Marshall v. N.Y.S. Pub. High Sch. Athletic Ass'n, Inc.

290 F.Supp.3d 187

Brewster MARSHALL, Plaintiff,

v.NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC ASSOCIATION, INC., Section IV of New York Public High School Athletic Association, Inc., and Maryellen Elia, in her official capacity as Commissioner of Education of the State of New York, Defendants.

6:17–CV–06310 EAW

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

Signed December 4, 2017

Jessica Louise Barlow Simeon L. Goldman Disability Rights New York Albany, NY, for Plaintiff.

John L. Murad, Jr., John G. Powers, Hancock Estabrook, LLP, Syracuse, NY, David M. Gouldin, Justin L. Salkin, Levene, Gouldin & Thompson, Vestal, NY, J. Richard Benitez, NYS Attorney General's Office Department of Law, Rochester, NY, Renee L. James, Jamesville, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

On May 17, 2017, K.M. commenced this action on behalf of her minor child, Brewster Marshall ("Plaintiff"),¹ a high school senior suffering from postural orthostatic tachycardia syndrome ("POTS") as well as other ailments. (Dkt. 1). Plaintiff alleges that the New York State Public High School Athletic Association, Inc. ("NYSPHSAA") and Section IV of the New York Public High School Athletic Association, Inc. ("Section IV") unlawfully denied him extended athletic eligibility to play a fifth consecutive year of high school basketball in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 ("ADA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"). (See id. at 8–9). Specifically, Plaintiff contends that NYSPHSAA and Section IV discriminated against him because of his disabilities by refusing to provide him with a reasonable accommodation permitting his participation in interscholastic basketball during his fifth and final year of high school. (See id. at 6–7). On August 23, 2017, Plaintiff filed an amended complaint in which Plaintiff joined Maryellen Elia, in her official capacity as Commissioner of Education of the State of New York (the "Commissioner"), with NYSPHSAA and Section IV, as a defendant in this action (collectively, "Defendants"). (Dkt. 19). While Plaintiff further elaborates upon his factual allegations in the amended complaint, the nature of those allegations remains largely unchanged. However, Plaintiff now requests that the Court order the Commissioner to "promptly promulgate an emergency regulation by which students with disabilities who, because of their disabilities, must attend high school for more than four years may request extended athletic eligibility." (Id. at 11).

Presently before the Court is Plaintiff's motion for a preliminary injunction (Dkt. 38), and the Commissioner's motion to dismiss (Dkt. 46).² For the following reasons, both motions are denied.

FACTUAL BACKGROUND ³

Plaintiff is a high school senior who resides in Horseheads, New York, and attends Horseheads High School. (Dkt. 19 at 2, 4). Plaintiff suffers from various health issues, including "chronic complex migraine headaches"; "patent foramen ovale," which is "a small hole in the heart"; Factor V Leiden, which is a "blood clotting disorder"; and POTS, which "creates chronic difficulty standing upright due to lightheadedness and other symptoms associated with reduced blood flow to the brain." (Id. at 3). These disabilities prevent Plaintiff from carrying a full high school course load. (Id. at 3–4). As a result, on July 18, 2016, Plaintiff received notification that he would not progress to the 12th grade, and that he would not graduate in June 2017, as originally planned. (Id. at ¶¶ 30, 32).

Plaintiff entered the 9th grade at Horseheads High School in September 2013. (Id. at 15). Although Plaintiff's disabilities limited the frequency in which he participated in competitive interscholastic basketball, Plaintiff has, in fact, entered competition for each year since September 2013. (Id. at ¶¶ 35–39). Despite having participated in high school basketball for four consecutive seasons, Plaintiff sought extended athletic eligibility to participate in varsity basketball during his fifth and final year of high school. (See id. at ¶ 41).

On June 15, 2016, the Horseheads Central School District (the "District") submitted an application for extended athletic eligibility to Section IV on Plaintiff's behalf. (Id. at ¶ 53). Section IV did not consider this application because, at the time, Plaintiff had not yet completed four years of high school. (Id. at ¶ 54). Subsequently, Plaintiff requested that he receive a "reasonable modification under the ADA," permitting extended eligibility for basketball, a contact sport, because no such exception currently exists for students who must attend more than four years of high school due to a disability. (Id. at ¶¶ 58–59). Plaintiff has yet to receive a response to this request. (Id. at 60).

