UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
DOE, et al., ) 3:18-CV-01683 (KAD) Plaintiffs, ) ) v. ) ) WESTPORT BOARD OF EDUCATION ) Defendant. ) October 30, 2020
MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 14) AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 17)
Kari A. Dooley, United States District Judge
As discussed in this Court’s previous Memorandum of Decision (ECF No. 23), this case
arises out of Plaintiffs Mr. Doe and Mrs. Doe’s (“Parents”) unilateral placement of their child
(“Student”) in an educational program for the 2017-2018 School Year after Defendant Westport
Board of Education (“Board”) allegedly failed to offer the Student a Free Appropriate Public
Education (“FAPE”) in violation of the Individuals with Disabilities Education Act (“IDEA”). See
20 U.S.C. §§ 1400-1482. Parents also alleged that the Board’s 2017-2018 plan for Student violated
Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, and Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134. After this Court granted in
part the Board’s motion for summary judgment and denied in part Parents’ motion for summary
judgment, the Court was left to consider Parents’ alternative request for relief that the Court retain
and adjudicate their claims brought pursuant to Section 504 and the ADA. In aid of that
consideration, the Court directed the parties to submit supplemental briefing addressing the issue
of Parents’ standing to bring the Section 504 and ADA claims contained in the complaint. Upon
receiving the parties’ supplemental briefing and for the reasons that follow, the Court GRANTS
Parents’ alternative request for relief.
Discussion
Parents allege that they are entitled to relief under Section 504 and the ADA for the
expenses they incurred due to the Board’s violation of Section 504 and Title II of the ADA in
connection with the Student’s 2017-2018 School Year. The parties’ familiarity with the allegations
and procedural history of this case is presumed.
Standing Under Section 504
Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a). Section 504 further provides that remedies “shall be
available to any person aggrieved by any act or failure to act by any recipient of Federal assistance
. . . .” Id. § 794a(a)(2) (emphasis added). The Second Circuit has recognized that such broad
language “evinces a congressional intention to define standing to bring a private action under 504
[and Title II] as broadly as is permitted by Article III of the Constitution.” Innovative Health
Systems, Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) recognized as superseded on
other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001) (internal
quotation marks omitted). Accordingly, “non-disabled parties bringing associational
discrimination claims [under Section 504] need only prove an independent injury causally related
to the denial of federally required services to the disabled persons with whom the non-disabled
plaintiffs are associated.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 279 (2d Cir. 2009)
(Wesley, J., concurring and delivering opinion of the court as to associational standing under
Section 504).
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In Loeffler, the Second Circuit held that two non-disabled children had standing under
Section 504 to sue a hospital that allegedly failed or refused to provide sign language interpretation
services to their deaf father thereby causing the children to suffer harm—providing the
interpretation services, missing school, and being “involuntarily exposed to their father’s condition
[including the suffering of a stroke.]” Id. at 280–81. To have standing under Section 504, the
Second Circuit held that the children only needed to “establish that each suffered an injury
independent from their [father] that was causally related to the [h]ospital’s failure to provide
services to their [father]” because “the type of injury a ‘person aggrieved’ suffers need not be
exclusion from the participation in, denial of the benefits of, or subjection to discrimination under
any program or activity receiving Federal financial assistance.” Id. at 280 (internal quotation
marks, alterations, brackets, and citation omitted).
Here, Parents argue they have statutory standing under Section 504 insofar as they suffered
an independent injury (i.e., tuition and other expenses) causally related to the Board’s denial of
federally required services to Student, a disabled person with whom Parents are associated.
Defendant argues that Parents do not have standing under Section 504 because they allege an injury
(i.e., tuition and other expenses), which is not separate and distinct from Student’s alleged injury
consisting of the Board’s denial of a FAPE. The Defendant relies on Wong v. Seattle Sch. Dist.
No. 1, No. C16-1774 RAJ, 2018 WL 1035799, at *3 (W.D. Wash. Feb. 23, 2018), which, in the
context of an Article III standing analysis, held that plaintiff-parents did not have standing to
pursue claims under either Section 504 or the ADA because the expenses they incurred by placing
their disabled child in a private institution after the defendant-school district failed to provide the
child a FAPE was not an injury separate and distinct from that of their child. Id. The court noted
that “Plaintiffs do not allege that they were excluded or discriminated against separately or
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independently from the actions taken toward their child.” Id. However, at least with respect to
Section 504, the Wong court’s decision is inconsistent with the holding in Loeffler that the injury
alleged need only be caused by discrimination towards a disabled person and need not consist of
exclusion or discrimination directed at the non-disabled plaintiff. This Court is bound by Loeffler.
Here, Parents have alleged a pecuniary injury arising out of the Defendant’s alleged
violation of Section 504 with respect to their disabled daughter. Under Loeffler, they have standing
to pursue these claims. Indeed, the concurring opinion in Loeffler included the observation that
“[i]f [the two children] had not known sign language but instead had paid for an interpreter to
resolve the problem created by the Hospital’s failure to meet their parents’ needs would there be
any question they would have a claim?” 582 F.3d at 281.1 Accordingly, the Parents may pursue
their Section 504 claims in this action.
