United States District Court, S.D. New York
August 11, 2005.
K.M., on behalf of her son, D.G., an infant, Plaintiff,
HYDE PARK CENTRAL SCHOOL DISTRICT, et al., Defendants.
The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
Plaintiff K.M. is the parent of D.G., a child with a
disability. D.G. was born January 29, 1988, and has been
diagnosed with Pervasive Developmental Disorder (PDD-NOS) and
dyslexia, with normal intelligence.*fn1
(Cmplt. ¶ 3.)
Plaintiff commenced this action on behalf of D.G. against the
Hyde Park Central School District (the "District") and defendants
President of the Board of Education,
David Burpee, the Superintendent of Schools, and Geoia Liberty,
Section 504 Compliance Officer and Assistant Superintendent for Pupil Personnel Services,*fn3
in their individual and official
capacities on August 11, 2003, alleging the following causes of
action: (1) intentional discrimination in violation of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, 705, 794
and 794a ("Section 504") and Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("Title II"); (2)
disability harassment in violation of Section 504; (3) disability
harassment in violation of the ADA; (4) violation of § 1983 of
the Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"); and (5)
violation of Article XI, § 1 of the New York State Constitution
The allegations against the District and the individual
defendants arise from their handling of events which lead
plaintiff to file a Section 504 complaint on November 16, 2001
(the "Section 504 Complaint"). (Complaint of [K.M.] on behalf of
her son, [D.G.] v. Hyde Park Central School District, dated
November 15, 2001, Pl. Exh. 3). In the Section 504 Complaint,
plaintiff alleged that D.G. suffered disability-based
peer-to-peer harassment throughout the 2000-01 school year and
the first two months of the 2001-02 school year, and that the
defendants' failures to intervene amounted to actionable
An impartial hearing was commenced pursuant to Section 504 on
March 19, 2002. The impartial hearing officer had not issued a
final decision by the date of the filing of this action, August
11, 2003 (a full year after the completion of the hearing). (Def.
56.1 at ¶ 11.) Another impartial hearing was commenced pursuant
to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., ("IDEA"), sometime in April
2002.*fn4 The parties reached a settlement disposing of all
of plaintiff's IDEA claims on May 20, 2003. (Def. 56.1 ¶ 18.) As
a result, there are no IDEA claims in this action.
In this action, plaintiff alleges that defendants are liable
for their mis-handling of the peer-to-peer disability-based
harassment D.G. experienced at school, and that the defendants'
failures which continued after the Section 504 Complaint was
filed rose to the level of intentional discrimination.
The defendants have moved for summary judgment on all claims on
the following grounds: (1) plaintiff has failed to show that
there are any genuine issues of material fact regarding
disability discrimination under Section 504 or the ADA; (2) the
individual defendants are entitled to qualified immunity on the
Section 1983 claims, and no such claim can lie against the
District; and (3) no private cause of action exists under Article
I find that there are numerous disputed issues of material fact
in this case that preclude summary judgment.
What follows are plaintiff's and defendants' versions of
events. Where defendants' version is "admitted" because no
correspondingly numbered Rule 56.1 Statement was submitted by
plaintiff, I will so note.*fn5 Where defendants' version is
controverted by the evidence, I will also note.
1. Plaintiff's Version of Events
At all relevant times, D.G. was a qualified individual with a
disability within the meaning of Section 504 and the ADA. (Cmplt.
During the 2000-01 and 2001-02 school years, D.G. who was a
13-year-old eighth-grader in 2001 was the victim of repeated
instances of being called "stupid," "idiot," "retard" and other
"disability-related insults" and acts of "physical aggression"
and intimidation (all by other students) while in school and on
the school bus. (Section 504 Complaint, Pl. Exh. 3 ¶¶ 4, 12, 13.)
Specifically: (1) D.G. was "thrown to the ground," "body slammed"
and taunted by several students during lunch one day in September
2000,*fn6 until an aide intervened and took D.G. to a school
nurse; (2) D.G. was physically beaten by two boys held down and
hit on the head and back with his own binder between classes in
his special education teacher's resource room on March 30, 2001;
(3) D.G. was subjected to "disability-related slurs," and his
school books were thrown into the garbage in the cafeteria on
five to eight separate occasions during the early part of the
2000-01 school year, resulting in his special education teacher's
offering to eat lunch with D.G. in a separate room for the
remainder of the 2000-01 school year (D.G. did eat with her there for the rest of the school year); (4) an
unidentified student called D.G. a "retard" and started a fist
fight on an afternoon bus ride on October 20, 2001; (5) an
unidentified student took D.G.'s planner "over his protests" on
October 22, 2001 (D.G. allegedly was too afraid to tell his
special education teacher who did it); and (6) two students
repeatedly taunted and hit D.G. on an afternoon bus ride on
November 1, 2001, after which D.G. returned home upset, "locked
himself in the bathroom, cried, and yelled `I can't stand this
anymore,'" and then bolted from the house. (Pl. Exh. 3, ¶¶ 4-8,
Each incident was promptly reported by D.G. himself and/or by
his mother to school officials at the Haviland Middle School,
but no action was taken to protect D.G. from further harassment.
(Pl. Exh. 3 ¶¶ 4-6, 8, 9, 11, 12, 14, 16.) Plaintiff expressed
her concerns for D.G.'s "physical and emotional safety" at a
meeting of the Committee on Special Education ("CSE") on April 2,
2001. At the CSE's suggestion (presumably shortly after this CSE
meeting, but no date is given), plaintiff met with Dr. Gilbert,
then the school principal, and advised him of the "hostile
environment," the "repeated disability-related name-calling,
repeated acts of physical aggression and intimidation based upon
disability, and continuous isolation of [D.G.] at lunch." (Pl.
Exh. 3 ¶ 11.) She claimed that the "District took little or no
action to alleviate the hostile environment or protect [D.G.]
from further incidents" at that time. (Id.)
On October 14, 2001, plaintiff spoke with Lisa E. Macklin, the
school psychologist, and reported the hostile environment and incidents of physical and
emotional abuse. She claims that Ms. Macklin told her D.G. should
handle these incidents by himself. (Id. at ¶ 14.) Mrs. Macklin
had done a psychological evaluation of D.G., after which she had
reported, on March 30, 2001, that D.G. "states that he does not
enjoy school and has had difficulties with his peers." (Pl. Exh.
