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August 11, 2005.

K.M., on behalf of her son, D.G., an infant, Plaintiff,

The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

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 Kevin Sheehan,*fn2 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 ("Article XI").

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 disability discrimination.

  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 XI.

  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. ¶ 5.)

  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, 13-17.)*fn7

  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 deficits.
(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 ¶ 11(a)(x).)

  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 ¶ 11(b)(vii).)

  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 ¶ 11(b)(viii).)

  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(b)(ix).)

  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 ¶ 11(b)(xi).)

  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, 2002.

  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." ...

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