B.C. ex rel. J.C. v. Mount Vernon Sch. Dist.

837 F.3d 152

B.C., individually and on behalf of her minor child J.C.; T.H., individually and on behalf of her minor child T.H. Plaintiffs–Appellants,

v.Mount Vernon School District, et al., Defendants–Appellees.

No. 14–3603–cv

August Term 2015

United States Court of Appeals, Second Circuit.

Argued: August 26, 2015

Decided: September 16, 2016

Michael H. Sussman , Sussman & Watkins, Goshen, N.Y., for Plaintiffs–Appellants.

Lewis R. Silverman , Rutherford & Christie, LLP; New York, N.Y., for Defendants–Appellees Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr. Welton Sawyer, and Shelly Jallow.

Barbara D. Underwood , Solicitor General, Steven C. Wu , Deputy Solicitor General, Philip V. Tisne , Assistant Solicitor General, for Eric T. Schneiderman , Attorney General of the State of New York; New York, N.Y., for Defendants–Appellees New York State Education Department and Roberto Reyes.

Before: Walker, Jacobs, and Livingston, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

Plaintiffs–Appellants B.C. and T.H., individually and on behalf of their respective daughters J.C. and T.H. (collectively, “Plaintiffs”), brought this action in the United States District Court for the Southern District of New York (Briccetti, J .), asserting various claims against Defendants–Appellees the Mount Vernon School District; the District Board of Trustees; Dr. Welton Sawyer, the Superintendent of the District; Shelly Jallow, the Assistant Superintendent of Curriculum and Instruction of the District (collectively, “District Defendants”); the New York State Education Department (“NYSED”) and Roberto Reyes, Title I, School and Community Services Director of the NYSED (collectively, “NYSED Defendants”).

This opinion addresses one of Plaintiffs' claims: that the district court erred in concluding that Plaintiffs did not make a prima facie showing of discrimination against the District Defendants pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq ., and Section 504 of the Rehabilitation Act (“Section 504 ”), 29 U.S.C. § 794 et seq .¹

Plaintiffs advance a disparate impact theory, relying on statistics showing that the District's academic intervention services (“AIS”)—non-credit bearing courses intended for students at risk of not meeting state performance standards—were offered to children with a “disability” under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq ., at a greater rate than to children without such a disability. Because the ADA and Section 504 define “disability” differently than does the IDEA, Plaintiffs present a question of first impression in this Circuit: whether an individual with a “disability” under the IDEA categorically qualifies as an individual with a “disability” under the ADA and Section 504, such that Plaintiffs' data relating to “child[ren] with a disability” under the IDEA, 20 U.S.C. § 1401(3)(A), can establish a prima facie case with respect to a claim predicated on the plaintiff having a “disability” under the ADA, 42 U.S.C. § 12102(1), and Section 504, 29 U.S.C. § 705(20). We hold that it does not. A summary order filed simultaneously with this opinion addresses and rejects the balance of Plaintiffs' claims on appeal. For the reasons stated below and in the accompanying summary order, we AFFIRM the district court's judgment.

BACKGROUND

I. Factual Background

A.

J.C., daughter of Plaintiff–Appellant B.C., was classified as a child with a disability under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq . Pursuant to that Act, J.C. had an individualized education program (“IEP”) that set out certain guidelines for her public school instruction and specified the special education J.C. required. See 20 U.S.C. § 1401(14) (defining IEP); see also id . § 1414(d) (specifying IEP requirements). During the 2008–2009 school year, J.C. enrolled in the ninth grade at Mount Vernon High School, which is part of the Mount Vernon City School District. Her schedule consisted of seven classes, two of which were “Math AIS 9” and “English 9 AIS.” J.A. 327–28. J.C. had been designated to receive AIS based on scores from standardized tests that she took during the eighth grade. Due to their “remedial” nature, J.C.'s AIS courses were non-credit-bearing courses, meaning that they did not count towards the academic credits a student needed to advance to subsequent grades or to graduate. J.A. 349 at ¶ 14. The instruction in these courses took place in an integrated setting with both special education students and general education students.

To advance from the ninth grade to the tenth grade in the Mount Vernon City School District, a student needed six credits. Although J.C. passed all of her ninth grade courses, including her AIS courses, during her 2008–2009 school year, J.C. earned only four-and-a-half credits, reflecting the fact that her Math AIS and English AIS courses were non-credit-bearing courses. The following school year (2009–2010), J.C. transferred to Nellie A. Thornton High School, which is also part of the Mount Vernon City School District. When J.C.'s parent B.C. received J.C.'s class schedule at the beginning of the school year, she was “very much ... surprise[d]” to discover that the schedule noted that J.C. was enrolled in ninth grade because she had not earned sufficient credits during the 2008–2009 school year to be promoted to the tenth grade.² J.A. 135. J.C., meanwhile, was uncertain what grade she was in, “because one of [her] papers would say ninth grade and other papers would say tenth.” J.A. 173.

