Pamela K. Chen, United States District Judge.
Plaintiffs Kim Patrick and her son, AG, bring this action against Defendants, pursuant to 42 U.S.C. § 1983 ("§ 1983" or "Section 1983"), the Individuals with Disabilities Education Act ("IDEA"), the Americans with Disabilities Act of 1990 ("ADA"), and Section 504 of the Rehabilitation Act of 1973 ("Rehab Act" or "Rehabilitation Act"), in connection with Defendants Success Academy Charter Schools, Inc.'s and Success Academy Prospect Heights's (collectively, "Success Academy" or the "Success Academy Defendants") disciplinary procedures and use of emergency medical services. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part
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), 2017 WL 6557478, at *1-3 & n.5 (E.D.N.Y. Dec. 22, 2017) (discussing AG's suspensions). It appears that he is currently in first grade for the third time. (Compl., at ¶ 55; Defs.' Br., at 3 (noting that AG is still in first grade as of August 2018).)
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 paraprofessional. (Id. at ¶ 57.)
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," 20 U.S.C. § 1415(k)(2). The IDEA provides that a student with a disability generally remains in his educational placement after he is suspended until an MDR is conducted. 20 U.S.C. § 1415(j). However, "school personnel may ... order a change in placement for a child with a disability who violates a code of student conduct." Id. § 1415(k)(1)(A). If the suspension is for "not more than 10 school days," a school may suspend a disabled student from their current placement and remove the student "to an appropriate [IAES], another setting, or suspension[,] ... []to the extent such alternatives are applied to children without disabilities[]." Id.; see Farrin v. Me. Sch. Admin. Dist. No. 59, 165 F.Supp.2d 37, 41 (D. Me. 2001). But, "school officials [who] unilaterally (i.e., without the parent's consent) remove a disabled child for more than ten days" must provide the child with an IAES "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." Todd Cty. Sch. Dist., 625 F.3d at 463 (quoting 20 U.S.C. § 1415(k)(1)(D)(i)); Farrin, 165 F.Supp.2d at 41-43 ("[A]s of the eleventh day of suspension (i.e. the change of placement), the school must provide the child with an alternative educational setting."). According to Plaintiffs, AG's supposed IAES began on March 2, 2017 (Pls.' Br., at 6 n.3)— four school days after the February 24 incident—and consisted of only two hours per day of general education in a public library with an unlicensed teacher and no special education services (Compl., at ¶ 88).
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"). 20 U.S.C. § 1415(k)(3)(A). After the hearing, an IHO may either "(I) return a child with a disability to the placement from which the child was removed" or "(II) order a change in placement to an appropriate [IAES] for not more than 45 school days if the hearing officer determines that maintaining the current placement of [the] child is substantially likely to result in injury to the child or to others." 20 U.S.C. § 1415(k)(3)(B)(ii). "That decision can then be appealed to a state review officer [("SRO")] of the New York Education Department." Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) ("New York has opted for a two-tier administrative system for review of IEPs. First, an impartial hearing officer is selected ... to conduct the initial hearing and issue a written decision. That decision can then be appealed to a[n] [SRO] of the New York Education Department."). "[T]he child shall remain in the interim alternative educational setting pending the decision of the hearing officer." 20 U.S.C. § 1415(k)(4)(A).
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.)
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 paraprofessional 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.); 20 U.S.C. § 1415(k)(4)(B) ("[T]he 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 ten school days after the hearing.").
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." 20 U.S.C. § 1415(k)(1)(G) (emphasis added).
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, N.Y. Educ. Law § 3214—to change AG to a classroom with fewer students, which is not offered at Success Academy. According to Plaintiffs, Success Academy employees "expressly stated that they did not want AG to remain at the school." (Compl., at ¶¶ 130-31.) That same day, when Gavin went to pick up AG from school, Success Academy employees "told [Gavin] that AG would not be allowed back to school" because they "had found a bedbug on AG's clothing and he would be barred from attending school until AG's parents had their home inspected and, if necessary[,] treated, by an exterminator at their own expense and provided proof of such." (Id. at ¶ 132.) A professional inspection of Plaintiffs' home "showed no sign" of bedbugs. (Id. at ¶ 133.) Five days later, Plaintiffs filed the instant action.
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, 2017 WL 6557478, at *1-6 & n.7. Following a pre-motion conference on April 24, 2018, Plaintiffs withdrew their remaining state law claims. (Dkt. 33.) Defendants' motion to dismiss as to the remaining claims was fully briefed on August 13, 2018. (Dkt. 41.)
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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The "plausibility standard is not akin to a `probability requirement,' but
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, 2017 WL 6557478, at *3, and the current stage of this action. Moreover, both parties have given short shrift to the novel and complex constitutional and statutory claims at issue here, which has necessitated the Court's independent identification and review of a multitude of school disciplinary due process cases.
For the reasons stated herein, the Court dismisses Plaintiffs' claims against the four individual Defendants.
The Court construes Plaintiffs' complaint as alleging that Defendant de Jongh violated AG's Fourteenth Amendment due process rights
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." S.C. v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-1672 (CS), 2012 WL 2940020, at *9 (S.D.N.Y. July 18,
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, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ("[A] biased decisionmaker [is] constitutionally unacceptable [and] `our system of law has always endeavored to prevent even the probability of unfairness.'") (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 S.Ct. 942 (1955)). There is a presumption "that administrators are honest and impartial, and therefore capable of judging a particular controversy fairly on the basis of its own circumstances. The presumption is a rebuttable one, but the burden of rebuttal is heavy indeed: To carry that burden, the party claiming bias must lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable." Hess v. Bd. of Trs., 839 F.3d 668, 675 (7th Cir. 2016) (citations and internal quotation marks omitted); see also Doe v. Cummins, 662 F. App'x 437, 449-50 (6th Cir. 2016) (collecting cases). "Actual bias could be `personal animosity, illegal prejudice, or a personal or financial stake in the outcome.' To survive a motion to dismiss, [a plaintiff] needs to allege specific, non-conclusory facts that if taken as true show actual bias." Doe v. Ohio State Univ., 219 F.Supp.3d 645, 656 (S.D. Ohio 2016) (quoting Ikpeazu v. Univ. of Neb., 775 F.2d 250, 254 (8th Cir. 1985)); Duke v. N. Tex. State Univ., 469 F.2d 829, 834 (5th Cir. 1972) ("Alleged prejudice of [school] hearing bodies must be based on more than mere speculation and tenuous inferences."). Plaintiffs have made no such allegations here. See DeFabio v. E. Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 492 (E.D.N.Y. 2009) (concluding that, where plaintiffs provided "no evidence to support [their] conclusory assertion of bias[,].... [their] subjective belief that the decision-makers were not sufficiently open-minded about their position [was] insufficient to create an issue of fact on a procedural due process claim"), aff'd, 623 F.3d 71 (2d Cir. 2010). Additionally, even if de Jongh had displayed bias, Plaintiffs "[were] able to (and did) appeal that administrator's decision [suspending AG] to another adjudicative body[, as alleged in Plaintiffs' complaint,]... and there is no contention that any of the latter individuals was biased against [AG]." Hess, 839 F.3d at 677 (rejecting procedural due process claim where, inter alia, the allegedly biased decision was affirmed on appeal and there was no allegation of bias against the appellate authority).
