG out of the school due to his disability").) Under Title
To state a claim for retaliation under the ADA or Rehabilitation Act, a plaintiff must show: "(i) [he or she was] engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action." Lawton ,
A. Exhaustion
Defendants argue that Plaintiffs should have to first exhaust their administrative remedies with respect to any ADA/Rehab Act claim pursuant to the IDEA's exhaustion requirement. (Defs.' Br., at 7-14.) "[P]otential plaintiffs with grievances related to the education of disabled children generally must exhaust their administrative remedies before filing suit in federal court, even if their claims are formulated under a statute other than the IDEA (such as the ADA or the Rehabilitation Act)." Polera v. Bd. of Educ. ,
The IDEA, as described infra , requires the exhaustion of its administrative remedies for claims brought pursuant to other federal laws if such claims "seek[ ] relief that is also available under" the IDEA.
First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school-say, a public theater or library? ... [S]econd, could an adult at the school-say, an employee or visitor-have pressed essentially the same grievance?
When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.
Id. (emphasis in original).
Fry itself concerned a disabled student who claimed that the elementary school she attended had violated her rights under Title II of the ADA and § 504 of the Rehabilitation Act for refusing to accommodate her service animal. Id. at 752. While the Supreme Court did not apply its newly-crafted standard, instead choosing to remand the case for further consideration, it gave some indication, albeit in dicta, of how the analysis ought to play out:
[Plaintiffs'] complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services [the] school provided.... The complaint contains no allegation about the denial of a FAPE or about any deficiency in [the disabled student's] IEP [Individualized Education Plan]. More, it does not accuse the school even in general terms of refusing to provide the educational instruction and services that [the student] need[ed].
Id. at 758. Thus, as "nothing in the nature of the [plaintiffs'] suit suggest[ed] any implicit focus on the adequacy of [the student's] education," the Supreme Court indicated that the IDEA's exhaustion requirement likely did not apply to those particular ADA/Rehab Act claims. Id.
While the Second Circuit has yet to interpret Fry , two cases from this district provide further guidance. In the first, Martinez v. New York City Department of Education , the Honorable Nicholas G. Garaufis held that ADA/Rehab claims alleging a failure to provide a reasonable accommodation for the plaintiff's nut allergy were subject to the IDEA's exhaustion requirement. No. 17-CV-3152 (NGG)(CLP),
The second case, Lawton v. Success Academy Charter Schools, Inc. , involved
[W]hile plaintiffs' allegations occasionally touch on denial of a FAPE and failure to reasonably accommodate the students, the vast majority of the allegations, and thus the gravamen of the complaint, concern intentional discrimination and retaliation.... These allegations extend far beyond simple denial of a FAPE. The two questions posed by Fry support this conclusion. The disabled children would have a claim against a public library that placed them on a list of excluded patrons, used strict disciplinary rules to remove them on a daily basis, and threatened to call the police when faced with complaints about the mistreatment. So would disabled adults.
Here, viewed in the light most favorable to Plaintiffs, as the non-moving party, the ADA/Rehab Act claims Plaintiffs advance are beyond the reach of the IDEA's exhaustion requirement. J.S., III, ex rel. J.S. Jr. v. Houston Cty. Bd. of Educ. ,
Although this case differs from Lawton in that there is no smoking-gun evidence of discrimination or retaliation here, application of the two-question Fry inquiry yields substantially the same answers as in Lawton : (1) the repeated and unnecessary calling of EMS on a disabled student at a public library or on a disabled adult employed at Success Academy could form the basis of a claim under the ADA/Rehab Act, as could (2) the intentionally discriminatory administration of disciplinary procedures, including suspension or expulsion, as applied to a disabled student at a public library or a disabled adult working at Success Academy. Lawton ,
B. Merits
In light of this Court's holding that Plaintiffs' ADA/Rehab Act claims are not
V. IDEA Claims
Plaintiffs allege that the Success Academy Defendants violated the IDEA in four ways: (1) Defendants falsely alleged that AG inflicted "serious bodily injury ... in order to circumvent the MDR process and bar AG from attending school;" (2) Defendants "failed to provide appropriate alternative education or an appropriate IAES" while AG was suspended; (3) during the second suspension, Defendants failed to allow AG to return to school after an MDR found that his behavior was a manifestation of his disability; and (4) Defendants failed to follow disciplinary due process requirements as set forth in the IDEA. (Compl., at ¶¶ 152-54.) Defendants argue that Plaintiffs have failed to administratively exhaust these claims under the IDEA and, therefore, they should be dismissed. (Defs.' Br., at 7-15.) The Court will address each of these claims, and the concomitant exhaustion requirement, if any, in turn.
A. Exhaustion
1. Overview of the IDEA's Exhaustion Requirement
"The IDEA provides federal grants to states so that they may in turn provide disabled children with 'a free appropriate public education [ ("FAPE") ]' in the least restrictive, appropriate environment." TC v. Valley Cent. Sch. Dist. ,
However, "the exhaustion requirement does not apply in situations in which exhaustion would be futile." Coleman ,
2. Applicable IDEA Exhaustion Standard
Defendants argue that each of Plaintiffs' IDEA claims should be dismissed for lack of subject matter jurisdiction due to Plaintiffs' failure to exhaust the IDEA's requisite administrative remedies.
B. Misuse of the "Serious Bodily Injury" Exception
Plaintiffs allege that Defendants violated the IDEA by falsely accusing AG of inflicting "serious bodily injury" on two occasions-February 24, 2017 and September 12, 2017-in order to justify removing AG from Success Academy during the IDEA hearing process. (Compl., at ¶¶ 81, 140, 144, 153.)
