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14-3603-cv 

B.C., et al. v. Mount Vernon School District, et al.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

16th day of September, two thousand sixteen. 

Present: 

JOHN M. WALKER, JR., 

DENNIS JACOBS, 

DEBRA ANN LIVINGSTON ,

 Circuit Judges. 

_____________________________________ 

B.C., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD J.C.;

T.H., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD T.H.

 Plaintiffs-Appellants, 

v. 14-3603-cv 

 

MOUNT VERNON SCHOOL DISTRICT, ET AL., 

 Defendant-Appellee. 

_____________________________________

For Plaintiffs-Appellants: 

For Defendants-Appellees Vernon City 

School District, Mount Vernon City School 

District Board of Trustees, Dr. Welton 

Sawyer, and Shelly Jallow. 

For Defendants-Appellees New York State 

Education Department and Roberto Reyes. 

Michael H. Sussman, Sussman & Watkins, 

Goshen, N.Y. 

Lewis R. Silverman, Rutherford & Christie, 

LLP; New York, N.Y. 

Barbara D. Underwood, Solicitor General, 

Steven C. Wu, Deputy Solicitor General, 

Philip V. Tisne, Assistant Solicitor General, 
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for Eric T. Schneiderman, Attorney General 

of the State of New York; New York, N.Y. 

 UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. 

 Plaintiffs B.C., individually and on behalf of her daughter J.C., and T.H., individually and 

on behalf of her daughter T.H., (collectively, “Plaintiffs”) appeal from the September 2, 2014 

judgment and the April 18, 2012 and August 28, 2014 memorandum decisions of the United 

States District Court for the Southern District of New York (Bricetti, J.) in favor of Defendants 

Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr. 

Welton Sawyer, and Shelly Jallow (collectively, “District Defendants”) and the New York State 

Education Department (“NYSED”) and Roberto Reyes (collectively, “NYSED Defendants”) on 

Plaintiffs’ claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 

et seq.; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794 et seq.; the 

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; and 42 U.S.C. § 

1983 (“Section 1983”). 

We describe the facts of this case in more detail in a concurrently published opinion. In 

brief, Plaintiffs’ claims focus on the District’s provision of academic intervention services 

(“AIS”) to J.C. and T.H. during regular school hours. AIS courses are non-credit-bearing 

courses intended for students at risk of not meeting state performance standards. Plaintiffs 

contend that the provision of AIS courses during regular school hours — at the expense of creditbearing courses — interfered with the ability of their children to meet the schools’ credit 

requirements each year and violated the IDEA, ADA, and Section 504. 
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In a memorandum decision dated April 17, 2012 and docketed April 18, 2012, the district 

court concluded that Plaintiffs had failed to state claims under the ADA and Section 504 against 

the NYSED Defendants. See Fed. R. Civ. P. 12(b)(6). After discovery, in a memorandum 

decision dated August 27, 2014 and docketed August 28, 2014, the district court awarded 

summary judgment to the District Defendants as to the IDEA and Section 1983 claims on the 

ground that Plaintiffs failed to exhaust their administrative remedies.1

 B.C. v. Mount Vernon 

City Sch. Dist., No. 11 CV 1411 VB, 2014 WL 4468082, at *4-*5 (S.D.N.Y. Aug. 28, 2014). 

* * * 

“We review de novo a district court’s grant or denial of summary judgment,” Mullins v. 

City of New York, 653 F.3d 104, 113 (2d Cir. 2011) (internal quotation marks omitted), and 

apply the same standard of review to “a district court’s dismissal of a complaint . . . for failure to 

state a claim.” Selevan v. New York Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). We also 

review questions of standing de novo. Fulton v. Goord, 591 F.3d 37, 41 (2d Cir. 2009) (citing 

Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994)). 

Plaintiffs contend that the District Defendants violated the IDEA and Section 1983 by 

failing to notify Plaintiffs about their daughters’ AIS instruction and by failing to implement 

their daughters’ individualized education programs (“IEPs”), see 20 U.S.C. § 1414(d), so as to 

deprive them of a “free appropriate public education.” Id. § 1412(a)(1)(A). Plaintiffs allege that 

the NYSED Defendants violated Section 504 because NYSED regulations permitted school 

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 The district court determined that exhaustion of Plaintiffs’ ADA and Section 504 claims 

against the District Defendants would have been futile but, as to these claims, it granted 

summary judgment to the District Defendants on the merits. See id. at *6-*9. The opinion 

published concurrently with this summary order addresses these claims. 
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districts to schedule AIS courses during school hours and that scheduling AIS instruction in this 

way disparately impacted students with disabilities. 