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, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citation and internal quotation marks omitted). In this circuit, "a right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003)); see also White v. Pauly, ___ U.S. ____, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) ("[I]t is ... necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality. As this Court explained decades ago, the clearly established law must be particularized to the facts of the case.") (per curiam) (citations and internal quotation marks omitted). The parties have not put forth, and the Court has not identified, any Supreme Court or Second Circuit case law recognizing a procedural due process right to a transcript or sworn testimony in connection with a school suspension hearing, or establishing the burden of proof in such a hearing. See Rubino v. Saddlemire, No. 3:05-CV-1955 (PCD), 2007 WL 685183, at *8 (D. Conn. Mar. 1, 2007) (noting that "the Second Circuit has not specifically addressed the issue of the sufficiency of the evidence in school disciplinary proceedings").
Accordingly, all claims against Defendant de Jongh are dismissed.
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), 2010 WL 3910578, at *12 (S.D.N.Y. Sept. 30, 2010) (emphasis in original) (collecting cases); see also Heyne v. Metropolitan Nashville Public Schools, 655 F.3d 556, 569-70 (6th Cir. 2011) ("Any greater process provided by a state, such as review by a school board, is completely gratuitous. Any such additional procedural protections are not required by due process nor do they give rise to any due process rights.") (citations and internal quotation marks omitted) (collecting cases); Brewer ex rel.
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.
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, 752 F.3d at 230, "liability will not attach to a defendant who merely seeks police [or medical] assistance or furnishes information to law enforcement [or medical] authorities who are then free to exercise their own judgment as to whether [a seizure] should be made," Camac, 2011 WL 3030345, at *8 (citation and internal quotation marks omitted); see also Defalco v. MTA Bus Co., 333 F.Supp.3d 191 (E.D.N.Y. 2018) (collecting cases).
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. 2011 WL 3030345, at *8. However, in that case, the plaintiff alleged that the defendant-school administrators had "intentionally contacted the police and provided false information that would cause the police to confine [the student]." Id. Judge Hurley determined that a question of fact existed as to whether knowingly providing false information to the police rose to the level of instigating or procuring an arrest. Id. Here, Plaintiffs do not allege that Defendant Solomon, or any of the other Success Academy staff members, provided false information to EMS. In fact, Plaintiffs do not dispute that AG engaged in the "tantruming behavior" for which Success Academy staff members called EMS; instead, in conclusory fashion, they merely state that the behavior was not a medical emergency. (See Compl., at ¶¶ 64, 68, 71, 91, 93, 102.)
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. 11 F.Supp.3d 376, 379 (E.D.N.Y. 2014). Although the Honorable Margo K. Brodie allowed an unreasonable seizure claim against the non-EMS defendants to proceed, the defendants in that case physically prevented the plaintiff from leaving the room once they had called EMS by blocking the exit and refusing the plaintiff's requests to leave the psychologist's office. Id. Here, there is no indication that AG was physically restrained, or that Plaintiff Patrick, once she arrived at Success Academy, was prevented from taking custody of her child. (See Compl., at ¶¶ 64, 68, 94, 102.)
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).
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), 2017 WL 881850, at *3 (W.D.N.Y. Mar. 2, 2017) (finding that the parent-plaintiff "lack[ed] standing to bring the asserted § 1983 claims based solely on the deprivation of the constitutional rights of [her] son") (collecting cases); see also Jarmon v. Batory, No. 94-CV-0284 (HJH), 1994 WL 313063, at *5 (E.D. Pa. June 29, 1994) (finding that the parents of expelled student lacked standing to bring their own due process claim where they failed to allege that "any right personal to them was violated by the defendants ... [and] their claims [were] wholly derivative of [the child's] claims based on her suspension and subsequent expulsion"); Boster v. Philpot, 645 F.Supp. 798, 807 (D. Kan. 1986) ("[W]hen a student is suspended, it is the student who is entitled to due process because it is the student—not [his] parents—who has a right to a free public education.") (emphasis in original). However, Patrick may bring due process claims on behalf of her minor son. Marino v. Chester Union Free Sch. Dist., 859 F.Supp.2d 566, 568 (S.D.N.Y. 2012) ("[W]here minor children are the real parties in interest, parents appropriately bring litigation on their children's behalf.") (collecting cases). Additionally, Patrick has standing to bring claims in her individual capacity under the IDEA, see generally Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007),
AG
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, 995 F.Supp.2d 215, 228 (E.D.N.Y. 2014); see also Horton, 2017 WL 1437186, at *5 ("In certain situations where the alleged violations are systemic, and not isolated and random, the availability of an Article 78 proceeding does not bar a procedural due process claim."); Pierre v. N.Y.C. Taxi & Limousine Comm'n, No. 17-CV-973 (MKB), 2017 WL 1417257, at *3 (E.D.N.Y. Apr. 19, 2017) (collecting cases). "[T]he existence of independent state relief does not defeat a Section 1983 claim where the deprivation complained of results from the operation of established state procedures." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990); see also Reid v. City of N.Y., 212 F. App'x 10, 11 (2d Cir. 2006) (same). For example, in Ferrari v. Cty. of Suffolk, the Honorable Joanna Seybert, in partially denying the defendant's motion to dismiss, found that the plaintiff had sufficiently pleaded a systematic violation where he alleged that the defendant-county "knowingly train[ed] and/or deliberately permit[ted], the hearing officers who preside[d] over [the relevant] hearings to deliberately and systematically refuse to comport with the requirements of Due Process." 790 F.Supp.2d 34, 45 (E.D.N.Y. 2011). Later in the case, Judge Seybert partially denied summary judgment finding that, inter alia, "[b]ecause the deprivation here is allegedly systemic, and not random, the availability of an Article 78 proceeding does not bar Plaintiff's claim." Ferrari v. Cty. of Suffolk, No. 10-CV-4218 (JS)(GRB), 2013 WL 4017022, at *8 (E.D.N.Y. Aug. 6, 2013), rev'd and remanded on other grounds, 845 F.3d 46 (2d Cir. 2016), as amended (Jan. 4, 2017); see Reyes, 995 F.Supp.2d at 228 (discussing Ferrari).