3 ¶ 10.) Plaintiff claims that the District should have acted on
this report but that it did not. (Id.)
The day after the November 1, 2001 incident on the bus,
plaintiff went to the Superintendent to report the recent
incidents, but "no one was available to talk to her." (Pl. Exh. 3
¶ 12.) On the same day, November 2, 2001, she also tried to meet
with George Treadwell, the head of transportation, but he was not
available. (Id. at ¶ 18.) She left a message for Mr. Treadwell
that was not returned. (Id.) She also claimed that she
attempted to meet with Mrs. Carol Meissner, who was then the
principal of Haviland Middle School, but was able to meet only
with a Mrs. Linton, a Mr. Doyle (Deans of Students), Ms. Macklin
and Mrs. Fasolino, D.G.'s then-current special education teacher.
(Id. at ¶ 19.) Plaintiff was told at that meeting to keep D.G.
out of school for an indeterminate period, but no educational
services were arranged. Plaintiff also was told an "assistive
technology device" specified on D.G.'s Individual Education Plan
("IEP") (but not identified in the moving papers) should not be
used, as it would subject D.G. to additional taunting. (Id.)
Around this time (November 2001), Ms. Macklin "admitted" that
she had evaluated D.G. the previous week and found him to be
angry and frustrated, expressed her concern that D.G. had
developed clinical depression, and referred plaintiff to the
Astor Children's Guidance Center ("Astor") for evaluation and
treatment at parental expense. (Id. ¶¶ 20-22.) Astor evaluated
D.G., and a Mrs. Ina Berg, a social worker, informed plaintiff
that D.G. had thought about harming himself in response to incidents at school. (Id. ¶ 23.) D.G.
was admitted to the St. Francis Hospital Psychiatric Emergency
Room on November 12, 2001.
Around November 7, 2001, D.G. was evaluated by Dr. Julia
Speicher, psychiatrist, and Mrs. Berg at the Astor Guidance
Center. (Cmplt. ¶ 19.) They reported that D.G. had suicidal
ideation in response to incidents of victimization at school.
(Id.; Pl. Exh. C.) Around November 12, 2001, D.G. was evaluated
at the St. Francis Hospital Psychiatric Emergency Room by Dr.
Mark J. Cerbone, psychiatrist, who opined:
[W]ith a reasonable degree of medical certainty . . .
if the patient does return to the school setting
without a profound intervention being made by the
school . . . there will be a substantial risk of harm
being committed by the patient towards himself or
other students in response to this history of
harassment in combination with the patient's
(Cmplt. ¶ 20; Pl. Exh. D.)
Dr. Speicher conducted a psychiatric assessment of D.G. on
December 3, 2001 and confirmed that D.G. responded to long-term
harassment at the Haviland Middle School with suicidal ideation.
(Cmplt. ¶ 21; Pl. Exh. E.)
D.G. was kept out of school beginning November 3, 2001. He did
not return for the rest of that school year. (Id. ¶ 22.)
Plaintiff claimed in the Section 504 Complaint that no
educational services were provided to D.G. during that time,
(id.), however, in the instant Complaint, she alleges that the
District provided an uncertified home tutor from January to April
2002. (Cmplt. ¶ 18.)
2. Defendants' Uncontroverted Statements
The following assertions by defendants are not properly
controverted by plaintiff and are deemed admitted (and will be so
presented at trial): 1. Plaintiff and her son have resided within the territorial
bounds of the District since the summer of 2000. (Def. 56.1 ¶ 1.)
2. Plaintiff admitted to receiving the 2000-01 and 2001-02
school calendars and the Haviland Middle School Student Handbook,
each of which included a statement of her child's Section 504
rights. (Def. 56.1 ¶ 11(a)(vi).)
3. Plaintiff advocated in person and in writing on several
occasions concerning D.G.'s IEP and acknowledged, on one
occasion, the District's concern for and interest in D.G. (Def.
56.1 ¶ 11(a)(vii).)
4. During a triennial evaluation of D.G. in the Spring of 2001,
his seventh grade teachers reported that D.G. was performing well
academically and socially; that he had good attendance; he was
motivated to learn; and participated regularly in class. While
D.G. stated he was having trouble relating with peers, the school
psychologist who conducted the evaluation testified it did not
impact his focus or demeanor throughout the testing. None of the
records she reviewed disclosed he was a victim of peer
harassment. (Def. 56.1 ¶ 11(a)(viii).)
5. The school psychologist testified that D.G. had severe
auditory processing deficits. (Def. 56.1 ¶ 11(a)(ix).)
6. D.G.'s report cards for 2000-01 indicated he attended school
regularly and received overall positive grades and comments about
his academic work and classroom participation. (Def. 56.1 ¶
7. Mrs. Fasolino testified that, with respect to the October
22, 2001 "planner" incident, she never told plaintiff that D.G.
was too afraid to tell her who took it. (Def. 56.1 ¶ 11(b)(iv).)
8. As part of Ms. Macklin's counseling evaluation, Mrs.
Fasolino reported that D.G. became upset easily and appeared
sensitive, and that he was frustrated by some academic assignments because of his auditory processing difficulties.
Plaintiff reported to Ms. Macklin at that time that D.G. had
difficulty doing work independently, and that he would become
upset over his organizational abilities, but that his biggest
worry was being picked on by other children. (Def. 56.1 ¶
9. D.G. reported to Ms. Macklin, as part of this same
evaluation, that he argues with other students outside of school,
that he has a hard time making and keeping friends. However, he
did not explain why it was hard to make and keep friends, and
adamantly refused to participate in group counseling. (Def. 56.1
10. On November 2, 2001, plaintiff met with Mrs. Fasolino, Ms.
Macklin and the two Deans of Students a the Haviland Middle
School, and informed them that a female sixth grader and her
eighth grade brother had assaulted D.G. on the bus ride home from
school the previous day (the November 1, 2001 incident discussed
above), but she could not provide them with the names of the
students. Plaintiff also told them that upon returning home from
school on November 1, 2001, D.G. was upset, had locked himself in
the bathroom, bolted out of the house and later threatened to
throw himself in front of traffic.*fn8 (Def. 56.1 ¶
11. After speaking with the bus driver, the pair of siblings
who matched the description provided by the plaintiff and five
other students who rode the bus, school officials could not
confirm the allegations plaintiff made regarding the November 1,
2001 incident. Consequently no one was disciplined. (Def. 56.1 ¶
12. Plaintiff told Mrs. Fasolino that D.G. was going to be
evaluated by the Astor Counseling Center on November 8, 2001, and
they agreed that no homework would be sent home until after the evaluation was completed. Mrs. Fasolino
testified that she called the plaintiff and left messages on
November 8 and November 9, 2001, but plaintiff did not return her
calls. On November 13, 2001, when Mrs. Fasolino reached the
plaintiff by phone, plaintiff informed her that she had been
advised by her attorney not to speak with Mrs. Fasolino. (Def.
