E.D.N.Y.: Scaggs et al. v. New York...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

No 06-CV-0799 (JFB) (VVP)

STEVEN SCAGGS, ET AL.,

Plaintiffs,

VERSUS

NEW YORK STATE DEPARTMENT OF EDUCATION, ET AL.,

Defendants.

MEMORANDUM AND ORDER May 16, 2007

JOSEPH F. BIANCO, District Judge: Charter School Board of Trustees – Steven Cohen, Stephen Charkow, Susan Cheatum, Plaintiffs, individual students at Riverhead Kate Liddle, Arnold Braunskill and George Charter School and Edison Schools1 Grigg (collectively, “defendants”).2 (collectively, “plaintiffs”) bring the present civil rights action against the New York State Defendants New York State Department Department of Education, the New York State of Education, the New York State Board of Board of Regents, the University of the State Regents, the University of the State of New of New York, the Office for Vocational and York and the Office for Vocational and Educational Services for Individuals With Educational Services for Individuals With Disabilities, Edison Schools, the Riverhead Disabilities (collectively, “State defendants”) Charter School, Riverhead Charter School move to dismiss plaintiffs’ claims related to officials and members of the Riverhead the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400-1490, pursuant to Fed.

1 Although the complaint is brought by plaintiffs 2 “on behalf of themselves individually and on Plaintiffs had originally filed suit against the behalf of a class of students of the Riverhead above-listed defendants, as well as thirteen Long Charter School and/or of Edison Schools similarly Island school districts and the Florida Retirement situated,” plaintiffs have not yet moved for class Systems. These defendants were voluntarily certification. dismissed from the case on November 20, 2004.

R. Civ. P. 12(b)(1), and move to dismiss all and disruptive behavior among students. (Id.) claims for failure to state a claim pursuant to In addition, Riverhead allegedly lacked proper Fed. R. Civ. P. 12(b)(6). Likewise, refrigeration, lunches, rodent extermination, defendants Edison Schools, Riverhead Charter certified teachers, books, paper, pens and School, Riverhead Charter School officials pencils. (Id. ¶ 22.) Plaintiffs complained and members of the Riverhead Charter School about the conditions at Riverhead to the Board of Trustees (collectively, “School defendants. (Id. ¶¶ 23, 27.) However, defendants”) move to dismiss plaintiffs’ defendants allegedly did not take action to claims under Fed. R. Civ. P. 12(b)(1) and improve the conditions or to return students to 12(b)(6). For the reasons that follow, their respective public school districts. (Id. ¶¶ defendants’ motions are granted in part and 24, 28.) Since returning to their respective denied in part. public school districts of their own accord, plaintiffs contend that they are unable to I. BACKGROUND function at the appropriate grade level and now require additional educational services as A. Facts a result of the substandard education that they received at Riverhead. (Id. ¶¶ 29-30.) The following facts are taken from the amended complaint and are not findings of B. Procedural History fact by the Court, but rather are assumed to be true for purposes of deciding this motion and On August 2, 2004, plaintiffs filed a are construed in a light most favorable to complaint in the Southern District of New plaintiffs, the non-moving party. York, alleging that defendants had denied plaintiffs the right to a free public education. On January 10, 2001, the University of the On November 2, 2004, defendants Florida State of New York issued a provisional Retirement Systems, Riverhead Charter charter to Riverhead Charter School School, Edison Schools and the Riverhead (“Riverhead”), allowing it to provide free Charter School Board of Trustees moved to public education. (Am. Compl. ¶ 4.) From dismiss the complaint. On November 8, 2004, January 10, 2001 to the present, Edison the State defendants moved to dismiss the Schools owned, operated and supervised complaint pursuant to Federal Rules of Civil Riverhead. (Id. ¶ 5.) According to plaintiffs, Procedure 12(b)(1), (3) and (6). Plaintiffs Riverhead classrooms were overcrowded, and submitted an amended complaint on students were not provided with adequate November 23, 2004. educational services and programs. (Id. ¶¶ 22, 25.) Specifically, defendants allegedly failed The amended complaint asserts the to identify students with learning disabilities following federal causes of action: (1) the and special educational needs, failed to Equal Protection Clause of the Fourteenth provide such students with educational Amendment of the United States Constitution; programs designed to address these issues, (2) the Individuals With Disabilities and failed to monitor the students’ educational Education Act (“IDEA”), 20 U.S.C. §§ 1400- performance. (Id. ¶ 25.) Plaintiffs also assert 1490; (3) the Education for all Handicapped that Riverhead neither provided safe and adequate transportation, nor prevented violent

Children Act (“EHA”)3; (4) the Rehabilitation Act, 20 U.S.C. § 1415. Act of 1973, 29 U.S.C. §§ 701-799, and specifically Section 504 of the Rehabilitation On February 11, 2005, the State Act, 28 U.S.C. § 794; (5) Title IX of the defendants and the School defendants each Education Amendment of 1982; (6) Title II of moved to dismiss the amended complaint and the Americans With Disabilities Act, 42 to transfer venue pursuant to 28 U.S.C. § U.S.C. § 12132; (7) the federal civil rights 1404(a). The Honorable Barbara S. Jones statutes promulgated under 42 U.S.C. §§ granted defendants’ motion to transfer venue 1981, 1983 & 2000d and Title VI of the Civil to the Eastern District of New York on Rights Act of 1964; (8) supervisory liability February 7, 2006. On February 21, 2006, the under § 1983; and (9) failure to intercede case was assigned to the undersigned. Oral under § 1983. In addition, plaintiffs bring argument on the instant motions was held on claims under the New York State January 17, 2007. Constitution, New York Human Rights Law §§ 290-297 and New York Education Law §§ II. STANDARD OF REVIEW 3302, 4401. Plaintiffs also assert state claims for intentional and/or negligent infliction of Defendants’ motions to dismiss for want emotional distress and failure to train, of subject-matter jurisdiction under Fed. R. supervise, manage and/or control. Plaintiffs Civ. P. 12(b)(1) and for failure to state a claim seek compensatory and punitive damages, under Rule 12(b)(6) are governed by the same injunctive relief, attorneys’ fees and costs. standard. See Coveal v. Consumer Home Mortgage, Inc., No. 04-CV-4755 (ILG), 2005 On January 11, 2005, the parties entered U.S. Dist. LEXIS 25346, at *6 (E.D.N.Y. Oct. into a stipulation dismissing plaintiffs’ claims 21, 2005) (citing Lerner v. Fleet Bank, N.A., under (1) the Education for All Handicapped 318 F.3d 113, 128 (2d Cir.), cert. denied, 540 Children Act, 20 U.S.C. §§ 1401, 1415 et U.S. 1012 (2003)). In reviewing such seq.; (2) Title IX of the Education motions, the court must accept the factual Amendment of 1982; (3) the New York State allegations set forth in the complaint as true, Constitution, Article XI, § 1; (4) New York and draw all reasonable inferences in favor of State Education Law §§ 3302, 4401; and (5) the plaintiff. Nechis v. Oxford Health Plans, the Individuals With Disabilities in Education Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if “it appears beyond doubt that the plaintiff can prove no 3 The Education for all Handicapped Children Act set of facts in support of his claim which of 1975 (Public Law 94-142) [enacted Nov. would entitle him to relief.” Flores v. S. Peru 29, 1975] was superseded by the IDEA statute in Copper Corp., 414 F.3d 233, 242 (2d Cir. 1990. Upon learning of this fact, plaintiffs 2003) (quoting Conley v. Gibson, 355 U.S. 41, discontinued their claims under the Education for 45-46 (1957)). The appropriate inquiry is all Handicapped Children Act. (Pls.’ Opp. Br., at “‘not whether a plaintiff will ultimately 43 (“[A]s case law revealed that the Education for prevail but whether the claimant is entitled to Individuals With Handicaps Act [sic] became the offer evidence to support the claims.’” Individuals with Disabilities Act [sic], Plaintiffs’ Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 cause of action pursuant to the former Education (2d Cir. 2005) (quoting Eternity Global for Individuals with Handicaps Act [sic] was Master Fund Ltd. v. Morgan Guar. Trust Co. discontinued.”).)

of N.Y., 375 F.3d 168, 177 (2d Cir. 2004)). 1. The IDEA statute

“A court presented with a motion to The purpose of IDEA is to provide dismiss under both Fed. R. Civ. P. 12(b)(1) children with disabilities with access to a and 12(b)(6) must decide the ‘jurisdictional “free appropriate public education.” 20 question first because a disposition of a Rule U.S.C. §§ 1400(c), (d). In passing IDEA, 12(b)(6) motion is a decision on the merits, “Congress sought primarily to identify and and therefore, an exercise of jurisdiction.’” evaluate handicapped children, and to provide Coveal, 2005 U.S. Dist. LEXIS 25346, at *7 them with access to free public education.” (quoting Magee v. Nassau Cty. Med. Ctr., 27 Bd. of Educ. of the Hendrick Hudson Cent. F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); see Sch. Dist., Westchester Cty. v. Rowley, 458 also Rhulen Agency, Inc. v. Ala. Ins. Guar. U.S. 176, 200 (1982). The primary Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) mechanism of the statute is the design and (noting that a motion to dismiss for failure to implementation of an Individualized state a claim may be decided only after Education Plan (“IEP”) to address each finding subject matter jurisdiction). student’s particular disabilities. 20 U.S.C. § 1414. The IEP sets forth (1) a statement of III. DISCUSSION the child’s present levels of academic achievement and functional performance; (2) A. Defendants’ Motions to Dismiss Pursuant a statement of measurable annual goals; (3) a to Fed. R. Civ. P.12(b)(1) description of how the child’s progress toward meeting the annual goals will be measured; Both the State defendants and the School (4) a statement of the educational services to defendants move to dismiss plaintiffs’ claims be provided; (5) an explanation of the extent, regarding the education of disabled students if any, to which the child will not participate pursuant to Fed. R. Civ. P. 12(b)(1). with nondisabled children in the regular class; Defendants argue that this Court lacks (6) a statement of any individual subject-matter jurisdiction over plaintiffs’ accommodations necessary to measure the claims under the Individuals With Disabilities child’s performance on standardized Education Act, the Rehabilitation Act, the assessments (or an explanation of why the Americans With Disabilities Act (“ADA”), child cannot participate in the assessments); and Section 1983, all of which are subject to (7) the projected date for the implementation the exhaustion requirement of IDEA. The Act of services, as well as the anticipated requires plaintiffs who assert claims relating frequency, location, and duration of the to the education of disabled children to services; and (8) a plan for achieving post- exhaust all available administrative remedies secondary school goals and provisions for prior to bringing suit in federal court. 20 transitional services. 20 U.S.C. § U.S.C. § 1415(l). In the absence of 1414(d)(1)(A). exhaustion, a federal court may not exercise subject-matter jurisdiction over the action. 20 2. IDEA’s Exhaustion Requirement U.S.C. § 1415(l). It is well-settled that, prior to bringing a suit in federal court under IDEA, plaintiffs must exhaust all available administrative