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.
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, 31 F.3d 1191, 1194 (2d Cir. 1994) (emphasis and citation omitted); see also Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016), as amended (Feb. 24, 2016). The Second Circuit has held that "while there is no federal constitutional right to an education, New York State's education laws `create a property interest in education protected by the Fourteenth Amendment.'" Irwin, 2017 WL 881850, at *4 (quoting Handberry v. Thompson, 446 F.3d 335, 353 (2d Cir. 2006)); see also S.C., 2012 WL 2940020, at *6. As such, a student such as AG "has a protected property interest in his education, meaning that he could not have been deprived of that right without due process of law." Horton, 2017 WL 1437186, at *3; see also C.T. v. Valley Stream Union Free Sch. Dist., 201 F.Supp.3d 307, 317-18 (E.D.N.Y. 2016) (same).
Id. at 576, 579 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 S.Ct. 873 (1954)).
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?
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, 2017 WL 6557478, at *4 ("Because AG is a disabled student, he is placed into [alternative instruction] while he is suspended, rather than being subjected to `total exclusion from the educational process' as a non-disabled student might be.") (quoting Goss, 419 U.S. at 576, 95 S.Ct. 729).
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]." Id. (quoting Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205-06 (2d Cir. 2007)). But, as this Court noted in its prior decision in this case, "[t]his does not address ... the question of whether children—disabled or not—have such a right under the Fourteenth Amendment." Id. (emphasis in original).
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." 419 U.S. at 576, 95 S.Ct. 729 (quoting Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)).
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, 655 F.3d at 567, the Court adopts the third standard: that placement in alternative education does not deprive a student of a property interest unless the education the student received was materially inferior. Although courts have found that state law does not entitle students to "the best possible education attainable, nor to instruction administered under ideal conditions, nor to academic opportunities which conform[] to any self-acclaimed expert's subjective ideal vision of a perfect education," Wayne v. Shadowen, 15 F. App'x 271, 285 (6th Cir. 2001) (emphasis omitted); Saggio, 475 F.Supp.2d at 210, in this case, AG alleges that the alternative education provided to him during both of his long-term suspensions was inferior.
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.
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, 419 U.S. at 577, 95 S.Ct. 729. "In all cases[,] the inquiry is whether, under the particular circumstances presented, the hearing was fair, and accorded the individual the essential elements of due process." Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (noting that "[t]he question presented is not whether the hearing was ideal, or whether its procedure could have been better"). Courts have applied three different tests to determine what minimum amount of process is required in the case of a long-term suspension. These tests are based on the following three cases: Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961), Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
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." 294 F.2d at 158-59.
The Second Circuit has not established which test to utilize in a school suspension case. Rubino, 2007 WL 685183, at *8.
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, 682 F.2d 595, 602 n.9 (6th Cir. 1982). In other words, the MDR provisions of the IDEA do not satisfy the minimum requirements of due process. As noted above, the IDEA requires that an MDR hearing must be held within 10 school days of the alleged incident to determine whether or not the alleged conduct was a manifestation of the student's disability. The findings of the MDR are subject to appeal, and the State or local educational agency has 20 school days to hold an expedited hearing on the appeal and then another 10 school days within which to issue a decision. 20 U.S.C. § 1415(k)(4). As a result, the entire IDEA process can take up to 40 school days. Thus, while Goss entitles a non-disabled student who "poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process" to notice and a suspension hearing "as soon as practicable" after a suspension has been ordered, 419 U.S. at 582-83, 95 S.Ct. 729; see also O'Neal v. Alamo Cmty. Coll. Dist., No. 08-CA-1031 (XR), 2010 WL 376602, at *10 (W.D. Tex. Jan. 27, 2010), the IDEA, in effect, permits a decision to be rendered on AG's long-term suspensions as late as 40 school days after the suspensions are imposed, which cannot be deemed "as soon as practicable." See Goss, 419 U.S. at 582-83, 95 S.Ct. 729.
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." 419 U.S. at 581, 95 S.Ct. 729; Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 624 (5th Cir. 2004) ("[O]ne of the primary purposes of [disciplinary] hearings is that of confirming whether the student threatened with expulsion actually committed the conduct for which he is being punished."). By contrast, "[t]he manifestation determination team typically does not determine the facts of the incident for which an eligible student is subject to discipline." Bristol Twp. Sch. Dist.v. Z.B., No. 15-CV-4604 (SRD), 2016 WL 161600, at *4 (E.D. Pa. Jan. 14, 2016); see also Danny K. ex rel. Luana K. v. Dep't of Educ., No. 11-CV-25 (ACK), 2011 WL 4527387, at *12 & n.20 (D. Haw. Sept. 27, 2011) ("Plaintiffs cite no authority, and the Court has found none, to suggest that a manifestation determination team must review the merits of a school's findings as to how a student violated the code of student conduct.... [T]he IDEA was not intended to provide disabled students an additional avenue with which to challenge a school's underlying findings of misconduct."). But see Farrin, 165 F.Supp.2d at 42 (finding that the "functional difference" between the IDEA suspension provisions and "generally applicable school [disciplinary] rules" is "largely semantic... due to the procedural protections in place for children with disabilities who are removed from school for more than ten days"). "[S]tudents in our public school systems, who may ... face a daunting
Therefore, the Court finds that AG has stated a due process claim with respect to his first long-term suspension, on February 24, 2017.