On April 24, 2017, the District submitted a second application to Section IV, which included a request for a reasonable accommodation under the ADA on Plaintiff's behalf. (Id. at ¶ 61). On July 20, 2017, Section IV denied this application without mentioning the requested reasonable accommodation. (Id. at ¶¶ 62–63). On August 7, 2017, Bert Conklin, the District's Athletic Director, appealed Section IV's decision on Plaintiff's behalf, and requested that Plaintiff receive a reasonable accommodation under the athletic eligibility rules. (Id. at ¶ 64; see Dkt. 38–3 at 8–9 (Conklin's affidavit)). On August 14, 2017, Section IV's Appeals Committee affirmed the initial decision without mentioning the request for a reasonable accommodation. (Dkt. 19 at ¶¶ 65–66).

Plaintiff alleges that Defendants are all public entities for purposes of the ADA (see id. at ¶¶ 77–79), and that they each receive "federal financial assistance" for purposes of Section 504 (id. at ¶ 88). Plaintiff further alleges that his requested extension of athletic eligibility constitutes a reasonable modification under the ADA and does not frustrate the purposes of the four-year athletic eligibility standard (hereinafter, the "Duration of Competition Rule"). (Id. at ¶¶ 82, 90). Plaintiff claims that Defendants have discriminated against him because of his disabilities by refusing to grant a reasonable modification in violation of Title II of the ADA and Section 504. (See id. at ¶¶ 83, 91).

PROCEDURAL HISTORY

On October 13, 2017, Plaintiff filed a motion for a preliminary injunction requesting the Court enjoin Defendants from denying him extended athletic eligibility for the 2017–18 Section IV High School Boys Varsity Basketball Season. (Dkt. 38 at 4). Plaintiff also filed a motion to expedite a hearing on the motion for a preliminary injunction. (Dkt. 39). On October 16, 2017, the Court granted Plaintiff's motion to expedite, and set a briefing schedule and an oral argument date. (Dkt. 43). On October 24, 2017, the Commissioner filed a motion to dismiss the amended complaint, arguing that Plaintiff failed to state a claim upon which relief may be granted, that the abstention doctrine strips this Court of subject matter jurisdiction, and that the Commissioner enjoys legislative immunity against Plaintiff's request for an emergency regulation. (Dkt. 46–1). All Defendants have submitted papers in opposition to Plaintiff's motion for a preliminary injunction (Dkt. 47; Dkt. 48; Dkt. 49; Dkt. 50), and Plaintiff has opposed the Commissioner's motion to dismiss (Dkt. 52). On November 17, 2017, the Court held oral argument, and reserved decision on both motions. (Dkt. 56).

DISCUSSION

" ‘A motion to dismiss based on the abstention doctrine is ... considered as a motion made pursuant to Rule 12(b)(1).’ " Rehab. Support Servs., Inc. v. Town of Esopus, 226 F.Supp.3d 113, 125 (N.D.N.Y. 2016) (quoting City of N.Y. v. Milhelm Attea & Bros., Inc., 550 F.Supp.2d 332, 341 (E.D.N.Y. 2008) ). For this reason, the Court will first address the Commissioner's abstention argument to determine whether the Court has subject matter jurisdiction to entertain this action.

I. Motion to Dismiss under Rule 12(b)(1)

A. Legal Standards

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that the court retains jurisdiction." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). "[T]he district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496–97 (2d Cir. 2002). "Indeed, a challenge to the jurisdictional elements of a plaintiff's claim allows the Court to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Celestine v. Mt. Vernon Neighborhood Health Ctr., 289 F.Supp.2d 392, 399 (S.D.N.Y. 2003), aff'd, 249 Fed.Appx. 851 (2d Cir. 2007). "The court may consider affidavits and other materials beyond the pleadings but cannot rely on conclusory or hearsay statements contained in the affidavits." Young v. United States, No. 12-CV-2342 (ARR)(SG), 2014 WL 1153911, at *6 (E.D.N.Y. Mar. 20, 2014) (quotation omitted).

B. Pullman Abstention Does Not Apply

The Commissioner argues that the abstention doctrine set forth in R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) applies here because currently pending state administrative proceedings could moot any decision by this Court in this federal action. (Dkt. 46–1 at 14–15). Plaintiff responds that abstention would be inappropriate because the Commissioner does not consider ADA and Section 504 claims, such as those asserted here, to be properly before her on administrative appeal, and thus, there is no concern that this...