procedures. 20 U.S.C. § 1415(l) (2006). In IDEA (such as the ADA or the Rehabilitation the State of New York, these include an Act).”); Hope v. Cortines, 872 F. Supp. 14, 17 impartial hearing and an appeal of the hearing (E.D.N.Y), aff’d, 69 F.3d 687 (2d Cir. 1995) officer’s decision to a state review officer. 20 (holding that ADA, Section 1983 and Section U.S.C. §§ 1415(f), (g); 8 N.Y.C.R.R. § 200.5. 2000d claims are subject to IDEA’s Parents may request a hearing to present exhaustion requirement). complaints relating to the “identification, evaluation, or educational placement of the Similarly, IDEA’s exhaustion requirement child, or the provision of a free appropriate applies despite plaintiffs’ claim for damages, public education to such child.” 20 U.S.C. § which are not available under the statute. 1415(b)(6). “Failure to exhaust administrative Polera, 288 F.3d at 487 (“Courts in the remedies under the IDEA deprives a court of Second Circuit have required exhaustion of subject matter jurisdiction.” Polera v. Bd. of administrative remedies even where damages Educ. of the Newburgh Enlarged City Sch. were held to be unavailable through the Dist., 288 F.3d 478, 483 (2d Cir. 2002) (citing administrative process. In such cases, Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. plaintiffs were not permitted to evade the 1995)). IDEA’s exhaustion requirement merely by tacking on a request for money damages.”); Furthermore, the IDEA statute requires see also Buffolino v. Bd. of Educ. of Sachem plaintiffs with any claims related to the Cent. Sch. Dist. at Holbrook, 729 F. Supp. education of disabled children, whether 240, 247 (E.D.N.Y. 1990) (“[I]f the Court brought under IDEA or another statute (i.e., were to hold that plaintiffs in this case are the ADA), to exhaust the administrative excused from exhausting their remedies remedies available under IDEA prior to because adequate relief could not be obtained, initiating a federal lawsuit. 20 U.S.C. § plaintiffs could avoid administrative 1415(l) (2006) (“Nothing in this title shall be procedures merely by asking for relief that construed to restrict or limit the rights, administrative authorities could not grant.”); procedures, and remedies available under the “BD” v. DeBuono, 130 F. Supp. 2d 401, 428 Constitution, the Americans with Disabilities (S.D.N.Y. 2000) (“[P]laintiffs should not be Act of 1990, title V of the Rehabilitation Act allowed to avoid the administrative of 1973, or other Federal laws protecting the requirements of IDEA by claiming only rights of children with disabilities, except that monetary damages or other relief not available before the filing of a civil action under such under IDEA.”). Therefore, despite plaintiffs’ laws seeking relief that is also available under claims for damages pursuant to the this part, the procedures under subsections (f) Rehabilitation Act, Title II of the ADA and and (g) shall be exhausted to the same extent state law, they must comport with the as would be required had the action been requirements of IDEA, which “is intended to brought under this part.”) (citations omitted); remedy precisely the sort of claim” presented Polera, 288 F.3d at 481 (“[P]otential plaintiffs here – namely, that state and local authorities with grievances related to the education of failed to provide plaintiffs with appropriate disabled children generally must exhaust their educational services. Polera, 288 F.3d at 488. administrative remedies before filing suit in As the gravamen of plaintiffs’ action is a federal court, even if their claims are claim for relief under IDEA, their request for formulated under a statute other than the damages pursuant to other federal statutes and

state tort law does not allow them to evade the Even in instances where an administrative statute’s exhaustion requirement. hearing and appeal are unsuccessful in resolving a dispute, such procedures “will at 3. “Futility” Exception to IDEA’s least have produced a helpful record because Exhaustion Requirement administrators versed in the relevant issues were able to probe and illuminate those issues However, the law provides a narrow for the federal court.” J.S., 386 F.3d at 112- exception to the exhaustion requirement of 13 (citing Riley v. Ambach, 668 F.2d 635, 640 IDEA, permitting plaintiffs to bring a federal (2d Cir. 1981)). In determining whether lawsuit without an administrative hearing in plaintiffs should be subject to the exhaustion cases where exhaustion would be “futile” requirement, the Second Circuit instructs because the administrative procedures courts “to consider whether administrative available do not provide adequate remedies. review would further the goals of developing Polera, 288 F.3d at 488; Heldman v. Sobol, facts, making use of available expertise, and 962 F.2d 148, 158-59 (2d Cir. 1992). promoting efficiency.” J.S., 386 F.3d at 113 Plaintiffs bear the burden of proving that it (citing Hoeft v. Tucson Unified Sch. Dist., 967 would have been futile for them to pursue F.2d 1298, 1303 (9th Cir. 1992)). relief through administrative procedures. “The students bear the burden of proof that On the basis of the complaint, the Court exhaustion would be futile.” J.S. v. Attica must determine whether plaintiffs’ claims Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004), meet either of two potential bases for cert. denied, 544 U.S. 968 (2005) (citing “futility” that would excuse them from Polera, 288 F.3d at 488 n.8 (relying upon the IDEA’s exhaustion requirement: (1) that Supreme Court’s holding in Honig v. Doe, defendants “failed to implement services that 484 U.S. 305, 327 (1988), in concluding that were specified or otherwise clearly stated in under the EHA, the burden of demonstrating an IEP,” Polera, 288 F.3d at 489, or (2) that futility rests with the party seeking to avoid the problems alleged are “systemic violations” the exhaustion requirement). that cannot be addressed by the available administrative procedures. J.S., 386 F.3d at “The primary reason for an exhaustion 113 (“[T]his Court has previously excused requirement is to utilize the expertise of exhaustion of administrative remedies in cases administrators” who are familiar with that included allegations of systemic resolving issues relating to the education of violations.”) (collecting cases). disabled students. SJB v. N.Y. City Dep’t of Educ., No. 03-CV-6653 (NRB), 2004 U.S. a. Failure to Implement Dist. LEXIS 13227, at *14 (S.D.N.Y. Jul. 14, 2004) (citing Polera, 288 F.3d at 487 (“The Plaintiffs argue that their claims fall under IDEA’s exhaustion requirement was intended the “failure to implement” exception to the to channel disputes related to the education of exhaustion requirement. Polera, 288 F.3d at disabled children into an administrative 489; see also SJB, 2004 U.S. Dist. LEXIS process that could apply administrator’s 13227, at *16 (“Where an IEP-related claim is expertise in the area and promptly resolve based on a district’s failure to implement grievances.”)) and Taylor v. Vt. Dep’t of services already spelled out in an IEP, Educ., 313 F.3d 768, 791 (2d Cir. 2002). exhaustion is excused.”) (citing Polera, 288

F.3d at 489, and Heldman, 962 F.2d at 158 including, but not limited to, an individualized n.11); Michaels v. Mills, 02-CV-0555E(F), educational program including speech 2004 U.S. Dist. LEXIS 6155, at *13 services.” (Am. Compl. ¶¶ 47-48.) Based (W.D.N.Y. Feb. 14, 2004) (“[T]he ‘legislative upon these allegations, it appears that, at least history of the IDEA suggests an exhaustion with regard to certain plaintiffs, defendants exception for situations concerning the may not have provided the students with any implementation of an IEP, as opposed to the IEP-plan whatsoever, rather than declining to contents of an IEP.’”) (emphasis in original) implement services “specified” or “clearly (quoting Joseph M. v. S.E. Delco Sch. Dist., stated” in IEPs that had already been created No. 99-CV-4645, 2001 U.S. Dist. LEXIS for the students. Therefore, the Court finds 2994, at *25 (E.D. Pa. Mar. 19, 2001)). In that, even construing the facts most favorably evaluating claims of futility on the basis of to plaintiffs, they have failed to meet their “failure to implement,” the Second Circuit has burden of demonstrating that, on the basis that advised that their claims involve only a failure to implement services set forth in IEP plans, [A] court must closely examine a exhaustion of administrative remedies would plaintiff’s claims before concluding be futile in this case. Thus, plaintiffs are not that they involve nothing more than excused from the exhaustion requirement on “implementation” of services already this ground. spelled out in an IEP. Here, [plaintiff’s] assertion that her claim b. Systemic Violations relates solely to implementation does not make it so. . . . Polera’s claim Plaintiffs argue, in the alternative, that unavoidably encompasses both a they should be excused from the exhaustion failure to provide services and a requirement on the basis that their claims significant underlying failure to allege “systemic violations” of IDEA. The specify what services were to be Second Circuit has found systemic violations provided. where the complaint alleges “wrongdoing that is inherent in the program itself and not Polera, 288 F.3d at 489. In the instant case, directed at any individual child.” J.S., 386 plaintiffs allege that Riverhead did not F.3d at 113. Specifically, where a school provide the services and accommodations completely fails to implement the procedures specified in the IEPs of ten individual set forth in IDEA, systemic violations that plaintiffs. For instance, the amended cannot be cured by administrative procedures complaint states that plaintiff “Sean Duford . are present. See, e.g., Handberry v. . . is a child/student with learning Thompson, 446 F.3d 335, 344 (2d Cir. 2006) disabilities/special educational needs (declining to apply exhaustion requirement requiring an individualized education where “individual administrative remedies program/special educational services would be insufficient to address the including, but not limited to, speech services” defendants’ failure to provide the services and avers that “Defendants did not required by the IDEA.”) (citing J.S., 386 F.3d implement/provide Plaintiff Sean Duford with at 112); J.S., 386 F.3d at 114 (describing the required, necessary and/or proper systemic violations as those which “could not educational services, plans and/or programs, have been remedied by administrative bodies

because the framework and procedures for exception is that while the administrative assessing and placing students in appropriate hearing officers have the authority to enforce educational programs were at issue, or established regulations, policies and because the nature and volume of complaints procedures, they generally do not have the were incapable of correction by the authority to set new policies or to alter administrative hearing process”); Taylor, 313 existing ones. Therefore, requiring a parent to F.3d at 789 (excusing exhaustion requirement exhaust his administrative remedies when he where “‘it is improbable that adequate relief is challenging a generally applicable policy or can be obtained by pursuing administrative procedure would be futile.’”) (quoting King v. remedies (e.g., the hearing officer lacks the Pine Plains Cent. Sch. Dist., 918 F. Supp. authority to grant the relief sought)’”) 772, 781 (S.D.N.Y. 1996)). (quoting Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987)); J.G. v. Bd. of Educ. of the In J.S. v. Attica Central Schools, the Rochester City Sch. Dist., 830 F.2d 444, 446- Second Circuit held that systemic violations 47 (2d Cir. 1987) (“Exhaustion of were present where six students brought a administrative remedies is not required if complaint styled as a class-action, challenging adequate remedies are not reasonably a school district’s “total failure to prepare and available. . . . The same is true where the implement Individualized Education wrongs alleged could not or would not have Programs,” and the district’s dereliction of its been corrected by resort to the administrative duties: “to notify parents of meetings as hearing process.”) (citing Jose P. v. Ambach, required by law,” “to provide parents with 669 F.2d 865, 869 (2d Cir. 1982), McNeese v. legally required progress reports,” “to provide Bd. of Educ. for Cmty. Unit Sch. Dist. 187, appropriate training to school staff,” “to Cahokia, Ill., 373 U.S. 668, 674-75 (1963), perform timely evaluations and reevaluations Vander Malle v. Ambach, 673 F.2d 49, 52 (2d of disabled children,” “to provide parents with Cir. 1982) and Riley, 668 F.2d at 640-41); see required procedural safeguards regarding also Heldman, 962 F.2d at 159 (2d Cir. 1992) identification, evaluation, and accommodation (declining to apply exhaustion requirement of otherwise disabled children,” and “to where plaintiffs challenged New York State’s perform legally required responsibilities in a procedures for the appointment of hearing timely manner, including providing and officers: “The policies underlying the implementing transition plans, transitional exhaustion requirement do not come into play, support services, assistive technology however, when pursuit of administrative services, and declassification services for remedies would be futile because the agency children with disabilities.” 386 F.3d at 115. either was acting in violation of the law or Similarly, in Handberry v. Thompson, the was unable to remedy the alleged injury”); Second Circuit relied upon its decision in J.S. Tirozzi, 832 F.2d at 757 (finding systemic in holding that plaintiffs were excused from violation exception to EHA’s exhaustion exhausting their administrative remedies requirement where plaintiffs objected to under IDEA based upon the futility exception Connecticut’s failure to provide adequate for systemic cases where the complaint services and to establish a system for alleged that New York City jails had failed to responding to parental complaints); Michaels, provide any educational services, including 2004 U.S. Dist. LEXIS 6155, at *19 n.30 special educational services, to prison (“‘The rationale behind [the exhaustion] inmates. 446 F.3d at 343-44 (citing J.S., 386