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.
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, 837 F.2d at 15; see also Flaim, 418 F.3d at 635-36 ("While due process
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, 839 F.3d at 677 (holding that the procedural safeguards given to the plaintiff were "constitutionally adequate" even though there was no verbatim transcript or hearing summary); Jahn v. Farnsworth, 617 F. App'x 453, 461 (6th Cir. 2015) (same).
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, 2016 WL 4570755, at *6 (rejecting due process claim based on incomplete record of disciplinary proceeding) (emphasis omitted); see also Doe, 1998 WL 344061, at *4 (finding that plaintiff was not entitled to "specific findings of fact" and that "an abbreviated form of the hearing summary derived from the superintendent's expulsion proceedings" was sufficient to satisfy due process) (internal quotation marks omitted); McDonald ex rel. McDonald v. Sweetman, No. 3:02-CV-1040 (MRK), 2004 WL 717166, at *4 (D. Conn. Mar. 24, 2004) ("[Plaintiff] was given oral notice of the charges against her, an opportunity to
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, 418 F.3d at 635-36 (citations omitted) (collecting cases); Sykes v. Sweeney, 638 F.Supp. 274, 279 (E.D. Mo. 1986) (finding meritless plaintiff's argument that "the school board hearing procedures were flawed because the witnesses were not sworn nor were the formal rules of evidence followed"). AG has not cited any cases to the contrary. Therefore, Defendants' motion to dismiss is granted as to AG's claim that he was deprived of due process based on Defendants' failure to place witnesses under oath at the September 12, 2017 suspension hearing.
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, 435 F.Supp. at 468; Eley v. Morris, 390 F.Supp. 913, 924 n.4 (N.D. Ga. 1975) (finding that the purpose of a Goss-type hearing is to alert the disciplinarian "to the existence of disputes about facts and arguments about cause and effect," including by "summon[ing] the accuser" so "his discretion will be more informed and ... the risk of error substantially reduced"). Here, the entire disciplinary hearing centered on credibility; yet (1) the only person (other than AG) who witnessed the incident—the para-professional—did not testify, (2) neither Principal Solomon nor AG's teacher "[saw] the para[-professional] in extreme pain or ... observ[ed] any injury,"
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.
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, 323 F.Supp.3d at 366 (quoting Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir. 2002)).
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., 288 F.3d 478, 481 (2d Cir. 2002). Plaintiffs argue that, under the Supreme Court's decision in Fry v. Napoleon Community Schools, ___ U.S. ___, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017), the IDEA exhaustion requirement does not apply to their ADA/Rehab Act claims.
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. 20 U.S.C. § 1415(l). In Fry, the Supreme Court clarified the nature of this requirement: "[T]o meet [20 U.S.C. § 1415(l)], a suit must seek relief for the denial of a FAPE [free appropriate public education], because that is the only relief the IDEA makes available." 137 S.Ct. at 752 (internal quotation marks omitted). The test outlined in Fry for when a claimant must exhaust the IDEA's administrative remedies asks whether "the gravamen of a complaint against a school concerns the denial of a FAPE." Id. at 756. If so, plaintiffs must exhaust the IDEA's administrative remedies. Id. However, where the gravamen of a plaintiff's suit is something other than a FAPE, such as "disability-based discrimination," the exhaustion requirement is inapplicable. Id. The Court in Fry gave some guidance for determining
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:
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), 2018 WL 4054872, at *5 (E.D.N.Y. Aug. 24, 2018). In applying Fry, Judge Garaufis first took notice of the fact that the plaintiff's complaint explicitly alleged that defendants had violated the IDEA by failing to provide plaintiff with a FAPE. Id. Next, Judge Garaufis considered the two questions posed in Fry, answering each in the negative: "As to the first question, the right that [d]efendants are said to have violated is specifically based on [plaintiff's] status as a student to whom special-education services are owed. As to the second question, the DOE does not have an obligation to provide special-education services to adult employees or visitors—just students." Id. Judge Garaufis concluded that the ADA/Rehab Act claims were subject to the exhaustion requirement and dismissed them for failure to exhaust. Id.
The second case, Lawton v. Success Academy Charter Schools, Inc., involved
Id.
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., 877 F.3d 979, 986 (11th Cir. 2017) (holding, post-Fry, allegations that a disabled student was repeatedly removed from class could not be analyzed simply as a FAPE violation but were "cognizable as a separate [ADA/Rehab Act] claim for intentional discrimination"). The allegations in Plaintiffs' complaint, like those in Lawton, "touch on" the denial of a FAPE and invoke the language of the IDEA. (See, e.g., Compl. at ¶¶ 163, 170 ("Defendants, in failing to reasonably accommodate AG's disabilities by failing to provide him with an appropriate education, have discriminated against AG on the basis of his disability.") (emphasis added)); see Martinez, 2018 WL 4054872, at *5. However, as was also the case in Lawton, Plaintiffs' ADA/Rehab Act claims primarily concern allegedly discriminatory suspension processes and the allegedly retaliatory calling of EMS or threats to do so. (Compl., at ¶ 172.) Plaintiffs additionally allege that Defendants ultimately prevented AG from returning to school at the end of the first semester of the 2017-2018 school year based on the false accusation that AG had "a bedbug" on his clothing. (Id. at ¶¶ 132-33.)
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, 323 F.Supp.3d at 362; Fry, 137 S.Ct. at 756. Thus, the Court finds that the gravamen of Plaintiffs' ADA/Rehab Act claims does not concern the denial of a FAPE and that AG's ADA/Rehab Act claims are not subject to the IDEA exhaustion requirement.
In light of this Court's holding that Plaintiffs' ADA/Rehab Act claims are not
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.