1. Exhaustion
As discussed, the parties disagree as to whether this claim is subject to the IDEA's exhaustion requirement and the extent to which the requirement has been satisfied. Because the Court finds, for the reasons set forth below, that further exhaustion of these claim would be futile, it need not decide which exhaustion standard applies.
a. February 24, 2017 Incident
First, Plaintiffs allege that Defendants misused the "serious bodily injury" exception to unlawfully keep AG out of school in connection with the February 24, 2017 incident and the resulting suspension. (Id. ) Plaintiffs raised this contention in the IHO hearing. (Dkt. 7-4, at ECF 38-39.) The IHO substantively agreed with Plaintiffs and found that the "serious bodily injury" exception did not apply:
The basis for the allegation that A.G. inflicted serious bodily injury on February 24, 2017 ... do[es] not rise to the level of serious bodily injury as that term is defined in the law. Rather, I agree with the parent that [the alleged] conduct even if true, which I doubt, could not create a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily organ, or mental faculty.
(Id. at ECF 40 (citing
b. September 12, 2017 Incident
Plaintiffs bring a similar claim regarding a false allegation of "serious bodily injury" with respect to the September 12, 2017 suspension. Once again, an IHO hearing was held in which Plaintiffs raised this and other claims. (Compl., at ¶ 130.) Unlike in the first hearing, the IHO did not rule on Plaintiffs' claims regarding the appropriateness of the suspension (including the "serious bodily injury" claim) and instead held that "[the] issue must ... be explored through appeal of the suspension hearing and upon that record." (Dkt. 7-4, at ECF 59.) However, the IHO opined, "on the record before me[,] it is highly unlikely the [serious bodily injury] standard was met, and I have reached this same conclusion recently in another matter involving this same student and school." (Id. )
Once again, it is difficult to see what more Plaintiffs could have done within the framework of the IDEA administrative remedies. Here, despite essentially agreeing with the position taken by Plaintiffs, the IHO held that the forum was inadequate for the resolution of claims relating to the appropriateness of the suspension. Rather, the IHO opined that appeal of the suspension hearing conducted by Success Academy-which Plaintiffs had already done-was the only avenue Plaintiffs could pursue for relief. "[E]xhaustion is not necessary under the IDEA where it would be futile to resort to the due process procedures or where '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).' " Taylor v. Vt. Dep't of Educ. ,
2. Merits
Plaintiffs claim that Defendants violated the IDEA by intentionally exploiting the "serious bodily injury" exception-through false or exaggerated claims that AG had inflicted "serious bodily injury" to Defendants' staff-to bypass the IDEA's "stay-put" provision. That provision requires the school to allow a disabled student who is accused of a disciplinary infraction to remain in his then-current educational placement until all of the IDEA proceedings have been completed.
This claim appears to be one of first impression. The Court has identified only one similar case. In O'Hayre v. Board of Education , the plaintiffs "asserted a claim for abuse of IEP process under the IDEA, [based on] excessive IEP meetings, misstatement of the purpose of those meetings, and using the meetings as a tool of harassment."
O'Hayre is distinguishable from, yet provides support for, the claim presented here. In contrast to O'Hayre , Plaintiffs do not allege misuse of the IEP process or challenge decisions of the IEP team. Instead, Plaintiffs seek "judicial review of school decisions," which O'Hayre found "the IDEA does allow."
Defendants' argument that this claim should be dismissed because AG, in fact, inflicted "serious bodily injury" on both occasions misses the point. At this stage, the issue is whether Plaintiffs have sufficiently plead their claim that Defendants abused the IDEA's "serious bodily injury" exception. Plaintiffs allege that Defendants intentionally misused the IDEA disciplinary process to produce unfounded determinations that AG inflicted "serious bodily injury"-a claim that is supported, in part, by an IHO. Defendants cannot prevent this claim from proceeding simply by insisting that those allegedly corrupt determinations were correct; that is what discovery and trial are for.
Accordingly, the Court finds that Plaintiffs have stated a claim under the IDEA for abuse of the "serious bodily injury" exception.
Plaintiffs argue that, in connection with the first suspension, the Success Academy Defendants did not provide AG with an IAES, as defined by the IDEA, but instead "merely offered AG the same inadequate alternative instruction they provide to all non-disabled students-two hours of general education tutoring with an unlicensed tutor in a public library with no related services or paraprofessional." (Pls.' Br., at 6, 18 & n.10.) According to Plaintiffs themselves, they challenged the adequacy of the alleged IAES placements through the IDEA process and "[i]n each of th[o]se proceedings, ... obtained the full relief available against the [New York City Department of Education]," i.e., "receiv[ing] compensatory education and make-up related services for AG." (Id. at 7 & n.5.) Because Plaintiffs have received complete relief under the IDEA itself, the Court construes their claim as only seeking relief pursuant to Section 1983 for this violation of the IDEA.
1. Exhaustion
As noted above, Fry held that for claims that could be brought under the IDEA, where the gravamen of plaintiff's suit is something other than a FAPE, exhaustion of the IDEA's administrative remedies is not necessary.