F.3d at 114-15). The Second Circuit noted in J.S., Handberry, J.G., and Jose P.; the that application of the exhaustion requirement amended complaint makes broad allegations was not appropriate because “[t]he purposes of failure on the part of defendants to of exhaustion – to allow[] for the exercise of evaluate, implement, and monitor necessary discretion and educational expertise by state services for disabled students at Riverhead. and local agencies[] – are unavailing where Specifically, plaintiffs allege that Riverhead the alleged issue is the absence of any services did not comply with the requirements of whatsoever.” Handberry, 446 F.3d at 344 students’ IEP and § 504 plans, did not provide (quotation marks and citations omitted); see such plans to students who needed them, and, also J.G., 830 F.2d at 446-47 (finding as in Jose P., subjected plaintiffs to systemic violations under the EHA where substandard physical facilities. (Am. Compl. defendants had failed to evaluate and classify at ¶¶ 17, 20-22.) In the amended complaint, disabled students properly, did not inform plaintiffs set forth their extensive claims in parents about educational testing or their detail: procedural rights with regard to special education placements, and neglected to place [Defendants] denied and deprived students in school pending review of their Plaintiffs and those similarly situated evaluations or in special education programs of a free public education in that they following their evaluations); Jose P., 669 F.2d failed to identify children/students at 867, 869-870 (declining to apply such as Plaintiffs with learning exhaustion requirement where plaintiffs disabilities and/or special educational challenged New York State and City needs; failed to identify the specific education authorities’ extensive delays in learning disability and/or special evaluating and placing disabled students in educational needs of Plaintiffs; failed appropriate programs). to implement and/or provide Plaintiffs and those similarly situated with the In these cases, the Second Circuit has special and/or individual education consistently distinguished the problem of services/programs/plans needed and/or inadequate educational programs and required; failed to monitor Plaintiffs’ facilities, which constitute systemic violations progression and/or regression in their to be addressed by the federal courts, from educational performance; failed to technical questions of how to define and treat change, modify, add and/or individual students’ learning disabilities, supplement Plaintiffs’ educational which are best addressed by administrators. services/programs/plans; did not See, e.g., Jose P., 669 F.2d at 870 provide Plaintiffs with certified (acknowledging “the need for utilizing teachers and/or properly trained administrative expertise where the questions teachers and/or school personnel; did were difficult and technical,” but finding that not provide Plaintiffs with an adequate “[n]either of these policies apply here . . . The and/or requisite learning environment questions at issue are not technical, but including, but not limited to: books, concern the numbers of children on waiting pens, pencils, paper, erasers, lists, the availability of programs, and the chalkboards, homework/study adequacy of physical facilities”). The instant assignments and/or materials, case presents claims similar to those set forth playground, gymnasium, cafeteria,

library, proper and/or adequate B. Defendants’ Motions to Dismiss refrigeration, proper and/or adequate Pursuant to Fed. R. Civ. P. 12(b)(6) security, proper and/or adequate discipline; a school environment free 1. Dismissal of IDEA Claim by Stipulation from violence and/or disruptive behavior/acts and/or a school On January 11, 2005, the parties entered environment adequately and into a stipulation dismissing with prejudice appropriately staffed and trained to “any claim under 20 U.S.C. § 1415 of the address violence and/or disruptive Individuals with Disabilities in Education behavior; proper and/or adequate Act.” (Jan. 11, 2005 Stipulation, at 2.) State transportation, proper and/or adequate defendants argue that plaintiffs can no longer security for transportation, a school state an IDEA claim because Section 1415 environment free from mice, rats, provides the only private right of action under insects, roaches and other rodents, the statute. However, plaintiffs contend that proper and/or adequate classroom they did not discontinue their IDEA claim by accommodations including, but not stipulation.4 (Pls.’ Br., at 43.) limited to, space, seating, light, air, ventilation, heating and cooling Section 1415 provides the only explicit system; provided improper teacher to private right of action under IDEA.5 20 student ratio; and created maintained U.S.C. § 1415(i)(2)(A); see also County of and fostered overcrowded classrooms. Westchester v. New York, 286 F.3d 150, 152 (2d Cir. 2002) (declining to find a separate (Am. Compl. at ¶ 25.) Plaintiffs’ allegations private right of action in favor of a county or of complete inadequacy of the educational educational agency where “Congress environment at Riverhead, arising from a total expressly provided a private right of action in lack of programs designed to address the needs of disabled students, the decrepit physical plant and a total absence of basic 4 20 U.S.C. § 1415(i)(2)(A) provides that: services and supplies, constitute allegations of systemic violations that, if true, cannot be Any party aggrieved by the findings and remedied by individual administrative decision made under subsection (f) or (k) hearings. See, e.g., J.S., 386 F.3d at 114-15. who does not have the right to an appeal under subsection (g), and any party Plaintiffs are therefore excused from the aggrieved by the findings and decision made under this subsection, shall have the exhaustion requirement of IDEA, and this right to bring a civil action with respect to Court may exercise subject-matter jurisdiction the complaint presented pursuant to this over plaintiffs’ claims under IDEA, the ADA, section, which action may be brought in the Rehabilitation Act, Section 1983 and any State court of competent jurisdiction Section 1981. or in a district court of the United States, without regard to the amount in controversy. 5 At oral argument, plaintiffs’ counsel maintained that plaintiffs may maintain an IDEA cause of action under other sections of the statute.

favor of certain groups, specifically, any party forth in 28 U.S.C. § 1658.6 Jones v. R.R. aggrieved by particular findings or a decision Donnelley & Sons Co., 541 U.S. 369, 382-83 rendered under subsection 1415”) (citing (2004) (applying four-year statute of Transam. Mort. Advisors, Inc. v. Lewis, 444 limitations to claims arising under Section U.S. 11, 20 (1979) (“In view of these express 1981 as amended by the Civil Rights Act of provisions for enforcing the duties imposed . 1991, which provides that “for purposes of . . , it is highly improbable that ‘Congress this section, the term, ‘make and enforce absentmindedly forgot to mention an intended contracts’ includes the making, performance, private action.’”) (quoting Cannon v. Univ. of modification, and termination of all benefits, Chicago, 441 U.S. 677, 741 (1979) (Powell, privileges, and conditions of the contractual J., dissenting)) and Nat’l R.R. Passenger relationship”); see also Fernandez v. M & L Corp. v. Nat’l Ass’n of R.R. Passengers, 414 Milevoi Mgmt., 357 F. Supp. 2d 644, 650-51 U.S. 453, 458 (1974) (“When legislation (E.D.N.Y. 2005) (applying Donnelly to expressly provides a particular remedy or pending Section 1981 case). Therefore, the remedies, courts should not expand the Court shall apply the federal four-year statute coverage of the statute to subsume other of limitations to plaintiffs’ Section 1981 remedies.”)). In the absence of any support claims. Accordingly, plaintiffs’ Section 1981 for the notion that another section of the claims are timely.7 IDEA statute permits plaintiffs to bring the instant claims or that an implicit private right In addition, “Title II of the ADA became of action is available under the Act, the Court effective on January 26, 1992[,] [t]hus, finds that any IDEA claims must be brought arguably section 1658 might apply and one pursuant to Section 1415. Therefore, the Circuit has suggested this possibility.” Court finds that plaintiffs’ cause of action Duprey v. Conn. DMV, 191 F.R.D. 329, 341 pursuant to IDEA, 20 U.S.C. § 1415, has been (D. Conn. 2000) (declining to apply four-year withdrawn by stipulation. statute of limitations to claims under Title II of the ADA and applying Connecticut’s three- 2. Statute of Limitations year statute of limitations “in light of the well- established precedent in this Circuit that has Defendants argue that, even if plaintiffs’ repeatedly upheld application of claims under the ADA, the Rehabilitation Act, Connecticut’s three-year statute of limitations Section 1981 and Section 1983 are not subject to federal civil rights cases”) (rejecting to the exhaustion requirement, such claims are reasoning of Holmes v. Texas A & M Univ., barred by the applicable statutes of 145 F.3d 681, 686 (5th Cir. 1998) (applying limitations. The complaint in this action was initially filed on August 2, 2004. Plaintiffs allege that defendants’ actionable conduct 6 28 U.S.C. § 1658 provides that: “Except as first arose on January 10, 2001, upon the otherwise provided by law, a civil action arising issuance of a charter to defendant Riverhead. under an Act of Congress enacted after the date of (Am. Compl. at ¶ 17.) the enactment of this section [enacted Dec. 1, 1990] may not be commenced later than 4 years With regard to plaintiffs’ claims brought after the cause of action accrues.” under Section 1981, such claims are subject to 7 However, as noted infra, such claims must be the federal four-year statute of limitations set dismissed for failure to state a claim.

four-year statute of limitations to ADA claims pursuant to Section 1658)). However, this Court agrees with the reasoning of Duprey in children may request an impartial due process hearing within two years of an alleged violation holding that New York’s three-year statute of relating to the provision of a free appropriate limitations, rather than the federal four-year public education. N.Y. Educ. Law § 4404(a) statute of limitations, should apply to (2006). Following a hearing, parents of disabled plaintiffs’ ADA claims. See also Smith v. children may file a complaint in a federal district Masterson, No. 05-CV-2897 (RWS), 2006 court challenging a state review officer’s review U.S. Dist. LEXIS 70868, at *26-27 (S.D.N.Y. of an impartial hearing decision within four Sept. 29, 2006) (applying three-year statute of months. Defendants argue that the four-month limitations to ADA claims) (citing Morse v. statute of limitations set forth in Section 4404(a) Univ. of Vt., 973 F.2d 122, 127 (2d Cir. should apply to the instant case. This approach 1992)). was upheld by the Second Circuit in Adler v. Educ. Dep’t of N.Y., where the court held that the interest of having the needs of disabled children In determining the timeliness of claims addressed promptly warranted application of the under statutes brought prior to enactment of shorter statute of limitations applied to review of Section 1658, federal courts generally apply Article 78 administrative proceedings. 760 F.2d the forum state’s statute of limitations for 4543, 455-60 (2d Cir. 1985) (“[I]n view of the personal injury claims, which is three years in urgent need for prompt resolution of questions the State of New York.8 Pearl v. City of involving the education of handicapped children it is expected that all hearings and reviews conducted pursuant to these provisions will be 8 As plaintiffs’ IDEA claim has been withdrawn commenced and disposed of as quickly as by stipulation, the Court need not address whether practicable consistent with fair consideration of such a claim would be barred by the statute of the issues involved.”) (citation omitted). limitations. However, the Court finds that, even if such a claim were to proceed, or if plaintiffs’ other However, by contrast to Adler, this case does IDEA-related claims were subject to such a statute not come to the court following an administrative of limitations, the applicable period is three years. hearing or appeal. See C. v. Plainfield Bd. of Educ., 382 F. Supp. 2d 347, 349 n.1 (D. Conn. In M.D. v. Southington Bd. of Educ., the 2005) (“Subsequent court decisions . . . have Second Circuit held that in the case of the IDEA limited Alder’s holding to appeals from statute, courts must apply the “most appropriate or administrative rulings, and have applied a three analogous state statute of limitations.” 334 F.3d year statute of limitations to attorney’s fees 217, 221-22 (2d Cir. 2003) (quoting Goodman v. petitions.”); B.D., 130 F. Supp. 2d at 424 (“Adler Lukens Steel Co., 482 U.S. 656, 660 (1987)) does not apply where plaintiffs are not appealing (additional citations omitted); see also Green v. the findings of an administrative hearing or City of New York, 438 F. Supp. 2d 111, 124-25 subsequent reviews of that hearing.”). (E.D.N.Y. 2006) (“Where, as here, a statute is Furthermore, while Adler involved a single child, silent as to statute of limitations, and was enacted this case addresses numerous systemic violations. prior to December 1, 1990, the court applies ‘the The difficulty of aggregating and consolidating state law of limitations governing an analogous the concerns of several students and parents into a cause of action.”) (footnote omitted). In this single federal complaint could require well over instance, the relevant statute is New York the four months allotted to a single student in Education Law, Section 4404, which institutes the possession of an extensive administrative record. IDEA statute in New York State. N.Y. Educ. Law In light of these concerns, this Court deems New § 4404. Under the statute, parents of disabled York’s three-year statute of limitations for

Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) LEXIS 16789, at *25-*26 (S.D.N.Y. Aug. 12, (Section 1983), cert. denied, 538 U.S. 922 2005) (quoting Nakis v. Potter, 01-CV-10047 (2003); M.D., 334 F.3d at 224 (citing Morse, (HBP), 2004 U.S. Dist. LEXIS 25250, at *30- 973 F.2d at 127) (Rehabilitation Act). *33 (S.D.N.Y. Dec. 15, 2004) (collecting Generally, the statute of limitations begins to cases)). For example, in SJB, although the run at the time that a plaintiff learns or has district court excused plaintiffs from IDEA’s reason to learn of the injuries that form the exhaustion requirement, it declined to apply basis for his claim. M.D., 334 F.3d at 221 the continuing violation doctrine to the (quoting Leon v. Murphy, 988 F.2d 303, 309 alleged violations of plaintiffs’ education (2d Cir. 1993)). Within the Second Circuit, rights. SJB, 2004 U.S. Dist. LEXIS 13227, at this rule has been held to apply to IDEA- *20-*21 (holding that “defendant’s alleged related claims. Id.; see, e.g., SJB, 2004 U.S. failures to implement different IEPs from Dist. LEXIS 13227, at *18-*19. As the different years were each discrete, actionable complaint in this action was filed on August offenses”); see also Vandenberg v. Appleton 2, 2004, all non-Section 1981 claims accruing Area Sch. Dist., 252 F. Supp. 2d 786, 789-93 prior to August 2, 2001, would ordinarily be (E.D. Wis. 2003) (declining to apply time-barred. Plaintiffs argue that they are continuing violation doctrine to IDEA entitled to an exception to the statute of claims); but see Jeffrey Y. v. St. Marys Area limitations under the continuing violation Sch. Dist., 967 F. Supp. 852, 855-56 (W.D. doctrine, as they assert that defendants’ acts Pa. 1997) (applying continuing violation constitute “continuing violations” that began doctrine to IDEA claims); Hammond v. on January 10, 2001, and continue to the District of Columbia, No. 99-CV-1723 (GK), present day. (Pls.’ Br., at 40-41). 2001 WL 34360429, at *4-*6 (D.D.C. Mar. 1, 2001) (same). In the absence of case law In this Circuit, the continuing-violation within this Circuit applying the continuing doctrine is “disfavored” and “is ‘applied only violation doctrine to IDEA claims, this Court u p o n a s h o w i n g o f c o mp e l l i n g declines to do so in this case. Therefore, circumstances.’” Remigio v. Kelly, No. 04- plaintiffs’ non-Section 1981 claims accruing CV-1877 (JGK) (MHD), 2005 U.S. Dist. between January 10, 2001 and August 4, 2001 are time-barred. However, the complaint does allege that defendants’ violations occurred personal injury actions to control in this case. See until the filing of the amended complaint in Green, 438 F. Supp. 2d at 124-25 (applying New August 2004. Therefore, although the York’s three-year personal injury statute of “continuing violation” doctrine does not save limitations to parents’ IDEA claims); B.D., 130 F. Supp. 2d at 423-24 (rejecting IDEA’s four-month the pre-August 2001 conduct, the alleged statute of limitations in favor of three-year statute failure to prepare and to provide IEPs, as well of limitations for personal injury actions where as other requisite educational services, during systemic violations were alleged); Robert D. v. the period between August 4, 2001 and the Sobel, 688 F. Supp. 861, 864 (S.D.N.Y. 1988) filing of the amended complaint in August (applying three-year statute of limitations to IDEA 2004, are discrete, actionable offenses that are action for attorney’s fees); Plainfield Bd. of Educ., not time-barred. Thus, the claims with respect 382 F. Supp. 2d at 349 n.1 (noting that district to the allegations of unlawful conduct within courts within the Second Circuit have applied a the applicable statutes of limitations are three-year statute of limitations to attorney’s fees timely. petitions in IDEA cases).

3. Section 1981 and Title VI Claims U.S.C. § 2000d (2006). To establish a Title VI claim, a plaintiff must show: (1) that the Section 1981 provides in relevant part that defendant discriminated against him on the “[a]ll persons within the jurisdiction of the basis of race, (2) that the discrimination was United States shall have the same right . . . to intentional, and (3) that the discrimination make and enforce contracts, to sue, be parties, was a “substantial” or “motivating factor” for give evidence, and to the full and equal the defendant’s actions. Tolbert v. Queens benefit of all laws and proceedings for the Coll., 242 F.3d 58, 69 (2d Cir. 2001); Grimes security of persons and property.” 42 U.S.C. v. Sobol, 832 F. Supp. 704, 709 n.6 (S.D.N.Y. § 1981 (2006). The statute’s provisions apply 1993) (holding that failure to allege to both private and state actors. Yusuf v. intentional discrimination warrants dismissal Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994) of Title VI claim) (citing Fulani v. League of (citations omitted). To establish a Section Women Voters Educ. Fund, 684 F. Supp. 1981 claim, a plaintiff must show (1) that he 1185, 1193 (S.D.N.Y. 1988), aff’d, 882 F.2d or she is a member of a racial minority; (2) an 621 (2d Cir. 1989). intent to discriminate on the basis of race by defendant; and (3) that the discrimination The Supreme Court has held that, when concerned one or more of the activities confronted with a Rule 12(b)(6) motion to enumerated in section 1981. Lauture v. IBM, dismiss, courts must evaluate complaints of 216 F.3d 258, 261 (2d Cir. 2000). “‘Essential discrimination under the standard set forth in to an action under section 1981 are allegations Fed. R. Civ. P. 8, which requires that that the defendants’ acts were purposefully pleadings present “a short and plain statement discriminatory and racially motivated.’” of the claim showing that the pleader is Odom v. Columbia Univ., 906 F. Supp. 188, entitled to relief.” Swierkiewicz v. Sorema 194 (S.D.N.Y. 1995) (quoting Albert v. N.A., 534 U.S. 506, 513 (2002) (holding that Carovano, 851 F.2d 561, 571 (2d Cir. 1988)). plaintiffs met Fed. R. Civ. P. 8(a)’s simplified The plaintiff must “specifically allege the notice pleading standard where the complaint events claimed to constitute intentional gave notice of the claims to be alleged, discrimination as well as circumstances giving detailed the events underlying the claims, rise to a plausible inference of racially provided relevant dates, and included the ages discriminatory intent.” Yusuf, 35 F. 3d at 713. and nationalities of some of the relevant persons involved). “[W]hile the pleading Similarly, Title VI of the Civil Rights Act standard is a liberal one, bald assertions and of 1964 prohibits programs that receive conclusions of law will not suffice.” Amron v. federal funding from engaging in intentional Morgan Stanley Inv. Advisors, Inc., 464 F.3d discrimination on the basis of race.9 42 338, 344 (2d Cir. 2006) (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)). A complaint falls short of meeting the Rule 8 9 Title VI provides: “[n]o person in the United standard where, as in this case, it “fails to States shall, on the ground of race, color or incorporate any factual allegations that would national origin, be excluded from participation in, indicate how his race, gender, age, or national be denied the benefits of, or be subject to origin played a role” in the alleged actions discrimination under any program or activity against plaintiff. Valle v. Bally Total Fitness, receiving Federal financial assistance.” 42 U.S.C. No. 01-CV-11614 (RCC) (KNF), 2003 U.S. § 2000d.

Dist. LEXIS 17093, at *7-*8 (S.D.N.Y. Sept. Section 1981 and Title VI are dismissed.10 30, 2003) (citing Swierkiewicz, 534 U.S. at 513). Ultimately, “‘a plaintiff must allege, as 4. Section 1983 Claims the Supreme Court has held, those facts necessary to a finding of liability . . . [and] a To state a claim for relief under Section plaintiff’s allegations, accepted as true, must 1983, a plaintiff must allege: (1) the be sufficient to establish liability.’” Amron, deprivation of any rights, privileges or 464 F.3d at 344 (emphasis in original); see immunities secured by the Constitution and also Chesney v. Valley Stream Union Free federal law, (2) by a person acting under the Sch. Dist. No. 24, No. 05-CV-5106 (DRH) color of state law. 42 U.S.C. § 1983. Section (ETB), 2007 U.S. Dist. LEXIS 31644, at *7 1983 does not itself provide substantive (E.D.N.Y. Apr. 30, 2007) (quoting Amron, rights, but in fact offers “a method for 464 F.3d at 344). vindicating federal rights elsewhere conferred.” Patterson v. County of Oneida, With regard to both the Section 1981 and 375 F.3d 206, 225 (2d Cir. 2004) (quoting Title VI claims, plaintiffs fail to establish that Baker v. McCollan, 443 U.S. 137, 144 n.3 they were intentionally discriminated against (1979)); Sykes v. James, 13 F.3d 515, 519 (2d by defendants on the basis of race. Plaintiffs’ Cir. 1993) (“Section 1983 itself creates no allegations consist merely of the fact that substantive rights; it provides only a some of the students listed within the procedure for redress for the deprivation of complaint are members of racial minority rights established elsewhere.”) (citing City of groups and were deprived of a free public Oklahoma City v. Tuttle, 471 U.S. 808, 816 education. (Am. Compl. ¶¶ 274-76). (1985)). Pursuant to Section 1983, plaintiffs According to the complaint, defendants did allege claims under the ADA, the not treat minority plaintiffs in the same Rehabilitation Act, the Equal Protection manner as similarly situated white children. Clause, as well as claims for supervisory (Id. ¶ 277.) However, plaintiffs do not liability and failure to intercede. articulate the basis for their claims. Specifically, the amended complaint does not As a threshold matter, the School set forth how minority plaintiffs were treated defendants contend (1) that defendant Edison differently from non-minority children Schools (“Edison”) is not a state actor within attending Riverhead. In fact, the complaint the meaning of § 1983, and (2) that plaintiffs belies the notion that minority and non- have failed to plead a proper Monell claim minority children were treated differently by against defendant Riverhead and its agents. listing the same exact claims for both minority (School Defs.’ Br., at 6-7.) and non-minority student plaintiffs. Such bare and conflicting allegations, without any According to defendants, Edison is a facts in support, are insufficient to state a private entity that “operates as a management claim for intentional discrimination. Under company for educational institutions, the standard set forth in Swierkiewicz and Amron, the Court finds that liability for 10 intentional racial discrimination could not be However, the Court will grant leave to amend established on the basis of plaintiffs’ amended this claim pursuant to Fed. R. Civ. P. 15(a), in complaint; therefore, plaintiffs’ claims under order to afford plaintiffs the opportunity to correct this pleading defect, if possible.

