rights under the ADA or Section 504. See 20 U.S.C. § 1415(l).
Section 504 and the ADA prohibit discrimination based on
disability. See 29 U.S.C. § 794 (Section 504 provides that
"[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal assistance"); 42 U.S.C. § 12132 (ADA provides
that "no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be
denied the benefits of the services, programs or activities of a
public entity, or be subjected to discrimination by any such
entity"). The regulations of Section 504 are similar to those of
the IDEA and place parallel requirements on schools to provide
special education and related services. See
34 C.F.R. § 104.33-104.37; see also Matula, 67 F.3d at 492-93. There are no
specific ADA regulations concerning education of disabled
children. However, the ADA has been interpreted coextensively
with Section 504 special education requirements. See
28 C.F.R. § 35.103(a) (the ADA "shall not be construed to apply a lesser
standard than the standards applied under title V of the
Rehabilitation Act of 1973").
The requirements for stating a claim under the ADA are nearly
identical to those under Section 504. See Burgess v. Goord, No.
98 Civ. 2077(SAS), 1999 WL 33458 (S.D.N.Y. Jan.26, 1999);
Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995).
In the special education context, courts have held that a
plaintiff must demonstrate more than an incorrect evaluation or
substantively faulty IEP to establish liability; a plaintiff must
show that defendants acted with bad faith or gross misjudgment.
See Wenger v. Canastota Central Sch. Dist., 979 F. Supp. 147,
152 (N.D.N.Y. 1997), aff'd mem., 208 F.3d 204 (2d Cir. 2000);
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 (4th Cir.
1994); Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th Cir.
1982); Walker, 969 F. Supp. at 797. However, plaintiffs need not
show defendants acted with animosity or ill will. See Bartlett
v. New York State Bd. of Law Exam'rs, 156 F.3d 321, 331 (2d Cir.
1998), vacated on other grounds, ___ U.S. ___, 119 S.Ct. 2388,
144 L.Ed.2d 790 (1999); Bravin v. Mount Sinai Med. Ctr.,
58 F. Supp.2d 269, 273 (S.D.N.Y. 1999).
Viewing the evidence in a light most favorable to plaintiff,
she has sufficiently pled the requisite bad faith or gross
misjudgment necessary for her ADA and Section 504 claims against
defendants. Plaintiff alleges that "defendants have
intentionally, recklessly, and willfully denied [L.B.] of his
right to and the benefits of a free appropriate public education"
and that defendants' "actions were taken in bad faith and with
gross misjudgment." (Compl. ¶ 46) Plaintiff also contends that
"defendants have intentionally and wrongfully and in bad faith
excluded and discriminated against [L.B.] in his participation in
educational services and activities." (Compl. ¶ 47)
Plaintiff has alleged sufficient facts to support her
allegations of bad faith and gross misjudgment, including
defendants' failure to take any action to implement L.B.'s 1996
IEP from May to September 1996; defendants' failure to promptly
develop an ISP after L.B. was suspended; defendants' failure to
timely implement the ISP; the hearing officer's finding that
defendants' conduct was tantamount to "gross neglect,
incompetence and ineptitude which has had a very serious . . .
adverse impact on the student's chance at getting any kind of
satisfactory education;" and defendants' failure to timely
implement the order of the hearing officer. (Compl. ¶¶ 21-23;
Accordingly, defendants' motion to dismiss plaintiff's ADA and
Section 504 claims is denied.
For the reasons set forth above, defendants' motion to dismiss
is denied in its
entirety. The parties are directed to appear for a pretrial
conference on July 7, 2000 at 12:00 p.m. in Courtroom 618.