Therefore, the Court must next determine whether Plaintiffs have satisfied the IDEA's exhaustion requirement, or, to the extent that they have not, whether the futility exemption applies. For the following reasons, the Court finds that further exhaustion of Plaintiffs' claims regarding the adequacy of the IAES would have been futile and thus denies Defendants' motion to dismiss these claims for failure to exhaust.
a. February 24, 2017 Incident
Plaintiffs' request for an IHO hearing following the suspension arising from the February 24, 2017 incident contains as a
b. September 12, 2017 Incident
Plaintiffs similarly raised the issue of the adequacy of the IAES in their request for an IHO concerning the suspension from the September 12, 2017 incident. (Dkt. 18-4, at ECF 2 ("The IAES placement is inappropriate and not likely to provide FAPE. The alternative instruction and the alternative education IAES notice and placement are in violation of Federal and State education law.").) This time, the IHO did address the claim in the hearing held on the suspension: "[t]he parent also complained that the instruction A.G. received in the IAES was inappropriate and no related services were provided." (Dkt. 7-4, at ECF 57.) The IHO went on to find that:
A.G. received 2 hours per day (40 hours total) of instruction at the IAES. There was no dispute that the instruction provided was by a general education teacher. Accordingly, ... A.G. is entitled to 40 hours of special education instruction by a licensed special education teacher as compensation.
(Id. at ECF 58-59 (citing Reid ex rel. Reid v. District of Columbia ,
Once again, Plaintiffs had no obligation, for the purposes of exhaustion, to further appeal this favorable decision. See
2. Merits
In light of this Court's holding that Plaintiffs' IAES adequacy claims are not subject to exhaustion and Defendants' failure to brief the merits of this claim, Defendants' motion to dismiss is denied as to this claim.
D. Failure to Return AG to School
In connection with the second suspension, Plaintiffs argue that Defendants violated AG's rights under the IDEA "by refusing to allow AG to return to school after an MDR found that his behavior was a manifestation of his disability." (Compl., at ¶ 154.) Under the IDEA, school personnel
E. Deprivation of Due Process Rights
Finally, Plaintiffs argue that "Defendants' failure to follow disciplinary due process requirements is a violation of Plaintiffs' rights under the IDEA." (Compl., at ¶ 152.) The Court construes this claim as alleging that, in connection with the February 24, 2017 suspension, the deprivation of Plaintiffs' Fourteenth Amendment Due Process rights also constituted a violation of the IDEA. Under the IDEA, where the suspension is longer than 10 days and the conduct is not a manifestation of the child's disability, "the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities."
1. Exhaustion
The Court first decides whether this claim is subject to the IDEA's exhaustion requirement. Plaintiffs allege that Defendants failed to afford AG the requisite due process guaranteed by the IDEA (in addition to the Fourteenth Amendment) in suspending AG for the February 24, 2017 incident without ever holding a suspension hearing. Defendants' only response is that this claim is subject to the IDEA's exhaustion requirements because the gravamen of Plaintiffs' complaint concerns the denial of a FAPE, and remains unexhausted. (Defs.' Br., at 7-14.) The Court disagrees based on the futility of exhaustion.
Plaintiffs raised this claim in the IHO hearing on March 28, 2017. (Compl., at ¶ 82.) The IHO found that "[t]he issue of the failure of Success Academy and the DOE to provide the parent with notice and an opportunity for a suspension hearing ... subverts meaningful due process proceedings under the [IDEA.]" (Dkt. 7-4, at ECF 39.) However, the IHO went on to hold that he "[did] not have jurisdiction to order a suspension hearing in [the] matter[.]" (Id. ) Thus, Plaintiffs were left with a favorable IHO decision-in that Plaintiffs got the relief they were seeking-albeit on alternate grounds. As with Plaintiffs' claim arising from alleged misuse of the "serious bodily injury" exception, further appeal of a favorable IHO decision on this claim would have been futile. See R.B. ,
Thus, even assuming exhaustion is required, Plaintiffs' statutory due process claim has satisfied the IDEA's exhaustion requirement under the futility doctrine.
2. Merits
The Court now turns to the merits of this claim. There is scant caselaw-none of which has been cited or referenced by either party-analyzing this provision of the IDEA. Moreover, no Court of Appeals has definitively ruled on whether the "may be applied" language of
the IDEA gave the [IEP] team two significantly different procedural alternatives for dealing with the situation. First, the team could have let school officials apply generally applicable disciplinary procedures and suspend Doe "in the same manner and for the same duration in which the procedures would be applied to children without disabilities." This would result in a purely disciplinary proceeding to which the due process protections of Goss ... would apply.... Alternatively, the IEP team could act more affirmatively, as [the child's team] did in this case, by changing the disabled child's placement from the school which suspended him to an alternative educational setting. However, under20 U.S.C. § 1415 (j), the IDEA's "stay-put" provision-an important procedural safeguard-the IEP team could not take this action without the parent's consent.
The Court finds that, in light of the fact that AG's IEP team did not voluntarily consent to, or affirmatively propose or effect, a change in AG's placement during his February 24, 2017 suspension, Plaintiffs have sufficiently alleged a violation of the IDEA based on Defendants' failure to provide AG with a Goss -type hearing, discussed supra , as "would be applied to children without disabilities."
CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part. The following claims will move forward against the Success Academy Defendants:
(A) ADA and Rehabilitation Act retaliation and discrimination claims by Plaintiffs
(B) In connection with the February 24, 2017 suspension:
(1) Fourteenth Amendment Due Process (Failure to hold a due process hearing) by AG
(2) IDEA (Adequacy of the IAES) by Plaintiffs
(3) IDEA (Misuse of the serious bodily injury exception) by Plaintiffs
(4) IDEA (Deprivation of due process rights) by Plaintiffs
(C) In connection with the September 12, 2017 suspension:
(1) Fourteenth Amendment Due Process (Sufficiency of the evidence) by AG
(2) IDEA (Adequacy of the IAES) by Plaintiffs
(3) IDEA (Misuse of the serious bodily injury exception) by Plaintiffs
(4) IDEA (Deprivation of due process rights) by Plaintiffs
SO ORDERED.