56.1 ¶ 11(b)(xii).)
13. St. Francis Hospital conducted an emergency psychiatric
assessment of D.G. on November 12, 2001, which resulted in D.G.'s
referral to the Dutchess County Intensive Day Treatment program
("IDT") for a 30-day period. The District received this
psychiatric assessment on November 16, 2001 as an attachment to
the Section 504 Complaint. The referral was completed on November
28, 2001 by the school psychologist and an intake was scheduled
for December 7, 2001. However, IDT would not accept D.G. unless
it knew definitively what program he would be returning to at its
conclusion, and because the plaintiff advised that she did not
want D.G. to return to the Haviland Middle School, D.G. did not
attend the IDT program. (Def. 56.1 ¶ 11(b)(xiii).)
14. The District's Compliance Officer for the 2001-02 school
year, Rose Marie Santora, investigated plaintiff's Section 504
Complaint and issued a report on December 7, 2001, concluding
that there had been no violation of Section 504 with respect to
D.G. (Def. 56.1 ¶ 8.) Ms. Santora advised plaintiff that she
would not consider incidents that may have occurred prior to
October 17, 2001, since those incidents were not reported within
the 30-day time period required by Hyde Park Central School
District's "regulation 5311.3-R section A.1." (See Def. Exh.
6.) Plaintiff appealed this decision to Mr. Burpee, the
Superintendent, who scheduled an informal hearing for January 16,
15. At the January 16, 2002 CSE meeting, plaintiff rejected the
CSE's invitation to return D.G. to the Haviland Middle School, even though the school
principal had suggested D.G. meet with the new student assistance
counselor, adjust his workload, and come to school while students
were not in session to "desensitize him." Plaintiff instead
insisted on an out-of-district placement. (Def. 56.1 at ¶ 17(a).)
16. Following that hearing, Mr. Burpee issued a decision, dated
January 30, 2002, finding that no violation of Section 504 had
occurred with respect to D.G. during either the 2000-01 or
2001-02 school years. Mr. Burpee indicated that, in reaching this
conclusion, he had considered events before October 17, 2001,
because "the annual `non-discrimination' notice does not provide
parents with notice that written complaints must be filed within
the 30 day period, and for equitable reasons." (Def. Exh. 9.) In
his decision, Mr. Burpee also noted that the Superintendent was
required by regulation to propose an equitable resolution of a
Section 504 Complaint, and that he was "concerned about [D.G.]'s
emotional state." (Id.) As a result, Mr. Burpee recommended
that: (1) the CSE expeditiously and thoroughly investigate
alternative placements, including out-of-district schools, that
would meet D.G.'s needs; (2) the CSE consider plaintiff's claim
for compensatory educational services; and (3) the District
consider reimbursing plaintiff for the private psychological and
psychiatric interventions. (Def. 56.1 at ¶ 9.)
17. Plaintiff appealed Mr. Burpee's decision to the District's
Board of Education. (Id. at ¶ 10.) The Board of Education
appointed Eric Zaidins as an impartial hearing officer to conduct
a formal Section 504 Hearing. (Id.) Mr. Zaidins held the
Section 504 Hearing over four days, between March 19 and July 25,
2002. Oral testimony and written evidence was produced.
18. Mr. Zaidins never issued a final decision. (Def. 56.1 ¶
19. On April 2, 2002, after the second day of the Section 504
Hearing, the plaintiff filed a request for an impartial hearing pursuant to IDEA to challenge
the District's evaluations, placement and services for the
2000-01 and 2001-02 school years. (Def. 56.1 ¶ 13.)
20. On the first day of the hearing,*fn9 the District
agreed to reimburse plaintiff for private counseling services and
the private psychiatric and psychological evaluations and to
provide individual speech services to compensate for missed group
speech sessions, since D.G. went out on home instruction. On the
second day of the hearing, the parties reached an interim
settlement, pursuant to which the District agreed to provide a
six-week summer program for D.G. at the Dunneback Camp at the
Kildonan School, a non-approved private school serving students
with disabilities, located in Amenia, New York, and to place D.G.
in the Konsul School with a 1:1 certified special education
teacher to provide home instruction through the remainder of the
2001-02 school year. (Def. 56.1 at ¶ 14.)
21. On June 12, 2002, D.G.'s private counselor (not identified)
reported that D.G's self-esteem, confidence and overall happiness
had improved since being out on home instruction, and that it
would continue to improve at Kildonan. (Def. 56.1 at ¶ 15.)
22. On August 12, 2002, plaintiff requested that the impartial
hearing be reopened on the issue of the additional compensatory
education.*fn10 (Def. 56.1 at ¶ 16.) Plaintiff sought
placement at the Kildonan School and the remaining unreimbursed
counseling fees. (Id.)
23. All of plaintiff's IDEA claims for the 2000-01, 2001-02,
2002-03 and 2003-04 school years were resolved by a stipulation
of settlement dated May 20, 2003, under which the District agreed to pay the plaintiff the sum of $76,250 "in full
and final settlement of all claims for tuition reimbursement,
compensatory education damages, attorney's fees, expert or
consultant fees." (Def. 56.1 at ¶ 17.) Under this agreement, D.G.
was permitted to remain at Kildonan, at the District's expense,
for not only the 2002-03 school year, but also the 2003-04 school
year. In exchange, the plaintiff agreed to withdraw all IDEA
claims from September 1, 2000 through June 30, 2004. (Id. at ¶
3. Defendants' Disputed Statements
The following assertions of "undisputed fact" by defendants are
not, in fact, undisputed, as the record clearly demonstrates.
