Shawn Lawton and Gina Johnson-Lawton, on their own behalf and on behalf of their minor son, I.L.; Folake Wimbush, on her own behalf and on behalf of her minor son, S.S.; Folake Ogundiran, on her own behalf and on behalf of her minor daughter, M.C.; Monique Jeffrey, on her own behalf and on behalf of her minor son, B.S.; and Shanice Givens, on her own behalf and on behalf of her minor son, C.S.; Plaintiffsv.Success Academy Charter Schools, Inc.; Success Academy Fort Greene; Candido Brown; and Jane Does 1-3 and John Does 1-3, Defendants
MEMORANDUM AND ORDER Plaintiffs, five minors and their parents, bring this disability discrimination and retaliation action against Success Academy Charter Schools, Success Academy Fort Greene (collectively, “Success Academy”), Success Academy Fort Greene’s former principal Candido Brown (“Brown”), and six Doe defendants under §504 of the Rehabilitation Act of 1973, 42 U.S.C. §1983, and various state laws. Defendants move to dismiss plaintiffs’ Second Amended Complaint (“SAC”) under Federal Rule of Civil Procedure 12(b)(6), arguing plaintiffs have failed to exhaust their administrative remedies, failed to adequately plead their claims, and failed to file a notice of claim.1 Defendants’ motions are granted in part and denied in part. Plaintiffs allege the following.A. Success Academy and BrownSuccess Academy is a system of charter schools in New York City that receives funding and other benefits from the federal, state, and city governments. It chooses its students via lottery. Success Academy Fort Greene is a school in the Success Academy system. Brown began as principal of Success Academy Fort Greene in October 2014.Success Academy runs a strict disciplinary system known as the “Code of Conduct.” Its zero-tolerance approach prohibits, among other things, failing to sit in the “Magic 5″ sitting position2 and requires the students to always be on task, stay engaged in learning, and comply with the dress code. Teachers use stopwatches to script the school day, and students must carry “air bubbles” in their mouths when walking from class to class so they do not speak to one another.Behavior infractions are tracked with a green-yellow-red system. If a student violates the Code of Conduct, he is moved from green to yellow. A second violation moves the student from yellow to red. At this point, the student will be put in “cool down,” often be moved to a different classroom, and receive zero credit for missed assignments. If moving the student does not work, the student is dismissed from school for the day. This requires the parent to leave work and pick up the student immediately; failure to do so results in formal suspension of the student and sometimes threats by the school to call the police or the Administration for Children’s Services (“ACS”).B. Alleged Discrimination Against The PlaintiffsThe five plaintiff children won the Success Academy lottery and were enrolled in the school at various times between 2013 and 2015. They were between the ages of four and five at the time of their enrollment. Though the details vary, the essence of their claims is the same: Each plaintiff struggled to comply with the strict disciplinary code and was consequently barred from the classroom.31. I.L.I.L. attended Success Academy from September 2014 to February 2015. He has a speech impediment which “substantially limits him in a major life activity — namely, in learning….” SAC7. Success Academy regarded him “as having attention deficit/hyperactivity disorder (“ADHD”) with impairments in his ability to concentrate and learn.” Id.8. I.L. struggled to conform to Success Academy’s strict Code of Conduct and was removed from class on an almost daily basis. I.L.’s father, Shawn Lawton, attempted to keep I.L. on track by sitting in on classes under the school’s parental “open door policy.” When he did so, I.L. was able to finish the school day. However, I.L. began to suffer from anxiety and depression stemming from his inability to function at Success Academy.In December 2014, Mr. Lawton inquired about an individualized education plan (“IEP”) for I.L. under the Individuals with Disabilities Education Act (“IDEA”). Success Academy then began an IEP evaluation, but while it was being conducted Brown met with Mr. and Mrs. Lawton and told them I.L. was not a “good fit” for Success Academy. He then barred Mr. Lawton from the classroom.The evaluation was completed in January 2015 and a behavior management plan was recommended, but not implemented. The Lawtons began to receive daily phone calls, almost immediately after I.L. arrived at school, informing them that he had been put in “cool down” and threatening removals and suspensions. In February 2015, the Lawtons removed I.L. from Success Academy.2. S.S.S.S. attended Success Academy from September 2013 to June 2015. He “is classified by the New York City Department of Education as an individual with a learning disability,” namely