"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., 777 F.Supp.2d 577, 599 (S.D.N.Y. 2011) (citing 20 U.S.C. §§ 1400(d)(1)(A), 1401(8), 1411(a)(1) & 1412(a)(5)(A)), on reconsideration sub nom. DC v. Valley Cent. Sch. Dist., No. 7:09-CV-9036 (WWE), 2011 WL 3480389 (S.D.N.Y. June 29, 2011). To enforce rights "relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education," the IDEA also provides for a federal cause of action "in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy." 20 U.S.C. §§ 1415(b)(6)(A) & (i)(2). But before bringing a federal action for an IDEA violation, there is "a broadly applicable requirement that plaintiffs first exhaust administrative remedies." Polera, 288 F.3d at 483. "A plaintiff's failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction." Id.
However, "the exhaustion requirement does not apply in situations in which exhaustion would be futile." Coleman, 503 F.3d at 204-05 (citation and internal quotation marks omitted). "To show futility, a plaintiff must demonstrate that `adequate remedies are not reasonably available' or that `the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process.'" Id. at 205 (quoting J.G. ex rel. Mrs. G. v. Bd. of Educ., 830 F.2d 444, 447 (2d Cir. 1987)). The burden of demonstrating futility "rests with the party seeking to avoid the exhaustion requirement." Id.
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.
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.)
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.
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:
(Id. at ECF 40 (citing 20 U.S.C. § 1415(k)(7)(D)).) Neither party appealed this decision to the SRO. (Compl., at ¶ 86.)
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., 313 F.3d 768, 789 (2d Cir. 2002) (quoting Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987)); see also Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992) (holding that "it would be an exercise in futility to require [plaintiff] to exhaust the state administrative remedies" where plaintiff challenged a state administrative procedure, and the hearing officer would not have had the authority to alter the procedure). Because the IHO held the claims based on Defendants' alleged misuse of the "serious bodily injury" exception were beyond the scope of the IDEA hearings, further exhaustion through those processes would have been futile. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Cir. 2004) (plaintiffs' problem could not have been remedied where the nature of the complaint was incapable of correction by the hearing process).
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. 20 U.S.C. § 1415(k)(4)(A). Under the "serious bodily injury" exception, the student may be removed to an IAES for up to 45 school days, regardless of whether the behavior is determined to be a manifestation of the child's disability or not. 20 U.S.C. § 1415(k)(1)(G)(iii). Plaintiffs claim that Defendants abused the "serious bodily injury" provision so that they could justify removing AG from Success Academy during the IDEA hearing process. (Compl., at ¶¶ 140, 144, 153.) Defendants' only response is that AG, in fact, inflicted serious bodily injury and, thus, Success Academy could not have been abusing the exception, given that AG's removals were justified. (Defs.' Br., at 4-6.)
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." 109 F.Supp.2d 1284, 1287, 1290-91 (D. Colo. 2000) (citation and internal quotation marks omitted). The District of Colorado found that the plaintiffs had failed to state a cause of action, holding that "[a]lthough the IDEA does allow for administrative and judicial review of school decisions and civil enforcement actions to enforce its provisions, the statute does not address misuse of the IEP process. The IDEA specifies what an IEP team must accomplish, but does not limit the IEP in the scope of their discussions or decisions." Id. at 1291 (citation omitted).
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." Id.
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.
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. 137 S.Ct. at 756. Plaintiffs argue that the "crux" of their complaint is "Defendants' imposition of long-term suspensions without adequate due-process safeguards, not the denial of a [FAPE]." (Pls' Br., at 10-13.) However, the claim that the alternate education provided by Defendants was inadequate is quite squarely a claim concerning "the denial of a FAPE." Fry, 137 S.Ct. at 756. Thus, even assuming that the reasoning of Fry extends to claims brought pursuant to the IDEA directly, claims regarding the adequacy of the IAES are still subject to exhaustion.
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.
Plaintiffs' request for an IHO hearing following the suspension arising from the February 24, 2017 incident contains as a
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:
(Id. at ECF 58-59 (citing Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005)).).
Once again, Plaintiffs had no obligation, for the purposes of exhaustion, to further appeal this favorable decision. See 20 U.S.C. § 1415(g); see also Quackenbush., 716 F.2d at 147.
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.
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
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." 20 U.S.C. § 1415(k)(1)(C); see also D.W. ex rel. Williams v. Chesterfield Cty. Sch., No. 3:17-CV-679 (MHL), 2018 WL 3098121, at *7 (E.D. Va. June 5, 2018), report and recommendation adopted, No. 3:17-CV-679 (MHL), 2018 WL 3097017 (E.D. Va. June 22, 2018).
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., 99 F.Supp.2d at 415-16 (exhaustion "pointless" where plaintiff prevailed at the impartial hearing, even where "she did not
Thus, even assuming exhaustion is required, Plaintiffs' statutory due process claim has satisfied the IDEA's exhaustion requirement under the futility doctrine.
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 20 U.S.C. § 1415(k)(1)(C) is mandatory, and, therefore, provides the basis for a cause of action under the IDEA. However, in Doe ex rel. Doe v. Todd County School District, the Eighth Circuit held that after it was determined that the child's misconduct was not a manifestation of his disability,
625 F.3d 459, 463-64 (8th Cir. 2010) (quoting 20 U.S.C. § 1415(k)(1)(C)). Additionally, the Fifth Circuit held that "under the [Education for All Handicapped Children Act of 1975, the IDEA's predecessor,] or the Fourteenth Amendment, school officials were required to provide [the child] with notice and a hearing regarding his continued exclusion from school." Jackson v. Franklin Cty. Sch. Bd., 806 F.2d 623, 631 (5th Cir. 1986); see also C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., No. 4:14-CV-1042(A) (JM), 2015 WL 2443835, at *6 (N.D. Tex. May 21, 2015) (holding that the relevant inquiry "is whether the disciplinary procedures were applied to plaintiff by the District in the same way that such procedures would have been applied to any other student within the District" and stating that "the relevant disciplinary procedures applicable to children without disabilities are applied to the child in the same manner and for the same duration") (emphasis added), aff'd, 653 F. App'x 808 (5th Cir. 2016); Ocean Twp. Bd. of Educ. v. E.R. ex rel. O.R., No. 13-CV-1436 (AET), 2014 WL 936738, at *3 (D.N.J. Mar. 10, 2014) (discussing the Seventh Circuit's decision in Bd. of Educ. v. Ill. State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996), which "suggested" that where the child's behavior was not caused by his or her disability, "the disciplinary measures of the school[] were warranted"); Dohmen ex rel. Dohmen v. Twin Rivers Pub. Sch., 207 F.Supp.2d 972, 979 (D. Neb. 2002) ("[T]he facts alleged would also support a claim that the school district violated the IDEA because the disciplinary procedures of [Nebraska state law] authorizing the expulsion of a student for possessing a weapon or endangering other students[] were not applied to [plaintiff] in the same manner in which they [were]
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." 20 U.S.C. § 1415(k)(1)(C).