including charter schools such as attributable to the State?’” Rendell-Baker v. [Riverhead].” (Defs.’ Br., at 6.) “A plaintiff Kohn, 457 U.S. 830, 838 (1982) (holding that asserting a claim for violation of his discharge of teacher by school for troubled constitutional rights under § 1983 must children funded by the state and nominally demonstrate that the challenged conduct overseen by state agencies was not a state constituted state action.” Prowisor v. Bon- action under Section 1983) (quoting Lugar v. Ton, Inc., No. 06-CV-2213, 2007 U.S. App. Edmondson Oil Co., 457 U.S. 922, 937 LEXIS 9661, at *3-4 (2d Cir. Apr. 26, 2007) (1982)). Factors to be considered include (summary order) (citing Tancredi v. Metro. receipt of state funding, the extent of state Life Ins. Co., 316 F.3d 308, 312 (2d Cir. regulation, and whether the entity performs a 2003) and Shirley v. State Nat’l Bank of function that has been “‘traditionally the Conn., 493 F.2d 739, 741 (2d Cir. 1974) exclusive prerogative of the State.’” Id., at (“The ‘under color of state law’ provision in 842 (emphasis in original) (quoting Jackson, section 1983 is equivalent to the state action 419 U.S. at 353); see also West v. Atkins, 487 requirement of the Fourteenth U.S. 42, 56 n.14 (1988) (holding that Amendment.”)). “It is well-settled that delegation of state responsibilities to private conduct by a private entity constitutes state contractors to provide prisoners with medical action [for purposes of Section 1983] only care did not deprive the state’s prisoners of when ‘there is a sufficiently close nexus the means to vindicate their Eighth between the State and the challenged action of Amendment rights, and agreeing with the the [private] entity so that the action of the dissent issued by the Court of Appeals below: latter may be fairly treated as that of the State “[I]f this were the basis for determining § itself.’” Tancredi v. Metro. Life Ins. Co., 378 1983 liability, ‘the state will be free to F.3d 220, 229 (2d Cir. 2004) (quoting Jackson contract out all services which it is v. Metro. Edison Co., 419 U.S. 345, 351 constitutionally obligated to provide and leave (1974)). Plaintiffs contend that, as its citizens with no means for vindication of compensation for operating Riverhead, Edison those rights, whose protection has been receives a portion of the state funding delegated to ‘private’ actors, when they have provided to Riverhead to implement IEP been denied”) (quoting West v. Atkins, 815 plans. (Pls.’ Br., at 22.) According to F.2d 993, 998 (4th Cir. 1987) (Winters, J., plaintiffs, because Edison is obligated “to dissenting)). By contrast to Rendell-Baker, in perform a public function in providing a free this instance, the alleged claims concern not appropriate public education, and in receiving an employment action with regard to a single state/public funds for same, is not a private teacher, in which it may fairly be said that the entity.” (Id.) state could be only minimally or tangentially involved; rather, the claims relate to the In determining whether a party is a state alleged total inadequacy of a school to actor for purposes of Section 1983, the provide free public education to its students Supreme Court has held that “[t]he ultimate while receiving state funding, being bound to issue in determining whether a person is state educational standards and purporting to subject to suit under § 1983 is the same offer the same educational services and question posed in cases arising under the facilities as any other public school. Under Fourteenth Amendment: is the alleged these circumstances, the Court agrees with the infringement of federal rights ‘fairly district courts that have held, since Rendell-

Baker, that claims addressing the nature and Monell v. Dep’t of Soc. Servs., 436 U.S. 658, quality of education received at charter 691 (1978). In order to support liability schools may be properly brought against such under Monell, a plaintiff must “show that the schools and their management companies challenged acts were performed pursuant to a under Section 1983. See, e.g., Irene B. v. municipal policy or custom.” Patterson, 375 Phila. Acad. Charter Sch., No. 02-1716, 2003 F.3d at 226 (citing Jett v. Dallas Indep. Sch. U.S. Dist. LEXIS 3020, at *38-39 (E.D. Pa. Dist., 491 U.S. 701, 733-36 (1989), and Jan. 29, 2003) (holding charter school to be Monell, 436 U.S. at 692-94). “The policy or state actor within meaning of Section 1983); custom need not be memorialized in a specific Riester v. Riverside Cmty. Sch., 257 F. Supp. rule or regulation.” Kern v. City of Rochester, 2d 968, 972 (S.D. Ohio 2002) (holding that 93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco charter and community schools are state v. N.Y. City Police Dep’t, 971 F.2d 864, 870 actors: “Under the public function test, (2d Cir. 1992)). A policy, custom, or practice Defendants are state actors because they of the municipal entity may be inferred where provide a traditional state function – in that “‘the municipality so failed to train its they provide free, public education to Ohio employees as to display a deliberate students. . . . [F]ree, public education, whether indifference to the constitutional rights of provided by public or private actors, is an those within its jurisdiction.’” Patterson, 375 historical, exclusive, and traditional state F.3d at 226 (quoting Kern, 93 F.3d at 44). function”) (citing Jones v. SABIS Educ. Sys., “For purposes of § 1983, school districts are 52 F. Supp. 2d 868, 876 (N.D. Ill. 1999) considered to be local governments and are (deeming charter school to be a subject to similar liability as local “governmental body”) and Daughtery v. governments under Monell.” Booker v. Bd. of Vanguard Charter Sch. Acad., 116 F. Supp. Educ., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2d 897 (W.D. Mich. 2000) (treating both 2002) (citing Monell, 436 U.S. at 696-97); see charter school and private corporation also Irene P., 2003 U.S. Dist. LEXIS 3020, at operating such school as state actors for *30-32 (treating charter school as municipal constitutional purposes)) (additional citations entity for Monell purposes). Plaintiffs omitted). Therefore, Edison, which is charged contend that the complaint sufficiently alleges with oversight and management functions (1) a pattern of unconstitutional conduct with regard to Riverhead, may properly be causing plaintiffs to be deprived of their right viewed as having engaged in state action, to a free appropriate public education; and (2) despite being a private corporation, where it deliberate indifference by Riverhead in failing allegedly failed to provide Riverhead students to intercede, train and supervise their with adequate special education programs and employees in order to protect plaintiffs’ safe physical conditions. rights. (Pls.’ Br., 28-29.) The Court agrees with plaintiffs; at this early stage in the School defendants also contend that litigation, plaintiffs need not prove that they plaintiffs have failed to plead a proper Monell would succeed on their claim of Monell claim against Riverhead. Under Monell, a liability, but must merely show that they may municipal entity may only be held liable be able to prove a set of facts in support of where the entity itself commits a wrong; “a such claim which would entitle them to relief. municipality cannot be held liable under § Based upon plaintiffs’ allegations of school- 1983 on a respondeat superior theory.” wide failure to provide plaintiffs with

necessary educational programs and services, a. ADA and Rehabilitation Act Claims they have sufficiently pled a Monell claim against Riverhead for this claim to withstand Parents of children with disabilities may a motion to dismiss. bring claims under the ADA or Section 504 of the Rehabilitation Act.12 20 U.S.C. § 1415 With regard to the individual Riverhead (b)(1). The ADA provides that “no qualified defendants, to the extent that they are being individual with a disability shall, by reason of sued in their official capacities, the claims such disability, be excluded from participation against them are duplicative of the Monell in or be denied the benefits of the services, claim against Riverhead. Tsotesi v. Bd. of programs or activities of a public entity, or be Educ., 258 F. Supp. 2d 336, 338 n.10 subjected to discrimination by any such (S.D.N.Y. 2003) (citing Kentucky v. Graham, entity.” 42 U.S.C. § 12132. Similarly, 473 U.S. 159, 165-66 (1985)); see also Section 504 provides that “no otherwise Monell, 436 U.S. at 691 (holding that qualified individual with a disability . . . shall, “official-capacity suits generally represent solely by reason of her of his disability, be only another way of pleading an action excluded from the participation in, be denied against an entity of which an officer is an the benefits of, or be subjected to agent”). Therefore, these claims against the discrimination under any program or activity individual Riverhead employees in their receiving Federal assistance.” 29 U.S.C. § official capacities are dismissed.11

individuals are protected from liability by 11 While defendants also assert a qualified qualified immunity. On the basis of the pleadings immunity defense on the part of the individually- alone, in this case, the Court cannot determine named defendants, plaintiffs argue that qualified whether the defendants’ actions “did not violate immunity is not available for official-capacity clearly established law,” or whether “it was suits. (Riverhead Supp. Br., at 20; Pls.’ Br., at 29- objectively reasonable for the defendant[s] to 31.) Qualified immunity shields government believe that [their] action[s] did not violate such officials performing discretionary functions from law[s].” Johnson v. Newburgh Enlarged Sch. being held liable for civil damages arising from Dist., 239 F.3d 246, 250 (2d Cir. 2001) (internal actions which “do ‘not violate clearly established quotation marks omitted) (quoting Salim v. statutory or constitutional rights of which a Proulx, 93 F.3d 86, 89 (2d Cir. 1996) and citing reasonable person would have known.’” P.C. v. Warren v. Keane, 196 F.3d 330, 332 (2d Cir. McLaughlin, 913 F.2d 1033, 1039 (2d Cir. 1990) 1999)). (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 12 (1982)). “The doctrine affords protection to a As there is no individual liability under the government official only from suit in his ADA or the Rehabilitation Act, plaintiffs’ claims individual capacity.” Id. (citing Graham, 473 under these statutes as to the individually-named U.S. at 165-68). Therefore, qualified immunity is defendants are dismissed. See Menes v. CUNY, 92 not available as a defense to plaintiffs’ official- F. Supp. 2d 294, 306 (S.D.N.Y. 2000) capacity claims, and in any case, such claims are (“Individual defendants may not be held dismissed as duplicative of plaintiffs’ Monell personally responsible for alleged violations of the claim against Riverhead. To the extent that ADA or the Rehabilitation Act. Nor can plaintiffs assert any claim against the individually individuals be named in their official or named defendants in their individual, rather than representative capacities as defendants in ADA or official, capacities, it is impossible to determine at Rehabiliation Act suits.”) (internal quotation this stage of the litigation whether such marks and citations omitted).

794. Under both statutes, schools are required “However, plaintiffs need not show to provide “a free appropriate public defendants acted with animosity or ill will” to education” through special education and support a claim under the ADA or Section related services. See, e.g., 34 C.F.R. § 104.33 504. R.B. ex rel. L.B., 99 F. Supp. 2d at 419 (stating that under Section 504, “[a] recipient (citing Bartlett v. N.Y. State Bd. of Law [of federal funding] that operates a public Examiners, 156 F.3d 321, 331 (2d Cir. 1998), elementary or secondary education program vacated on other grounds, 527 U.S. 1031 or activity shall provide a free appropriate (1999), and Bravin v. Mount Sinai Med. Ctr., public education to each qualified 58 F. Supp. 2d 269, 273 (S.D.N.Y. 1999)); see handicapped person who is in the recipient’s also W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. jurisdiction, regardless of the nature or 1995) (“Plaintiffs ‘need not establish that severity of the person’s handicap,” and setting there has been an intent to discriminate in forth special education and IEP requirements); order to prevail under § 504.’”) (quoting 28 C.F.R. § 35.103 (stating that the ADA Nathanson v. Med. Coll. of Pa., 926 F.2d “shall not be construed to apply a lesser 1368, 1384 (3d Cir. 1991) and citing standard than the standards applied under title Alexander v. Choate, 469 U.S. 287, 297 V of the Rehabilitation Act of 1973 (29 (1985)). U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title”). Viewing the evidence in the light most favorable to plaintiffs, they have sufficiently Both the ADA and Section 504 address pled the requisite “gross misjudgment” discrimination against disabled students, necessary for their ADA and Section 504 rather than incorrect or erroneous special claims to withstand a motion to dismiss. education treatments, as in the case of IDEA. Plaintiffs’ extensive list of Riverhead’s Thus, “something more than a mere violation failures and omissions with regard to disabled of the IDEA is necessary in order to show a students, as set forth supra, combined with violation of Section 504 in the context of their assertions that defendants were aware of educating children with disabilities, i.e., a plaintiffs’ disabilities, that plaintiffs’ parents plaintiff must demonstrate that a school requested accommodation and programs to district acted with bad faith or gross address such disabilities and that defendants misjudgment.” Wenger v. Canastota Cen. intentionally refused to take any remedial or Sch. Dist., 979 F. Supp. 147, 152 (N.D.N.Y. corrective action to remedy the problems, are 1997) (citing Brantley v. Indep. Sch. Dist., sufficient to plead causes of action under the 936 F. Supp. 649, 657 (D. Minn. 1996) (citing ADA and Section 504.13 See, e.g., R.B. ex rel. Monahan v. Nebraska, 687 F.2d 1164, 1170- L.B., 99 F. Supp. 2d at 419 (denying motion to 71 (8th Cir. 1982)); see also R.B. ex rel. L.B. dismiss plaintiff’s ADA and Section 504 v. Bd. of Educ. of the City of N.Y., 99 F. Supp. claims where plaintiff alleged that defendants 2d 411, 419 (S.D.N.Y. 2000) (holding that, in order to state a claim under the ADA, “a 13 plaintiff must demonstrate more than an As plaintiffs seek both money damages and incorrect evaluation or substantively faulty injunctive relief, defendants’ contention that IEP to establish liability; a plaintiff must show plaintiffs do not state a cause of action under that defendants acted with bad faith or gross Section 504 of the Rehabilitation Act because it does not provide damages is insufficient to defeat misjudgment”) (citations omitted). this claim.