1. During the 2000-01 school year, D.G. was the subject of two
incidents involving physical contact. The first, on November 1,
2000, involved two students jumping on top of D.G. after he
tripped and fell.*fn11 Both perpetrators were identified and
sent to the main office. The second incident occurred on March
30, 2001; D.G. was "assaulted" by two students in the resource
room. The two perpetrators were suspended from school for five
days. (Def. 56.1 at ¶ 11(a)(i).)
Defendants cite to two "Incident Reports" and a page of
plaintiff's Section 504 Hearing testimony for these descriptions.
The nurse who filled out the Incident Report for the March 30,
2001 incident stated that, "When [D.G.] went into the Resource
Room, R. grabbed him and then he and T. punched him and grabbed
the front of his shirt and skin by his neck. They `tossed' him
into garbage cans in the room. They (T. and R.) ran out of the
room when the teacher came." (Def. Exh. 12.) In the space stating, "Please describe any prior
events with same individuals," the nurse wrote, "T. has `beaten
up' on [D.G.] `a lot' of times before. [D.G.] has spoken with his
guidance counselors and teachers about this." (Id.) In the
section stating, "Why/Reasons/Justifications?" the nurse wrote
what appears to be a direct quote from D.G., "`He always does
that.'" (Id.) Thus, the Incident Reports cited by defendants do
not confirm that there were only two instances of "physical
contact" during the 2000-01 school year, and they raise doubts
about D.G.'s teachers' professed ignorance, discussed below, of
the ongoing harassment D.G. claims he was experiencing from other
2. Plaintiff never wrote to school officials complaining about
either the November 1, 2000 "playground" incident or the March
30, 2001 classroom incident. (Def. 56.1 ¶ 11(a)(iv).)
The transcript shows, however, that plaintiff testified to
speaking to Dr. Gilbert, the principal, about D.G. "many times."
(Def. Exh. 15.)
3. D.G.'s 2000-01 special education teacher, Ms. Muldoon,
invited D.G. to eat in her classroom with two other students and
her teaching assistant. Ms. Muldoon testified that D.G. enjoyed
eating lunch in the resource room, benefitted from the quieter
setting, and never expressed a desire to return to the lunchroom.
(Def. 56.1 ¶ 11(a)(ii).) Plaintiff never complained to the
principal about D.G.'s eating his lunch in Ms. Muldoon's room.
(Def. 56.1 ¶ 11(a)(v).)
The transcript shows that plaintiff testified that she told Ms.
Muldoon she was "not happy with" D.G.'s eating in her room
instead of the cafeteria. (Def. Exh. 16.) Plaintiff admits she
never asked to have D.G. put back in the cafeteria for lunch.
(Id.) Ms. Muldoon testified that there were "no complaints"
from plaintiff about D.G. eating with her, but in response to an
inquiry as to whether they ever spoke about it, Ms. Muldoon
answered, "I don't know" and "I don't recall." (Id.) The cited
testimony says nothing about whether plaintiff contacted the principal.
4. Plaintiff failed to inform the District about the November
1, 2000 and March 30, 2001 incidents. (Def. 56.1 ¶ 11(a)(vii).)
In light of the nurse's reports, discussed above, and other
evidence that plaintiff repeatedly contacted various school
administrators about D.G.'s difficulties, defendants' claim is
impossible to credit.
5. Mrs. Fasolino testified that she met regularly with D.G.'s
team of teachers to discuss specific student concerns, that
D.G.'s name never came up in terms of being a victim of
harassment by other students, that neither she nor his other
teachers had observed such incidents, and that D.G. was doing
well in his classes. (Def. 56.1 ¶ 11(b)(i).) Mrs. Muldoon also so
testified. (Def. 56.1 ¶ 11(a)(iii).)
The transcript also reveals that plaintiff had requested a
meeting with D.G.'s team of teachers, and that they did meet with
her on September 26, 2001. (Def. Exh. 23.) According to Mrs.
Fasolino's testimony, plaintiff told the teachers that D.G. "was
being picked on," that he was "not always comfortable in school,"
and that he was eating lunch alone. (Id.) The record does not
support the claim that D.G.'s name "never came up" in those team
meetings as a victim of peer harassment. Moreover, given the
overall record, there are issues about the credibility of the
school employees that I decline to resolve on a motion for
6. When plaintiff complained about an out-of-school email D.G.
had received from a classmate, Mrs. Fasolino testified that the
teachers agreed to move the student away from D.G., even though
they had never observed in-school harassing behavior by the
classmate. (Def. 56.1 ¶ 11(b)(iii).)
The transcript also shows that Mrs. Fasolino was "shocked" by
the content of the email at issue, and that the rest of the teaching team was shocked as
well. However, the content of the email is not disclosed in the
record. (Def. Exh. 23A.)
7. During Ms. Macklin's counseling evaluation during the fall
of 2001, all of D.G.'s teachers reported that he was doing nicely
and did not observe any social or emotional issues interfering
with his academic performance, and D.G.'s five-week progress
report for the first marking period confirmed that he was
performing well in all academic areas. (Def. 56.1 ¶ 11(b)(v).)
When Ms. Macklin spoke with plaintiff on October 16,
2001,*fn12 plaintiff did not mention any teasing incidents
or that D.G. was the subject of repeated disability-related name
calling, physical aggression or intimidation based on his
disability. (Def. 56.1 ¶ 11(b)(vi).)
The evidence cited by defendants is a handwritten log with no
heading, apparently admitted as Ex. 37P at the Section 504
Hearing. (See Def. Exh. 25.) It appears to be Ms. Macklin's
handwritten notes about D.G. on various dates beginning with
April 2001 and ending in December 2001. However, the notes are
written in a manner that suggests they were likely recorded long
after the events they chronicle. For example, the entry for April
[D.G.] was referred for a counseling consultation for
the 2001-2002 school year as part of his Annual
Review at the end of the school year 2001. (7th
grade) Mom expressed concerns for [D.G.]. These
concerns were not brought to my attention by the
parent or teachers or an administrator prior to
[D.G.]'s annual review. Moms [sic] concerns at that
time were academic and she reported an incident that
occurred with another peer that the Principal was
taking care of. No other concerns by the teachers
were expressed to me while [D.G.] was in 7th
D.G. still would have been in 7th grade in April 2001,
indicating the note likely was written later than April 2001.
