MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
I. Introduction
This case requires the court to consider whether Title II of the Americans with
Defendants have moved to dismiss Plaintiffs’ claim, arguing'that Plaintiffs’, acquiescence to earlier administrative decision forecloses any separate claim under the ADA related to the appropriateness of the educational placement at SPDS. Separately, Defendants also argue (1) Plaintiffs failed to exhaust administrative remedies; (2) Plaintiffs’ claim is not subject to the ADA’s private right of action; and (3) the ADA does not permit claims against individuals, even when sued in their official capacity. The court first 'summarizes the relevant statutory background, then sets out the factual and procedural history of this case before proceeding to analyze the sufficiency of Plaintiffs’ claim under Title II of the ADA.
II. Statutory Background
A. IDEA
“Congress designed the IDEA as part of an effort to help states provide educational services to disabled children.” C.G. ex rel. A.S. v. Five Tom Cmty. Sch. Dist.,
The FAPE required by the IDEA is tailored to the needs of a disabled child through the creation and implementation of an “individualized educational program” (“IEP”). Bd of Educ. of Hendrick Hudson Central Sch. Dist. of West
B. ADA
“Title II [of the ADA] imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.” Toledo v. Sanchez,
Individuals who experience discrimination that violates Title II of the ADA are empowered by a private right of action to bring their own. discrimination suits and vindicate their rights. 42 U.S.C. § 12117; see also Parker v. Universidad de Puerto Rico,
“To state' a claim for a violation of Title II, a plaintiff must allege: (1) that he is a qualified individual with a'disability; (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) such exclusion, denial of benefits or discrimination was by reason of his disability.” Toledo,
For purposes of Title II, a person is a “qualified individual with a disability” if “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, [the person] meets the essential -eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). When, determining whether a person is a “qualified individual with a disability” with respect to an academic program, the First Circuit directs courts to consider whether the person “is able to meet all of a program’s requirements in spite of’ the person’s disability, Bercovitch v. Baldwin Sch., Inc.,
III. Legal Standard
A party moving to dismiss an action pursuant to Rule 12(b)(6) has the burden of demonstrating that the complaint lacks “sufficient factual matter” to state a claim for relief that is actionable as a matter of law and “plausible on its face.”, Ashcroft v. Iqbal,
IV. Plaintiffs’ Allegations
SPS operates both neighborhood schools and the SPDS.
S.S.has a mental health disability within the meaning of the ADA. (Id. ¶ 74;) He also is a student of average intelligence who enjoys drawing, cooking, and other non-academic tasks. (Id. ¶ 75.) He was transferred by SPS from a neighborhood school to the SPDS when he was in the fourth grade. (Id.- ¶ 77.) While attending the SPDS, S.S. was segregated from his non-disabled peers and “subjected to dangerous physical restraints, inappropriate forced isolation, suspensions, threatened arrests, and arrests for minor offenses such as swearing, talking out of turn, and getting out of his seat.” (Id. ¶ 80.) On at least one occasion, S.S. spent several consecutive school days isolated in a padded basement room. (Id.) If SPS made school-based behavior services available at its neighborhood school, S.S. could be safely and appropriately educated in one of SPS’s neighborhood schools. (Id. ¶ 79.)
"While only students with emotional disabilities are .enrolled at the SPDS, not all SPS students with mental health, disabilities attend the SPDS. (Id. at ¶ 63; Ruling 5-6.) SPS also provides programs for students with mental health disabilities in its neighborhood schools. (Ruling 3.) One program SPS offers is known as the Social Emotional Behavioral Supports (“SEBS”) program. During his eighth grade year, S.S.attended the SEBS program at a neighborhood middle school for a forty-five day trial. (Id. at 2.) At the end of the 45-day period, S.S. returned to the SPDS. dd.)
In addition to bringing this suit on behalf of S.S., Plaintiffs seek to bring this action on behalf of “[a]ll students with a mental health disability who are, or have been enrolled in [the SPDS] who are not being educated in an SPS neighborhood school.” (Am. Compl. ¶ 39.) Like S.S., the other members of the proposed plaintiff class, have endured similar treatment at the SPDS. (Id. ¶ :84.) These other students also could be educated alongside their non-disabled peers within neighborhood schools if SPS made reasonable accommo
V.Procedural History
A Request for Hearing with the BSEA was filed on behalf of S.S. and a class of similarly situated students on June 18, 2013, and an Amended Request was filed on July 22, 2013.
In a decision dated March 27, 2014, the IHO dismissed the ADA claims asserted by S.S., citing an absence of jurisdiction. (Id. ¶ 16.) As to S.S.’s IDEA claims, the IHO ruled the IEP SPS had provided to 5.5. was reasonably calculated to provide 5.5. with FAPE. Plaintiffs have not appealed the BSEA decision with respect to 5.5.’s IDEA claims. (Id. ¶ 19.) In reaching his decision, the IHO first determined that 5.5. could not’ have been provided FAPE within the constraints of the existing SEBS program he attended on a trial basis. (Ruling 7.)