had intentionally, willfully and in bad faith b. Equal Protection Claims denied his right to a free and appropriate public education, and where plaintiff alleged Plaintiffs assert violations of their rights facts indicating that defendants had not under the Equal Protection Clause of the implemented plaintiff’s IEP and had failed to Fourteenth Amendment, which provides that create or to implement an interim service plan “no State shall . . . deny to any person within after plaintiff was suspended); cf. Wenger, its jurisdiction the equal protection of the 979 F. Supp. at 153 (granting motion to laws.” U.S. Constit. amend. XIV, § 1. To dismiss Section 504 claim where plaintiff’s state a claim of racial discrimination under the assertions of discrimination were based upon Equal Protection Clause, a plaintiff must failure to timely assess and diagnose allege that a government actor intentionally plaintiff’s disability or to implement discriminated against him on the basis of race. plaintiff’s IEP in a timely and consistent Brown v. City of Oneota, 221 F.3d 329, 337 manner on the basis that such “IDEA-type (2d Cir. 1999) (citing Hayden v. County of educational decisions” were “‘at most, errors Nassau, 180 F.3d 42, 48 (2d Cir. 1999)). in professional judgment’”) (quoting Brantley, Plaintiffs may plead intentional discrimination 936 F. Supp. at 657). Therefore, defendants’ in violation of the Equal Protection Clause by motions to dismiss plaintiffs’ ADA and identifying defendants’ use of an express Section 504 claims are denied.14 racial classification, defendants’ intentional application of a facially neutral law in a discriminatory manner, or a facially neutral 14 As Title II of the ADA applies only to public statute or policy that has an adverse effect and entities, Edison, as a private corporation, is not was motivated by discriminatory animus. subject to liability pursuant to this statute. Under Brown, 221 F.3d at 337 (citing Adarand the ADA, “public entity” is defined as “(A) any State or local government; (B) any department, Contructors, Inc. v. Pena, 515 U.S. 200, 213 agency, special purpose district, or other (1995), Yick Wo v. Hopkins, 118 U.S. 356, instrumentality of the State or States or local 373-74 (1886), Village of Arlington Heights v. government; and (C) the National Railroad Metro. Hous. Dev. Corp., 429 U.S. 252, 264- Corporation.” 42 U.S.C. § 12131; Spychalsky v. 65 (1977), and Johnson v. Wing, 178 F.3d Sullivan, No. 01-CV-0958 (DRH) (ETB), 2003 611, 615 (2d Cir. 1999)). U.S. Dist. LEXIS 15704, at *13-*14 (E.D.N.Y. Aug. 29, 2003) (distinguishing “state actor” and Plaintiffs’ equal protection claim consists “public entity” analyses and declining to treat only of their assertion that “some of the private Catholic school as public entity for ADA Plaintiffs and those similarly situated who are Title II purposes). However, the Second Circuit has held that the reach of the Rehabilitation Act being deprived/denied their right to an extends as far as “only federally funded – as education and proper educational environment opposed to ‘public’ – entities.” Weixel v. Bd. of are of a minority race.” (Pls.’ Br., at 23.) Educ. City of N.Y., 287 F.3d 138, 146 n.5 (2d Cir. This claim does not fit directly into any of the 2002); 29 U.S.C. § 794 (applying Rehabilitation Act to “any program or activity receiving Federal financial assistance”). While defendants argue for its management responsibilities. Therefore, as that Edison is not federally funded, plaintiffs plaintiffs have sufficiently alleged that Edison is contend that Riverhead, as a public school, subject to the Rehabilitation Act, the Court receives federal funds under IDEA, and provides declines to dismiss plaintiffs’ Rehabilitation Act a portion of such funds to Edison as compensation claim against Edison.

potential theories of recovery under the Equal plaintiffs’ claims where they had not Protection Clause, as set forth above. In the adequately alleged intentional discrimination) absence of asserting that defendants applied a (citing Soberal-Perez v. Heckler, 717 F.2d 36, racial classification or applied a facially 42 (2d Cir. 1983) (dismissing constitutional neutral law in a discriminatory manner, they challenge to defendant’s failure to provide must plead that a facially neutral policy of Spanish language services where plaintiffs Riverhead had an adverse effect upon alleged that such failure had detrimental effect minority students and was motivated by on Hispanics, but plaintiffs could not ‘allege discriminatory animus. Plaintiffs cite Aguilar in good faith, much less prove, any other v. N.Y. Convention Ctr. Operating Corp., 174 evidence of discriminatory intent’ other than F. Supp. 2d 49, 55-56 (S.D.N.Y. 2001), for a legitimate preference for English over all the proposition that there are no heightened other languages)) (additional citations pleading standards governing discrimination omitted). As in Aguilar, plaintiffs’ complaint claims. While Aguilar did hold that does not identify which students belong to “plaintiffs are not necessarily required to minority groups and does not specify the allege any more than ‘I was turned down for constitutional violations visited upon such the job because of my race’ in order to survive plaintiffs as opposed to violations as to both a motion to dismiss,” Aguilar, 174 F. Supp. 2d minority and non-minority students. at 55-56 (citing Bennett v. Schmidt, 153 F.3d Therefore, as plaintiffs have failed to meet the 516, 518 (7th Cir. 1998)), the district court minimum pleading requirements with regard nevertheless held that plaintiffs had not met to their equal protection claim under Section even this standard where their complaint 1983, this claim is dismissed.15 failed to “give defendants even minimal notice of which plaintiffs are asserting which c. Supervisory Liability causes of action”: Plaintiffs allege claims of supervisory The complaint asserts that plaintiffs liability pursuant to Section 1983, asserting were denied various privileges of that all defendants “had a duty to supervise, employment because of their race control, manage, monitor, oversee, provide and/or gender but does not specify and/or implement the free public education of which plaintiffs were denied which Plaintiffs” and “would have known of the privileges. The complaint describes a constitutional violations caused to be visited general pattern of race and gender upon Plaintiffs . . . by one another,” but hostility but does not specify which “failed to take remedial or corrective action.” plaintiffs are asserting hostile work (Am. Compl., ¶¶ 282-84.) environment claims based on which alleged incidents. . . . Without greater In order to plead a claim of supervisory specificity regarding the alleged harm liability against individually-named suffered by each plaintiff, it is defendants, “[e]vidence of a supervisory impossible for defendants even to formulate an answer. 15 However, the Court will grant leave to amend Aguilar, 174 F. Supp. 2d at 56; see also this claim pursuant to Fed. R. Civ. P. 15(a), in order to afford plaintiffs the opportunity to correct Grimes, 832 F. Supp. at 708-09 (dismissing this pleading defect, if possible.

official’s ‘personal involvement’ in the individual defendants); Duryea v. County of challenged conduct is required.” Hayut v. Livingston, No. 06-CV-6436T, 2007 U.S. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. Dist. LEXIS 30908, at *18-19 (W.D.N.Y. 2003) (citing Johnson, 239 F.3d at 254). Apr. 26, 2007) (dismissing supervisory “‘Personal involvement’ is not limited to liability claim where the sole allegation was direct participation by the supervisor in the that defendant had met with parents and told challenged conduct, but may also be them that he did not believe their son’s established by evidence of an official’s (1) statements). Therefore, the defendants’ failure to take corrective action after learning motion to dismiss is granted with regard to of a subordinate’s unlawful conduct, (2) plaintiffs’ Section 1983 claims of supervisory creation of a policy or custom fostering the liability as to the individually-named unlawful conduct, (3) gross negligence in defendants. supervising subordinates who commit unlawful acts, or (4) deliberate indifference to With respect to Riverhead, which this the rights of others by failing to act on Court has held to constitute a “municipality”

subordinates. Id. It is well-established in the claims, “[a] municipality’s failure to train or Second Circuit that a plaintiff may not assert supervise its officers can rise to the level of an claims under Section 1983 pursuant to actionable policy or custom where it amounts theories of respondeat superior or vicarious to ‘deliberate indifference’ to the liability. Meriwether v. Coughlin, 879 F.2d constitutional rights of its citizens.” Hall v. 1037, 1046 (2d Cir. 1989). Moreover, a Marshall, Nos. 04-CV-4953, 05-CV-0079 defendant cannot be held personally (FB) (LB), 2007 U.S. Dist. LEXIS 16664, at responsible merely because he or she was in a *21 (E.D.N.Y. Mar. 8, 2007) (citing City of high position of authority. Wright v. Smith, Canton v. Harris, 489 U.S. 378, 388 (1989) 21 F.3d 496, 501 (2d Cir. 1994). and Thomas v. Roach, 165 F.3d 137, 145 (2d Cir. 1999) (“A municipality may be liable In plaintiffs’ blanket allegations of under § 1983 . . . where the City’s failure to supervisory liability against all defendants, supervise or discipline its officers amounts to they fail to indicate personal involvement by a policy of deliberate indifference.”). Here, any of the named defendants. The complaint plaintiffs’ allegations with respect to does not indicate the role of such defendants Riverhead’s broad failures to provide students in failing to prevent constitutional violations with the requisite educational services, against students by any of the five means supervision, and properly trained teachers established by the Second Circuit. Plaintiffs’ could establish a “policy or practice” of conclusory allegations are insufficient to deliberate indifference with regard to the plead Section 1983 claims of supervisory supervision or training of the Riverhead staff. liability as to the individually-named Therefore, the defendants’ motion to dismiss defendants. See, e.g., Richards v. City of New is denied with regard to plaintiffs’ Section York, No. 05-CV-1163 (SLT) (MDG), 2007 1983 claims of supervisory liability as to U.S. Dist. LEXIS 23726, at *19-26 (E.D.N.Y. Riverhead. Mar. 30, 2007) (dismissing § 1981 and § 1983 claims where plaintiff failed to allege personal involvement of twenty-seven named