APPENDIX A
Applicable Provisions of the IDEA,
(a) ESTABLISHMENT OF PROCEDURES
Any State educational agency, State agency, or local educational agency that receives assistance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.
(b) TYPES OF PROCEDURES
The procedures required by this section shall include the following:
(1) An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.
...
(3) Written prior notice to the parents of the child, in accordance with subsection (c)(1), whenever the local educational agency-
(A) proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.
...
(6) An opportunity for any party to present a complaint-
(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and
...
(f) IMPARTIAL DUE PROCESS HEARING
(1) IN GENERAL
(A) HEARING
Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
...
(2) LIMITATIONS ON HEARING
...
(E) DECISION OF HEARING OFFICER
(i) IN GENERAL
Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.
(i) PROCEDURAL ISSUES
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-
(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits.
(ii) RULE OF CONSTRUCTION
Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section.
(F) RULE OF CONSTRUCTION
Nothing in this paragraph shall be construed to affect the right of a parent to file a complaint with the State educational agency.
(g) APPEAL
(1) IN GENERAL
If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.
(2) IMPARTIAL REVIEW AND INDEPENDENT DECISION
The State educational agency shall conduct an impartial review of the findings and decision appealed under paragraph (1). The officer conducting such review shall make an independent decision upon completion of such review.
...
(i) ADMINISTRATIVE PROCEDURES
(1) IN GENERAL
(A) DECISION MADE IN HEARING
A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2).
(B) DECISION MADE AT APPEAL
A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2).
...
(j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT
Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING
(1) AUTHORITY OF SCHOOL PERSONNEL
(A) CASE-BY-CASE DETERMINATION
School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.
(B) AUTHORITY
School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, anothersetting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).
(C) ADDITIONAL AUTHORITY
If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 1412(a)(1) of this title although it may be provided in an interim alternative educational setting.
(D) SERVICES
A child with a disability who is removed from the child's current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the child's disability) or subparagraph (C) shall-
(i) continue to receive educational services, as provided in section 1412(a)(1) of this title, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and
(ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
(E) MANIFESTATION DETERMINATION
(i) IN GENERAL
Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine-
(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.
(ii) MANIFESTATION
If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child's disability.
(F) DETERMINATION THAT BEHAVIOR WAS A MANIFESTATION
If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team shall-
(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for suchchild, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);
(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
(iii) except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.
(G) SPECIAL CIRCUMSTANCES
School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, in cases where a child-
(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
(H) NOTIFICATION
Not later than the date on which the decision to take disciplinary action is made, the local educational agency shall notify the parents of that decision, and of all procedural safeguards accorded under this section.
(2) DETERMINATION OF SETTING
The interim alternative educational setting in subparagraphs (C) and (G) of paragraph (1) shall be determined by the IEP Team.
(3) APPEAL
(A) IN GENERAL
The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing.
(B) Authority of hearing officer
(i) IN GENERAL
A hearing officer shall hear, and make a determination regarding, an appeal requested under subparagraph (A).
(ii) CHANGE OF PLACEMENT ORDER
In making the determination under clause (i), the hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may-
(I) return a child with a disability to the placement from which the child was removed; or(II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.
(4) PLACEMENT DURING APPEALS
When an appeal under paragraph (3) has been requested by either the parent or the local educational agency-
(A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever occurs first, unless the parent and the State or local educational agency agree otherwise; and
(B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing.
...
(7) DEFINITIONS
In this subsection:
...
(D) SERIOUS BODILY INJURY
The term "serious bodily injury" has the meaning given the term "serious bodily injury" under paragraph (3) of subsection (h) of section 1365 of title 18.
(l) RULE OF CONSTRUCTION
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [ 42 U.S.C. 12101 et seq. ], title V of the Rehabilitation Act of 1973 [ 29 U.S.C. 790 et seq. ], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
(h) As used in this section-
...
(3) the term "serious bodily injury" means bodily injury which involves-
(A) the substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
APPENDIX B
Chronology of AG's Two Long-Term Suspensions
February 24, 2017 Suspension
February 24, 2017 - AG's parents notified that AG engaged in "extremely violent and unsafe behavior" and would be removed to an Interim Alternative Educational Setting (IAES) for 45 school days. (Dkt. 7-4, at ECF 32-33; Compl., at ¶¶ 71-74, 79.)
March 1, 2017 - Success Academy tells Plaintiffs that AG will receive two hours per day of instruction during the IAES. (Dkt. 7-4, at ECF 37; Compl., at ¶ 88.)
March 2, 2017 - IAES instruction began. (Dkt. 18-1.)
March 10, 2017 - MDR determines that AG's behavior was not a manifestation of his educational disability. (Id. at ECF 37.)
March 11, 2017 - Plaintiffs again request an IHO hearing "seeking immediate reinstatement of A.G. to his current placement at Success Academy and compensatory services, among other relief." (Id. )
March 24 and 28, 2017 - IHO hearing held. (Id. at 36-37.)
