The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge
C.D., C.D. on behalf of her minor child S.D., R.F., and R.F. on behalf of her minor child S.C. (collectively "plaintiffs") bring this action against the New York City Department of Education ("DOE"), the New York City Board of Education ("BOE"), and Chancellor Joel Klein in his official capacity only (collectively, "defendants"). Plaintiffs S.D. and S.C. (the "minor plaintiffs" or the "minors") are students who have been classified as having learning disabilities by defendants. S.D. and S.C. enrolled in non-public schools at defendants' expense because defendants acknowledged that they could not provide the minors with a free appropriate education in defendants' public schools because of the minors' learning disabilities. Prior to attending non-public schools, the minors attended defendants' public schools. While in attendance in public schools, they each had received free breakfast and lunch based on their families' income levels. Once they began attending private schools, their tuition and transportation was paid for by defendants, but the minors were no longer provided with free breakfast or lunch, and they were not reimbursed for those meals by defendants. Plaintiffs unsuccessfully appealed the administrative rulings that meals would not be provided to the minors and then commenced this action.
Plaintiffs allege that if not for the minors' learning disabilities, they could have continued to attend the New York City public schools where they had received free meals. Instead, they had no alternative but to attend non-public schools where they did not receive free meals. Plaintiffs therefore assert claims for violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1415 et seq., and 42 U.S.C. § 1983.
Defendants move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), which is subject to the same standard of review as a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006). In deciding such a motion, a Court must confine itself to the allegations contained in the complaint, any written instrument attached to the complaint as an exhibit or incorporated in it by reference, and any documents the plaintiff either "possessed or knew about and upon which [it] relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). Courts may consider documents incorporated in the pleadings by reference without thereby converting a motion for judgment on the pleadings into a motion for summary judgment. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). In deciding defendants' Rule 12(c) motion the Court will consider only those documents incorporated in the complaint by reference or otherwise appropriately considered in deciding such a motion.
For the reasons that follow, defendants' motion to dismiss is granted in part and denied in part.
The following facts are as alleged in the Second Amended Complaint.
Defendants provide free lunch to students from low income families and others pursuant to the standards set forth in the federal National School Lunch Act ("NSLA"), 42 U.S.C. §§ 1751 et seq., which sets forth the requirements for the National School Lunch Program ("NSLP"). (Sec. Am. Compl. ¶ 13.) The NSLA states that any child whose household's income satisfies the income eligibility guidelines "shall be served a free lunch." 42 U.S.C. § 1758(b)(9)(A). (Sec. Am. Compl. ¶14.) The NSLA also states that children eligible to receive food stamps or who are homeless are "automatically eligible for a free lunch and breakfast." 42 U.S.C. § 1758(b)(12)(A)(i), (iv). (Sec. Am. Compl. ¶ 14.) Defendants also provide free lunch to every child at some schools, regardless of whether each child qualifies for a free meal under the NSLA. (Sec. Am. Compl. ¶ 15.) Defendants have a policy guaranteeing free breakfast for every student on the basis that "[g]ood nutrition is essential to every young person's health and development," and that "no child is discriminated against because of . . . handicap in the Department of Education's meals programs." (Id. ¶¶ 16, 17.) In approximately 300 schools for which the DOE administers a meal program, satellite lunches are delivered from neighboring schools. (Id. ¶ 18.)
The minors received free breakfast and lunch while in public school. (Id. ¶¶ 23, 69.) S.D. was 13 and in sixth grade, and S.C. was 16 and in ninth grade as of mid-2007. (Id. ¶¶ 7, 9.) As required by the IDEA, in 2004 defendants created an Individualized Education Plan ("IEP") classifying S.D. as learning disabled and making specific recommendations for her education. (Id. ¶¶ 26, 27.) Defendants issued a similar IEP for S.C. in 2005. Defendants admitted they could not offer either student an appropriate placement in the public schools. (Id. ¶¶ 28, 70-72.)
Defendants therefore offered each minor what is referred to as a "Nickerson letter," which permitted the minors to enroll in non-public schools at defendants' expense. (Id. ¶¶ 28, 70-72.)
S.D. therefore has been attending private school, first the Sterling School and then the Hallen School, paid for by defendants by order of an Impartial Hearing Officer ("IHO"). (Id. ¶¶ 36, 49, 56.) S.C. similarly has been attending the private Karafin school, paid for by defendants by order of an IHO. (Id. ¶¶ 70-72.) Those schools do not participate in meal programs and do not offer free lunch or breakfast. (Id. ¶¶ 32, 57, 73.) Karafin does not have a cafeteria. (Id. ¶ 73.)