ADHD, and “meets the state and federal definition of a child with a disability.” Id.11; 73. His disability “substantially limits him in major life activities — namely, in learning….” Id.12. Defendants also “regarded him as having a learning and/or behavioral disability….” Id. S.S. also struggled to comply with the Success Academy Code of Conduct, failing to remain in the Magic 5 position, having tantrums, showing displeasure while being punished, and fighting with other students. S.S. was removed from class almost daily and frequently dismissed early or suspended.S.S.’s mother, Folake Wimbush, sought and was denied an IEP and then brought a pro se IDEA administrative complaint. While the proceeding was pending, S.S. became upset on a field trip to the Museum of Natural History. As a result, the teacher called the police, and he was taken to the pediatric psychiatric unit at St. Luke’s Hospital. The following school year, S.S. withdrew from Success Academy.3. M.C.M.C. attended Success Academy from September 2013 to December 2014. Though she has not been classified as having a learning disability, defendants regarded her as “having a learning and/or behavioral disability….” Id.16. She was frequently removed from classes, sent home from school three to four times a week, and suspended twice. The following school year, M.C.’s mother, Folake Ogundrian, asked for accommodations for her daughter. Three days later, Brown threatened to call the police on M.C. based on her “unsafe behavior” of not listening to teachers and running in the classroom. After this incident, Ms. Ogundrian removed her from Success Academy.4. B.S.B.S. attended Success Academy from September 2014 to June 2015. Though he has not been classified as having a learning disability, defendants “regarded him as having a learning and/or behavioral disability that impeded his ability to comply with Success Academy’s rigid disciplinary code.” SAC20. He was sent home early from school three to four times a week and suspended approximately five times. On one occasion, he was suspended because his father was five minutes late picking him up on an early dismissal day. Brown and other school officials repeatedly pressured B.S.’s mother, Monique Jeffrey, to remove her son from the school. She finally relented and did so in September 2015.5. C.S.C.S. attended Success Academy from September 2014 to June 2015. He has “been diagnosed with ADHD and oppositional defiant disorder (“ODD”).” Id.24. In addition, “Success Academy perceived C.S. as having an autism spectrum disorder.” Id. His “learning disability substantially limited him in major life activities — namely, in learning.” Id.25. C.S. also struggled to comply with the Code of Conduct and was frequently removed from class early, dismissed, and suspended. After Brown became principal, C.S. was suspended once or twice per week. In October 2014, C.S. was evaluated for an IEP and recommended for an Integrated Co-Teaching classroom. However, in November and December 2014, his mother, Shanice Givens, was repeatedly pressured to remove her son from the school. In February 2015, the school administration threatened to turn him over to ACS if Ms. Givens did not pick him up from school within twenty minutes. Ms. Givens enrolled C.S. in public school the following year.C. The “Got to Go” ListAfter the five students were disenrolled, the parents learned that Brown had intentionally targeted their children, among others, for removal using a so-called “Got to Go” list. The list targeted students, including those with disabilities or perceived disabilities, for removal from the school. The list was reported in a New York Times article, in which Brown acknowledged, “I felt I couldn’t turn [Success Academy Fort Greene] around if these students remained.” SAC124.IIDefendants’ principal argument is that plaintiffs’ SAC in essence alleges a denial of free appropriate public education (commonly referred to as “FAPE”). Under 20 U.S.C. §1415(l), the IDEA requires exhaustion of administrative remedies prior to bringing such a claim, even if the claim is ostensibly made under another statute.The IDEA provides disabled students a right to a FAPE, which “comprises ‘special education and related services’ — both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.” Fry v. Napoleon Comm. Schs., 137 S. Ct. 743, 748-49 (2017) (quoting 20 U.S.C. §§1401(9), (26), (29)). Under the IDEA, an IEP is the “primary vehicle” for providing such an education. Id. at 749. The IDEA provides for extensive administrative proceedings that must be exhausted before parents may bring a civil lawsuit “to obtain relief that is available under the IDEA.” Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995). This includes claims brought under other remedial statutes — most commonly, the Americans with Disabilities Act (“ADA”) and §504 of the Rehabilitation Act — when those claims are for relief that is “available under the IDEA.” Id.; see also Fry, 137 S. Ct. at 749-50.However, plaintiffs are only required to exhaust the IDEA’s administrative remedies when the “gravamen” of their claims is denial of a FAPE. Fry, 137 S. Ct. at 755. If a plaintiff brings an ADA or §504 claim that alleges a standalone cause of action “independent of any FAPE denial,” exhaustion is not required because “the only ‘relief’ the IDEA makes ‘available’ is relief for the denial of a FAPE.” Id. at 754-55. This is not a “magic words” test, and plaintiffs may not circumvent the IDEA’s exhaustion requirement through “artful pleading.” Id. Instead, the “examination should consider substance, not surface.” Id.In Fry, the Supreme Court suggested two questions that may give a “clue [as] to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination.” Id. at 756. “First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school — say, a public theater or library? And second, could an adult at the school…have pressed essentially the same grievance?” Id. If the answers to these two questions are yes, the complaint likely does not involve a FAPE. Id. If no, it probably does. Id.Here, while plaintiffs’ allegations occasionally touch on denial of a FAPE and failure to reasonably accommodate the students, the vast majority of the allegations, and thus the gravamen of the complaint, concern intentional discrimination and retaliation: Plaintiffs allege that Brown placed them on a “Got to Go” list intended to remove them and “other Success Academy Fort Greene students with actual or perceived disabilities” from the school. SAC121. They also allege that Brown “deliberately targeted their children for removal from Success Academy,” SAC120, and that he did so “because of” the students’ “actual or perceived disabilities,” SAC122. Plaintiffs allege Success Academy further discriminated against the students by “segregating the Child-Plaintiffs from the other students in the class,” “denying the child plaintiffs the right to participate in the program to the same extent as other pupils,” “expressly encouraging the Parent-Plaintiffs to remove their children” from the school, “repeatedly, and for extended periods of time, removing the Child-Plaintiffs from their respective classrooms,” “dismissing them from school early,” “suspending them repeatedly,” and “failing to provide the Child-Plaintiffs with academic instruction during the time that they were removed from the classroom.” SAC135.These allegations extend far beyond simple denial of a FAPE. The two questions posed by Fry support this conclusion. The disabled children would have a claim against a public library that placed them on a list of excluded patrons, used strict disciplinary rules to remove them on a daily basis, and threatened to call the police when faced with complaints about the mistreatment. So would disabled adults.As the Eleventh Circuit recently explained in an analogous post-Fry case, allegations that a disabled student was repeatedly removed from class cannot be analyzed simply as a FAPE violation. J.S., III, by and through J.S. Jr. v. Houston Cty. Bd. of Educ., 877 F.3d 979, 986 (11th Cir. 2017). Instead, they are “cognizable as a separate claim for intentional discrimination under…§504″ because they “implicate those further, intangible consequences of discrimination…that could result from isolation, such as stigmatization and deprivation of opportunities for enriching interaction with fellow students” and “reach beyond a misdiagnosis or failure to provide appropriate remedial coursework.” Id. (citing Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999) (holding isolation is a form of discrimination)); see also K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 360 (S.D.N.Y. 2005) (holding disabled student’s isolation at lunch sufficient to support claim for discrimination).The facts here are even more extreme than those in J.S. There, the disabled student was removed from class but still given coursework and instruction in the school’s weight room. J.S., III, 877 F.3d at 983-84. Here, the students were removed from the school entirely.Finally, while Fry cautions that a party who “switch[es] midstream” from an IDEA claim to a discrimination claim may be attempting to circumvent the FAPE’s exhaustion requirement, Fry, 137 S. Ct. at 757, that is not what happened here. Plaintiffs correctly recognized that some of their claims were barred by the exhaustion requirement and amended their complaint to focus on the claims that were not addressable by the IDEA. See Fry, 137 S. Ct. at 759 (“It is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide.”) (Alito, J., concurring).4IIIEven though plaintiffs’ claims are not subject to exhaustion under IDEA, defendants also challenge the adequacy of their pleadings5 for “fail[ure] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive, the complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).A. Section 504 Claims1. Discrimination“A prima facie violation of Section 504 requires proof from the plaintiff that ‘(1) he is a ‘[disabled] person’ under the Rehabilitation Act; (2) he is ‘otherwise qualified’ for the program; (3) he is excluded from benefits solely because of his [disability]; and (4) the program or special service receives federal funding.