March 29, 2017 - IHO decision issued finding that: (1) Defendants had failed to provide Patrick with notice and an opportunity for a suspension hearing in "plain violation of due process," but the IHO "did not have jurisdiction to order a suspension hearing in the matter;" (2) the allegations made by Defendants "did not rise to the level of serious bodily injury" as defined by the IDEA; (3) AG should be immediately reinstated to Success Academy; and (4) the DOE must provide "compensatory education" and related services for the days AG was out of school. (Compl., at ¶¶ 82-84.)
March 31, 2017 - AG returns to Success Academy after serving 24 school days of his 45-day suspension. (Id. at ¶ 85.)
September 12, 2017 Suspension
September 12, 2017 - Success Academy calls AG's parents to inform them that AG "had engaged in dangerous behavior and that he had hit his para[-professional] and stabbed her in the eye with a pencil, and that the para[-professional] immediately left the school via EMS." (Compl., at ¶ 103.)
September 13, 2017 - Plaintiffs receive a letter from Success Academy notifying them that AG could not attend school, was suspended for the prior day's behavior, would be removed to an IAES for 20 school days, and would receive a suspension hearing on September 18, 2017. (Id. at ¶¶ 104-105.)
September 18, 2017 - Defendant de Jongh holds a suspension hearing at Success Academy. (Id. at ¶¶ 107-116.)
September 19, 2017 - Defendant de Jongh finds that a 20-day suspension is appropriate. (Id. at ¶ 117.)
September 20, 2017 - Plaintiffs are notified of Defendant de Jongh's decision. (Id. )
September 21, 2017 - Plaintiffs file an expedited hearing request under the IDEA. (Id. at ¶ 119.) Plaintiffs subsequently withdrew their request, without prejudice, because the hearing date was set for October 17, 2017, i.e., after AG's suspension would have been fully served. (Id. )
September 26, 2017 - MDR determines that AG's behavior was a manifestation of his disability and that AG should "be returned to school immediately." (Id. at ¶¶ 120-23.)
September 27, 2017 - Patrick tries to bring AG back to school, but was told that he was not allowed to attend school and was required to serve his suspension, regardless of the MDR finding, because he had inflicted serious bodily injury. (Id. at ¶ 124.)
September 29, 2017 - Plaintiffs filed an internal appeal with Defendant Cole. (Id. at ¶ 125.)
October 16, 2017 - AG returns to school after serving his entire suspension. (Dkt. 16, at ¶ 63.)
October 17, 2017 - Plaintiffs re-file their IDEA impartial hearing request. (Compl., at ¶ 127.)
November 6, 2017 - IHO hearing held. (Id. at ¶ 128.)
November 14, 2017 - IHO decision issued finding "the appropriateness of both the
APPENDIX C
1) Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist. ,
2) Swindle v. Livingston Par. Sch. Bd. ,
3) Langley v. Monroe Cty. Sch. Dist. ,
4) Wayne v. Shadowen,
5) Esparza v. Bd. of Trs. ,
6) Sanchez v. Friendswood Indep. Sch. Dist. ,
7) Nevares v. San Marcos Consol. Independent School Dist. ,
8) DeCossas v. St. Tammany Par. Sch. Bd. , No. 16-CV-3786 (NJB),
9) CLM ex rel. McNeil v. Sherwood Sch. Dist. 88J , No. 3:15-CV-1098 (SB),
10) I.U. ex rel. Roy v. Pioneer Valley Chinese Immersion Charter Sch. , No. 14-CV-12709 (MAP),
11) Lindsey v. Matayoshi ,
12) Robinson v. St. Tammany Parish Public School System ,
13) J.J. ex rel. Vantress v. Oak Grove Sch. Dist. , No. 08-CV-5376 (RMW),
14) R.B. ex rel. D.L.B. v. Hinds Cty. Sch. Dist. , No. 3:07-CV-329 (DP)(JJ),
15) Salas v. United Indep. Sch. Dist. , No. 08-CV-22(L) (GPK),
16) Foster v. Tupelo Pub. Sch. Dist. ,
17) Thorns v. Madison Dist. Pub. Sch. , No. 06-CV-10674 (SFC),
18) DNK ex rel. Kassem v. Douglas Cty. Sch. Dist. , No. 04-CV-2513 (MSK)(CBS),
19) Flynn v. Terrebonne Par. Sch. Bd. , No. 03-CV-2500(A) (SSV),
20) Cain v. Tigard-Tualatin Sch. Dist. 23J ,
21) Hammock ex rel. Hammock v. Keys ,
22) Jarmon v. Batory , No. 94-CV-284 (HJH),
23) Johnpoll v. Elias ,
24) Fenton v. Stear ,
APPENDIX D
1) S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist. ,
2) Laney v. Farley ,
3) Zamora v. Pomeroy ,
4) McKinney ex rel. K.P. v. Huntsville Sch. Dist. , No. 5:18-CV-5067 (TLB),
5) Gentry v. Mountain Home Sch. Dist. , No. 3:17-CV-3008 (TLB),, at *10 (W.D. Ark. May 9, 2018) ("The Court believes [plaintiff] has raised a genuine, material question of fact as to whether completing the last few months of his senior year at the [alternative educational setting] ... would have been significantly different from or inferior to the education he would have received at Mountain Home High School. There is evidence in the record that the [alternative placement] did not offer many, if any, of the courses [plaintiff] was taking during his last semester at Mountain Home High School, and that it did not offer certain classes [plaintiff] needed to take, not simply to graduate, but to graduate and attend the colleges to which he had been provisionally accepted."). 2018 WL 2145011
6) E.S. ex rel. D.K v. Brookings Sch. Dist. , No. 4:16-CV-04154 (KES),
7) Doe v. Blake Sch. ,
8) Edwards v. MiraCosta Coll. , No. 3:16-CV-1024 (BEN)(JMA),
9) Conklin v. Jefferson Cty. Bd. of Educ. ,
10) Clodfelter v. Alexander Cty. Bd. of Educ. , No. 5:16-CV-0021 (RLV)(DCK),
11) Nixon v. Hardin Cty. Bd. of Educ. ,
12) Jones v. Long Cty. Sch. Dist. , No. 2:11-CV-005 (LGW),
13) S.B. ex rel. Brown v. Ballard Cty. Bd. of Educ. ,
14) Rivera v. Jones , No. 06-CV-19 (GPK),
15) Jacobs v. Clark Cty. Sch. Dist. ,
16) J.S. ex rel. Duck v. Isle of Wight Cty. Sch. Bd. ,
17) Marner ex rel. Marner v. Eufaula City Sch. Bd. ,
18) Casey v. Newport Sch. Comm. ,
19) Alabama & Coushatta Tribes of Tex. v. Trs. of Big Sandy Indep. Sch. Dist. ,
20) Mrs. A.J. v. Special Sch. Dist. No. 1 ,
Notes
Although AG has been issued more than 23 short-term suspensions, they do not form the basis of Plaintiffs' claims in this lawsuit. The Court uses the term "short-term suspension" to refer to suspensions "not exceeding 10 days." Goss v. Lopez ,
As discussed infra , Plaintiffs' complaint does not specify which Defendants were involved in each incident and instead uses the general term "Defendants."
