14-3603-cv
B.C., et al. v. Mount Vernon School District, et al.

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of September, two thousand sixteen.

Present:
            JOHN M. WALKER, JR.,
            DENNIS JACOBS,
            DEBRA ANN LIVINGSTON ,
                  Circuit Judges.
_____________________________________

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.                                                    14-3603-cv

MOUNT VERNON SCHOOL DISTRICT, ET AL.,
                      Defendant-Appellee.
_____________________________________
For Plaintiffs-Appellants:                             Michael H. Sussman, Sussman & Watkins,
                                                       Goshen, N.Y.

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

For Defendants-Appellees New York State                Barbara D. Underwood, Solicitor General,
Education Department and Roberto Reyes.                Steven C. Wu, Deputy Solicitor General,
                                                       Philip V. Tisne, Assistant Solicitor General,


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                                                     for Eric T. Schneiderman, Attorney General
                                                     of the State of New York; New York, N.Y.

       UPON      DUE     CONSIDERATION              WHEREOF       it   is   hereby   ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs B.C., individually and on behalf of her daughter J.C., and T.H., individually and

on behalf of her daughter T.H., (collectively, “Plaintiffs”) appeal from the September 2, 2014

judgment and the April 18, 2012 and August 28, 2014 memorandum decisions of the United

States District Court for the Southern District of New York (Bricetti, J.) in favor of Defendants

Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr.

Welton Sawyer, and Shelly Jallow (collectively, “District Defendants”) and the New York State

Education Department (“NYSED”) and Roberto Reyes (collectively, “NYSED Defendants”) on

Plaintiffs’ claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101

et seq.; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794 et seq.; the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; and 42 U.S.C. §

1983 (“Section 1983”).

       We describe the facts of this case in more detail in a concurrently published opinion. In

brief, Plaintiffs’ claims focus on the District’s provision of academic intervention services

(“AIS”) to J.C. and T.H. during regular school hours. AIS courses are non-credit-bearing

courses intended for students at risk of not meeting state performance standards. Plaintiffs

contend that the provision of AIS courses during regular school hours — at the expense of credit-

bearing courses — interfered with the ability of their children to meet the schools’ credit

requirements each year and violated the IDEA, ADA, and Section 504.




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       In a memorandum decision dated April 17, 2012 and docketed April 18, 2012, the district

court concluded that Plaintiffs had failed to state claims under the ADA and Section 504 against

the NYSED Defendants. See Fed. R. Civ. P. 12(b)(6). After discovery, in a memorandum

decision dated August 27, 2014 and docketed August 28, 2014, the district court awarded

summary judgment to the District Defendants as to the IDEA and Section 1983 claims on the

ground that Plaintiffs failed to exhaust their administrative remedies.1 B.C. v. Mount Vernon

City Sch. Dist., No. 11 CV 1411 VB, 2014 WL 4468082, at *4-*5 (S.D.N.Y. Aug. 28, 2014).

                                          *       *       *

       “We review de novo a district court’s grant or denial of summary judgment,” Mullins v.

City of New York, 653 F.3d 104, 113 (2d Cir. 2011) (internal quotation marks omitted), and

apply the same standard of review to “a district court’s dismissal of a complaint . . . for failure to

state a claim.” Selevan v. New York Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). We also

review questions of standing de novo. Fulton v. Goord, 591 F.3d 37, 41 (2d Cir. 2009) (citing

Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994)).

       Plaintiffs contend that the District Defendants violated the IDEA and Section 1983 by

failing to notify Plaintiffs about their daughters’ AIS instruction and by failing to implement

their daughters’ individualized education programs (“IEPs”), see 20 U.S.C. § 1414(d), so as to

deprive them of a “free appropriate public education.” Id. § 1412(a)(1)(A). Plaintiffs allege that

the NYSED Defendants violated Section 504 because NYSED regulations permitted school




       1
         The district court determined that exhaustion of Plaintiffs’ ADA and Section 504 claims
against the District Defendants would have been futile but, as to these claims, it granted
summary judgment to the District Defendants on the merits. See id. at *6-*9. The opinion
published concurrently with this summary order addresses these claims.




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districts to schedule AIS courses during school hours and that scheduling AIS instruction in this

way disparately impacted students with disabilities.

