Patrick v. Success Acad. Charter Sch., Inc.

354 F.Supp.3d 185

Kim PATRICK and AG, a Minor, by and Through His Parent and Next Friend, Kim Patrick, Plaintiffs,

v.SUCCESS ACADEMY CHARTER SCHOOLS, INC. ; Success Academy Prospect Heights; Sydney Solomon, in Her Individual and Official Capacity as Principal of Success Academy Prospect Heights; Lamae De Jongh, in Her Individual and Official Capacity as Managing Director of Schools, Success Academy Charter Schools; Samuel Cole, in His Individual and Official Capacity as Board Chairperson, Success Academy Charter Schools–NYC Board of Trustees; and Catherine Shainker, in Her Individual and Official Capacity as Board Member, Success Academy Charter Schools–NYC Board of Trustees, Defendants.

17–CV–6846 (PKC)(RLM)

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

Signed December 14, 2018

Edward J. Josephson, Nancy Bedard, Sarah E. Dranoff, Brooklyn Legal Services Corp. B., Brooklyn, NY, Tara Foster, Queens Legal Services Corp., Jamaica, NY, for Plaintiffs.

Vanessa M. Biondo, Aaron Michael Safane, Christopher Norman Lavigne, Halimah Ifedayo Famuyide, Robert Lynch Dunn, Success Academy Charter Schools, Inc., New York, NY, for Defendants.

MEMORANDUM & ORDER

Pamela K. Chen, United States District JudgePlaintiffs Kim Patrick and her son, AG, bring this action against Defendants, pursuant to 42 U.S.C. § 1983 (" § 1983" or " Section 1983"), the Individuals with Disabilities Education Act ("IDEA"), the Americans with Disabilities Act of 1990 ("ADA"), and Section 504 of the Rehabilitation Act of 1973 ("Rehab Act" or "Rehabilitation Act"), in connection with Defendants Success Academy Charter Schools, Inc.'s and Success Academy Prospect Heights's (collectively, "Success Academy" or the "Success Academy Defendants") disciplinary procedures and use of emergency medical services. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part

TABLE OF CONTENTS

BACKGROUND ...196

I. RELEVANT FACTS ...196

A. 2016–2017 SCHOOL YEAR ...196

B. 2017–2018 SCHOOL YEAR ...200

II. PROCEDURAL HISTORY ...202

LEGAL STANDARD ...202

DISCUSSION ...203

I. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ...203

A. DEFENDANT DE JONGH ...203

1. UPHOLDING AG'S SEPTEMBER 12, 2017 SUSPENSION ...203

2. CLAIMS REGARDING LACK OF TRANSCRIPT, UNSWORN WITNESSES, AND FAILURE TO CALL THE PARA-PROFESSIONAL AS A WITNESS ...205

B. DEFENDANTS COLE AND SHAINKER ...205

C. DEFENDANT SOLOMON ...206

II. CLAIMS BROUGHT BY PLAINTIFF PATRICK ...208

III. AG's PROCEDURAL DUE PROCESS CLAIM ...209

A. ARTICLE 78 HEARING ...209

B. LEGAL STANDARD ...212

C. WAS AG DEPRIVED OF A PROPERTY INTEREST ? ...213

D. WHAT PROCESS WAS AG DUE ? ...218

1. FEBRUARY 24, 2017 SUSPENSION ...219

2. SEPTEMBER 12, 2017 SUSPENSION ...221

a. HEARING TRANSCRIPT OR RECORDING ...221

b. SWORN TESTIMONY ...224

c. TESTIMONY BY THE PARA-PROFESSIONAL ...224

IV. ADA/REHABILITATION ACT ...225

A. EXHAUSTION ...226

B. MERITS ...228

V. IDEA CLAIMS ...229

A. EXHAUSTION ...229

1. OVERVIEW OF THE IDEA'S EXHAUSTION REQUIREMENT ...229

2. APPLICABLE IDEA EXHAUSTION STANDARD ...229

B. MISUSE OF THE "SERIOUS BODILY INJURY" EXCEPTION ...230

1. EXHAUSTION ...230

a. FEBRUARY 24, 2017 INCIDENT ...230

b. SEPTEMBER 12, 2017 INCIDENT ...231

2. MERITS ...232

C. PROVISION OF APPROPRIATE ALTERNATIVE INSTRUCTION ...234

1. EXHAUSTION ...234

a. FEBRUARY 24, 2017 INCIDENT ...234

b. SEPTEMBER 12, 2017 INCIDENT ...235

2. MERITS ...235

D. FAILURE TO RETURN AG TO SCHOOL ...235

E. DEPRIVATION OF DUE PROCESS RIGHTS ...236

1. EXHAUSTION ...236

2. MERITS ...237

CONCLUSION ...238

APPENDIX A ...239

APPENDIX B ...243

APPENDIX C ...245

APPENDIX D ...247

BACKGROUND

I. Relevant Facts

Plaintiff AG is an eight-year-old student at Defendant Success Academy Prospect Heights, a public charter school in Brooklyn, New York. (Complaint ("Compl."), Dkt. 1, at ¶ 55; Defendants' Brief ("Defs.' Br."), Dkt. 41, at 3.) In the two years since AG started at Success Academy, he has been "suspended and excluded from school" over 25 times, for at least 70 school days. (Compl. at ¶ 134); see also Patrick v. Success Acad. Charter Sch., Inc. , No. 17-CV-6846 (PKC)(RLM), 2017 WL 6557478, at *1–3 & n.5 (E.D.N.Y. Dec. 22, 2017) (discussing AG's suspensions). It appears that he is currently in first grade for the third time. (Compl., at ¶ 55; Defs.' Br., at 3 (noting that AG is still in first grade as of August 2018).)