d. Failure to Intercede were aware of the specific deprivations while they were being inflicted upon plaintiffs by Plaintiffs’ failure to intercede claim is subordinates. Id. In this instance, plaintiffs brought on the basis that the State defendants sufficiently allege constitutional violations “had opportunities to intercede on behalf of against plaintiffs and deliberate indifference Plaintiffs and those similarly situated to on the part of defendants. Therefore, prevent the unlawful and discriminatory defendants’ motion to dismiss as to this claim deprivation of their state and federal is denied. constitutional right to a free public education, but, due to Defendants’ intentional conduct 5. State Claims and/or deliberate indifference, Defendants declined and/or refused to intercede on their a. Failure to Serve a Notice of Claim behalf.”16 (Am. Compl ¶ 289.) “[W]hen individuals are placed in custody or under the Plaintiffs also allege violations of New care of the government, their governmental York Human Rights Law §§ 290-97, and custodians are sometimes charged with claims for intentional infliction of emotional affirmative duties, the non-feasance of which distress and “failure to train, supervise, may violate the constitution.” McLaughlin, manage and/or control.” (Am. Compl. ¶¶ 913 F.2d at 1044 (quoting Doe v. N.Y. City 316-20.) Defendants argue that plaintiffs’ Dep’t of Social Servs., 649 F.2d 134, 141 (2d state law claims should be dismissed for Cir. 1981)). “Officials may be liable under 42 failure to serve a timely notice of claim upon U.S.C. § 1983 only if the omissions were a defendants. substantial factor leading to the denial of a constitutionally protected liberty or property New York Education Law § 3813 interest and the officials displayed a mental provides that: state of deliberate indifference with respect to those rights.” Id. (citing Doe, 649 F.2d at No action or special proceeding, for 141). This Circuit has held that “a mere any cause whatever . . . shall be failure by the county to supervise its prosecuted or maintained against any employees would not be sufficient to hold it school district, board of education, liable under § 1983 (but that) the county could board of cooperative educational be held liable if failure to supervise or the lack services, school . . . or any officer of a of a proper training program was so severe as school district, board of education, to reach the level of ‘gross negligence’ or board of cooperative educational ‘deliberate indifference’ to the deprivation of services, or school . . . unless it shall plaintiff’s constitutional rights.” Doe, 649 appear by and as an allegation in the F.2d at 145 (some internal quotation marks complaint or necessary moving papers omitted) (quoting Owens v. Haas, 601 F.2d that a written verified claim upon 1242, 1246 (2d Cir. 1979)). This is the case which such action or special regardless of whether the officials in question proceeding is founded was presented to the governing body of said district 16 or school within three months after the As defendants do not allege this claim against accrual of such claim, and that the School defendants, the Court shall only consider officer or body having the power to the claim with regard to the State defendants.

adjust or pay said claim has neglected 2007 U.S. Dist. LEXIS 9809, at *17-*18 or refused to make an adjustment or (holding that filing a notice of claim “is a payment thereof for thirty days after condition precedent to bringing a state cause such presentment. of action against the [school] District.”) (citing Weathers v. Millbrook Cent. Sch. Dist., N.Y. Educ. Law § 3813(1). As the New York 428 F. Supp. 2d 180, 186 (S.D.N.Y. 2006) and Court of Appeals has stated, “the purpose of Parochial Bus Sys., Inc., 458 N.E.2d at 1244- section 3813 of the Education Law is to give 45). a school district prompt notice of claims ‘so that investigation may be made before it is too However, the New York Court of Appeals late for investigation to be efficient.’” has created a single exception to Section Parochial Bus Sys., Inc. v. Bd. of Educ. of 3813. Biggers v. Brookhaven-Comsewogue City of N.Y., 458 N.E.2d 1241, 1244 (N.Y. Union Free Sch. Dist., 127 F. Supp. 2d 452, 1983) (quoting Bd. of Educ. of Enlarged 455 (S.D.N.Y. 2001). “The prerequisites of Ogdensburg City Sch. Dist. v. Wager Constr. subdivision 1 of section 3813 apply only to Corp., 333 N.E.2d 353, 356 (N.Y. 1975)) those actions which seek the enforcement of (additional citation omitted); see also Consol. private rights, as opposed to those actions that Constr. Group, LLC v. Bethpage Union Free seek vindication of a public interest.” Id. Sch. Dist., 2007 N.Y. Slip. Op. 03646, 2007 (citing Union Free Sch. Dist. No. 6 v. N.Y. WL 1218360, at *3 (N.Y. App. Div. Apr. 24, State Human Rights Appeal Bd., 320 N.E.2d 2007); Nagy v. Bayport Bluepoint Union Free 859 (1974) and Bd. of Educ. of Union Free Sch. Dist., 05-CV-3808 (DRH) (ARL), 2007 Sch. Dist. No. 2 v. N.Y. State Div. of Human U.S. Dist. LEXIS 9809, at *17-*18 (E.D.N.Y. Rights, 379 N.E.2d 163, 165 (N.Y. 1978), Feb. 13, 2007). As a result, fulfillment of the overruled in part by Freudenthal v. County of statutory requirements for filing a notice of Nassau, 784 N.E.2d 1165, 1171 (N.Y. 2003)). claim is “a condition precedent to bringing an action against a school district or a board of While “[a]ll actions brought to enforce education and, moreover, failure to present a civil rights can be said to be in the public claim within the statutory time limitation . . . interest,” the Court of Appeals has reserved is a fatal defect.”17 Parochial Bus Sys., Inc., the exception to the notice requirement for 458 N.E.2d at 1245 (citations omitted); Nagy, cases where actions “are brought to protect an important right, which seek relief for a similarly situated class of the public, and 17 whose resolution would directly affect the Section 3813 also applies to charter schools rights of that class or group.” Mills v. Monroe such as Riverhead, which are defined as “public” schools under New York Education Law § County, 451 N.E.2d 456, 458 (N.Y. 1983) 2853(c): (citations omitted), overruled on other grounds by Felder v. Casey, 487 U.S. 131, A charter school shall be deemed an 134, 138 (1988) (holding that state procedural independent and autonomous public requirements may not be applied to federal school, except as otherwise provided in statutes). “The pertinent distinction is this article. The charter entity and the between actions and proceedings which on the board of regents shall be deemed to be the one hand seek only enforcement of private public agents authorized to supervise and rights and duties and those on the other in oversee the charter school.

which it is sought to vindicate a public (characterizing plaintiff’s claim as one interest; the provisions of subdivision 1 of “seeking the enforcement of private rights” section 3813 are applicable as to the former where employee alleging gender but not as to the latter.” Union Free Sch. Dist. discrimination sought money damages for No. 6, 320 N.E.2d at 862 (excusing notice of emotional and financial suffering) (quoting claim requirement and holding that school Mills, 451 N.E.2d at 458)); Doyle v. Bd. of district’s personnel policy regarding Educ., 646 N.Y.S.2d 842, 843 (N.Y. App. pregnancy was in violation of New York Div. 1996) (requiring notice of claim where Human Rights Law prohibiting sex plaintiffs sought damages for lost retirement discrimination); cf. Mills, 451 N.E.2d at 458 benefits); Hermele v. Union Free Sch. Dist. (requiring notice of claim where employee No. 23, 562 N.Y.S.2d 185, 186 (N.Y. App. alleged racial and national origin Div. 1990) (“By demanding money damages, discrimination, on the basis that the case the plaintiff sought resolution of a private sought redress only as to conduct relating to dispute and not the vindication of an the plaintiff). In cases vindicating public important public right.”). Here, plaintiffs rights, “[t]he interests in their resolution on seek money damages; however, it is not the the merits override the State’s interest in case that “the disposition of plaintiff[s’] claim receiving timely notice before commencement was not intended to nor could it directly affect of an action.” Mills, 451 N.E.2d at 458 or vindicate the rights of others,” and thus the (collecting cases). instant lawsuit is not properly characterized as “one seeking the enforcement of private Generally, “[t]he notice of claim rights.” Mills, 451 N.E.2d at 459. While the requirement applies to claims for claims alleged in the instant case seek to discrimination under the New York State vindicate the right to a free and appropriate Human Rights Law.” Santiago v. Newburgh public education for disabled children at Enlarged City Sch. Dist., 434 F. Supp. 2d 193, Riverhead, the Court finds that the relief 196 (S.D.N.Y. 2006) (citing Falchenberg v. sought would directly affect the rights of a N.Y. City Dep’t of Educ., 375 F. Supp. 2d 344, similarly situated class of the public. 350-51 (S.D.N.Y. 2005)). However, as Therefore, plaintiffs’ failure to file a notice of demonstrated by the outcomes of Union Free claim is excused. School District and Mills, cases alleging discrimination under this statute have not been b. New York Human Rights Law treated as uniformly vindicating either private or public interests. Some courts have held Plaintiffs allege that defendants that, where damages are sought, a claim under discriminated against them on the basis of the Human Rights Law does not vindicate a race and disability, in violation of New York public interest. See, e.g., Kushner v. Valenti, Human Rights Law (N.Y. Exec. Law §§ 290- 285 F. Supp. 2d 314, 316 (E.D.N.Y. 2003) 97) (“NYHRL”). As defendants point out, (applying notice of claim requirement to plaintiffs fail to indicate under which sections Executive Law § 296 claims where plaintiff of the NYHRL their claims are brought, other sought “to vindicate his own private interest than to allege unlawful discrimination on the and to recover money damages for his own basis of “race and/or disability.” (Pls.’ Br., at alleged emotional and financial loss”) (citing 41-42.) Defendants suggest that the Biggers, 127 F. Supp. 2d at 455 applicable section of the statute is Section

296(4), which provides that: for negligence, plaintiffs must assert that defendants “owed plaintiff[s] a cognizable It shall be an unlawful discriminatory duty of care, that the defendant[s] breached practice for an education corporation that duty, and that the plaintiff[s] [were] or association which holds itself out to injured as a proximate result of the breach.” the public to be non-sectarian and Hall v. City of White Plains, 185 F. Supp. 2d exempt from taxation . . . to deny the 293, 303 (S.D.N.Y. 2002) (citing Bonnie & use of its facilities to any person Co. Fashions, Inc. v. Bankers Trust Co., 945 otherwise qualified, or to permit the F. Supp. 693, 718 (S.D.N.Y. 1996) and harassment of any student or Donohue v. Copiague Union Free Sch. Dist., applicant, by reason of his race, color, 407 N.Y.S.2d 874, 877 (N.Y. App. Div. religion, disability, national origin, 1978), aff’d, 391 N.E.2d 1352 (N.Y. 1979)). sexual orientation, military status, sex, In Donohue v. Copiague Union Free School age or marital status. District, where a plaintiff made similar allegations to the claims raised in the instant N.Y. Exec. Law § 296(4). According to case – namely, that a school district, high defendants, plaintiffs have failed to allege that school, and its employees had breached their any actions against them were taken out of duty to him in failing to evaluate and test the discriminatory animus. (Riverhead Supp. Br., student’s aptitude, to provide adequate school at 39-40.) While the amended complaint also facilities and teachers, and to teach plaintiff in asserts that defendants “intentionally and a proper manner, among other claims – the unlawfully discriminated against plaintiffs” on court held that there was no duty of care the basis of race and disability, such running from a school district or its educators allegations are insufficiently pled to provide to students: defendants with fair notice of which plaintiffs assert which causes of action against which Upon our own examination and specific defendants. (Am. Compl., ¶¶ 295- analysis of the relevant factors 96.) Therefore, the Court grants defendants’ discussed above, which are involved motions to dismiss plaintiffs’ claim under the in determining whether to judicially New York Human Rights Law.18 recognize the existence of a legal duty of care running from educators to c. Failure to Train, Supervise, Manage students, we . . . hold that no such and/or Control duty exists. . . . This determination does not mean that educators are not Plaintiffs also bring a common law ethically and legally responsible for negligence claim against defendants for their providing a meaningful public alleged “failure to train, supervise, manage education for the youth of our State. and/or control” Riverhead employees. (Am. Quite the contrary, all teachers and Compl. ¶¶ 316-20.) In order to allege a claim other officials of our schools bear an important public trust and may be held to answer for the failure to faithfully 18 However, the Court will grant leave to amend perform their duties. It does mean, this claim pursuant to Fed. R. Civ. P. 15(a), in however, that they may not be sued order to afford plaintiffs the opportunity to correct for damages by an individual student this pleading defect, if possible.

