The opinion of the court was delivered by: James Orenstein, Magistrate Judge.
REPORT AND RECOMMENDATION
Plaintiff K.H., acting on behalf of her minor son K.C.,*fn1 seeks a preliminary injunction requiring defendant Vincent Smith School (the "School") to reinstate K.C. as a student and enjoining it from further excluding K.C. "unless and until all reasonable efforts to accommodate his disability have been accommodated." Docket Entry ("DE") 1 (Order to Show Cause). She asserts that she is entitled to such relief based on the claims she raised under three separate federal statutes: the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. ("ADA"); the Rehabilitation Act, 29 U.S.C. § 794 et seq.; and the Individuals with Disability Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). On February 14, 2006, the Honorable Edward R. Korman, Chief United States District Judge, referred the matter to me for a report and recommendation. DE 2. Following hearings on February 28 and March 14, 2006, I now make my report and, for the reasons explained below, respectfully recommend that the court deny the plaintiff's request for a preliminary injunction.
K.C. is a 12-year-old boy, most recently enrolled in the seventh grade, who has a learning disability that affects his ability to reason and understand written language. DE 1 at 4. His treating psychiatrist, Dr. Jonathan Aronowitz, has diagnosed K.C. as suffering from "Learning Disorders, Attention Deficit Hyperactivity Disorder ["ADHD"], and Mixed Receptive-Expressive Language Disorder." DE 6 (Hearing Exhibit 1); see also DE 1, attached Psychological Evaluation at 4 (finding K.C. to have reading skills in the "low average range," math skills on a "2.4 grade level," written skills "significantly below average," and "a poor ability to [orally] express ideas and thoughts"). K.C. began attending the School in September 2005 as a student in its seventh grade class. See DE 1 at 3; see also DE 4 at 5. He remained there until his expulsion four months later, the circumstances of which are discussed in greater detail below. Despite the brief and stormy nature of K.C.'s tenure at the School, his mother K.H. seeks to have him reinstated there because she believes "[t]his is the first school that this child has done well at[.]" K.H. believes that the small size of the School's classes allows teachers to address K.C.'s learning needs, and she contends that K.C. "can't fit" in a public school setting. DE 7 (transcript dated Feb. 28, 2006) ("2/28 Tr.") at 14; DE 8 (transcript dated Mar. 14, 2006) ("3/14 Tr.") at 92.
The Vincent Smith School is a private school accredited by the New York Department of Education. As part of its program, it provides instruction for children with learning disabilities, although it is not (and apparently need not be) specifically accredited for that purpose. See DE 3 ¶ 3; 2/28 Tr. at 8. Although the school aspires "to provide a small supportive educational setting for reluctant learners with special education needs[,]" DE 1 (attachment reprinting "Mission Statement" from the School's Internet web site), its headmaster defendant Arlene Wishnew ("Wishnew") testified that the School's educational program does not include a therapeutic component. 3/14 Tr. at 29. Indeed, the School's published admissions policy specifies that "[s]tudents with serious emotional or disciplinary problems will not be considered." DE 1 (attachment from School's Internet web site).*fn2
Like all other parents of the School's students, K.H. executed a contract with the School obliging her to pay tuition. See DE 2 (attached Enrollment Contract). Both K.H. and K.C. also signed, as the School required them to do upon K.C.'s admission, an agreement to be bound by certain School policies, including the following: "No student under the jurisdiction or control of Vincent Smith School is permitted to continually engage in disruptive behavior or negative conduct which materially affects the rights of personnel to carry on their functions in the school, or affects the rights of other students to learn in an appropriately controlled educational environment." Id. (attached Statement of Policy). The policy statement provides that violation of the latter provision subjects a student to "sanctions including possible expulsion, at the discretion of the Head of School." Id.
K.C.'s disciplinary problems at the school began shortly after his enrolment and continued until his expulsion. In her affidavit in opposition to the instant motion, headmaster Wishnew wrote:
13. [K.C.] engaged in a pattern of negative behavior including, but not limited to, throwing objects at Vincent Smith staff and other students, engaging in disrespectful conduct towards Vincent Smith staff and other students, teasing and otherwise harassing Vincent Smith students, engaging in physical and verbal altercations with other Vincent Smith students, lying to Vincent Smith staff, ignoring directions given to him by Vincent Smith staff, arguing with Vincent Smith staff, refusing to do classwork assigned to him by Vincent Smith staff, threatening Vincent Smith staff and other students, forcibly removing objects from the Principal's desk without permission, attempting to climb out of a window, picking up and threatening to throw a chair at the Principal of Vincent Smith. Such patterns of behavior began shortly after the commencement of the 2005-06 school year and continued until his dismissal.
14. In addition, the student frequently engaged in similarly negative behaviors during his bus ride to and from Vincent Smith from the commencement of the 2005-06 school year until his dismissal from Vincent Smith.
DE 3 ("Wishnew Aff.") ¶¶ 13-14.