       At the start, the NYSED and District Defendants question Plaintiffs’ standing, attack their

claims as moot, and contend that Plaintiffs failed to exhaust their administrative remedies. As an

initial matter, Plaintiffs possess standing. They allege violations of “legally protected interest[s]”

created by the IDEA, ADA, and Section 504, traceable to “the conduct complained of,” i.e. the

provision of AIS during school hours, and redressable by money damages. See Fulton, 591 F.3d

at 41 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs’ claims for

equitable relief, however, are moot, since B.C. and T.H. graduated from the Mount Vernon City

School District in 2013. We have held that students’ claims for injunctive relief against a school

they attended are “mooted by [their] graduation,” for, after graduation, it “becomes impossible

for the courts, through the exercise of their remedial powers, to do anything to redress the

injury.” Fox v. Bd. of Trustees of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994). Likewise,

Plaintiffs have conceded that their ADA claim for money damages against NYSED is moot.

Because Plaintiffs state viable claims for money damages pursuant to the ADA, Section 504,

and, for the alleged IDEA violations, Section 1983, these claims survive the mootness inquiry.

       We conclude, however, that as to the District Defendants, the IDEA claims for money

damages were properly dismissed for failure to exhaust.2 Before bringing a civil action in

federal or state court based on an alleged violation of the IDEA, “an aggrieved party [must] . . .

exhaust all administrative remedies.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112

(2d Cir. 2004). Exhaustion of administrative remedies is excused, however, where “(1) it would

       2
        As already noted, the ADA and Section 504 claims against the District Defendants are
addressed in the opinion published concurrently with this summary order.




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be futile to resort to the IDEA’s due process procedures; (2) an agency has adopted a policy or

pursued a practice of general applicability that is contrary to the law; or (3) it is improbable that

adequate relief can be obtained by pursuing administrative remedies.” Murphy v. Arlington

Cent. Sch. Dist., 297 F.3d 195, 199 (2d Cir. 2002) (citations omitted). Plaintiffs bear the burden

of proving that an exception to the exhaustion requirement applies. See id.

       It is undisputed that Plaintiffs failed to exhaust their administrative remedies. Plaintiffs

assert that exhaustion would have been futile, so as to excuse them from this requirement,

because the District Defendants failed to implement the services specified in the IEP. We have

stated, however, that the mere fact that a “school has failed to implement services that were

specified or otherwise clearly stated in an IEP” does not suffice to excuse a plaintiff from the

exhaustion requirement. Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d

478, 489 (2d Cir. 2002). Because Plaintiffs’ claim does not “unavoidably encompass[] both a

failure to provide services and a significant underlying failure to specify what services were to be

provided,” exhaustion was not futile. Id. Accordingly, the district court properly entered

summary judgment in favor of the District Defendants on the IDEA claim and the Section 1983

claim, to the extent the latter relied on the alleged IDEA violation.

       We turn next to the ADA and Section 504 claims against the NYSED. Mindful that

NYSED regulations do not actually mandate — but instead merely permit — that AIS take place

during regular school hours, Plaintiffs rely on a theory of “deliberate indifference” on the part of

the NYSED “to the strong likelihood” of ADA and Section 504 violations resulting from the

regulations. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009). The district

court properly concluded that Plaintiffs failed to allege deliberate indifference. As the district

court noted, “the [NYSED] regulations do not mandate that students who receive AIS be




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removed from credit bearing courses and placed in non-credit bearing courses during the regular

school day.” J.A. 88. Instead, the regulations “provide[] only that when school districts develop

a description of AIS, they are to provide that description whether these services will be offered

during the regular school day or during an extended school day or year.” Id. Indeed, allowing

AIS to take place during regular school hours would not necessarily entail the supplanting of

credit-bearing courses, as not all courses scheduled during school hours are credit-bearing

courses. Some, such as study hall or activity periods, are non-credit-bearing courses. Moreover,

given the distinction between the IDEA and ADA and Section 504 definitions of “disability,”

discussed at length in the opinion issued concurrently with this summary order, Plaintiffs’

complaint does not adequately allege that NYSED Defendants were “deliberate[ly] indifferen[t]

to the strong likelihood that a violation of federally protected rights [under the ADA and Section

504 would] result from the implementation of [the regulations governing AIS].” Loeffler, 582

F.3d at 275 (quotations omitted).

       We have considered Plaintiffs remaining arguments and find them to be without merit.

Accordingly, for the reasons stated herein and in the accompanying opinion, we AFFIRM the

judgment of the district court.

                                                            FOR THE COURT:
                                                            Catherine O’Hagan Wolfe, Clerk




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