for an alleged failure to reach certain high threshold for conduct that is ‘extreme educational objectives. and outrageous’ enough to constitute intentional infliction of emotional distress.” Donohue, 407 N.Y.S.2d at 878-79 (citations Id. (citation omitted). The conduct alleged omitted); see also Helm v. Prof. Children’s must be “‘so outrageous in character, and so Sch., 431 N.Y.S.2d 246, 246 (N.Y. App. Div. extreme in degree, as to go beyond all 1980) (“As a matter of public policy, the possible bounds of decency, and to be courts should not entertain a cause of action in regarded as atrocious, and utterly intolerable educational negligence or, as it is sometimes in a civilized society.’” Martin v. Citibank, referred to, educational malpractice, against N.A., 762 F.2d 212, 220 (2d Cir. 1985) either public or private schools.”) (citing (quoting Fischer v. Maloney, 373 N.E.2d Donohue, 407 N.Y.S.2d at 874, and Hoffman 1215, 1217 (N.Y. 1978)). “New York courts v. Bd. of Educ., 410 N.Y.S.2d 99, rev’d, 400 do not allow IIED claims where ‘the conduct N.E.2d 317 (N.Y. 1980) (holding that cause of complained of falls well within the ambit of action based upon failure of board of other traditional tort liability.’” McGrath v. education to implement expert Nassau Health Care Corp., 217 F. Supp. 2d recommendations and to assess plaintiff’s 319, 335 (E.D.N.Y. 2002) (quoting Lian v. intellectual status thereafter may be “quite Sedgwick James, Inc., 992 F. Supp. 644, 651 possibly cognizable under traditional notions (S.D.N.Y. 1998)). As a result, “IIED claims of tort law,” but “should not, as a matter of that are duplicative of other tort claims should public policy, be entertained by the courts of therefore be dismissed.” Id. (citing Lian, 992 this State”) (citing Donohue, 391 N.E.2d at F. Supp. at 651). 1354)). In light of the cases in this State indicating that courts should not adjudicate Construing the facts most favorably to over broad negligence claims such as that plaintiffs, based upon Riverhead’s alleged brought by plaintiffs in the instant case, conduct in failing to provide students with defendants’ motion to dismiss plaintiffs’ claim necessary educational services, combined of negligent failure to train, supervise, manage with the allegedly decrepit condition of the or control is granted. school’s physical facilities, the Court is unable to conclude at this early juncture that d. Intentional and Negligent Infliction of the IIED claim must be dismissed as a matter Emotional Distress Claims of law.

In order to assert a valid claim for Similarly, the Court finds that plaintiffs intentional infliction of emotional distress have stated a claim for negligent infliction of (“IIED”) under New York law, a plaintiff emotional distress (“NIED”). See Mortise v. must demonstrate “(1) extreme and United States, 102 F.3d 693, 696 (2d Cir. outrageous conduct, (2) intent to cause severe 1996) (holding that, under New York law, an emotional distress, (3) a causal connection NIED claim may be based upon a “direct between the conduct and the injury, and (4) duty” theory whereby a plaintiff suffers an severe emotional distress.” Bender v. City of emotional injury from defendant’s breach of a New York, 78 F.3d 787, 790 (2d Cir. 1996) duty which unreasonably endangered his or (citing Howell v. N.Y. Post Co., 612 N.E.2d her own physical safety) (citing Kennedy v. 699, 702 (N.Y. 1993)). “New York sets a McKesson Co., 448 N.E.2d 1332, 1334 (N.Y.

1983) and Green v. Liebowitz, 500 N.Y.S.2d However, plaintiffs maintain that they 146, 148 (N.Y. App. Div. 1986). Plaintiffs have valid claims against the State defendants have alleged that defendants had a duty to under IDEA20 and the Rehabilitation Act. ensure that plaintiffs received a free, Defendants concede that sovereign immunity appropriate education in safe learning is not available under the Rehabilitation Act, conditions; the Court finds that this is a which provides that “[a] State shall not be distinct and unique duty that is recognized in immune under the Eleventh Amendment of this state (by contrast to the “educational the Constitution of the United States from suit duty” disavowed in Donohue, 407 N.Y.S.2d at in Federal Court for a violation of Section 504 878-79). Plaintiffs also claim that defendants of the Rehabilitation Act of 1973.” 42 U.S.C. breached such duty and endangered plaintiffs’ § 2000d-7(a)(1). In Garcia v. S.U.N.Y. Health physical safety by failing to provide Sciences Ctr., the Second Circuit held that this refrigeration, extermination, ventilation, provision “constitutes a clear expression of proper heating and cooling systems, and by Congress’s intent to condition acceptance of failing to prevent violence among students. federal funds [under the Rehabilitation Act] These allegations sufficiently plead a claim of on a state’s waiver of its Eleventh NIED, and therefore, defendants’ motion to Amendment immunity.” 280 F.3d at 113. As dismiss this claim is denied. a result, courts in this Circuit have concluded that “if a state accepts federal funds under the 6. Eleventh Amendment Immunity

The Eleventh Amendment bars all federal against the States for conduct that actually violates and local suits against state entities in the the Fourteenth Amendment, Title II validly absence of explicit state consent to be sued. abrogates state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) Will v. Michigan Dep’t of State Police, 491 (emphasis in original). The Second Circuit has U.S. 58, 66 (1989); Pennhurst State Sch. & held that conduct in violation of Title II of the Hosp. v. Halderman, 465 U.S. 89, 97-100 ADA may also violate the Fourteenth Amendment (1984). Plaintiffs concede that the State where “the Title II violation was motivated by defendants in this case are shielded by either discriminatory animus or ill will due to sovereign immunity with regard to their disability.” Garcia v. State Univ. of N.Y. Health claims under 42 U.S.C. §§ 1981 and 1983, Sci. Ctr., 280 F.3d 98, 112 (2d Cir. 2001) Title II of the ADA and pendent state claims. (emphasis added); see also Olson v. State of New These claims against the State defendants are York, No. 04-CV-0419 (ENV) (MLO), 2007 WL therefore dismissed.19 1029021, at *7-*8 (E.D.N.Y. 2007) (collecting Second Circuit cases and concluding that “Garcia remains good law”). There are no allegations in the amended complaint that defendants’ alleged 19 Plaintiffs also concede that “the Eleventh behavior or failure to act were the result of Amendment provides the State Defendants herein “discriminatory animus” or “ill will” towards with sovereign immunity against Plaintiffs’ claims plaintiffs on the basis of disability. In the absence under . . . Title II of the Americans with of such allegations, therefore, State defendants Disabilities Act,” (Pls.’ Br. at 43). However, are, as a matter of law, immune from suit under claims against a state defendant under the ADA Title II of the ADA. are not, as a matter of law, completely barred by 20 the Eleventh Amendment: “Insofar as Title II As explained supra, plaintiffs’ IDEA claim was creates a private cause of action for damages withdrawn by stipulation.

Rehabilitation Act after Garcia, it necessarily State defendants’ motion to dismiss follows from that decision that the state has pursuant to Fed. R. Civ. P. 12(b)(6) is knowingly waived its Eleventh Amendment GRANTED as to plaintiffs’ claims under sovereign immunity with respect to Section IDEA, Title II of the ADA, the Equal 504 claims that arose (as here) after the Protection Clause, Section 1981, Section Garcia decision.” Mutts v. Southern CT State 1983, Title VI, and plaintiffs’ pendent state Univ., No. 04-CV-1746 (MRK), 2006 WL claims. State defendants’ 12(b)(6) motion is 1806179, at *4 (D. Conn. Jun. 28, 2006) DENIED as to plaintiffs’ Rehabilitation Act (citing Garcia, 280 F.3d at 110 n.4 (“[I]f there claim. is a colorable basis for the state to suspect that an express congressional abrogation is invalid, School defendants’ Rule 12(b)(6) motion then the acceptance of funds conditioned on to dismiss, with regard to plaintiffs’ claims the waiver might properly reveal a knowing under IDEA, Section 1981, Title VI, the Equal relinquishment of sovereign immunity.”), Protection Clause, the NYHRL and plaintiffs’ Degrafinreid v. Ricks, 417 F. Supp. 2d 403, state claims for failure to train, is GRANTED 414 (S.D.N.Y. 2006) (“Under the logic of as to all School defendants. Garcia and the cases interpreting its decision on waiver, New York’s continued acceptance School defendants’ Rule 12(b)(6) motion of federal funds on behalf of DOCS to dismiss is GRANTED as to all of plaintiffs’ constitutes a waiver of sovereign immunity as claims against the individual defendants in to all of plaintiff’s Rehabilitation Act their official capacities. claims.”), and Blasio v. N.Y. Dep’t Corr. Servs., No. 04-CV-653(S), 2005 WL School defendants’ Rule 12(b)(6) motion 2133601, at *3 (W.D.N.Y. Aug. 31, 2005) to dismiss, with regard to plaintiffs’ claims (“By continuing to accept federal funds after under Title II of the ADA, is GRANTED as to Garcia, however, New York knowingly Edison and the individual defendants, and waived its immunity for Rehabilitation Act DENIED as to Riverhead. claims, which are based on post-Garcia events.”)). Therefore, Eleventh Amendment School defendants’ Rule 12(b)(6) motion immunity is granted to the State defendants to dismiss, with regard to plaintiffs’ with regard to all of plaintiffs’ claims, with Rehabilitation Act claims, is GRANTED as to the exception of their Rehabilitation Act the individual defendants, and DENIED as to claim, and these claims against State Edison and Riverhead. defendants are dismissed. School defendants’ Rule 12(b)(6) motion IV. CONCLUSION to dismiss, with regard to plaintiffs’ Section 1983 claims for supervisory liability, is For the foregoing reasons, defendants’ GRANTED as to Edison and the individual motions to dismiss are granted in part and defendants, and DENIED as to Riverhead. denied in part. School defendants’ Rule 12(b)(6) motion Defendants’ motions to dismiss pursuant to dismiss, with regard to plaintiffs’ state to Fed. R. Civ. P. 12(b)(1) are DENIED. claims for intentional infliction of emotional distress and negligent infliction of emotional

distress, is DENIED as to all School defendants.

The Court grants plaintiffs leave to amend their claims of discrimination pursuant to Section 1981, Title VI, the Equal Protection Clause and the New York Human Rights Law, as well as their Section 1983 claims of supervisory liability as to Edison and the individual defendants, within thirty (30) days of the date of this Order.

SO ORDERED.

JOSEPH F. BIANCO United States District Judge

Dated: May 16, 2007 Central Islip, New York

***

The attorney for plaintiffs is Stephen L. Drummond, Esq., of Drummond and Crawford, P.C., 11 Sunrise Plaza, Valley Stream, New York 11580 and Queens Corporate Center, 221-10 Jamaica Avenue, Suites 106-108, Queens Village, New York 11428. The attorney for the New York State Department of Education, the New York State Board of Regents, the University of the State of New York and the Office for Vocational and Educational Services for Individuals With Disabilities is Andrew Cuomo, Attorney General, by Carolyn Gail Goodwin, Esq., State of New York Office of the Attorney General, 120 Broadway, New York, New York 10271-0032. The attorney for Edison Schools, Riverhead Charter School, Riverhead Charter School officials and members of the Riverhead Charter School Board of Trustees is Sharon N. Berlin, Esq., Lamb & Barnosky, LLP, 534 Broadhollow Road, Suite 210, Melville, New York 11747-2300.

Scaggs et al. v. New York State Department of Education et al.