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J.S., et al v. Attica Central Schools

September 25, 2011

J.S., ET AL., PLAINTIFFS,
v.
ATTICA CENTRAL SCHOOLS, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs, disabled former students in the Attica Central School District ("Defendant" or "the District"), commenced this action under the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), and related New York State education laws, alleging that the Defendant has violated its statutory and regulatory obligations to students who are educationally, physically, or otherwise disabled or suspected of being disabled. Plaintiffs seek equitable relief, costs, and attorney's fees*fn1 .

Presently before this Court are Defendant's Motion for Summary Judgment, (Docket No. 189), Defendant's Motions to Dismiss Parties (Docket Nos. 193, 208), and Plaintiffs' Motion for Partial Summary Judgment (Docket No. 194). In addition, Defendant has filed a Motion in limine to Preclude Evidence (Docket No. 125) and a Motion to Decertify the Class (Docket No. 160).

For the reasons that follow, Defendant's motions to dismiss parties and to preclude evidence are denied (Docket Nos. 125, 193, 208), as is Defendant's motion for class decertification (Docket No. 160).

Further, Defendant's motion for summary judgment (Docket No. 189) is granted in part and denied in part. Plaintiffs' motion for partial summary judgment (Docket No. 194) is denied.

II. BACKGROUND

A. Facts

Plaintiffs were students attending public schools within the Attica Central School District or students entitled to receive educational and other services from the District. (Compl., ¶ 2, reproduced at Docket No. 189-3). Plaintiffs are/were educationally, physically or otherwise disabled or suspected of being disabled. (Compl., ¶ 2). This action is brought on behalf of these students by their parents and natural guardians. (Compl., ¶ 2).

Plaintiffs bring their claims under the IDEA, Section 504, and corresponding state laws designed to ensure an appropriate public education or reasonable accommodation at public expense for disabled school children. (Compl., ¶¶ 105-118). Plaintiffs allege systemic violations of the law in the School District including the failure to provide access to school facilities for students with physical disabilities, and the failure to promptly evaluate and appropriately place children with disabilities or suspected disabilities in the least restrictive environment. (Compl., ¶¶ 3-5).

There are no remaining original student Plaintiffs in the case.*fn2 (Def. Aff. dated 2/18/2011 (Docket No. 193); Def. Aff. dated 8/19/2011 (Docket No. 208-1)). The facts relevant to the original Plaintiffs, as set forth in the Complaint, are as follows:

Plaintiff J.S., or John, attended Attica Middle School in a class with twelve students, one special education teacher, and one aide. Attica Middle School is the only middle school in the School District. According to the School District's Committee on Special Education, John was multiply disabled. He had cerebral palsy, was mentally retarded, and had perceptual/visual motor deficits. These conditions made him physically handicapped, mobility-impaired, and dependent upon a wheelchair. (Compl., ¶¶ 15-18).

John was able to get in and out of the middle school only through the shop class, and he did not have adequate access to the school's computer room, nurse's office, weight room, home economics room, or swimming pool. He also did not have adequate or safe toilet access. (Compl., ¶¶ 19-26)

The District did not provide John with an appropriate and adequate Individualized Education Program. It lacked satisfactory goals and objectives, adaptive physical education, mobility training, and means to deal with John's visual/perception deficits. The District did not provide John with appropriate transition services or sufficient progress reports, and it failed to evaluate him and provide assistive technology services. John was not provided an education in the least restrictive environment. (Compl., ¶¶ 28-32).

S.H., or Sally, attended Prospect Elementary School in a class with twelve students, one special education teacher, and one aide. She also was classified as multiply disabled. She had cerebral palsy with seizure disorder, was mentally retarded, visually impaired, speech impaired, and was largely non-verbal. She was physically handicapped, mobility-impaired, and dependent upon a wheelchair. She used "Total Communication" sign language and was assisted with equipment called a Dynavox. (Compl., ¶¶ 33-36).

Sally entered the elementary school through a ramped door that someone else had to open for her. She was able to reach only the first floor of the three-story school. She could not go to the basement where the cafeteria was located, so she and her classmates ate lunch in their classroom. She had no access to the music room, the computer lab, or the school playground. Sally did not receive sufficient physical and occupational therapy, and her education was not conducted in the least restrictive environment. (Compl., ¶¶ 38-47). As stated earlier, Sally passed away from an epileptic seizure during the course of this lawsuit.

C.H., or Charles, attended Attica Senior High School in regular education classrooms. He was classified as learning disabled, and he received resource room services and poorly implemented testing modifications. The School District did not develop an adequate transition plan for Charles or provide him with special education services that would have allowed him to benefit from his educational program. School staff were not informed of or trained in implementing Charles's Individualized Education Program. (Compl., ¶¶ 49-56).

C.Z., or Caroline, attended Prospect Elementary School. Although she received special services from the School District, she was not classified under the IDEA. Caroline was tested and denied special education because her scores were too high, but her parent was not given a copy of the test results. Caroline was denied services she should have received as a learning disabled child. (Compl., ¶¶ 57-59).