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:
SO ORDERED.
The procedures required by this section shall include the following:
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.
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 — 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
1) Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011) ("A student's transfer to an alternative education program [for 45 school days] does not deny access to public education and therefore does not violate a Fourteenth Amendment interest.").
2) Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394 (5th Cir. 2011) ("This court has consistently held that a student who is removed from her regular public school, but is given access to an alternative education program, has not been denied her entitlement to public education.") (collecting cases).
3) Langley v. Monroe Cty. Sch. Dist., 264 F. App'x 366, 368 (5th Cir. 2008) ("However misguided the school district's actions may have been, [appellant's] appeal must fail.... [W]e have previously held that a student's transfer to an alternative school for disciplinary reasons implicates no constitutionally-protected property interest.").
4) Wayne v. Shadowen, 15 F. App'x 271, 290 (6th Cir. 2001) (finding no deprivation of property interest where the student was placed in a special correctional classroom because he "would have received all of the basic fundamentals of a proper and an adequate education while in the [alternative education] [p]rogram[,] with the added benefit of a monitored, disciplined environment which would have been more suitable than the traditional classroom to the individual instructional needs of this recalcitrant recidivist serious offender") (internal quotation marks omitted).
5) Esparza v. Bd. of Trs., 182 F.3d 915, 915 (5th Cir. 1999) (finding plaintiffs given a one-week in-school suspension were "not being deprived of their access to public education, because they are not being excluded or suspended from attending classes[;] [r]ather, they are only being transferred from one school program to another program with stricter discipline") (citation and internal quotation marks omitted).
6) Sanchez v. Friendswood Indep. Sch. Dist., 134 F.3d 367, 367 (5th Cir. 1997) (per curiam) ("The school district did not violate [the student's] substantive or procedural due process rights by transferring him to an alternative learning environment for disciplinary reasons.").
7) Nevares v. San Marcos Consol. Independent School Dist., 111 F.3d 25, 26-27 (5th Cir. 1997) ("[Appellant] is not being denied access to public education, not even temporarily.... A transfer to a different school for disciplinary reasons has also been held not to support the court's jurisdiction on constitutional grounds.... And because the United States Constitution has not been offended in the present dispute, we retire from it.").
8) DeCossas v. St. Tammany Par. Sch. Bd., No. 16-CV-3786 (NJB), 2017 WL 3971248, at *12-13, 22 (E.D. La. Sept. 8, 2017) ("Movants have pointed to evidence that [plaintiff] was provided
9) CLM ex rel. McNeil v. Sherwood Sch. Dist. 88J, No. 3:15-CV-1098 (SB), 2016 WL 8944450, at *12 (D. Or. Dec. 30, 2016) (finding plaintiff was not deprived of a property interest, inter alia, where "alternate forms of education would be made available to [plaintiff]"), report and recommendation adopted, No. 3:15-CV-1098 (SB), 2017 WL 2129301 (D. Or. May 16, 2017).
10) I.U. ex rel. Roy v. Pioneer Valley Chinese Immersion Charter Sch., No. 14-CV-12709 (MAP), 2016 WL 8679257, at *8 (D. Mass. June 10, 2016), (stating that "[n]umerous other federal courts also have declined to find a constitutionally protected property interest when a student is subjected to an in-school suspension that includes assigned school work") (collecting cases), report and recommendation adopted sub nom. I.U. v. Pioneer Valley Chinese Immersion Charter Sch., No. 14-CV-12709 (MAP), 2016 WL 4792182 (D. Mass. Sept. 14, 2016).
11) Lindsey v. Matayoshi, 950 F.Supp.2d 1159, 1169 (D. Haw. 2013) ("[A] student who is removed from her regular public school, but is given access to an alternative education program, has not been denied her entitlement to public education.") (quoting Swindle, 655 F.3d at 394) (collecting cases).
12) Robinson v. St. Tammany Parish Public School System, 983 F.Supp.2d 835, 845 (E.D. La. 2013) (holding that because plaintiff "ultimately was only transferred to another school[,] ... [p]laintiffs cannot establish that a deprivation of a property interest occurred here"), aff'd, 569 F. App'x 303 (5th Cir. 2014).
13) J.J. ex rel. Vantress v. Oak Grove Sch. Dist., No. 08-CV-5376 (RMW), 2013 WL 3158069, at *9 (N.D. Cal. June 20, 2013) ("[F]orced transfer to another school ... d[oes] not violate due process.").
14) R.B. ex rel. D.L.B. v. Hinds Cty. Sch. Dist., No. 3:07-CV-329 (DP)(JJ), 2009 WL 4738181, at *4 (S.D. Miss. Dec. 4, 2009) ("Defendant argues that the transfer of a student to an alternative school does not implicate a constitutionally protected interest. This assertion is well-supported by case law.") (collecting cases).
15) Salas v. United Indep. Sch. Dist., No. 08-CV-22(L) (GPK), 2009 WL 1035068, at *2 (S.D. Tex. Apr. 17, 2009) ("[P]lacement in an alternative education program does not deprive students of their [property] interest.").
16) Foster v. Tupelo Pub. Sch. Dist., 569 F.Supp.2d 667, 676 (N.D. Miss. 2008) ("The Fifth Circuit [has] determined that transfer to an alternative school program was not a denial of access to public education.") (citation omitted).
