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Lawton v. Success Academy Charter Schools, Inc.

United States District Court, E.D. New York

August 1, 2018

SHAWN LAWTON and GINA JOHNSON-LAWTON, on their own behalf and on behalf of their minor son, I.L.; FOLAKE WIMBUSH, on her own behalf and on behalf of her minor son, S.S.; FOLAKE OGUNDIRAN, on her own behalf and on behalf of her minor daughter, M.C.; MONIQUE JEFFREY, on her own behalf and on behalf of her minor son, B.S.; and SHANICE GIVENS, on her own behalf and on behalf of her minor son, C.S.; Plaintiffs,
v.
SUCCESS ACADEMY CHARTER SCHOOLS, INC.; SUCCESS ACADEMY FORT GREENE; CANDIDO BROWN; and JANE DOES 1-3 and JOHN DOES 1-3, Defendants.

          For the Plaintiffs KATIE ROSENFELD RUTH LOWENKRON IRENE MENDEZ New York Lawyers for the Public Interest.

          For the Defendants VANESSA M. BIONDO AARON M. SAFANE CHRISTOPHER N. LAVIGNE Success Academy Charter Schools.

          For the Plaintiffs, cont. ALAN M. KLINGER BETH A. NORTON KAYLEY R. MCGRATH Stroock & Stroock & Lavan LLP, ARTHUR SCHWARTZ LAURA BARBIERI Advocates for Justice, Chartered Attorneys.

          For the Defendants, cont. LINDA H. MARTIN ROBERT J. MCCALLUM ERIC BRANDON STEPHEN PEARSON III Freshfields Bruckhaus Deringer U.S. LLP.

          MEMORANDUM AND ORDER

          FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiffs, five minors and their parents, bring this disability discrimination and retaliation action against Success Academy Charter Schools, Success Academy Fort Greene (collectively, “Success Academy”), Success Academy Fort Greene's former principal Candido Brown (“Brown”), and six Doe defendants under § 504 of the Rehabilitation Act of 1973, 42 U.S.C. § 1983, and various state laws. Defendants move to dismiss plaintiffs' Second Amended Complaint (“SAC”) under Federal Rule of Civil Procedure 12(b)(6), arguing plaintiffs have failed to exhaust their administrative remedies, failed to adequately plead their claims, and failed to file a notice of claim.[1]Defendants' motions are granted in part and denied in part.

         I

         Plaintiffs allege the following.

         A. Success Academy and Brown

         Success Academy is a system of charter schools in New York City that receives funding and other benefits from the federal, state, and city governments. It chooses its students via lottery. Success Academy Fort Greene is a school in the Success Academy system. Brown began as principal of Success Academy Fort Greene in October 2014.

         Success Academy runs a strict disciplinary system known as the “Code of Conduct.” Its zero-tolerance approach prohibits, among other things, failing to sit in the “Magic 5” sitting position[2] and requires the students to always be on task, stay engaged in learning, and comply with the dress code. Teachers use stopwatches to script the school day, and students must carry “air bubbles” in their mouths when walking from class to class so they do not speak to one another.

         Behavior infractions are tracked with a green-yellow-red system. If a student violates the Code of Conduct, he is moved from green to yellow. A second violation moves the student from yellow to red. At this point, the student will be put in “cool down, ” often be moved to a different classroom, and receive zero credit for missed assignments. If moving the student does not work, the student is dismissed from school for the day. This requires the parent to leave work and pick up the student immediately; failure to do so results in formal suspension of the student and sometimes threats by the school to call the police or the Administration for Children's Services (“ACS”).

         B. Alleged Discrimination Against The Plaintiffs

         The five plaintiff children won the Success Academy lottery and were enrolled in the school at various times between 2013 and 2015. They were between the ages of four and five at the time of their enrollment. Though the details vary, the essence of their claims is the same: Each plaintiff struggled to comply with the strict disciplinary code and was consequently barred from the classroom.[3]

         1. I.L.

         I.L. attended Success Academy from September 2014 to February 2015. He has a speech impediment which “substantially limits him in a major life activity-namely, in learning . . . .” SAC ¶ 7. Success Academy regarded him “as having attention deficit/hyperactivity disorder (“ADHD”) with impairments in his ability to concentrate and learn.” Id. ¶ 8. I.L. struggled to conform to Success Academy's strict Code of Conduct and was removed from class on an almost daily basis. I.L.'s father, Shawn Lawton, attempted to keep I.L. on track by sitting in on classes under the school's parental “open door policy.” When he did so, I.L. was able to finish the school day. However, I.L. began to suffer from anxiety and depression stemming from his inability to function at Success Academy.

