1 14-3603-cv B.C., et al. v. Mount Ver non School Distri ct, et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 16 th day of September, two thousand sixteen.
Present: J OHN M. W ALKER , J R ., D ENNIS J ACOBS , D EBRA A NN L IVINGSTON , Circuit Judges

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_____________________________________ 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
M OUNT V ERNON S CHOOL D ISTRICT , ET AL ., Defendant-Appellee

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_____________________________________ 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, Deput y Solicitor General, Philip V. Tisne, Assistant Solicitor General,2 for Eric T. Schneiderman, Attorney General of the State of New York; New York, N.Y. UPON DUE CONSIDERATION WHER EOF 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, “P laintiffs”) 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 Distri ct, Mount Vernon City School Dist rict 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 Edu cation 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 de tail 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. duri ng regular school hours. AIS courses are non-credit-bearing courses intended for students at ri sk of not meeting state perfor mance standards. Plaintiffs contend that the provision of AI S courses during regular school hour s — 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 504.3 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). Af ter discovery, in a memorandum decision dated August 27, 2014 and docketed A ugust 28, 2014, the district court awarded summary judgment to the Distri ct Defendants as to the IDEA and Section 1983 claims on the ground that Plaintiffs failed to exha ust 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) (inter nal quotation mark s omitted), and apply the same standard of review to “a district c ourt’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 daughter s’ 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 appr opriate public education.” Id . § 1412(a)(1)(A). Plai ntiffs allege that the NYSED Defendants violated Section 504 because NYSED regulations permitted school

1 The district court determined that exhaus tion 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 Distri ct Defendants on the merits. See id . at *6-*9. The opinion published concurrently with this summa ry order addresses these claims.4 districts to schedule AIS courses during school hours and that sche duling AIS instruction in this way disparately impacted students with disabilities. At the start, the NYSED and District Defendants que stion Plaintiffs’ standing, attack their claims as moot, and contend that Plaintiffs failed to exhaust their administrative remedies. As an initial matter, Plaintiffs possess st anding. 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, a nd 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 re medial powers, to do a nything 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 clai m for money damages against NYSED is moot. Because Plaintiffs state viable claims for money damages pur suant to the ADA, Section 504, and, for the alleged IDEA violations, Section 19 83, these claims survive the mootness inquiry. We conclude, however, that as to the District Defendants, the IDEA claims for money damages were properly dismi ssed for failure to exhaust. 2 Before bringing a civil action in federal or state court based on an alleged violati on 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 re medies is excused, however, where “(1) it would

2 As already noted, the ADA and Section 504 cl aims against the District Defendants are addressed in the opinion published concu rrently with this summary order.5 be futile to resort to the IDEA’s due process pr ocedures; (2) an agency has adopted a policy or pursued a practice of general applic ability 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 th e exhaustion requirement applies. See id. It is undisputed that Plaintiffs failed to e xhaust 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’ cl aim 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 De fendants on the IDEA claim and the Section 1983 claim, to the extent the latter relie d 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 th eory of “deliberate indifference” on the part of the NYSED “to the strong likeli hood” of ADA and Section 504 vi olations resulting from the regulations. Loeffler v. Staten Island Univ. Hosp. , 582 F.3d 268, 275 (2d Cir. 2009). The district court properly concluded that Plaint iffs failed to allege deliberate indifference. As the district court noted, “the [NYSED] regulations do not mandate that students who receive AIS be6 removed from credit bearing courses and placed in non-credit bearing cour ses during the regular school day.” J.A. 88. Instead, th e 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 woul d 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 ha ll or activity periods, are non-credi t-bearing courses. Moreover, given the distinction between the IDEA and A DA and Section 504 definitions of “disability,” discussed at length in the opini on issued concurrently with th is 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 protecte d 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 ar guments 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