17) Thorns v. Madison Dist. Pub. Sch., No. 06-CV-10674 (SFC), 2007 WL 1647889, at *3-4 (E.D. Mich. June 5, 2007) (finding plaintiffs cannot maintain a procedural due process action
18) DNK ex rel. Kassem v. Douglas Cty. Sch. Dist., No. 04-CV-2513 (MSK)(CBS), 2006 WL 2331086, at *9 (D. Colo. Aug. 10, 2006) ("A transfer to another school does not amount to suspension under Colorado law.... [Plaintiff's] property interest in his continued education did not equate to a property interest in being educated at [a specific school].").
19) Flynn v. Terrebonne Par. Sch. Bd., No. 03-CV-2500(A) (SSV), 2004 WL 2009277, at *4 (E.D. La. Sept. 8, 2004) ("[T]he Fifth Circuit has held that a disciplinary transfer to another school ... does not abridge a protected property interest, because the student continues to attend school and thus is not deprived of access to education, even temporarily.").
20) Cain v. Tigard-Tualatin Sch. Dist. 23J, 262 F.Supp.2d 1120, 1135 (D. Or. 2003) (holding that where a student was forced to transfer to another school due to bullying, plaintiff was not deprived of a property interest because "it was undisputed that [he] continued to attend high school at all relevant times during the events in question").
21) Hammock ex rel. Hammock v. Keys, 93 F.Supp.2d 1222, 1233 (S.D. Ala. 2000) ("[Plaintiff] was offered admission to the Alternative School numerous times throughout the expulsion process. While the Alternative School may not be her school of choice, there is no indication that `the right to a public education encompasses a right to choose one's particular school.'") (quoting Driscoll, 82 F.3d at 389 n.5).
22) Jarmon v. Batory, No. 94-CV-284 (HJH), 1994 WL 313063, at *10 (E.D. Penn. June 29, 1994) ("A student's interest in obtaining an education is certainly weighty. However, any potential harm to the private interest at stake in the present case was mitigated by [the school] having provided [plaintiff] with alternative educational opportunities, in the form of homework assignments from her teachers, while she was excluded from school.") (citations omitted).
23) Johnpoll v. Elias, 513 F.Supp. 430, 431-32 (E.D.N.Y. 1980) (holding, with respect to school decision to transfer student, that plaintiff "not being permitted to attend the school of his choice is not tantamount to a denial of a right to an education").
24) Fenton v. Stear, 423 F.Supp. 767, 772 (W.D. Pa. 1976) ("But even if the school officials made a mistake in imposing disciplinary action in the circumstances, the punishment imposed is de minimus. Plaintiff was not deprived of any in-school education. He was ordered to report to a room which his lawyer calls a `jail room,' supervised by a teacher and required to do his assigned school work.... [I]t seems apparent that he did not receive any material educational injury.").
1) S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (finding no irreparable harm on a preliminary injunction motion where plaintiff attended an alternative school and "earned academic credit and stayed on track for graduation").
2) Laney v. Farley, 501 F.3d 577, 584 (6th Cir. 2007) (holding that an in-school suspension, even where students are provided with educational instruction, can violate due process
3) Zamora v. Pomeroy, 639 F.2d 662, 670 (10th Cir. 1981) ("[Appellants'] allegations that the [alternative education] was so inferior to amount to an expulsion from the educational system are not borne out by the record, and in the absence of a clear showing that the [alternative education] assignment was substantially prejudicial, [appellants] lack the requisite standing to attack the appellees' actions on that ground.").
4) McKinney ex rel. K.P. v. Huntsville Sch. Dist., No. 5:18-CV-5067 (TLB), 2018 WL 5078112, at *1 (W.D. Ark. Oct. 17, 2018) (stating that courts "routinely hold that a student suffers no irreparable harm [during a suspension] where the District provides an alternative educational option and where the student can stay on track to graduate") (collecting cases).
5) Gentry v. Mountain Home Sch. Dist., No. 3:17-CV-3008 (TLB), 2018 WL 2145011, 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.").
6) E.S. ex rel. D.K v. Brookings Sch. Dist., No. 4:16-CV-04154 (KES), 2018 WL 2338796, at *4-5 (D.S.D. May 23, 2018) (finding that the plaintiff was deprived of a property interest where "she was not assigned work in her regular classes and did not receive any instruction from a certified teacher").
7) Doe v. Blake Sch., 310 F.Supp.3d 969, 983 (D. Minn. 2018) (finding no irreparable harm where a student was able to complete his coursework remotely).
8) Edwards v. MiraCosta Coll., No. 3:16-CV-1024 (BEN)(JMA), 2017 WL 2670845, at *5 (S.D. Cal. June 20, 2017) (finding plaintiff adequately pled a deprivation of a liberty interest where he "alleged that the suspension ha[d] negatively affected his grade point average, resulted in him being placed on academic probation, and caused him to be ineligible for academic scholarships").
9) Conklin v. Jefferson Cty. Bd. of Educ., 205 F.Supp.3d 797, 806 (N.D.W. Va. 2016) (finding no deprivation of plaintiffs' "entire educational interest" where plaintiff "was placed on home bound instruction" in a public library but still graduated timely, "an accomplishment that would not have been possible had the plaintiff been deprived of educational benefits") (citation omitted).
10) Clodfelter v. Alexander Cty. Bd. of Educ., No. 5:16-CV-0021 (RLV)(DCK), 2016 WL 7365183, at *6 (W.D.N.C. Dec. 19, 2016) ("Courts addressing whether the due process requirements adopted by Goss apply
11) Nixon v. Hardin Cty. Bd. of Educ., 988 F.Supp.2d 826, 840 (W.D. Tenn. 2013) ("The Sixth Circuit ... has suggested that assignment to an alternative school may not implicate the Due Process Clause at all, `absent some showing that the education received at the alternative school is significantly different from or inferior to that received at [the student's] regular public school.'") (quoting Buchanan v. City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996)).
12) Jones v. Long Cty. Sch. Dist., No. 2:11-CV-005 (LGW), 2012 WL 3562300, at *5 (S.D. Ga. August 14, 2012) (finding plaintiff was "not totally deprived of his access to public education" where "the in-school suspension program allowed [him] to receive regular assignments and adequate instruction ... at all times proctored by a duly qualified instructor") (citations and internal quotation marks omitted).
