Kim Patrick & AG v. Success Acad. Charter Sch., Inc.
| Decision Date | 22 December 2017 |
| Docket Number | 17-CV-6846 (PKC) (RLM) |
| Parties | KIM PATRICK and AG, a minor, by and through his Parent and Next Friend, Plaintiffs, v. SUCCESS ACADEMY CHARTER SCHOOLS, INC., SUCCESS ACADEMY PROSPECT HEIGHTS, SYDNEY SOLOMON, in her individual and official capacity as Principal of Success Academy Prospect Heights, LAMAE DE JONGH, in her individual and official capacity as Managing Director of Schools Success Academy Charter Schools, SAMUEL COLE, in his individual and official capacity as Board Chairperson, Success Academy Charter Schools-NYC Board of Trustees, and CATHERINE SHAINKER, in her individual and official capacity as Board Member, Success Academy Charter Schools-NYC Board of Trustees, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs Kim Patrick and her son, AG, bring this action against Defendants seeking damages and injunctive relief. They allege that Defendant Success Academy Charter Schools, Inc.'s ("Success Academy") disciplinary procedures for suspensions in excess of ten days constitute a denial of due process under the Fourteenth Amendment of the U.S. Constitution, Article XI of the New York State Constitution, and New York Education Law. Although the Court finds that Plaintiffs' claims raise a serious constitutional question, for the reasons stated herein, Plaintiffs' motion for a preliminary injunction is denied.
AG is a seven-year old child in first grade at Success Academy Prospect Heights, a public charter school. (Complaint ("Compl."), Dkt. 1, at ¶ 55.) Since AG started at Success Academy in October 2016, he has been suspended dozens of times; however, for purposes of this motion, the Court will focus on the two suspensions each exceeding ten consecutive days. (See Declaration of Kim Patrick ("Patrick Decl."), Dkt. 7-2; Plaintiffs' Brief ( ), Dkt. 7-3, at 15.)1
On February 24, 2017, AG was suspended for forty-five days for allegedly engaging in "extremely violent and unsafe behavior." (Dkt. 7-4 at 32.) According to Defendants, AG:
(Id.) Because AG is a student with a disability2, he was removed from Success Academy and placed in an Interim Alternative Educational Setting ("IAES"), as provided for under the Individuals with Disabilities Education Act ("IDEA"), where the student is accused of committing "serious bodily injury." 20 U.S.C. § 1415(k)(1)(G)(iii). On March 7, 2017, pursuant to the IDEA,Plaintiffs' counsel requested an "impartial due process hearing" to challenge the suspension. Such hearings are required to be completed by the Department of Education's Impartial Hearing Office ("DOE's IHO"). Id. § 1415(f); (see also First IHO Decision, Dkt. 7-4, at 36-37). AG remained in the IAES during the pendency of the hearing and appeals process. 20 U.S.C. § 1415(k)(1)(G). Success Academy is not a party to the DOE process. (Declaration of Nancy Bedard ("Bedard Decl."), Dkt. 7-1, at ¶ 17); 20 U.S.C. § 1401(19)(A).
On March 28 and 29, 2017, the IHO held a hearing regarding the February 24th suspension. (First IHO Decision at 36-41.) Plaintiffs argued that "the allegations . . . [did] not satisfy any of the criteria needed for a determination that serious bodily injury occurred" and that they "were deprived of due process by the failure of the DOE and Success Academy to arrange for a suspension hearing" under New York Education Law. (Id. at 39.) The IHO found, inter alia, that AG's suspension was "unlawful" and that he should be "immediately reinstated at Success Academy" because Success Academy violated the IDEA by failing to provide parental notice "before a disciplinary change in placement [such as an IAES] [wa]s made." (Id. at 39-40.)3 Furthermore, the IHO found that the factual allegations made by Success Academy "d[id] not rise to the level of serious bodily injury as that term is defined in the law" because there was a "lack of demonstrated serious injury" to the Assistant Principal. (Id. at 40 & n.4.) AG was reinstated at Success Academy after having missed approximately twenty-four days of school. (Compl. at ¶ 89.)
