United States District Court, E.D. New York
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,
SUCCESS ACADEMY CHARTER SCHOOLS, INC.; SUCCESS ACADEMY FORT GREENE; CANDIDO BROWN; and JANE DOES 1-3 and JOHN DOES 1-3, Defendants.
the Plaintiffs KATIE ROSENFELD RUTH LOWENKRON IRENE MENDEZ
New York Lawyers for the Public Interest.
the Defendants VANESSA M. BIONDO AARON M. SAFANE CHRISTOPHER
N. LAVIGNE Success Academy Charter Schools.
the Plaintiffs, cont. ALAN M. KLINGER BETH A. NORTON KAYLEY
R. MCGRATH Stroock & Stroock & Lavan LLP, ARTHUR
SCHWARTZ LAURA BARBIERI Advocates for Justice, Chartered
the Defendants, cont. LINDA H. MARTIN ROBERT J. MCCALLUM ERIC
BRANDON STEPHEN PEARSON III Freshfields Bruckhaus Deringer
MEMORANDUM AND ORDER
FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE.
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.Defendants' motions are granted in
part and denied in part.
allege the following.
Success Academy and Brown
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.
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 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.
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”).
Alleged Discrimination Against The Plaintiffs
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.
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.
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.
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.
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.
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.
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
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.
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.
The “Got ...