The relevant portions of the IDEA cited in this opinion are collectively listed, substantially in full, in Appendix A.
Integrated co-teaching services "means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." M.W. ex rel. S.W. v. N.Y. City Dep't of Educ. ,
The complaint does not include Torcivia's full name or position.
A suspension for more than 10 days constitutes a change of placement. Honig v. Doe ,
Citations to "ECF" refer to the pagination generated by the Court's CM/ECF docketing system and not the document's internal pagination.
At the motion to dismiss stage, a court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. ,
Alternatively, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings ,
Finally, courts "may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment." Evans v. N.Y. Botanical Garden , No. 02-CV-3591 (RWS),
Under the IDEA, the school may remove a student to an IAES for up to 45 school days "without regard to whether the [child's] behavior is determined to be a manifestation of the child's disability" in cases where the child has "inflicted serious bodily injury upon another person while at the school, on school premises, or at a school function."
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
Success Academy is allegedly not a party to the IDEA administrative impartial hearing process. (Compl., at ¶¶ 85, 137.) At the April 24, 2018 pre-motion conference, Defendants stated that they were "bound by determinations made by the State Education Department [ ("SED") ]," but not the IHO. (Pre-motion Conference Transcript ("PMC Tr."), Dkt. 45, at 24:14-20.) However, Plaintiffs allege that the SED and the SRO are two different entities, such that Success Academy is not bound by any part of the IDEA process. (Pls.' Br., at 10 & n.10.) "When deciding a motion to dismiss for failure to state a claim, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the non-moving party." Salazar v. Chertoff , No. 05-CV-2876 (BSJ),
The complaint does not state Gavin's surname.
Indeed, the Court's review has included over 1,000 such cases.
In light of the dismissal of the individual Defendants, any claims Plaintiffs are making for punitive damages are dismissed. Barnes v. Gorman ,
The Court construes Plaintiffs' Fourteenth and Fourth Amendment claims as being brought pursuant to Section 1983.
It is unclear if Plaintiffs are also implying that de Jongh had predetermined the outcome before the suspension hearing. (See Compl., at ¶ 108 ("Defendant de Jongh announced that the hearing was going to be 'informal' and was only to assess if the twenty (20) day placement to the IAES was appropriate.").) If there is "evidence suggesting policymakers have predetermined the result of [the due process] procedures, schools and their policymakers may run afoul of the Constitution when they issue an out-of-school suspension, regardless of how they characterize it." Wooleyhan v. Cape Henlopen Sch. Dist. , No. 10-CV-153(A) (MMB),
As discussed infra Section III(D)(2)(a) & (b), Plaintiffs are not entitled to a transcript or sworn testimony.
However, some courts have found that an appeal is not required based on the fact that the underlying hearing satisfied due process, suggesting that there is otherwise a right to appeal the outcome of a school disciplinary hearing. See, e.g., C.Y. ex rel. Antone v. Lakeview Pub. Sch. ,
To the extent that Plaintiffs allege that Defendant Solomon is also liable under the IDEA, ADA, or Rehab Act in her personal capacity for calling EMS, there is "no individual liability." Dorsey v. Sullivan , No. 10-CV-744(F) (LGF),
Even to the extent Plaintiffs allege that, in connection with the February 24, 2017 incident, a Success Academy staff member "took [AG] and told the EMS workers to take him to the hospital," (Compl., at ¶ 72), Plaintiffs do not allege that EMS failed to exercise independent judgment in taking AG to the hospital.