On September 13, 2017, Plaintiff Patrick received a letter from Success Academy stating that, on September 12, 2017, AG engaged in "behavior that inflicted serious bodily injury and extreme physical pain." (Dkt. 7-4 at 46.) Specifically, the letter said that in response to being asked to pick a clipboard off the ground, AG:
(Id.) The letter further stated that AG was suspended for twenty days and would be removed to an IAES, and that Success Academy had scheduled a hearing for September 18, 2017—five days after the incident—to determine whether removing AG was appropriate. (Id.) The placement letter also noted that Plaintiffs had "the right to be represented by counsel at [their] expense, the right to question witnesses, and the right to present witnesses and other evidence." (Id.)
On September 18, 2018, a hearing was held at Success Academy Prospect Heights before Defendant LaMae de Jongh, the Managing Director of Success Academy. Defendant Sydney Solomon , AG's teacher, and AG's father all testified at the hearing; none were put under oath. (Id. at 49; Compl. at ¶ 109.) The school also introduced as evidence an index card from the allegedly injured paraprofessional that contained her recitation of the events, but she did not testify. (Compl. at ¶ 110; Dkt. 17-16.) Plaintiff Patrick and Plaintiffs' counsel attended the hearing, but did not cross-examine or put on any witnesses. (Compl. at ¶ 107; Defendants' Sur-Reply, Dkt. 23, at 6 n.3.) No verbatim recording or record of the hearing was created or maintained. (Compl. at ¶¶ 109, 118.)
On September 19, 2017, Defendant de Jongh sent a letter to Plaintiffs stating that "[a]fter careful consideration of the findings[,] . . . [de Jongh] determined that the IAES was appropriate." (Dkt. 7-4 at 49-50.) The letter further stated that Plaintiffs could appeal the decision to Success Academy's Board of Trustees—which included Defendants Samuel Cole and Catherine Shainker—within ten business days. (Id. at 50.) Attached to the letter was an "IAES Hearing Findings Sheet," which noted that "[n]either AG's parents nor attorney nor advocate refuted the scholar's behavior." (Id. at 53.) Plaintiffs filed an internal appeal of Success Academy's findings on September 29, 2017. (Bedard Decl. at ¶ 47.) On October 17, 2017, Defendant Shainker, on behalf of the Board of Trustees, denied Plaintiffs' appeal. (Id. at ¶ 48; Dkt. 7-4 at 64-66.) The letter stated, inter alia, that the "paraprofessional's eye was in fact injured by AG's actions" and that this behavior met the "serious bodily injury" standard for removal to an IAES. (Id. at 64-65.) The Board further found that Plaintiffs had received adequate notice of the hearing, that no transcript or oath was required, and that Success Academy schools are not bound by the disciplinary hearing due process requirements of New York Education Law 3214. (Id. at 65.) In response to this determination, on October 20, 2017, Plaintiff Patrick requested an IHO Hearing, which was held on November 6, 2017. (Patrick Decl. at ¶ 12; Second IHO Decision, Dkt. 7-4, at 57.) Plaintiff argued that the suspension hearing "was improperly conducted and deprived the student of due process." (Second IHO Decision at 57.)
The DOE's IHO issued its decision on November 14, 2017, by which point AG had already served the entirety of his suspension and was back at Success Academy. (Id. at 58.) The IHO found, in relevant part, that the "appropriateness of the suspension hearing by Success Academy in this matter . . . [was] outside [his] jurisdiction, and [he] decline[d] to make any findings or order relief on this issue." (Id. at 59.) Furthermore, "[w]ith respect to the appropriateness of thesuspension to an IAES because the student's behavior caused serious bodily injury[,] . . . that issue must also be explored through appeal of the suspension hearing and upon that record[,] . . . [and that] on the record before [him] it [wa]s highly unlikely the standard was met, and [he had] reached this same conclusion recently in another matter involving the same student and school." (Id.)
On November 22, 2017, Plaintiffs filed their Complaint and motion for preliminary injunction in this action seeking to have the Court prohibit Success Academy from suspending AG for more than ten consecutive days without a prompt hearing. (Dkts. 1,7.)4 A hearing on the motion, at which both parties presented argument, took place on December 15, 2017.
"Preliminary injunctive relief 'is an extraordinary remedy that should not be granted as a routine matter.'" Cooke v. U.S. Bank Nat'l Assoc., No. 17-CV-1393(KAM)(RER), 2017 WL 4334084, at *1 (E.D.N.Y. July 10, 2017) (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990)). A...
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