 At the start, the NYSED and District Defendants question Plaintiffs’ standing, attack their 

claims as moot, and contend that Plaintiffs failed to exhaust their administrative remedies. As an 

initial matter, Plaintiffs possess standing. They allege violations of “legally protected interest[s]” 

created by the IDEA, ADA, and Section 504, traceable to “the conduct complained of,” i.e. the 

provision of AIS during school hours, and redressable by money damages. See Fulton, 591 F.3d 

at 41 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs’ claims for 

equitable relief, however, are moot, since B.C. and T.H. graduated from the Mount Vernon City 

School District in 2013. We have held that students’ claims for injunctive relief against a school 

they attended are “mooted by [their] graduation,” for, after graduation, it “becomes impossible 

for the courts, through the exercise of their remedial powers, to do anything to redress the 

injury.” Fox v. Bd. of Trustees of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994). Likewise, 

Plaintiffs have conceded that their ADA claim for money damages against NYSED is moot. 

Because Plaintiffs state viable claims for money damages pursuant to the ADA, Section 504, 

and, for the alleged IDEA violations, Section 1983, these claims survive the mootness inquiry. 

We conclude, however, that as to the District Defendants, the IDEA claims for money 

damages were properly dismissed for failure to exhaust.2

 Before bringing a civil action in 

federal or state court based on an alleged violation of the IDEA, “an aggrieved party [must] . . . 

exhaust all administrative remedies.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 

(2d Cir. 2004). Exhaustion of administrative remedies is excused, however, where “(1) it would 

 2

 As already noted, the ADA and Section 504 claims against the District Defendants are 

addressed in the opinion published concurrently with this summary order. 
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be futile to resort to the IDEA’s due process procedures; (2) an agency has adopted a policy or 

pursued a practice of general applicability that is contrary to the law; or (3) it is improbable that 

adequate relief can be obtained by pursuing administrative remedies.” Murphy v. Arlington 

Cent. Sch. Dist., 297 F.3d 195, 199 (2d Cir. 2002) (citations omitted). Plaintiffs bear the burden 

of proving that an exception to the exhaustion requirement applies. See id. 

 It is undisputed that Plaintiffs failed to exhaust their administrative remedies. Plaintiffs 

assert that exhaustion would have been futile, so as to excuse them from this requirement, 

because the District Defendants failed to implement the services specified in the IEP. We have 

stated, however, that the mere fact that a “school has failed to implement services that were 

specified or otherwise clearly stated in an IEP” does not suffice to excuse a plaintiff from the 

exhaustion requirement. Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 

478, 489 (2d Cir. 2002). Because Plaintiffs’ claim does not “unavoidably encompass[] both a 

failure to provide services and a significant underlying failure to specify what services were to be 

provided,” exhaustion was not futile. Id. Accordingly, the district court properly entered 

summary judgment in favor of the District Defendants on the IDEA claim and the Section 1983 

claim, to the extent the latter relied on the alleged IDEA violation. 

 We turn next to the ADA and Section 504 claims against the NYSED. Mindful that 

NYSED regulations do not actually mandate — but instead merely permit — that AIS take place 

during regular school hours, Plaintiffs rely on a theory of “deliberate indifference” on the part of 

the NYSED “to the strong likelihood” of ADA and Section 504 violations resulting from the 

regulations. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009). The district 

court properly concluded that Plaintiffs failed to allege deliberate indifference. As the district 

court noted, “the [NYSED] regulations do not mandate that students who receive AIS be 
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removed from credit bearing courses and placed in non-credit bearing courses during the regular 

school day.” J.A. 88. Instead, the regulations “provide[] only that when school districts develop 

a description of AIS, they are to provide that description whether these services will be offered 

during the regular school day or during an extended school day or year.” Id. Indeed, allowing 

AIS to take place during regular school hours would not necessarily entail the supplanting of 

credit-bearing courses, as not all courses scheduled during school hours are credit-bearing 

courses. Some, such as study hall or activity periods, are non-credit-bearing courses. Moreover, 

given the distinction between the IDEA and ADA and Section 504 definitions of “disability,” 

discussed at length in the opinion issued concurrently with this summary order, Plaintiffs’ 

complaint does not adequately allege that NYSED Defendants were “deliberate[ly] indifferen[t] 

to the strong likelihood that a violation of federally protected rights [under the ADA and Section 

504 would] result from the implementation of [the regulations governing AIS].” Loeffler, 582 

F.3d at 275 (quotations omitted). 

 We have considered Plaintiffs remaining arguments and find them to be without merit. 

Accordingly, for the reasons stated herein and in the accompanying opinion, we AFFIRM the 

judgment of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk