Lopez v. Bay Shore Union Free School Dist.

Page 406

668 F.Supp.2d 406

Litza D. LOPEZ, as the mother and natural Guardian of her minor son, Edwin Aleman, Plaintiff, v. BAY SHORE UNION FREE SCHOOL DISTRICT, Defendant.

No. 09-CV-502 (ADS)(ARL).

United States District Court, E.D. New York.

November 9, 2009.

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Paul L. Dashefsky, Esq., Smithtown, NY, for Plaintiffs.

Cruser Mitchell & Novitz LLP, by Keith V. Tola, Esq., Rondiene Erin Novitz, Esq., of Counsel, Melville, NY, for Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This case arises out of the suspension and vindication of Edwin Aleman, a student at Bay Shore High School in Bay Shore, NY. Aleman was suspended from school for a year in the spring of 2008 for allegedly making certain remarks in school related to MS-13, a violent criminal street gang. Aleman appealed his suspension to the New York State Commissioner of Education, who reversed and ordered the suspension expunged from his record. Through his mother and guardian Litza D. Lopez, Aleman now brings this suit against Bay Shore Union Free School District ("Bay Shore School District") seeking damages pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42 U.S.C. § 2000d, and 20 U.S.C. § 1703 et seq. The defendant has moved for judgment on the pleadings in its favor on all of the plaintiffs' claims.

I. BACKGROUND

The following alleged facts are derived from the plaintiffs' complaint. Although at least some of these facts are disputed by the defendant, the Court takes all the alleged facts to be true for purposes of this motion to dismiss.

The minor plaintiff, Edwin Aleman, is a native of Honduras, and has resided legally in the United States since July 2006. Aleman became a naturalized citizen of the United States in November 2007. His first language is Spanish, and for the entirety of his career at Bay Shore High School he has been classified as "limited English proficient," and has been entitled to "English as a Second Language" services. Aleman lives with his mother, plaintiff Litza Lopez, whose primary language is also Spanish. Aleman was a tenthgrade student at Bay Shore High School when the events in question took place.

Two events precipitated the alleged violations of Aleman's rights. First, on February 12, 2008, Aleman was waiting for a school bus outside Bay Shore High School when he observed his friend, Francisco Baires, enter into a verbal altercation with another student, Trey Scott. Then, on February 13, 2008, Aleman was standing next to Baires outside a classroom in Bay Shore High School when Baires asked another student, Angel Perez, "Did you say MS was pussy?" "MS" is apparently a shortened name for MS-13, a violent criminal street gang.

Andrew Sullivan, who is the Dean of Students for the tenth and twelfth grades at Bay Shore High School, interviewed Aleman regarding the incident in which Baires stated "Did you say MS was pussy?" Sullivan had not witnessed this or the previous incident. Sullivan conducted the interview in English, and there was some confusion as to whether Aleman admitted to making the statement himself, due to Aleman's lack of proficiency in English.

On February 15, 2008, the defendant Bay Shore School District sent a letter to Aleman's mother, Ms. Lopez, stating that Aleman had been suspended from school for February 25 through February 29 because of "prohibited group affiliation, inciting violence and insubordination." (Compl. ¶ 13.) This letter was written in English. Ms. Lopez's native language is Spanish.

On February 20, 2008, Bay Shore School District provided a second letter to the plaintiffs, scheduling a hearing before a designee of the Bay Shore School District's Superintendent for February 29, 2008. According to the letter, the hearing officer would determine whether Aleman would be suspended for a longer period as a result of "the infractions[s] of prohibited group affiliation, inciting violence, and insubordination." (Compl. ¶ 15.) This letter was also written entirely in English.

On February 25, 2008, the plaintiffs sent a letter by facsimile to Bay Shore School District objecting to (1) the vagueness and ambiguity of the disciplinary charges against Aleman, and (2) the failure of the defendant to provide a Spanish translation of the letters they sent to the plaintiffs on February 15 and February 20. In this letter, the plaintiffs also requested to meet with the Bay Shore School District administration concerning Aleman's suspension. The request to meet with an administrator was not granted, but sometime between September 25 and September 29, Bay Shore School District did send the plaintiffs Spanish translations of the February 15 and February 20 letters.