Similarly, the next entry, dated September 12, 2001, reads: CSE Meeting to discuss the recommendations from the
Audiologist. I also spoke briefly with [K.M.] about
the counseling consultation for this school year. Her
consent was given. Teachers expressed NO concerns
emotionally/socially at this time.
(Emphasis in original.) The entry dated "By 10/15" reads,
"Marking 5 week marking period Progress Reports out. [D.G.]'s
commented as doing very well in all academic areas. Teachers
still conveying no concerns."
Ms. Macklin's notes (if that is what these are) also indicate
that D.G. was telling her he had a hard time getting classwork
and homework done, he worried about grades, felt bad about school
work, and had a hard time making and keeping friends. The entry
dated "11/2" states that plaintiff met with Ms. Macklin and Mrs.
Fasolino and told them that students were teasing D.G. on the
bus. Ms. Macklin's notes also state, "This was the first time
that I was aware that other students were making fun of and
teasing" D.G. (Emphasis in original.) Again, there are
credibility issues regarding this document.
8. Defendants state that, after plaintiff met with Haviland
Middle School Staff (Mrs. Fasolino, Ms. Macklin and the two Deans
of Students) on November 2, 2001, the staff "promptly offered an
action plan" that included: (1) suggesting that D.G. be evaluated
immediately by a psychiatrist and giving plaintiff information to
obtain an emergency evaluation; (2) investigating the bus
incident, which would involve pulling the bus list to attempt to
identify the students responsible, speaking with other students
on the bus and the driver and making a list of students who
should be spoken to about bullying; (3) having D.G. take a couple
of days off from school "due to D.G.'s fragile emotional state,"
with Mrs. Fasolino sending work home during that time. (Def. 56.1
One of the letters cited by defendants, from Mrs. Fasolino to
Mr. Burpee dated January 11, 2002 (Def. Exh. 9), notes that D.G. was receiving "home
tutoring, that he had completed "most academic tasks for the
second marking period," and that the teachers would "continue to
maintain academic correspondence through [D.G.]'s home tutor."
In addition, the exhibits cited by defendants include a letter
from Mr. Burpee to plaintiff's attorney dated January 31, 2002,
in response to their request for an appeal of the determination
of the Section 504 Compliance Officer that no Section 504
violation had occurred during the 2000-01 and 2001-02 school
years. (Def. Exh. 9.) Mr. Burpee also concluded that no Section
504 violation had occurred (he affirmed Ms. Santora's decision).
In the letter, he noted that there were:
conflicting statements about whether any bus-related
incidents of taunting or physical aggression towards
[D.G.] occurred during the 2000-2001 school year.
Although [plaintiff] stated that students who were
sitting in the front seat continuously tripped [D.G.]
as he got off the bus, and that Dr. Gilbert was made
aware of these incidents, [D.G.] states that he
experienced no problems on the bus last year.
Compounding this inconsistency is the lack of any
written referrals or reports of any misconduct
directed towards [D.G.] while on the bus during the
2000-2001 school year.
Mr. Burpee's letter also noted that D.G. had stated that his
books had been tossed in the garbage on two or three occasions
during the 2000-01 school year, that D.G. had not reported the
instances of abuse on the bus prior to November 1, 2001, and that
D.G. appeared to be doing well in the fall of 2001 until the end
of October, when his special education teacher noted a change in
D.G.'s "general attitude."*fn13 Finally, Mr. Burpee's letter stated that he was "concerned
about [D.G.]'s emotional state," which, according to recent
psychiatric reports, was depressed and frustrated because of the
"peer victimization." As a result, Mr. Burpee recommended that
the CSE "expeditiously and thoroughly investigate any and all
placements, including those out-of-district, which would meet his
A letter from Ms. Linton, Dean of Students, also cited by
defendants, noted that, on November 2, 2001, she and plaintiff
discussed the possibility that students were "pretending to be
[D.G.]'s friends, giving him a false sense of security. Due to
[D.G.]'s disability, he would not be able to tell if the students
were just `using' him." Linton added, "This was the first and
only time I was made aware of any problem involving" D.G. (Def.
Ms. Macklin's testimony, cited by defendants here, also notes
that plaintiff's mother was "very upset" at the November 2, 2001
meeting. (Def. Exh. 30.) Ms. Macklin testified that plaintiff
told her D.G. "was refusing to come to school, he was scared to
return to school. She was upset . . . There was an agreement that
maybe D.[G.] needed a couple of days just at home, relax, find
out how he is doing before he returned to school." Ms. Macklin
testified that at this meeting, she suggested plaintiff bring
D.G. to Astor Counseling Services for an emergency evaluation.
9. After IDT refused to accept D.G. in November 2001, the
District began supplying a home-instruction tutor. (Def. 56.1 ¶
11(b)(xiv).) D.G. received positive report card grades indicating
he received 70's and 80's in his core academic classes for the
2001-02 school year, inclusive of the period he went out on home instruction (e.g.,
from November 2001 to June 2002). (Def. 56.1 ¶ 17(c).)
Plaintiff claimed the tutor was uncertified, and that home
instruction was not provided until January 2002 and was
discontinued in April 2002. (Cmplt. ¶ 18.)
10. For the remainder of the 2001-02 school year, the District
referred D.G. to a number of out-of-district placements. The ones
that had an available spot for D.G. were rejected by the
plaintiff. (Def. 56.1 at ¶ 17(b).)
The evidence cited by defendants includes a letter dated
February 27, 2002 to the Pawling Middle School from Lisa Quinn,
CSE Chairperson for the Hyde Park Central School District. It
also includes nine letters from Ms. Quinn dated April 26, 2002
and one letter dated April 15, 2002 to other out-of-district
middle schools recommending D.G. for placement at those schools.
(Def. Exh. 38.) The evidence does not show which schools had
spots for D.G. nor which, if any, plaintiff rejected.
Under Rule 56(c) of the Federal Rules of Civil Procedure, a
court will grant summary judgment if the evidence offered shows
that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The court views
the record in the light most favorable to the non-movant and
resolves all ambiguities and draws all reasonable inferences
against the movant. See United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962); Donahue v. Windsor Locks Bd. of Fire
Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Moreover, not every
disputed factual issue is material in light of the substantive
law that governs the case. "Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Finally, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To withstand a summary judgment
motion, sufficient evidence must exist upon which a reasonable
jury could return a verdict for the nonmovant.