K.Z., or Ken, attended Sheldon Elementary School as a fifth grade student in a regular education classroom. The School District's Committee on Special Education declassified him from his classification as speech impaired. (Compl., ¶¶ 60-62).

D.E., or Dennis, attended Attica Senior High School. He had a medical condition which defines him as a person with a disability under Section 504 of the Rehabilitation Act. Following his request, a hearing was held which resolved his complaints with respect to his condition. (Compl., ¶¶ 163-67).

B. Procedural History

On June 14, 2000, Plaintiffs filed a Complaint and a Motion to Certify a Class on behalf of students who were educationally, physically, or otherwise disabled or suspected of being disabled. The Complaint alleged that the Defendant school district had failed to provide the proper facilities, programs, and services to its disabled students. Plaintiffs seek injunctive relief declaring Defendant in violation of its statutory obligations, and requiring that the Defendant: (1) make its facilities accessible to all students with disabilities, (2) identify and evaluate all potentially disabled students, and (3) implement the appropriate services and educational placements for disabled students. (Compl., ¶¶ 1-6, 15-67, 77-108). Defendant filed a Motion to Dismiss the Complaint for lack of subject matter jurisdiction (Docket No. 7), which this Court denied on September 30, 2001. (Docket No. 20). Defendant appealed. On February 11, 2003, at this Court's request, Plaintiffs withdrew the class certification motion, without prejudice, with leave to re-file nunc pro tunc, pending a determination by the Second Circuit that this Court had subject matter jurisdiction in this case (Docket No. 34). The Second Circuit Court of Appeals affirmed this Court's decision and remanded the case for further proceedings. J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107 (2d Cir. 2004).

This Court then granted Plaintiffs' renewed Motion to Certify the Class (Docket No. 51), finding that Plaintiff had met the requirements for class certification under Federal Rule 23(a) and (b)(2), and ordering that the class consists of: children between the ages of 3 to 21 residing in the Attica Central School District, present and future, who are and should be classified as disabled per the definition in the IDEA or the Rehabilitation Act, but who are denied their rights pursuant to said statutes, either substantively or procedurally, due to inadequacies in the defendant school district.

J.S. ex rel. N.S. v. Attica Central Schools, No. 00-CV-513S, 2006 WL 581187, *7 (W.D.N.Y. March 8, 2006) (Docket No. 61, p. 13). Included in the Court's order was a process for Plaintiffs to prepare a notice to class members which would include an "opt-out" provision. (Docket No. 61, p. 12).

Defendant moved on October 19, 2006 to amend the Court's class certification order to remove the "should be classified" students. (Docket. No. 76). That motion was denied on September 23, 2007. (Docket No. 99).

Following years of extensive motion practice, multiple status conferences, and the exchange of discovery documents, Defendant filed motions for dismissal of certain named plaintiffs (Docket Nos. 193, 208), and for summary judgment (Docket No. 189). Also pending before this Court are Defendant's Motion to Decertify the Class (Docket No.160) and Motion to Preclude Evidence (Docket No.125).

Plaintiffs oppose all of Defendant's motions (Docket Nos. 128, 176, 200-201) and have themselves moved for partial summary judgment as to liability on 9 "Contentions".*fn3 (Docket No. 194).

At this juncture, Plaintiffs claims can be distilled into two causes of action: (1) deprivations of a free appropriate public education ("FAPE") arising under IDEA relating to accommodations, services, and procedural and substantive deficiencies in the Individualized Education Programs ("IEPs"), and (2) deprivations of FAPE arising under Section 504 of the Rehabilitation Act relating to accessibility of the District's facilities for physically disabled students.

Plaintiffs seek a declaration that for the 2006-2007 school year*fn4 , the policies, procedures, customs, patterns, and/or practices of the Attica Central Schools deprived the Plaintiffs of their constitutional and/or statutory rights, were illegal and/or invalid, and in contravention of the duty to assure that Plaintiffs and similarly situated children received a free appropriate education.

III. DISCUSSION

A. Class Certification

This Court will first address Defendant's Motion to Decertify the Class. (Docket No. 160).

"Even after a [class] certification order is entered, the [district] judge remains free to modify it in the light of subsequent developments in the litigation." General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). Thus, a district court that has certified a class under Rule 23 "can always alter, or indeed revoke, class certification at any time before final judgment is entered should a change in circumstances" render a class action no longer appropriate. Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104, n.9 (2d Cir. 2007); see also Daffin v. Ford Motor Co., 458 F.3d 549, 554 (6th Cir. 2006) ("If at a subsequent point in the litigation the district court determines that [circumstances have materially changed], the district court may consider at that point whether to modify or decertify the class"); In re Integra Realty Resources, Inc., 354 F.3d 1246, 1261 (10th Cir. 2004) ("a trial court overseeing a class action retains the ability to monitor the appropriateness of class certification ...


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