On February 28, 2008, Bay Shore School District provided the plaintiffs with an "Amended Notice of Disciplinary Hearing of Edwin Aleman," stating:

CHARGE # 1: Prohibited Group Affiliation On or about February 13, 2008, on the grounds of the Bay Shore High School, Edwin Aleman, a tenth grade student at the Bay Shore High School engaged in activity, was affiliated with, and/or made a communication in connection with a non-school sanctioned group, fraternal organization or gang by asking another student "Did you say that MS was pussy?"

On or about February 10, 2008, on or near the grounds of the Bay Shore High School, Edwin Aleman, a tenth grade student at the Bay Shore High School, engaged in an activity, was affiliated with, and/or made a communication in connection with a non-school sanctioned group, fraternal organization, or gang by flashing gang signs at another student from a motor vehicle.

CHARGE # 2: Inciting Violence/Menacing

On or about February 12, 2008, on the grounds of the Bay Shore High School, Edwin Aleman, a tenth grade student at the Bay Shore High School planned to participate in a violent, unsafe, or illegal act by attempting to engage another student in a fight.

(Compl. ¶ 20.) The plaintiffs do not allege whether or not Bay Shore School District provided a Spanish translation of this letter.

On February 29, 2008, Bay Shore School District held a hearing concerning the charges against Aleman. At the commencement of the hearing, Bay Shore School District withdrew the second paragraph of Charge # 1. Thereafter, Bay Shore School District called a single witness, Dean of Students Andrew Sullivan.

Sullivan testified that certain individuals, not present at the hearing, made statements to him implicating Aleman in the acts alleged. Aleman was not given the opportunity to question the individuals who made these statements. Sullivan also testified to the confusion surrounding whether Aleman admitted to making the statement concerning "MS".

On March 12, 2008, Bay Shore School District determined that Aleman was guilty of "Charge # 1," entitled "prohibited group affiliation." There was no determination as to "Charge # 2." Bay Shore School District suspended Aleman from regular attendance at school for approximately one year, until February 1, 2009. On April 14, 2008, the plaintiffs appealed this decision to the Bay Shore School District Board of Education, and on May 29, 2008, the appeal was denied. The plaintiffs thereafter appealed to the New York State Commissioner of Education.

While the plaintiffs' appeal was pending, the Bay Shore School District advised Aleman to return to regular school attendance at the beginning of the 2008/2009 school year. Aleman began attending classes in September 2008, but it is alleged that the Bay Shore School District soon "threatened Edwin Aleman and forced him again to cease attending classes." (Compl. ¶ 40.)

On October 1, 2008, the New York State Commissioner of Education granted Aleman's appeal, ordered his suspension annulled and expunged, and ordered Bay Shore School District to re-admit Aleman.

Aleman thereafter returned to school at Bay Shore High School, and joined the school's track team. Shortly before December 25, 2008, Bay Shore School District informed Aleman that he had been placed on an "ineligible list" as a result of his suspension. This was in spite of the fact that Aleman's suspension had been ordered expunged from his record. As a result, Aleman was not permitted to participate in a track meet on December 27, 2008.

On February 6, 2009, the plaintiffs filed the present action seeking damages pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42 U.S.C. § 2000d, and 20 U.S.C. § 1703 et seq.

II. DISCUSSION

A. Standard

The defendant has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), claiming that the plaintiffs have not stated a claim upon which relief may be granted. The Court therefore applies the same standard used for a motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). See Hoffman v. Nassau County Police Dept., No. 06-C1947 (SJF)(AKT), 2008 WL 1926773, *4 (E.D.N.Y. Apr. 30, 2008) (applying the 12(b)(6) standard on a motion for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c)).

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 22 A.D. 379, 572 F.3d 66 (2d Cir.2009) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

"First, although `a court must accept as true all of the allegations contained in a complaint,' that `tenet' `is inapplicable to legal conclusions' and `threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Id. (quoting Iqbal, 129 S.Ct. at 1949). "`Second, only a complaint that states a...