The foregoing allegations tend to create an unwarranted impression that K.C.'s misbehavior was essentially unremitting from his first day at the School by blurring the timing of events -- after listening to the testimony at the hearing, it appears instead that much of the above refers to the events of January 3, 2006, that triggered K.C.'s expulsion -- and may also magnify, for tactical reasons, the significance of K.C.'s misbehavior as a student at the School. But even accounting for such considerations and for K.H.'s attempts to minimize in her testimony the severity and frequency of the reports of her son's behavioral problems, the record developed at the evidentiary hearing persuades me that K.C.'s behavior was a consistent, and progressively greater, problem.
Wishnew testified that from September through December of 2005, K.C.'s teachers reported behavioral problems including fits of rage and at least one incident in which K.C. allegedly put another student in a "headlock." See 3/14 Tr. at 8; 2/28 Tr. at 32.*fn3 Indeed, even the series of teachers' reports that K.H. included in her initial motion papers suggest that K.C. had problems behaving in the classroom. Although several teachers had positive things to say about K.C.'s work, several also made comments that appear to signal classroom misbehavior: they cited K.C.'s need for better "cooperative working skills," his "negative comments while playing to other students," and his "difficulty contributing appropriately to class discussions;" and four different teachers checked a portion of the comment form indicating the need for improvement in K.C.'s "classroom behavior." DE 1 (attachment of K.C.'s "Academic Report To Parents" forms).
On November 30, 2005, the School suspended K.C. for throwing "food at a student and a soda can at a student." 3/14 Tr. at 9; see also 2/28 Tr. at 13. In the wake of the suspension, Wishnew met with K.H. and told her that K.C.'s status was in question. See 3/14 Tr. at 10. After conferring with the School's Board of Trustees, Wishnew informed K.H. that K.C.'s continued attendance at the School depended upon the outcome of a psychological observation "as soon as possible." Id.; see also 2/28 Tr. at 14.
The School chose Dr. David Dillon, a psychiatrist who works with children, to perform the observation and made an appointment for early January for Dr. Dillon to observe K.C. in the classroom, interview his teachers, and then meet with his mother. The date of the observation and interview was changed to accommodate K.H.'s schedule, and ultimately cancelled. See 3/14 Tr. at 9-10, 67-70, 85-88. The reason for the cancellation is in dispute: the School contends that K.H. objected to the plan to have Dr. Dillon speak with her only after the classroom observation and teacher interviews, see id. at 10 (testimony by Wishnew that "Dr. Dillon called me and told me he was not going to be testing K.C. because of the mother's demands and wanting to control this interview"); K.H. says that the psychiatrist decided on his own to cancel after learning that K.C. was being treated by another psychiatrist. Id. at 68.
As an alternative to Dr. Dillon's evaluation, the School agreed to meet with Dr. Aronowitz to discuss K.C.'s medication -- a subject that the School had not even known was a relevant issue until K.C.'s misbehavior began:
... We weren't aware that he was on medication when he was registered at the school. His medical records indicate that he was not on medication and then it started to come out and evolve that during one incident he was in the office, he said, "Well, I didn't take my angry medicine today."
And I said, "What medicine?"
And then I spoke to his mom and she says, "Well, sometimes I give him [Adderall]." I believe that was the medication. 3/14 Tr. at 10; see also id. at 51 (Aronowitz). Having learned of K.C.'s medication, Wishnew agreed to speak with Dr. Aronowitz about monitoring it, and K.H. said she would do the same. See id. at 11-12; see also 2/28 Tr. at 15. Wishnew testified that she spoke with Dr. Aronowitz on December 30, 2005, but recalled only that they discussed "having [K.C.'s] medication monitored" and nothing regarding having him observe K.C. at school. 3/14 Tr. at 11.
K.C. returned to the School from his suspension after approximately one week. See 3/14 Tr. at 23-24.On January 3, 2006, the first day of school after winter break, K.C. was again suspended in an incident that ultimately led to his expulsion and the instant litigation. See 3/14 Tr. at 12; 2/28 Tr. at 16-17.
On that first day of class, when K.C.'s computer class instructor asked him to take a seat in either the first or second row in the classroom, K.C. refused. 3/14 Tr. at 12. Wishnew testified that the teacher gave K.C. a choice of either sitting where he was told or going to the principal's office. Id. K.C. chose the latter after "screaming and cursing at the teacher." Id.
According to Wishnew (who was not at the School at the time, and relied on the hearsay statements of others), when K.C. went to the office he "picked up a chair ... and threatened to throw it at [the principal]," that he "threw things off her desk, [and] threatened to smash her computer." Id. at 13. K.H. (who likewise was not there) denies that K.C. picked up a chair and threatened the principal with it, instead, she contends "he just said it verbally. He never lifted the chair." 2/28 Tr. at 35. The principal called K.H. and asked that she pick K.C. up from school and informed her that K.C. was suspended until further notice. See 2/28 Tr. at 17.
On January 6, 2006, Wishnew met with K.H. and K.C. at the school and discussed both the events of a few days before and earlier incidents. See 3/14 Tr. at 13-14. Wishnew testified that she gave K.H. a "narrative" of what had occurred and that K.C. confirmed her description of his behavior. Id.; see also id. at 71 (testimony by K.H. that she was informed for the first time at the January 6 meeting that K.C. had threatened other students). K.H. disputed that K.C. admitted the conduct, but after making ...