United States District Court, D. Vermont
MARIANNE SOUZA and BRUCE SOUZA, on behalf of minor son, T.S., Plaintiffs,
OPINION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS (Doc. 15)
Geoffrey W. Crawford,
Defendants have filed a Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Doc. 15.) They allege that, under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490, Plaintiffs' failure to exhaust administrative remedies bars the federal claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Title V of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. In the absence of viable federal claims, Defendants seek the dismissal without prejudice of the state-law claims for negligence and violation of state educational provisions. A hearing on the pending Motion was held on December 2, 2015.
The facts alleged in the Complaint and supplemented by documents filed by both parties are as follows:
Plaintiffs are the parents of T.S. who is currently a seventh grader. During the 2013-2014 school year, T.S. was a fifth grader at Flood Brook School ("School") in Londonderry, Vermont. During that school year, he was on an Individual Education Plan (IEP) due to some problems in learning.
Defendants are administrators and the governing educational boards with responsibility for supervision of the School.
During his fifth grade year in 2013-2014, T.S. fell ill with Lyme disease and missed many days of school. Some of his classmates teased him about his absences as well as his need for IEP services.
When T.S. returned to school in the sixth grade, he was able to attend full-time, but the teasing and name-calling persisted. In November 2014, Plaintiffs complained to the assistant principal of the School about their son's ongoing harassment. After a face-to-face meeting, the assistant principal issued a written decision in which she stated that T.S. had not been subjected to bullying or harassment. Instead, she determined that T.S. was at fault and issued him a one-day suspension for making a false accusation. She also required T.S. to receive additional instruction about harassment.
Plaintiffs took no appeal and requested no other review of the November 2014 decision. In January 2015, matters took a turn for the worse when a classmate added nail polish remover containing acetone to a milk container set before T.S. T.S. drank the milk and felt sick. This experience made him extremely anxious about returning to school and he missed additional days. In the wake of this incident, Plaintiffs requested that Defendants permit T.S. to attend an alternative program in a different school. They also sought tutoring. These requests were presented as accommodation requests arising from T.S.'s anxiety and post-traumatic stress disorder which in turn were caused by the harassment from his peers.
Over the course of the spring, Plaintiffs and certain Defendants discussed a possible 504 plan pursuant to the Rehabilitation Act which would have placed T.S. in a different school. These talks did not result in an agreement. Instead, Plaintiffs withdrew T.S. from the School. They have paid tuition at an alternative school during the current school year which is T.S.'s seventh grade year. He seeks to attend this school during his eighth grade as well. The arrival of school choice in the ninth grade will eliminate any further dispute over where he can attend school at public expense.
Plaintiffs have filed suit alleging violations of the ADA (Counts I and IV), § 504 of the Rehabilitation Act (Count II), violations of the Vermont Fair Housing and Public Accommodations Act (VFHPAA) (Counts III and V), and common law negligence (Count VI). At oral argument, the court pressed Plaintiffs' counsel to identify the types of claims presented and the nature of the damages sought. Counsel identified three principal claims:
A. Failure to protect T.S. from additional harm despite notice that he was being bullied. This claim arises under both the ADA as a failure to accommodate T.S.'s illness and subsequent anxiety and as a state-law negligence claim. The damages sought are consequential money damages for emotional distress.
B. Failure to accommodate T.S.'s disability of anxiety during the 2014-2015 school year by authorizing additional care and support such as tutoring at home. The damages sought are primarily reimbursement of educational expenses borne by the parents.
C. Failure to provide an appropriate education at a new school as a result of the harassment inflicted on T.S. during the 2014-2015 school year. The damages sought are reimbursement of tuition at ...