Plaintiffs S.Y. and The Parent/Professional Advocacy League filed this suit on June 27, 2014, asserting only one claim: violation of the ADA. (Complaint ¶¶ 79-83, Dkt. No. 1.) The Disability Law Center was later added as a plaintiff. (Am. Compl. ¶ 23.) Defendants-filed their Motion to Dismiss in July of 2014. (Dkt. No. 33.) In December of 2014, Plaintiffs sought leave to file an amended complaint. (Dkt. No. 48.) The court granted leave and the amended complaint (hereinafter, simply “Complaint”) was filed in February of 2015. (Dkt. No. 55.) A hearing on the Motion to Dismiss was held on May 13, 2015.
VI.Jurisdiction
Plaintiffs have brought a single claim in which they allege violations of the ADA, a federal statute. This court therefore has subject matter jurisdiction in this case under 28 U.S.C. § 1331. Jurisdiction does not depend on Plaintiffs’ proper exhaustion of administrative remedies. “The requirement that plaintiffs exhaust administrative remedies under, the IDEA is not absolute.” Frazier,
VII.Analysis
A. ADA or IDEA
Much of the parties’ briefing in this case addresses Defendants’ argument that Plaintiffs’ ADA claim is not actually an ADA claim, but rather a disguised IDEA claim. Defendants’ rely on the opinion of Magistrate Judge Neiman in I.M. ex rel. C.C. v. Northampton Public Schools,
The plaintiffs in I.M. were parents, of a child with significant disabilities who had received special education services pursuant to an IEP. I.M.,
After analyzing the IDEA claim in detail, Judge Neiman ruled that the IEP had offered the student FAPE and that the implementation issues were largely the fault of the parents. Id., at 185. He then dismissed the ADA claim due to both the failure to exhaust and because plaintiffs had not adequately pled evidence of. “disability based animus.” Id. at 185, 188. At no point in his decision did Judge Neiman suggest that any ADA claim asserted by a student whose educational placements is set out in an IEP must be viewed instead as an IDEA claim. Id.,at 187. Instead, he specifically noted that plaintiffs are permitted to pursue claims under the ADA “even if such claims ’invoke either the substance or the implementation of the IDEA,” Id. (quoting Esposito,
Plaintiffs here, unlike those in I.M,, have not appealed the BSEA’s decision regarding the IDEA and have instead focused on the separate requirements of the ADA. Given the posture of this case, the court finds it unnecessary to further consider whether some aspects of the ADA claim may be similar to some aspects of a hypothetical IDEA claim Plaintiffs chose not to pursue. The court instead turns its attention to the question of whether Plaintiffs have sufficiently asserted a prima facie case under Title II of the ADA. See Toledo,
B. Exhaustion
Defendants have- argued that Plaintiffs claim is not properly before this court because-Plaintiffs were required to seek judicial review of the BSEA’s ruling on the IDEA claim in order to properly exhaust their ADA claim under the IDEA. To the extent Defendants’ exhaustion argument repackages their broader assertion that an ADA claim related to an educational placement cannot succeed unless the placement also violated the IDEA, the argument must fail at this stage because the protections offered by the two statutes are not coextensive. As to whether, as a purely procedural matter, the IDEA exhaustion requirement includes seeking judicial review of an IDEA decision, the First Cir
C. Prima Facie Case
The main area of contention between the parties with respect to whether Plaintiffs have asserted adequate facts to state a prima facie case rélates to Plaintiffs’ ability to establish the first element: S.S. is a qualified individual with a .disability. In order to state a claim under Title II," Plaintiffs must allege: (1) S.S. “is a qualified individual with a disability; (2).that he was either, excluded from participation in dr denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) such exclusion, denial of benefits or discrimination was by reason of his disability.” Toledo,
The parties agree that S.S. suffers from a mental health disability which causes him to be disabled for purposes of the Title II of the ADA. Where the parties diverge is whether S.S. is qualified to attend an SPS neighborhood school. The First Circuit advises that “if more than reasonable modifications are required of an institution -in order to accommodate an individual, then that individual is not qualified for the program.” Bercovitch,
There is a certain logic to Defendants’ assertion. By choosing not to appeal the BSEA decision on the IDEA claims, Plaintiffs have acquiesced to its ruling that S.S., even when placed in a segregated environment exclusively with other students with mental health disabilities, was provided with FAPE in the LRE and was not provided with FAPE when he was placed in a less restrictive program at a neighborhood school. From this, Defendants ask the court, to infer that a fundamental alteration of the programs offered by the neighborhood schools js necessary in order for S.S. to receive FAPE in an SPS neighborhood school and, therefore, S.S. is not a qualified disabled individual. While the substance of the BSEA ruling might suggest just such a conclusion and a fully' developed record" might require as much on a motion for summary judgment, the facts pled cannot justify such an inference at this stage. See Toledo, 454 F,3d at 32. The complaint clearly alleges that S.S. has not been provided with school-based behavioral services in á neighborhood school, and based on the way the school-based behavioral services are described in the complaint, the court can reasonably infer that, considered in the full context of the educational programs offered by SPS, the modifications required to offer the school-based behayioral services are reasonable, rather than substantial. Since
As to the second element, Plaintiffs assert S.S. was excluded from attending neighborhood schools and that his exclusion prevented him from (1) receiving academic instruction at the level provided to students attending neighborhood schools, (2) participating in the extracurricular activities offered at the neighborhood schools, and (3) receiving, safe and appropriate disciplinary interventions. Defendants take issue with the accuracy of many of Plaintiffs’ allegations, but since, at this stage, the court accepts as true the facts alleged in the complaint and draws all reasonable inferences in Plaintiffs’'favor we find they have adequately pled the second element. Finally, it is undisputed that the exclusion of S.S. from neighborhood schools occurred when he was enrolled at the SPDS. Since only students with mental health disabilities are enrolled at the SPDS, Plaintiffs have adequately pled that the exclusion of S.S. from the neighborhood schools was by reason of his disability. Cf. Olmstead v. L.C. ex rel. Zimring,
D. Private Right of Action
Relying on the First Circuit’s decision-in Iverson v. City ‘of Boston, Defendants’ argue that the court must dismiss Plaintiffs’ claim because their claim does not allege a direct violation of Title II and cannot, therefore, be enforced with the private right of action created by Title II.