         In December 2014, Mr. Lawton inquired about an individualized education plan (“IEP”) for I.L. under the Individuals with Disabilities Education Act (“IDEA”). Success Academy then began an IEP evaluation, but while it was being conducted Brown met with Mr. and Mrs. Lawton and told them I.L. was not a “good fit” for Success Academy. He then barred Mr. Lawton from the classroom.

         The evaluation was completed in January 2015 and a behavior management plan was recommended, but not implemented. The Lawtons began to receive daily phone calls, almost immediately after I.L. arrived at school, informing them that he had been put in “cool down” and threatening removals and suspensions. In February 2015, the Lawtons removed I.L. from Success Academy.

         2. S.S.

         S.S. attended Success Academy from September 2013 to June 2015. He “is classified by the New York City Department of Education as an individual with a learning disability, ” namely ADHD, and “meets the state and federal definition of a child with a disability.” Id. ¶ 11; 73. His disability “substantially limits him in major life activities-namely, in learning . . . .” Id. ¶ 12. Defendants also “regarded him as having a learning and/or behavioral disability . . . .” Id. S.S. also struggled to comply with the Success Academy Code of Conduct, failing to remain in the Magic 5 position, having tantrums, showing displeasure while being punished, and fighting with other students. S.S. was removed from class almost daily and frequently dismissed early or suspended.

         S.S.'s mother, Folake Wimbush, sought and was denied an IEP and then brought a pro se IDEA administrative complaint. While the proceeding was pending, S.S. became upset on a field trip to the Museum of Natural History. As a result, the teacher called the police, and he was taken to the pediatric psychiatric unit at St. Luke's Hospital. The following school year, S.S. withdrew from Success Academy.

         3. M.C.

         M.C. attended Success Academy from September 2013 to December 2014. Though she has not been classified as having a learning disability, defendants regarded her as “having a learning and/or behavioral disability . . . .” Id. ¶ 16. She was frequently removed from classes, sent home from school three to four times a week, and suspended twice. The following school year, M.C.'s mother, Folake Ogundrian, asked for accommodations for her daughter. Three days later, Brown threatened to call the police on M.C. based on her “unsafe behavior” of not listening to teachers and running in the classroom. After this incident, Ms. Ogundrian removed her from Success Academy.

         4. B.S.

         B.S. attended Success Academy from September 2014 to June 2015. Though he has not been classified as having a learning disability, defendants “regarded him as having a learning and/or behavioral disability that impeded his ability to comply with Success Academy's rigid disciplinary code.” SAC ¶ 20. He was sent home early from school three to four times a week and suspended approximately five times. On one occasion, he was suspended because his father was five minutes late picking him up on an early dismissal day. Brown and other school officials repeatedly pressured B.S.'s mother, Monique Jeffrey, to remove her son from the school. She finally relented and did so in September 2015.

         5. C.S.

         C.S. attended Success Academy from September 2014 to June 2015. He has “been diagnosed with ADHD and oppositional defiant disorder (“ODD”).” Id. ¶ 24. In addition, “Success Academy perceived C.S. as having an autism spectrum disorder.” Id. His “learning disability substantially limited him in major life activities-namely, in learning.” Id. ¶ 25. C.S. also struggled to comply with the Code of Conduct and was frequently removed from class early, dismissed, and suspended. After Brown became principal, C.S. was suspended once or twice per week. In October 2014, C.S. was evaluated for an IEP and recommended for an Integrated Co-Teaching classroom. However, in November and December 2014, his mother, Shanice Givens, was repeatedly pressured to remove her son from the school. In February 2015, the school administration threatened to turn him over to ACS if Ms. Givens did not pick him up from school within twenty minutes. Ms. Givens enrolled C.S. in public school the following year.

         C. The “Got ...


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