AG is disabled and "other health impaired" due to Beta-thalassemia, a rare blood disorder, which causes him to have "below average academic performance, ... speech[,] and language skills," as well as disruptive and dangerous behavior. (Compl. at ¶¶ 56–58.) As a result, he has an Individualized Education Plan ("IEP"), which entitles him to special education services, including speech and language therapy, counseling, and an individual crisis management para-professional. (Id. at ¶ 57.)

A. 2016–2017 School Year

AG was six years old when he started at Success Academy in the 2016–2017 school year. (Id. at ¶ 55.) At that time, AG was in first grade. (Id. ) Between October 27 and December 20, 2016, AG was suspended from school "on multiple occasions." (Id. at ¶¶ 60–61.)¹ According to Plaintiff Kim Patrick ("Patrick"), AG's mother, during this period she was told by Defendants² "nearly every day ... to remain at school for several hours to assist her son ... due to his behavioral deficits." (Id. at ¶ 62.) Patrick further alleges that she was told by Defendant–Principal Sydney Solomon that if Patrick "was not available and AG had a behavior issue, the school would call 911." (Id. ) Patrick subsequently asked for a meeting with AG's IEP team, which was scheduled for December 20, 2016, to reevaluate AG's special education needs. (Id. at ¶ 63.) Under the IDEA, an IEP team "must include the parents of the child, the child's regular and special education teachers, and a knowledgeable representative of the District," Doe ex rel. Doe v. Todd Cty. Sch. Dist. , 625 F.3d 459, 461 (8th Cir. 2010) (citing 20 U.S.C. §§ 1414(d)(1)(B), (d)(3) & (4) ), and its role, inter alia , is to determine the appropriate "educational or related services needs" of the disabled child, 20 U.S.C. § 1414(a)(2)(1).³

On December 19, 2016, the day before the IEP meeting, Principal Solomon contacted the New York City Fire Department's Bureau of Emergency Medical Services ("EMS") when "AG exhibited tantruming behavior but was not experiencing any medical emergency." (Compl., at ¶ 64.) According to Plaintiffs, Defendants "were familiar with these [tantrum] behaviors and knew that [AG] had never hurt himself in school before." (Id. ) Upon learning that EMS had been called, Patrick "rushed" to Success Academy and spoke to EMS. (Id. ) AG was ultimately released to Patrick and missed the remainder of the school day. (Id. ) On December 20, 2016, Patrick attended the scheduled IEP meeting. (Id. at ¶ 65.) The IEP team agreed to an integrated co–teaching program⁴ and added more speech, occupational therapy, and counseling services for AG. (Id. )

Between December 20, 2016 and early February 2017, AG was issued suspensions, all for fewer than 10 school days, for additional behavioral incidents. (Id. at ¶¶ 66–67.) On February 14, 2017, a Success Academy staff member, "Torcivia,"⁵ called Patrick "and threatened to call 911 if Ms. Patrick did not come to the school to take AG home as he was having a tantrum." (Id. at ¶ 68.) Patrick went to the school and took AG home. (Id. ) On February 16, 2017, Plaintiffs' attorney met with the IEP team to conduct a Manifestation Determination Review ("MDR"), (id. at ¶ 69), to discuss whether, pursuant to the IDEA, the conduct leading to the January and February suspensions were "caused by, or had a direct and substantial relationship to, [AG's] disability," 20 U.S.C. § 1415(k)(1)(E). The IEP team determined that AG's behaviors were a manifestation of his disability and, as a result, AG was not required to serve the suspensions. (Compl., at ¶¶ 69–70.) Under the IDEA, "[i]f the student's behavior is not a manifestation of his disability, then the relevant discipline may be administered in the same manner applicable to a non-disabled student. If the behavior is a manifestation of the disability, then the child's placement is not changed (absent parental consent) and the IEP team must prepare a functional behavior assessment and a behavior intervention plan." Molina v. Bd. of Educ. , 157 F.Supp.3d 1064, 1068 (D.N.M. 2015) (citations omitted); 20 U.S.C. §§ 1415(j), (k)(1)(E) & (F). AG was suspended again on February 17, 2017, the day after the MDR, and twice more thereafter, on February 22 and 23, 2017; each of these suspensions was for fewer than 10 school days. (Compl., at ¶ 70.)

On February 24, 2017, an unidentified Success Academy employee called EMS when AG exhibited "tantruming behavior." (Id. at ¶ 71.) According to Defendants, AG "caused serious bodily injury and extreme pain by, inter alia , dragging the Assistant Principal down the hall by the hair while using the other hand to hit her, yanking a lanyard around the Assistant Principal's neck, kicking Principal Solomon," and "inflict[ing] serious bodily injury and extreme physical pain upon [his] para[-professional]." (Id. at ¶ 79.) Defendants did not call Patrick until EMS and police officers from the New York City Police Department were at the school. Patrick, who was at work, asked a Success Academy staff member to let her speak to EMS, but the staff member did not allow Patrick to do so. (Id. at ¶ 72.) According to Plaintiffs, AG's allegedly injured para-professional then called Patrick and told her "that the school staff took [AG] and told the EMS workers to take him to the hospital" even though he had been "calmly sitting on the para[-professional]'s lap." (Id. ) AG was ultimately taken to the emergency room over Patrick's objections and was released from the hospital later the same day "with no treatment or referral." (Id. at ¶¶ 72–74.) AG missed the rest of the school day and Patrick...