At the start of the 2009–2010 school year, J.C. was enrolled in “English 10 AIS” and “Math AIS 10,” among other courses. J.C.'s mother, however, insisted that J.C. be removed from the AIS courses and “placed immediately into additional credit bearing classes ... to ensure that [J.C.] would amass enough credits that school year to qualify for the Eleventh Grade” the following year. J.A. 413. In August 2010, B.C.'s counsel sent a formal complaint to Defendant Roberto Reyes, an official at the NYSED. Reyes agreed to conduct an investigation into B.C.'s complaints about the District's AIS policy, promising to respond by October 15, 2010. According to B.C., however, no investigation occurred.

By the start of the 2010–2011 school year, J.C. had accrued sufficient credits to be classified as being in the eleventh grade. But in March 2011, J.C. left Nellie A. Thornton High School and transferred to The Karafin School, which is not within the Mount Vernon City School District. J.C. completed eleventh grade and twelfth grade at The Karafin School, graduating from The Karafin School in the spring of 2012.

B.

T.H., daughter of Plaintiff–Appellant T.H., was classified as a child with a disability under the IDEA. Pursuant to that Act, T.H. had an IEP that set out certain guidelines for her public school instruction and specified when T.H. should receive special education. During the 2008–2009 school year, T.H. enrolled in the ninth grade at Nellie A. Thornton High School, which is part of the Mount Vernon City School District. Her schedule, like J.C.'s, consisted of seven classes, two of which were Math AIS 9 and English 9 AIS. As with J.C.'s AIS courses, T.H.'s AIS courses were non-credit-bearing courses, and they took place “in an integrated environment with undifferentiated instruction.” J.A. 21.

Although T.H. passed all of her ninth grade courses during the 2008–2009 school year, including her AIS courses, T.H. did not earn sufficient academic credits to be promoted to the tenth grade because her AIS courses were non credit-bearing courses. J.A. 39. Despite the fact that, based on credits earned, T.H. should have been classified as in the ninth grade, the school enrolled T.H. in the tenth grade for the 2009–2010 school year. T.H. continued receiving English AIS courses during the 2009–2010 school year.

By the 2010–2011 school year, T.H. had earned sufficient credits to be classified as a tenth grader but not as an eleventh grader. T.H. did not take any AIS courses during the 2010–2011 school year. By the 2011–2012 school year, T.H. had earned sufficient credits to be classified as a twelfth grader. T.H. did not take any AIS courses during the 2011–2012 school year. In the spring of 2012, T.H. graduated from Nellie A. Thornton High School.

II. Procedural Background

On July 14, 2011, B.C. and T.H., individually and on behalf of their daughters, filed suit. Plaintiffs asserted various claims against the District Defendants and the NYSED Defendants under the ADA, Section 504, the IDEA, and 42 U.S.C. § 1983. As pertinent here, the Plaintiffs alleged that the District Defendants violated the ADA and Section 504, and, in so doing, Section 1983, because the District's policy of scheduling AIS courses during school hours disparately impacted students with disabilities.

On January 16, 2014, the District Defendants moved for summary judgment. In a decision signed on August 27, 2014 and entered on August 28, 2014, the district court (Briccetti, J .) granted District Defendants' motion for summary judgment. B.C. v. Mount Vernon City Sch. Dist., No. 11 CV 1411 VB, 2014 WL 4468082, at *1 (S.D.N.Y. Aug. 28, 2014). As to Plaintiffs' ADA and Section 504 claims, the court stated that the IDEA exhaustion requirement applied because Plaintiffs' claims were related to the provision of special education to J.C. and T.H. under the IDEA. Id . at *5–*6. The court concluded, however, that Plaintiffs' ADA and Section 504 claims were excused from the IDEA exhaustion requirement, as these claims challenged a “district-wide policy of discrimination,” id . (quoting Cave v. E. Meadow Union Free Sch. Dist. , 514 F.3d 240, 250 (2d Cir. 2008) ), and exhausting administrative remedies with respect to the District's “framework and procedures” would have been futile, id . (quoting J.S. ex rel. N.S. v. Attica Cent. Schs ., 386 F.3d...