13) S.B. ex rel. Brown v. Ballard Cty. Bd. of Educ., 780 F.Supp.2d 560, 563-64 (W.D. Ky. 2011) (finding no deprivation because "the [c]ourt believes ... that [p]laintiff is receiving a sufficiently equivalent education in the Alternative School").
14) Rivera v. Jones, No. 06-CV-19 (GPK), 2008 WL 4279628, at *2-3 (S.D. Tex. Sept. 11, 2008) (finding plaintiff did not allege a deprivation of a property interest where he "continued his freshman year at the [alternative placement], obtained all his credits for his freshman year, and performed adequately on his state assessment tests[,] ... [and] [a]ccording to his mother, ... even received an education superior to that offered by [his original school]") (citation and internal quotation marks omitted).
15) Jacobs v. Clark Cty. Sch. Dist., 373 F.Supp.2d 1162, 1183 (D. Nev. 2005) (finding defendants demonstrated plaintiff's "record in school ha[d] not suffered and that, in fact, she performed better" while suspended because she was allowed to complete her schoolwork from home), aff'd, 526 F.3d 419 (9th Cir. 2008).
16) J.S. ex rel. Duck v. Isle of Wight Cty. Sch. Bd., 362 F.Supp.2d 675, 685 (E.D. Va. 2005) (finding that plaintiff failed to make a "strong showing" in a motion for preliminary injunction that "the Alternative School [was] inferior" to his prior school).
17) Marner ex rel. Marner v. Eufaula City Sch. Bd., 204 F.Supp.2d 1318, 1324 (M.D. Ala. 2002) ("The evidence regarding the alternative school ... demonstrates that although no classical classroom instruction occurred at the alternative school, [plaintiff] would have been allowed to do his regular school work and to be graded as if he were in the regular classroom. Assistance would have been provided had it been sought. Although the alternative school was in a separate location, the students assigned there [were] not in complete isolation, but [were] allowed one-on-one contact with certified teachers, and may receive assistance from their regular classroom teachers. There was no evidence presented that any student assigned to the alternative school suffered a detriment to his
18) Casey v. Newport Sch. Comm., 13 F.Supp.2d 242, 246 (D.R.I. 1998) ("Here, [plaintiff] was not deprived of his right to a public education. He continued to attend all of his classes except science. Moreover, he continued to receive instruction in science from ... a qualified science teacher. Finally, the transfer was effective only for the last five weeks of the school year. Thus, the alleged deprivation is a far cry from the `total exclusion from the educational process for more than a trivial period' referred to in Goss.") (quoting Goss, 419 U.S. at 576, 95 S.Ct. 729).
19) Alabama & Coushatta Tribes of Tex. v. Trs. of Big Sandy Indep. Sch. Dist., 817 F.Supp. 1319, 1324 (E.D. Tex. 1993) (finding students were deprived of a property interest where, inter alia, students were suspended for a month in-school, supervised by an unlicensed teacher, and "not given regular instruction by [a] teacher," which caused plaintiffs to "generally f[a]ll behind in their school work while they were suspended").
20) Mrs. A.J. v. Special Sch. Dist. No. 1, 478 F.Supp. 418, 430 (D. Minn. 1979) ("In light of the historical control extended to school officials in making instructional decisions, and the discretionary nature of the determination as to the adequacy of an alternative program for suspended students, the Court has concluded that such a determination can be deemed unlawful only if it is established that school authorities acted or failed to act with a manifest abuse of discretion.").
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, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)) (emphasis omitted). The Court finds that the two IDEA decisions by the Impartial Hearing Officer "are integral to [Plaintiffs'] Complaint, even if they are not attached as an exhibit. Because these documents are integral, because [Plaintiffs'] knew of and possessed them, and because there is no dispute as to their authenticity, the Court may consider them without converting the Defendants' motion to dismiss into a motion for summary judgment." Thomas, 232 F.Supp.2d at 276.
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), 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002).
(PMC Tr., at 9:13-10:1.)
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." 18 U.S.C. § 1635(h)(3). By contrast, although "[t]he case law applying the `continuing danger' exception to the due process requirement for a pre-suspension hearing is sparse," Wells v. Columbus Tech. Coll., No. 4:11-CV-79 (CDL), 2012 WL 1300276, at *5 (M.D. Ga. Apr. 16, 2012), aff'd, 510 F. App'x 893 (11th Cir. 2013), it is clearly a more flexible standard than that for "serious bodily injury." See, e.g., Hess, 839 F.3d at 674 & n.2 (finding a student was a "continuing danger" where he was accused of aggravated battery); C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383 (11th Cir. 1996) (fighting, screaming obscenities, and assaulting faculty members); Medlock v. Trs. of Ind. University, No. 1:11-CV-977 (TWP)(DKL), 2011 WL 4068453, at *7-8 (S.D. Ind. Sept. 13, 2011) (growing and keeping marijuana in a dorm room); O'Neal, 2010 WL 376602, at *9-10 (threatening to commit a school shooting); Anderson v. Hillsborough Cty. Sch. Bd., No. 8:08-CV-772(T) (TBM), 2009 WL 3669634, at *6 (M.D. Fla. Oct. 30, 2009) (allegedly striking an assistant principal as well as screaming, belligerence, and physical aggression), aff'd, 390 F. App'x 902 (11th Cir. 2010); Alexander v. Underhill, No. 3:05-CV-178 (LRH)(RJJ), 2008 WL 822261, at *10 (D. Nev. Mar. 26, 2008) (fighting); Nguyen v. Univ. of Louisville, No. 3:04-CV-457(H), 2006 WL 1005152, at *4 (W.D. Ky. Apr. 14, 2006) (sexual harassment); Pullen v. Moore, No. 05-CV-4368, 2005 WL 2850124, at *3 (N.D. Ill. Oct. 26, 2005) (disabled student threatening his aide with a thumb tack); Craig v. Selma City Sch. Bd., 801 F.Supp. 585, 590-91 (S.D. Ala. 1992) (brawling in the principal's office).
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, 484 U.S. at 328, 108 S.Ct. 592.