Such is the case here. Plaintiffs have alleged that Defendants discriminated against S.S. in violation of Title II by placing S.S. in a segregated educational environment even though, had he been provided with reasonable accommodations, he could have been placed in a neighborhood school. In making their claim they refer to 28 C.F.R. § 35.130 because that regulation lists .activities which are discrimination under the statute. The language of the statute prohibits discrimination on the basis of disability and the regulation gives examples of what that prohibition means without creating a new category of obligations. The court therefore agrees with Plaintiffs and recognizes their claim is one to which the private right of action attaches.
Finally, Defendants argue the claim brought by Plaintiffs can be asserted only against a public entity and, therefore, the individual defendants who have been sued in their official capacities should be dismissed from this case. Defendants have cited no authority for this position other than the language of the statute, which refers to a “public entity.” Claims against individual defendants may well be permissible under the ADA. See Henrietta D v. Bloomberg,
VIII. Conclusion
For the Foregoing reasons, the court DENIES Defendants’ Motion to Dismiss as to the claims against Defendants City of Springfield and Springfield Public Schools and ALLOWS the motion as to the claims against Defendants Domenic Samo and Daniel J. Warwick.
It is So Ordered.
Notes
. Mayor Sarno and Superintendent Warwick are sued only in their official capacities.
. Though Massachusetts passed legislation designed to ensure the "maximum possible development” of disabled children prior to the passage of the IDEA, the state subsequently amended its statute to conform with the federal standards for FAPE. See 2000 Mass. Acts ch. 159.
. Both parents and school districts can make a complaint related to the provision of FAPE to a child. 20 U.S.C. § 1415(b)(6).
. After the Supreme Court ruled the predecessor statute to the IDEA was the sole remedy available in cases brought by disabled students seeking special educational services, Congress amended the IDEA to clarify its intention that children with disabilities continued to be protected by federal laws that predated the IDEA and to require exhaustion of the IDEA'S administrative remedies prior to filing suit under another provision of federal law. Diaz-Fonseca v. Puerto Rico,
. Defendants object to Plaintiffs’ use of the singular Public Day School to refer to a group of three programs, existing on three separate campuses, and considered, at least for some purposes, to be separate schools. At this stage ..in the litigation, the court finds no need to distinguish among the programs and so uses the singular to refer collectively to the elementary, middle, and high school Public Day School programs. The court’s choice of terms to refer to the Public Day School programs does not reflect a formal determination that they comprise a single school. The court leaves the determination of whether there are three Springfield Public Day Schools or only one until such time as a relevant legal analysis requires a decision.
. In addition to relying on the allegations contained in Plaintiffs’ complaint, the court relies on the findings made by the IHO. Plaintiffs were required to obtain the BSEA decision prior to filing suit and have elected not to ■ appeal it. Consistent with the purposes behind the exhaustion requirement, the court therefore finds that consideration of information contained in the BSEA decision is appropriate at this stage. See Frazier,
. The court notes that the BSEA ruling lists the filing dates as June 20, 2013 and July 24, 2013, á two-day discrepancy from the dates listed in the Complaint. (Ruling 2, Dkt. No, 34-1.)
. In addition, S.S, asserted a claim under Section 504 of the Rehabilitation Act of 1973 ("Section 504"), codified at 29 U.S.C. § 794. (First Am. Compl. ¶ 18, Dkt. 55.),
, As the entity tasked with promulgating regulations implementing the ADA, the DOJ’s position with respect to the meaning and scope of the statute and its regulations is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,