1. Section 504 and ADA Claims
In a discussion of the enactment of the Rehabilitation Act, the
United States Supreme Court noted that, "Discrimination against
the handicapped was perceived by Congress to be most often the
product, not of invidious animus, but rather of thoughtlessness
and indifference of benign neglect." Alexander v. Choate,
105 S. Ct. 712, 717 (1985).
Section 504 of the Rehabilitation Act and Title II of the ADA
were designed protect disabled persons from discrimination, both
intentional and unintentional, in the provision of public
services. Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir.
2002). Section 504 provides:
No otherwise qualified individual with a disability . . .
shall, solely by reason of her of 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 financial
29 U.S.C. § 794. Similarly, Title II of the ADA states:
[N]o 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.
42 U.S.C. § 12134.
"Apart from the Rehabilitation Act's limitation to denials of
benefits `solely' by reason of disability and its reach of only
federally funded as opposed to `public' entities, the reach
and requirements of both statutes are precisely the same."
Weixel, supra, 287 F.3d at 146 n. 6; see also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d
Cir. 1999) (considering Section 504 and ADA claims in "tandem").
The Section 504 and Title II claims are therefore analyzed
together. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.
2003); see also D.D. v. New York City Bd. of Educ., No. 03
Civ. 2489 (DGT), 2004 WL 633222 at *17 (E.D.N.Y. 2004).
Plaintiff must offer proof that (1) D.G. has a disability for
purposes of Section 504 and Title II; (2) he was otherwise
qualified for the benefits he was denied; (3) he was denied the
benefit by reason of his disability.*fn14 Weixel, supra,
287 F.3d at 146-47; Henrietta D., supra, 331 F.3d at 272.
Both Section 504 and Title II define a "disabled individual" as
one who "(i) has a physical or mental impairment which
substantially limits one or more of such person's major life
activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment." 29 U.S.C. § 705(20)(B);
42 U.S.C. § 12102(2). A three-part test exists for determining
whether a person is disabled under these statutes, see Bragdon
v. Abbott, 524 U.S. 624 (1998) and Colwell v. Suffolk County
Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998). Under Colwell,
plaintiff must (i) show that D.G. suffers from a physical or
mental impairment, (ii) identify the activity claimed to be
impaired and establish that it constitutes a "major life
activity" (in this case, learning); and (iii) show that D.G.'s
impairment "substantially limits" the major life activity
identified. See Weixel, 287 F.3d at 147.
In this case, there is no genuine dispute that D.G. is disabled
for purposes of Section 504 and Title II. Defendants concede D.G.
is a qualified student with a disability for purposes of IDEA.
(Def. 56.1 ¶ 1.) "The definition of individual with a disability
under section 504 of the Rehabilitation Act is broader in certain respects than the
definition of a child with [a] disabilit[y]" under IDEA. Muller
v. Committee on Special Education, 145 F.3d 95, 100 n. 2 (2d
Cir. 1998); see also Grant v. St. James Parish Sch. Bd., No.
Civ. A 99-3757 (E.D. La. Nov. 8, 2000) ("Although the two laws
overlap significantly, it is well recognized that Section 504
covers more students than does the IDEA."). Therefore, because
D.G. qualifies as a student with a disability under IDEA, he is
considered an individual with a disability for purposes of
Section 504 and Title II.*fn15
Similarly, no dispute has been articulated regarding D.G.'s
entitlement to access to public school and its special education
Documents cited by defendants specifically, the January 31,
2002 letter from Mr. Burpee to plaintiff half-heartedly claim
that there was no evidence that D.G. was being tormented because
of his disability. Mr. Burpee stated in his letter that D.G. had
not testified that the various students who abused him called him
names while they were beating him up. (Def. Exh. 9 at 3.) I do
not find these conclusory and self-serving statements, made in
the context of administrative hearings that were a prelude to
litigation, sufficient to refute plaintiff's allegation that D.G.
was harassed on the basis of his disability. In fact, much in the
record suggests that D.G. was harassed, and nothing in the record
suggests that D.G. was harassed on any basis other than his
A plaintiff may recover money damages under the ADA or Section
504 by showing a statutory violation resulted from "deliberate
indifference" to the rights secured the disabled by those statutes. Garcia v. S.U.N.Y. Health Sciences Center of
Brooklyn, 280 F.3d 98 (2d Cir. 2001) (citing Bartlett v. New
York State Bd. of Law Exam'rs, 156 F.3d 321, 331 (2d Cir. 1998),
vacated on other grounds, 527 U.S. 1031 (1999)). These
standards apply to a school district and its administrators whose
actions allegedly discriminated against the student; they do not
impose liability on the school simply for the actions of other
School district liability for peer-to-peer disability-based
harassment under Section 504 and the ADA has not been directly
addressed by the United States Supreme Court or the Second
Circuit, however the Supreme Court has addressed school district
liability for peer-to-peer sexual harassment in violation of
Title IX. Davis v. Monroe, 526 U.S. 629, 650 (1999); see also,
e.g., Pell v. Trustees of Columbia Univ., No. 97 Civ. 0193
(SS), 1998 WL 19989 (S.D.N.Y. Jan. 21, 1998) (finding that
hostile educational environment claims apply the same standards
as those of Title IX). The Davis Court held that a school
district can be held liable if it is "deliberately indifferent"
to peer sexual harassment and its response is "clearly
unreasonable in light of the known circumstances."
526 U.S. at 648-49; see also Gebser v. Lago Vista Independent Sch. Dist.,
524 U.S. 274 (1998) (finding school district could be liable in
damages under Title IX when it is deliberately indifferent to the
known acts of sexual harassment by a teacher).
In Davis, the evidence showed that a school district was
aware that one of its male high school students was regularly
sexually harassing and even assaulting a fellow female student
and did nothing to stop it for five months. The Court stated that
a Section 504 or ADA claim against the school district for a
Title IX violation arising out of peer-to-peer harassment could
be sustained with proof that (1) the victim was harassed on the
basis of her gender; (2) the alleged harassment was so severe,
pervasive and objectively offensive that it altered the condition
of her education and created an abusive educational environment;
(3) the school district had actual notice about the gender-related harassment; and (4) the school
district was deliberately indifferent to the harassment. Davis,
526 U.S. 640-53.
The Court stated that a school district sued for peer-to-peer
harassment is not held liable for the actions of the harassing
students; rather, it is held liable for its own "deliberate
indifference" to the acts of the harassing students.