In light of this holding, Plaintiffs' Fourth Amendment claim against the Success Academy Defendants is also dismissed. Under Second Circuit case law, "a prerequisite to municipal liability under Monell is an underlying constitutional violation by a state actor. 'Monell ... extends liability to a municipal organization where that organization's ... policies or customs that it has sanctioned[ ] led to an independent constitutional violation.' " Henry-Lee v. City of N.Y. ,
Patrick's individual IDEA claims include, as discussed infra , her IDEA claims brought under Section 1983. Winkelman ,
Given the absence of any relevant argument in her opposition brief, it appears that Patrick has withdrawn her Fourteenth Amendment claim alleging that by calling EMS and "forcibly removing AG from the school to the emergency room against or without parental consent where there was no urgent medical necessity, Defendants violated Plaintiffs' liberty interest to association and family integrity." (Compl., at ¶ 149); Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442 (TPG)(FM),
Although this claim is brought by Patrick on AG's behalf, for the sake of clarity, the Court refers only to AG in this section.
As operators of charter schools, the Success Academy Defendants are state actors for purposes of Section 1983 claims. Scaggs v. N.Y. Dep't of Educ. , No. 06-CV-799 (JFB)(VVP),
At the pre-motion conference relating to Defendants' motion to dismiss, Plaintiffs confirmed that they were asserting a due process challenge under Section 1983, separate from their due process claim under the IDEA:
THE COURT: "Now the claim, as I understand it, and this is what I want to confirm with the plaintiffs, is that ... AG, was entitled to [federal due process] procedure or procedures that are to some extent mandated by Goss [v. Lopez ,, 419 U.S. 565 , 95 S.Ct. 729 (1975) ] regardless of his disability, because he was subjected to a lengthy suspension or threatened with a lengthy suspension. Ergo plaintiffs argue that regardless of the provisions of the IDEA, which kicked in, and provided for an alternative educational placement, the minute he was going to be disciplined, and also provided for a hearing, an MDR hearing, he should have also received [ ] protections under Goss . Is that essentially the argument or the theory?" 42 L.Ed.2d 725
PLAINTIFFS' COUNSEL: "Yes, Your Honor."
(PMC Tr., at 9:13-10:1.)
In Ferrari , Judge Seybert found that the plaintiff's allegations survived a motion to dismiss and were not conclusory where the claim was "augment[ed]" by the plaintiff's identification, "without the benefit of discovery, of two other instances in which [the defendant's] supposedly neutral hearing officers failed to properly apply [due process]."
In Goss , nine non-disabled students were suspended from their respective Ohio public high schools for up to 10 school days without a hearing.
The Court will not address whether AG was deprived of a liberty interest since he did not raise the claim. Moreover, AG does not state whether Success Academy violated its disciplinary code in suspending AG, so no due process claim can lie with respect to that issue. See, e.g., Bates v. Sponberg ,
A summary of the events and processes associated with each of AG's long-term suspensions can be found in Appendix B.
See Robinson v. Stockton Unified Sch. Dist. , No. 2:16-CV-2111 (KJM)(GGH),
A list of opinions endorsing this position can be found in Appendix C. It should be noted that, at least in terms of numerosity, this appears to be the dominant view.
Plaintiffs argue that the alternative instruction provided in this case should not constitute a "transfer" for purposes of the property interest analysis because AG was not transferred to another school, but instead given tutoring. The Court rejects this argument for two reasons. First, courts have found that even a temporary, rather than permanent, placement in alternative education (such as during a suspension) can still constitute a transfer for due process purposes. See, e.g., Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist. ,
A list of additional opinions adopting this third view can be found in Appendix D.
Defendants' citation to Kajoshaj v. City of New York is inapposite. (Defs.' Br., at 15; Defendants' Reply Brief, Dkt. 42, at 8.) In Kajoshaj , Judge Block found that a student being forced to repeat the fifth grade "[did] not amount to an exclusion from the educational process as a whole" and, therefore, did not state a due process violation. No. 11-CV-4780 (FB)(JMA),
It is not clear that, in this case, the use of an unlicensed teacher is inherently inferior to the education AG would have received at Success Academy. Under New York Education Law, up to 30% of New York charter school teachers are permitted to be unlicensed.
See J.E. ,
"[T]here is no hard-and-fast rule as to what specific educational services need to be provided in an alternative setting. Rather, the comments appended to the IDEA's implementing regulations defer to state and local definitions of 'general curriculum' for guidance." Farrin ,
If, at summary judgment, Defendants can demonstrate that the alternative education provided to AG was not materially inferior to the education he would have received at Success Academy and, therefore, that AG was not deprived of his property interest, Defendants will still have to demonstrate that they met the short-term suspension requirements of Goss for the four school days AG was suspended without any alternative educational services during the February 24, 2017 suspension. See Harris,
See, e.g., Flaim v. Med. Coll. of Ohio,
See, e.g., Lamb v. Panhandle Cmty. Unit Sch. Dist. No. 2,
See, e.g., Watson ex rel. Watson v. Beckel ,
This case presents an unusual procedural posture in this regard. In every other case involving a public primary or secondary school, the school at issue has been bound by its state education laws, which generally offer more procedural protections than the Fourteenth Amendment requires, and which have been applied in some fashion. See, e.g., Turof v. Kibbee ,
While "[i]t would be anomalous indeed for a federal court to dictate an exact number of days within which a formal hearing must be held by the school," Bivens ex rel. Green ,
The Court notes that even if Defendants ultimately establish that AG did commit the acts in question, Patrick ,
AG does not allege that he, his parents, or his counsel asked to record the proceedings, which some courts have found to be an independent basis for dismissing this claim. (Compl., at ¶ 118 (stating that plaintiffs' counsel requested "a copy of the transcript of the suspension hearing from Defendants" after the hearing) ); see Coronado v. Valleyview Pub. Sch. Dist. 365-U ,
In fact, the Court notes that Defendants' two-page "IAES Hearing Findings Sheet" contains the least amount of detail of any judicially-reported school suspension case. See, e.g. , Coronado ,
Additionally, Plaintiff's citation to Appeal of T.S. , (Pls.' Br., at 21.), a New York State Education Department decision challenging a suspension decision under New York Education Law § 3214, based on the lack of an intelligible hearing record, is unavailing. 57 Ed. Dep't Rep., Decision No. 17233,
However, as the Court notes infra , the lack of a more thorough record does weigh in Plaintiffs' favor in the sufficiency of the evidence analysis.