In January 2005, after C.D. learned that Sterling did not participate in the meal programs, C.D.'s attorney amended S.D.'s impartial hearing request to include a request for payment for breakfast and lunch. (Id. ¶ 32; Amended Impartial Hearing Request dated Jan. 7, 2005, Ex. A to Sec. Am. Compl.) An impartial hearing was then held, and C.D.'s counsel repeatedly asserted that payment for meals was required by the IDEA and section 504 of the Rehabilitation Act. (Sec. Am. Compl. ¶ 34.) Defendants' representative did not oppose the request for free meals, and in fact introduced no testimony or other evidence. (Id. ¶ 35.) The resulting order of the IHO required defendants to provide S.D. with tuition at Sterling, transportation to Sterling, and breakfast and lunch at no cost to C.D.; the IHO explicitly found that defendants did not contest C.D.'s request for meals. (Id. ¶¶ 36-37.) Defendants nevertheless appealed the portion of the IHO's order regarding the provision of meals to the State Review Office ("SRO"). (Id. ¶ 38.)
In May 2005, State Review Officer Paul F. Kelly ruled that C.D.'s request for breakfast and lunch did not fall within the scope of the IDEA or its implementing regulations. (Id. ¶ 40; Order of State Review Officer Paul F. Kelly dated May 16, 2005, Ex. C to Sec. Am. Compl.) He noted that he did not have jurisdiction to review decisions in section 504 hearings. (Sec. Am. Compl. ¶ 41.) In a subsequent hearing C.D. again sought to have tuition, transportation, and meals paid for by defendants. (Id. ¶ 45.) After an October 2005 impartial hearing, the IHO issued a decision in which she found that neither the IDEA nor section 504 entitled C.D. to reimbursements or payments for meals while S.D. attended Sterling. (Id. ¶¶ 46, 50.) C.D. appealed this decision to the SRO. (Id. ¶ 51.) The SRO again denied C.D.'s appeal pursuant to the IDEA, and found that it had no jurisdiction under section 504. (Id. ¶ 53; Order of State Review Officer Paul F. Kelly dated Mar. 13, 2006, Ex. F to Sec. Am. Compl.)
C.D. therefore has personally funded and prepared meals that her child previously received for free in public school. (Sec. Am. Compl. ¶ 59.) C.D. earned less than $6,000 in 2004 and again in 2005, and she now spends 30 percent of her weekly income on S.D.'s breakfast and lunch. (Id. ¶ 60.) C.D. has not been reimbursed by defendants. (Id. ¶ 63.)
In August 2005, a hearing was held on the school meal issue for S.C. (Id. ¶ 80.) The cost for breakfast for S.C. is $5 per week. (Id. ¶ 83.) The IHO subsequently ordered defendants to pay for breakfast and lunch as follows: $2 for breakfast plus $4 for lunch per day for 185 school days, totaling $1,110.00. (Id. ¶ 84; Findings of Fact and Decision by Hearing Officer Marymargaret Keniry, Esq. dated Sept. 19, 2005, Ex. H to Sec. Am. Compl.) Defendants have not paid for S.C.'s meals except for briefly under court order. (Sec. Am. Compl. ¶¶ 75-76.)*fn1
S.C. is one of seven children living with her mother. (Id. ¶ 64.) She and her family receive public assistance and food stamps, and two of her brothers receive SSI benefits. (Id. ¶ 65.) In January 2002, S.C. and her family were homeless, and placed in a shelter in East Harlem in Manhattan. (Id. ¶ 67.) The family usually turns to food pantries for assistance at the end of the month. (Id. ¶ 81.) S.C. often allows her younger siblings to eat instead of her because of the limited food in the house. (Id. ¶ 82.)
Plaintiffs' complaint asserts five claims. First, it alleges violation of section 504 of the Rehabilitation Act because plaintiffs have been deprived of their right to free meals solely by reason of their disabilities. Second, it alleges violation of the Americans with Disabilities Act because plaintiffs have been deprived of their rights to free meals by reason of their disabilities. Third, it alleges a violation of the Individuals with Disabilities Education Act because by excluding plaintiffs from the meal programs, defendants denied them the free appropriate public education ("FAPE") to which they are entitled by that Act. Fourth and fifth, it alleges that plaintiffs have been denied an equal opportunity to participate in meal programs based on their disability and have been deprived of their rights under the IDEA and section 504, in further violation of 42 U.S.C. § 1983.