Standing Under Title II of the ADA
Likewise, it appears Parents have standing under Title II to sue the Board. Title II of the
ADA, which prohibits various forms of discrimination by state and local governments, provides
in pertinent part: “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II
further provides that remedies are available “to any person alleging discrimination on the basis of
disability . . . .” 42 U.S.C. § 12133 (emphasis added). Accordingly, the Second Circuit, in
Innovative Health, recognized associational standing with respect to Title II claims. 117 F.3d at
1 Defendant further argues that Parents do not have standing insofar as they cannot prove that the Board denied Student federally mandated benefits because Student is not pursuing an IDEA claim and Parents, as this Court previously decided, may not pursue an IDEA claim. This argument misconstrues the nature of the remaining claims. Parents are not pursuing an IDEA claim. They are pursuing a Section 504 claim. To state a prima facie claim under Section 504, Parents will have to show that “[Student] was denied the opportunity to participate in or benefit from [the Board’s] services, programs, or activities, or was otherwise discriminated against by [the Board], by reason of [Student’s] disability.” Harris v. Mills, 572 F.3d 66, 74 (2d Cir. 2009). The Court does not herein assess the merits of this claim.
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47–48. There, the plaintiffs, a provider of drug and alcohol counseling services and several of its
clients, sued the City of White Plains alleging discrimination when it revoked a building permit
which would have allowed the service provider to relocate to the downtown area of the city. Id. at
40. The court held that the service provider, IHS, had standing to assert claims in light of the
expansive language of Title II which allows “any person alleging discrimination on the basis of
disability” to pursue claims. Id. at 47 (emphasis omitted) (quoting 42 U.S.C. § 12133). Indeed, as
discussed above, the court noted that “the use of such broad language . . . evinces a congressional
intention to define standing to bring a private action under 504 [and Title II] as broadly as is
permitted by Article III of the Constitution.” Id. (internal quotation marks omitted). Therefore,
where IHS’s building permit was revoked on the basis of its disabled clientele, the court
determined it had standing. Id. at 48.
Here, Parents allege that the Board’s violation of Title II with respect to their disabled
daughter caused Parents to incur various expenses. Under these circumstances, in which Parents
do not allege that they themselves were discriminated against in violation of Title II (as was the
case in Innovative Health), the Second Circuit has not had occasion to decide whether associational
standing exists. While the Second Circuit, in Loeffler, determined that “non-disabled parties
bringing associational discrimination claims [under Section 504] need only prove an independent
injury causally related to the denial of federally required services to the disabled persons with
whom the non-disabled plaintiffs are associated,” 582 F.3d at 279, that decision involved a
determination of associational standing under Section 504 only, id. at 288 (Jacobs, J., dissenting
from decision of the court regarding associational standing under Section 504, noting that “the
majority opinion does not prejudge the analogous question [of associational standing] under the
ADA”). Indeed, contrary to the Loeffler holding, Title II’s implementing regulation suggests that
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associational standing under Title II is limited to non-disabled people who have themselves been
discriminated against because of their association with a disabled person insofar as it provides that
“[a] public entity shall not exclude or otherwise deny equal services, programs, or activities to an
individual or entity because of the known disability of an individual with whom the individual or
entity is known to have a relationship or association.” 28 C.F.R. § 35.130(g) (emphasis added);
see Noel v. New York City Taxi & Limousine Comm'n, 687 F.3d 63, 69 (2d Cir. 2012) (“In enacting
Title II, Congress directed the Attorney General to promulgate regulations to implement Title II(A)
. . . and the Attorney General’s regulations add scope and shape to the general prohibitions in the
ADA[.]” (internal citation omitted)).
Nevertheless, in the absence of a clear directive from the Second Circuit to the contrary,
the Court finds that Parents have standing under Title II because they allege a separate and distinct
injury resulting from the alleged denial of services to their disabled child just as the children in
Loeffler had standing under Section 504. 582 F.3d at 279. The Court looks first to Innovative
Health. There, although the plaintiff, IHS, was itself denied the building permit (or had it revoked),
the Court’s determination of standing did not turn on this fact. Innovative Health Systems, Inc.,
117 F.3d at 46–48. Indeed, the court’s analysis was fleeting and merely invoked an expansive
reading of Title II rendering its standing provision coterminous with Article III. Id. at 47. And
notably, the Defendants had conceded Article III standing with respect to IHS. Id. at 46.
Next, the Court notes that in large measure courts view the ADA and the RA as being all
but identical in scope. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (noting
that unless a subtle distinction between the statutes “is pertinent to a particular case, we treat claims
under the [ADA and the RA] identically”); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287–88
(5th Cir. 2005) (noting that rights and remedies under both the ADA and the RA are the same).
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Indeed, Judge Wesley noted in Loeffler that the language in Title II is virtually identical to Section
504 and “[f]or the sake of argument, [he] assume[d]” that the rights afforded under each statute
with respect to associational standing are the same. 582 F.3d at 281 n.4 (Wesley, J., concurring).
In combination, this authority, which supports a broad interpretation of standing under Title II and
recognizes the similarities between the ADA and the RA, leads the Court to conclude that Parents
have standing to bring claims under Title II just as they have standing to bring claims under Section
504 as discussed above. See B.D.S. v. Southold Union Free Sch. Dist., No. CV-08-1319 SJF WDW,
2009 WL 1875942, at *15 (E.D.N.Y. June 24, 2009) (finding that parent had standing under the
ADA and Section 504 seeking, among other things, reimbursement due to the denial of a FAPE
for her disabled child because “a parent of a child with a disability has a particular and personal
interest in preventing discrimination against that child” (internal quotation marks omitted)).2
Conclusion
For the foregoing reasons, Parents’ alternative request for relief to proceed under Section
504 and the ADA is GRANTED.
SO ORDERED at Bridgeport, Connecticut, this 30th day of October 2020.
/s/ Kari A. Dooley KARI A. DOOLEY UNITED STATES DISTRICT JUDGE
2 To the extent Innovative Health counsels only an Article III analysis, the Court further observes that the Parents have met the requisite standard for standing by alleging that they suffered a financial injury resulting from the Board’s alleged denial of services to their child. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (“The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”). In particular, Parents alleged a financial injury that “is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548 (internal quotation marks omitted).
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