To the extent AG argues that Defendants committed a per se violation of his due process rights because the para-professional did not testify, that claim fails. AG does not allege that he, his parents, or their counsel "attempt[ed] to call [the para-professional] (and so could not have been denied the claimed right)." Smartt v. Clifton , No. 3:96-CV-389 (WHR),
But see McDonald ex rel. McDonald, v. Sweetman , No. 3:02-CV-1040 (MRK),
However, at the MDR Hearing, AG's teacher "stated that she saw the student hit the para[-professional]." (Compl., at ¶ 121.)
At the MDR Hearing, Success Academy stated "that on the day of the incident, the para[-professional] was released from the hospital immediately and was treated for a migraine." (Compl., at ¶ 122.)
To the extent that Plaintiffs are seeking monetary damages for violations of the IDEA, the Court construes those claims as being brought under Section 1983. Polera ,
To be sure, whether to subject Plaintiffs' IDEA claims to the standard established in Fry is an unsettled and complicated legal question. K.C. v. Chappaqua Cent. Sch. Dist. , No. 16-CV-3138 (KMK),
Defendants' argument that Plaintiffs should have appealed the favorable outcome to the SRO in order to bind Success Academy to the judgment is inconsistent and disingenuous. Defendants argue, on the one hand, that they are not bound by the IHO's decision finding that they violated the IDEA, but then turn around and argue that Plaintiffs were required to go through the IHO/SRO system to exhaust their IDEA claims. For the reasons already discussed, the Court need not resolve either issue.
There is no indication in the record that AG's IEP team reviewed Defendants' use of the serious bodily injury provision as part of the MDR process.
In reaching this conclusion, the Court recognizes the tension between the protection of AG's rights under the IDEA and Defendants' interests in protecting their students from harm and themselves from related liability. As the Supreme Court observed in Goss , "there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school."
The disconnect here is between the "serious bodily injury" exception of the IDEA and the "continuing danger" exception of the Fourteenth Amendment. Under the IDEA, serious bodily injury is defined very narrowly as "bodily injury which involves a substantial risk of death; ... extreme physical pain; ... protracted and obvious disfigurement; ... or protracted loss or impairment of the function of a bodily member, organ, or mental faculty."
Therefore, in some circumstances, a school could be required to allow a disabled student who did not inflict "serious bodily injury," but is a "continuing danger," to return to school, or else risk being held liable under the IDEA for improperly keeping the student out of school. This potentially puts the school in the difficult position of weighing the safety of the student body against the monetary liability for violating the rights of a disabled student. However, the Supreme Court has held that this tension is an intentional feature of the IDEA: "[I]n enjoining the state and local defendants from indefinitely suspending ... or otherwise unilaterally altering [a disabled student's] then current placement, [the court] properly balance[s the student's] interest in receiving a free appropriate public education in accordance with the procedures and requirements of the [IDEA] against the interests of the state and local school officials in maintaining a safe learning environment for all their students." Honig ,
At the hearing, Plaintiffs requested that "AG be reinstated to his current placement at Success Academy and receive compensatory services for the unlawful suspension." The IHO ordered both. (Dkt. 7-4, at ECF 39-41.)
At the IHO hearing, Plaintiffs requested "special education instruction as a compensatory remedy and related services" as well as sought "to have the record of [AG's] suspension expunged because the suspension hearing that was held deprived [him] of due process." (Dkt. 7-4, at ECF 57-59.) The IHO ordered compensatory relief, but did not address the request that AG's record be expunged. (Id. )
This claim is only being applied to the February 24, 2017 suspension because the conduct that led to the September 12, 2017 suspension was found to be a manifestation of his disability, and therefore,
This claim is substantively identical to AG's Section 1983 due process claim, but subject to the IDEA's exhaustion requirement.
The Court acknowledges that this interpretation does not comport with the plain language of the IDEA-which seems to indicate permissive application of the normal disciplinary procedures-but the Court reads this provision in conjunction with the due process requirements established in Goss . Todd Cty. Sch. Dist. ,
After discovery, it may become apparent that Success Academy does not have an established disciplinary process for non-disabled students. (See February 28, 2018 Hearing Transcript, Dkt. 29, at 11:21-12:3, 12:23-14:7 ("[I]t appears that there's-that there's very limited circumstances in which long-term suspensions have been imposed by defendants other than on our client, and it's not clear what the criteria are. There's very little information in terms of guidelines or policies or anything that's provided to parents to indicate when those kinds of punitive measures will be-or not-will not be taken."); Pls.' Br., at 20 ("[W]hile Defendants have represented to the Court that they have implemented a suspension hearing process and are committed to using such procedures in the future with respect to AG as well as other students , at this stage there is no evidence that Defendants have instituted any such procedures.") (emphasis added).) However, at this stage, the Court does not consider Success Academy's potentially universal failure to be a defense to the IDEA's due process requirement suggested by the complaint and as discussed above.