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014). “Such a claim, however, requires proof of bad faith or gross misjudgment.” Id.Defendants contend that plaintiffs have not sufficiently alleged that: (1) they each have qualifying disabilities; (2) they were discriminated against because of their disabilities; and (3) defendants’ actions were the product of bad faith or gross misjudgment.a. Plaintiff’s DisabilitiesTitle 29 U.S.C. §705(20)(B), which all parties agree controls, holds that “the term ‘individual with a disability’ means…any person who has a disability as defined in section 12102 of Title 42.” It covers: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment….” 42 U.S.C. §12102(1)(A)-(C).Three plaintiffs, I.L., S.S., and C.S., allege they have an actual disability and also allege they were regarded as disabled. Two plaintiffs, M.C. and B.S., are not disabled but rely exclusively on defendants regarding them as disabled.Defendants contend that the actual disabilities of I.L., S.S., and C.S. do not “substantially limit[] one or more major life activities” as required by §12102(1)(A). However, the definition of disability “shall be construed in favor of broad coverage of individuals…to the maximum extent permitted by the terms of [the ADA].” Id. §12102(4)(A). “Major life activities” is defined to include “learning, reading, concentrating, thinking, [and] communicating.” Id. §12102(2)(A).Each of the actually-disabled plaintiffs alleges that he or she has a qualifying disability that limits their ability to learn. I.L. alleges that he has a speech impediment which “substantially limits him in a major life activity — namely, in learning.” SAC7. S.S. alleges that he “is classified by the New York City Department of Education as an individual with a learning disability,” namely, ADHD, and “meets the state and federal definition of a child with a disability.”Id.11; 73. He also alleges that his disability “substantially limits him in major life activities — namely, in learning.” Id.12. C.S. alleges that he has “been diagnosed with ADHD and oppositional defiant disorder (“ODD”),” id.24, and that his “learning disability substantially limited him in major life activities — namely, in learning,” id.25.Defendants next argue that the two plaintiffs proceeding entirely on a regardedas theory, M.C. and B.S., have failed to allege that the defendants perceived their disabilities to limit a major life activity. However, plaintiffs are no longer required to do so. In 2008, Congress passed the ADA Amendments Act (“ADAAA”). Pub. Law 110-325 (2008). Prior to the ADAAA, the Supreme Court had held that plaintiffs pursuing a “regarded as” theory did need to show that their perceived disability limited a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91 (1999), superseded by statute, 42 U.S.C. §12102(3)(A) (2008).The ADAAA overturned this holding. Now:An individual meets the requirements of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”42 U.S.C. §12102(1)(C) (2008) (emphasis added).The Committee Report for the new section confirmed the intent of the new language:[The Supreme Court's] restrictive rulings [including Sutton] conflict with the Court’s earlier recognition…that the negative reactions of others are just as disabling as the actual impact of an impairment, a conclusion endorsed by Congress when it adopted the “regarded as” prong.The Committee therefore restores Congress’s original intent by making clear that an individual meets the requirement of “being regarded as having such an impairment” if the individual shows that an action (e.g. disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.H.R. Rep. No. 110-730, pt. 1, at 14 (2008) (emphasis added).The Second Circuit has addressed the new statutory language in only one published case, Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012), where it held that the plaintiff “was not required to present evidence of how or to what degree [the defendants] believe the impairment affected him.” 673 F.3d at 129. Instead, the plaintiff “was only required to raise a genuine issue of material fact about whether [defendants] regarded him as having a mental or physical impairment.” Id.Although Hilton dealt with a motion for summary judgment, and this case is only at the pleading stage, the analysis of law is the same. The only difference is that plaintiffs are only required to allege, rather than prove, that defendants regarded them as disabled. M.C. and B.S. have sufficiently done so: They allege that defendants regarded them as having a “learning and/or behavioral disability.” SAC
