The opinion of the court was delivered by: David G. Larimer United States District Judge
This action is brought by plaintiffs on behalf of their infant son, A.P., and asserts claims pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§794 et seq. ("Section 504"), the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. ("ADA"), Title IX of the Education Amendments of 1972, 20 U.S.C. §§1681 et seq. ("Title IX"), the Fourteenth Amendment to the United States Constitution, U.S. Constit. amend. XIV, §1 ("Fourteenth Amendment") via 42 U.S.C. §1983 ("Section 1983"), the New York Human Rights Law, N.Y. Exec. Law §§290 et seq. ("Human Rights Law"), New York Civil Rights Law §§40-c and 40-d, and common law of New York State. Plaintiffs allege that the defendants, the Hilton Central School District (the "District"), Hilton Central High School Principal Brian Bartalo ("Bartalo"), District employee Dana Boshnack ("Boshnack"), teacher Brad Helmer ("Helmer"), teacher Tait Loe ("Loe"), special education aide Ann Frey ("Frey"), special education teacher Ann Marie MacDonald ("MacDonald"), and District employee Eileen Cowey ("Cowey") (collectively "defendants"), acted with deliberate indifference to bullying and harassment of A.P. by other students, based on his disability and gender. The District has moved to dismiss the action pursuant to Fed. R. Civ. Proc. 12(b)(6) (Dkt. #8), and plaintiffs have cross-moved to amend the complaint (Dkt. #10).
For the reasons that follow, plaintiffs' cross motion to amend is granted, and the defendants' motion to dismiss is granted in part, and otherwise denied.
A.P. is a seventeen-year-old student residing in the Hilton Central School District, who was enrolled at the Hilton Central High School during the 2009-2010 school year. According to the amended complaint, A.P. has a learning disability in the form of Asperger's Syndrome.
Plaintiffs contend that throughout the 2009-2010 school year, A.P. was routinely bullied by students in a Basic Electronics Class at Hilton High School, who harassed and mocked him on a daily basis, including calling him, "fucking retard," "asshole," "faggot," and "bitch," and subjecting him to frequent comments of a sexual nature, as well as comments disparaging his cognitive abilities, such as, " Fuck you, you autistic piece of shit." Plaintiffs also allege that the classroom teacher, Helmer, used profanity and shared inappropriately sexual stories and anecdotes in class. Plaintiffs state that they e-mailed Bartalo concerning the harassment as early as October 10, 2009 and were assured by Bartolo that the incidents would be investigated and that Helmer would be admonished. Helmer apologized to the plaintiffs shortly thereafter, and Bartolo assured plaintiffs that A.P.'s oneon-one aide, Frey, would attend the Basic Electronics class with him for the remainder of the semester as a deterrent to further bullying. However, according to plaintiffs, Frey's presence has no affect on the students' continued sexual comments and insults toward A.P., and Frey stopped accompanying him to class after a few weeks.
Plaintiffs allege that neither Bartalo nor Helmer took any further action to deter the harassment of A.P. or to discipline the students involved. In November 2009, plaintiffs complained about the continuing harassment to MacDonald, a special education teacher, and Cowey. Plaintiffs met with Bartalo in December 2009, and e-mailed MacDonald in January 2010, to ask why Frey was no longer attending classes with A.P. Plaintiffs also contacted Helmer to report that students were continuing to ridicule A.P. Notwithstanding these contacts, plaintiffs allege that the defendants took no meaningful action.
After the Basic Electronics class concluded mid-way through the school year, A.P. enrolled in a Construction class. According to the amended complaint, the environment in the Construction class was even more abusive, and from the start of classes on February 1, 2010, other students in that class openly mocked A.P., calling him "gay," "homo," "retard," "asshole," "faggot," "bitch" and "loser" during virtually every class. Once again, the District arranged for Frey to attend classes with A.P., but her presence was ineffective at curbing the harassment and as before, she stopped accompanying A.P. to classes after a few weeks. Thereafter, A.P. was allegedly subjected to constant vulgar and/or offensive language directed at his perceived mental capacity and/or sexual preference, including being asked whether he watched pornography, was gay, or masturbated, and whether he would perform oral sex on another male student "for $10." On one occasion, A.P. was asked by a male classmate, "can I put my dick in your ass?" Students in the class threw small objects such as pencils and small pieces of wood at A.P., and drew sexually explicit pictures on the blackboard. Plaintiffs allege that A.P. complained to the Construction class teacher, Loe, who was present during much of the harassment, but that Loe took no action except to have the offensive drawings erased, and did not discipline or rebuke A.P.'s tormentors. Plaintiffs allege that they complained to Loe, MacDonald, Cowey, and Bartalo, each of whom cautioned that "teens will be teens" but promised they would address the problem, yet did nothing to stop or punish the ongoing harassment. Plaintiffs contend that near the end of the school year, the daily bullying of A.P. was being perpetrated by approximately half of the students in Loe's Construction class.
On May 6, 2010, the students allegedly surrounded A.P. in the classroom and openly ridiculed a model home project he had completed, but Loe, who was present, did not intervene.
Later, a student falsely accused A.P. of smashing that student's model home project. A.P.'s parents alerted MacDonald about the bullying conduct of other students toward A.P., and informed him that as a result, A.P. was having increasing difficulty completing assignments, and was developing serious emotional issues. The following day, A.P. found himself emotionally and mentally unable to complete the school day, and disclosed to his parents several occasions of harassment that he had not previously shared.
Plaintiffs thereafter met with Bartalo and MacDonald, and learned that AP's grades had dropped by 40% in two of his classes, which plaintiffs attributed to the bullying and harassment of A.P. A.P.'s parents agreed to send A.P. back to school for the remainder of the year. Two return attempts were made, but proved unsuccessful. Plaintiff allege that A.P. continued to be sexually harassed and insulted by other male students each time he attempted to return to the classroom, to the point where he was unable to function emotionally or academically. In an attempt to ensure that A.P. received credit for his course work, plaintiffs located a qualified individual who was able to administer A.P.'s final exams to him outside and independent from the school. A.P. twice attempted to take the exams, but allegedly experienced emotional breakdowns that made him unable to complete them.
Plaintiffs attempted to have A.P. accepted into the Communications and Social Skills program for children with Asperger's syndrome, but found that if A.P. was accepted to the program, he could not enroll until January 2011, and would be required to attend Hilton Central High School in the interim, an option plaintiffs determined to be a non-viable, given A.P.'s refusal and apparent psychological inability to return. (Dkt. #11-1 at ¶101).
Plaintiffs now bring this action on A.P.'s behalf, contending that they have suffered economic damages in their efforts "to obtain a proper education for [A.P.] and to assist in his recovery from his emotional ...