526 U.S. at 641-42.
The Davis Court noted that children in school often act
inappropriately, and that a child who refuses to go to school
because a bully calls him a "scaredy cat" at recess will not have
a claim under Section 504 or the ADA. Id. at 651-52. "Damages
are not available for simple acts of teasing and name-calling
. . ., even where these comments target differences in gender."
Id. Rather, the conduct must be "serious enough to have the
systemic effect of denying the victim equal access to an
educational program or acvitiy." Id. at 652.
In distinguishing actionable conduct from non-actionable,
ordinary student teasing, the Davis Court gave a useful
The most obvious example of student-on-student sexual
harassment capable of triggering a damages claim
would thus involve the overt, physical deprivation
of access to school resources. Consider, for
example, a case in which male students physically
threaten their female peers every day, successfully
preventing the female students from using a
particular school resource an athletic field or a
computer lab, for instance. District administrators
are well aware of the daily ritual, yet they
deliberately ignore requests for aid from the female
students wishing to use the resource. The district's
knowing refusal to take any action in response to
such behavior would fly in the face of Title IX's
core principles, and such deliberate indifference may
appropriately be subject to claims for monetary
damages. It is not necessary, however, to show
physical exclusion to demonstrate that students have
been deprived by the actions of another student or
students of an educational opportunity on the basis
of sex. Rather, a plaintiff must establish sexual
harassment of students that is so severe, pervasive,
and objectively offensive, and that so undermines and
detracts from the victims' educational experience,
that the victim-students are effectively denied
equal access to an institution's resources and
526 U.S. at 650-51 (emphasis added). Based on this reasoning, a school district's deliberate
indifference to pervasive, severe disability-based harassment
that effectively deprived a disabled student of access to the
school's resources and opportunities would be actionable under
Section 504 and Title II.
The Davis Court also noted that the relationship between the
harasser and the victim is relevant, especially in circumstances
where the harasser would have more power over the victim (e.g.,
teacher-to-student harassment). 526 U.S. at 653. Here, at least
one school employee (Ms. Linton) noted that D.G. might not
understand when other kids were "using" him because of his
disability. Such a student e.g., one who was developmentally
impaired, like D.G. probably is not on equal footing to defend
himself against harassment from his more able peers, leaving him
vulnerable to abuse that the District should have anticipated and
worked harder to prevent.
In addition, unnecessary social isolation has been considered a
form of actionable discrimination. See Olmstead v. L.C.,
527 U.S. 581, 600-01 (1999) (finding that the "unjustified
institutional isolation of persons with disabilities is a form of
discrimination," because the dissimilar treatment inherent to
institutionalization requires persons with disabilities to
"relinquish participation in community life they could enjoy
given reasonable accommodations, while persons without mental
disabilities can receive the medical services they need without
similar sacrifice."). Plaintiff's claims related to the lunchtime
isolation appear to be such a claim. Admittedly, eating lunch
alone is not the same thing as institutionalization. However, the
comments of the Olmstead Court about the effects of needlessly
relinquishing participation in community life apply here. Eating
lunch with other students could be considered an integral part of
the public school experience, one in which D.G. would be entitled
to participate if a reasonable accommodation for his disability
would make it possible.
Finally, "[i]t is a familiar cannon of statutory construction
that remedial legislation should be construed broadly to effectuate its purpose."
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967).
Applying these standards to the instant case, I find that there
are triable issues of fact precluding a grant of summary judgment
on the Section 504 and Title II claims with respect to both the
2000-01 and 2001-02 school years. A reasonable juror, looking at
the evidence discussed above, could conclude that D.G. was
subjected to severe and pervasive peer abuse, that this abuse was
known to teachers and administrators in the District, and that it
so altered the conditions of D.G.'s school experience that he
felt he could not attend school for the better part of a year.
See Weixel, 287 F.3d at 141-45 (mother refused to submit to
placement of her disabled but gifted daughter in a class below
her level, resulting in the need for home-schooling for the year,
supporting (in part) Title II and Section 504 claims); R.B. v.
Bd. of Educ. of the City of New York, 99 F. Supp. 2d 411, 419
(S.D.N.Y. 2000) (denying motion to dismiss a Section 504 claim
where student was excluded from the classroom for an entire
school year because of the school board's "gross neglect,
incompetence and ineptitude").
Here, the District's mere denial of knowledge that harassment
occurred does not create an issue of fact. First, that denial may
well be found incredible, given the totality of the record.
Second, the level of persistent disability-based physical and
verbal intimidation alleged, and D.G.'s eventual refusal to go
back to school, are similar to the "overt, physical deprivation
of access to school resources" caused by male students who
threaten weaker female students contemplated by the Davis
Court. The defendants knew D.G. was disabled not just dyslexic,
but developmentally (and socially) disadvantaged. This put him in
an obviously inferior position to his more able peers and left
him vulnerable to the attacks that D.G. and his mother claim to
have brought to the defendants' attention to no avail. The fact
that D.G. continued to get good grades would not, by itself, relieve the defendants of their
obligation to investigate and remedy intense abuse if D.G. was
reporting it during the years at issue. See, e.g., Davis,
526 U.S. at 651 (noting that whether harassment is actionable
"depends on a constellation of surrounding circumstances,
expectations and relationships") (quoting Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 82 (1998)). Similarly, the
fact that D.G. was eventually placed at Kildonan pursuant to the
IDEA settlement and is doing well there does not absolve the
District of liability for its failures under Title II and Section
504 for the period at issue in this case. See, e.g., Gabel v.
Bd. of Educ. of the Hyde Park Central Sch. Dist.,
368 F. Supp. 2d 313, 336 (S.D.N.Y. 2005).
Evidence in the record also would support a finding of bad
faith and/or gross misjudgment necessary to support a claim of
intentional discrimination. Bartlett, 156 F.3d at 331; see
also Gabel, 368 F. Supp. 2d at 336; B.D. v. DeBuono,
130 F. Supp. 2d 401, 439-40 (S.D.N.Y. 2000); W.B. v. Matula,
67 F.3d 484 (3d Cir. 1995).
Admittedly, plaintiff's case for the 2000-01 school year is
much weaker than her case for the 2001-02 school year. However,
since the case is going to trial, I will hear evidence pertaining
to both years.
I find no evidence, however, to support any claims against
defendants Liberty and Sheehan, who did not even assume their
posts in Hyde Park until after the 2001-02 school year. All
claims as to those defendants are dismissed.
2. Section 1983 Claims
Having found that Section 504 and/or Title II could have been
violated, I turn now to the claims raised under 42 U.S.C. § 1983
("Section 1983"), which are based on those alleged
disability-rights deprivations. Claims under Section 1983 lie only against state actors that
is, persons acting under color of state law who deprive the
plaintiff of a right, privilege or immunity secured by the
United States Constitution or a federal law. Lugar v. Edmondson Oil
Co., 457 U.S. 922, 930 (1982). The Second Circuit has held that
a Section 1983 claim can be maintained against individual
defendants on the basis of Title II or Section 504 violations.
Weixel, 287 F.3d at 151.
Defendants insist they are entitled to qualified immunity, and
that no Section 1983 claim can lie against the District.
Qualified immunity shields a public official from civil
liability when his conduct "does not violate a clearly
established statutory or constitutional right." Richardson v.
Selsky, 5 F.3d 616, 621 (2d Cir. 1993); Stephenson v. Doe,
332 F.3d 68, 76 (2d Cir. 2003). A public official is qualifiedly
immune from suit if (1) his conduct does not violate clearly
established constitutional rights, or (2) it was objectively
reasonable for the official to believe his conduct did not
violate clearly established constitutional rights. Lennon v.
Miller, 66 F.3d 416, 418 (2d Cir. 1995); Oliveira v. Mayer,
23 F.3d 642, 648 (2d. Cir. 1994).
The issue of qualified immunity is a matter of law usually
determined at the earliest point in a case, so that a defendant
who is entitled to the doctrine's protections can take full
advantage of them. Saucier v. Katz, 533 U.S. 194,
121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).
Once accused, an individual defendant has the burden of proving
that it was "`objectively reasonable' for him to believe that his
behavior did not violate plaintiffs' clearly established
constitutional rights." Lennon, 66 F.3d at 418 (2d Cir. 1995)
(quoting Anderson v. Creighton, 483 U.S. 635 (1987)). This
issue has been discussed extensively in the context of police
officers whose conduct allegedly violated an arrestee's rights.
In those cases, objective reasonableness is established where
"officers of reasonable competence could disagree" as to the
legality of the defendant's actions. Malley v. Briggs, 475 U.S. 335 (1986).
Actions will be found objectively unreasonable, and summary
judgment will be denied, if "no officer of reasonable competence
could have made the same choice in similar circumstances."
Lennon, 66 F.3d at 420-21. The Court must ascertain the
"objective reasonableness" of the actions "assessed in light of
legal rules that were `clearly established' at the time the
action was taken." Id. at 639 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982)). In the context of school
administrators and teachers, the question would be whether any
reasonable teacher or administrator could believe that the
alleged conduct would not violate a student's clearly established
For purposes of deciding the issue of qualified immunity, the
only relevant inquiry is whether the constitutional right that
plaintiffs claim was violated rests on law that is well-settled:
if it does, "the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law
governing his conduct." Harlow, 457 U.S. at 818-19. Defendants'
denials that teachers and administrators knew about the alleged
harassment, "go to the question of whether the plaintiff's
constitutional rights were violated, not the question of whether
the officer was entitled to qualified immunity." Stephenson,
332 F.3d at 78 (citing Saucier, 533 U.S. at 205-06).
Since I have found that D.G.'s rights under Section 504 and
Title II could have been violated, I must turn to the question of
whether those rights were clearly established at the time of the
complained of activity. Harlow, 457 U.S. at 818-19. I find that
they were. While Davis involved peer sexual harassment, and
this case involves peer disability harassment, the novel issue
in Davis decided in 1999 was school district liability for
its response to peer-to-peer harassment (of any sort). Based on
the Supreme Court's ruling in Davis, I find that "competent"
public school teachers and administrators would know they could
be held liable for peer disability harassment as well. See Harlow,
457 U.S. at 818-19.
Finally, I must decide whether a reasonable teacher or
administrator could have possibly believed that failing to
protect D.G. from his peers and refusing to become more involved
when plaintiff sought their help would not have violated D.G.'s
rights. I find that plaintiff has alleged and offered evidence
about conduct that no reasonable teacher or administrator could
have thought did not violate D.G.'s rights. If, at trial, the
evidence shows that the defendants did act reasonably under the
circumstances, and that D.G.'s rights were not violated, then
defendants will be exonerated on the facts. But if they violated
D.G.'s rights, qualified immunity does not shield them.
As noted above, I find no basis for liability on any claims
as to defendants Liberty and Sheehan, so of course the Section
1983 claims are dismissed as against them. Thus, defendant Burpee
is the only individual as to whom Section 1983 liability could
I will consider the District's Monell arguments at the close
of plaintiff's case at trial. Monell v. Dep't of Social Services
of the City of New York, 436 U.S. 658, 694-95 (1978).
3. Article XI Claims
Article XI of the Constitution of the State of New York states
that the "legislature shall provide for the maintenance and
support of a system of free common schools, wherein all the
children of this state may be educated." Article XI does not
create a private cause of action. See Donohue v. Copiague
Union Free School Dist., 47 N.Y.2d 440, 443 (1979); see also
Sabur v. Brosnan, 203 F. Supp. 2d 292 (E.D.N.Y.
2002).*fn16 Accordingly, the Article XI claims are dismissed as to all defendants.
(1) All claims are dismissed as against defendants
Sheehan (Sheedhan) and Liberty.
(2) All claims against defendant Santora are
dismissed for failure to prosecute.
(3) Plaintiff's claims under Section 504 of the
Rehabilitation Act and Title II of the ADA remain as
against defendants Burpee and the District.
(4) Defendant Burpee is not qualifiedly immune from
suit under Section 1983.
(5) The Section 1983 claim against the District
(6) The claims under Article XI of the Constitution
of the State of New York are dismissed as against all
Defendants' Motion for Summary Judgment (docket # 13) is
otherwise denied. The case remains open.
This constitutes the decision and order of the Court.