Patrick v. Success Acad. Charter Sch., Inc. (354 F. Supp. 3d 185, 2018)

United States District Court for the Eastern District of New York 2018-12-14

Crimes and Criminal Procedure Education Labor The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM & ORDER

Pamela K. Chen, United States District Judge Plaintiffs Kim Patrick and her son, AG, bring this action against Defendants, pursuant to 42 U.S.C. § 1983 (" § 1983" or " Section 1983"), the Individuals with Disabilities Education Act ("IDEA"), the Americans with Disabilities Act of 1990 ("ADA"), and Section 504 of the Rehabilitation Act of 1973 ("Rehab Act" or "Rehabilitation Act"), in connection with Defendants Success Academy Charter Schools, Inc.'s and Success Academy Prospect Heights's (collectively, "Success Academy" or the "Success Academy Defendants") disciplinary procedures and use of emergency medical services. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part

TABLE OF CONTENTS

BACKGROUND ...196

I. RELEVANT FACTS ...196

A. 2016-2017 SCHOOL YEAR ...196

B. 2017-2018 SCHOOL YEAR ...200

II. PROCEDURAL HISTORY ...202

LEGAL STANDARD ...202

DISCUSSION ...203

I. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ...203

A. DEFENDANT DE JONGH ...203

1. UPHOLDING AG'S SEPTEMBER 12, 2017 SUSPENSION ...203

2. CLAIMS REGARDING LACK OF TRANSCRIPT, UNSWORN WITNESSES, AND FAILURE TO CALL THE PARA-PROFESSIONAL AS A WITNESS ...205

B. DEFENDANTS COLE AND SHAINKER ...205

C. DEFENDANT SOLOMON ...206

II. CLAIMS BROUGHT BY PLAINTIFF PATRICK ...208

III. AG's PROCEDURAL DUE PROCESS CLAIM ...209

A. ARTICLE 78 HEARING ...209

B. LEGAL STANDARD ...212

C. WAS AG DEPRIVED OF A PROPERTY INTEREST ? ...213

D. WHAT PROCESS WAS AG DUE ? ...218

1. FEBRUARY 24, 2017 SUSPENSION ...219

2. SEPTEMBER 12, 2017 SUSPENSION ...221

a. HEARING TRANSCRIPT OR RECORDING ...221

b. SWORN TESTIMONY ...224

c. TESTIMONY BY THE PARA-PROFESSIONAL ...224

IV. ADA/REHABILITATION ACT ...225

A. EXHAUSTION ...226

B. MERITS ...228

V. IDEA CLAIMS ...229

A. EXHAUSTION ...229

1. OVERVIEW OF THE IDEA'S EXHAUSTION REQUIREMENT ...229

2. APPLICABLE IDEA EXHAUSTION STANDARD ...229

B. MISUSE OF THE "SERIOUS BODILY INJURY" EXCEPTION ...230

1. EXHAUSTION ...230

a. FEBRUARY 24, 2017 INCIDENT ...230

b. SEPTEMBER 12, 2017 INCIDENT ...231

2. MERITS ...232

C. PROVISION OF APPROPRIATE ALTERNATIVE INSTRUCTION ...234

1. EXHAUSTION ...234

a. FEBRUARY 24, 2017 INCIDENT ...234

b. SEPTEMBER 12, 2017 INCIDENT ...235

2. MERITS ...235

D. FAILURE TO RETURN AG TO SCHOOL ...235 E. DEPRIVATION OF DUE PROCESS RIGHTS ...236

1. EXHAUSTION ...236

2. MERITS ...237

CONCLUSION ...238

APPENDIX A ...239

APPENDIX B ...243

APPENDIX C ...245

APPENDIX D ...247

BACKGROUND

I. Relevant Facts

Plaintiff AG is an eight-year-old student at Defendant Success Academy Prospect Heights, a public charter school in Brooklyn, New York. (Complaint ("Compl."), Dkt. 1, at ¶ 55; Defendants' Brief ("Defs.' Br."), Dkt. 41, at 3.) In the two years since AG started at Success Academy, he has been "suspended and excluded from school" over 25 times, for at least 70 school days. (Compl. at ¶ 134); see also Patrick v. Success Acad. Charter Sch., Inc. , No. 17-CV-6846 (PKC)(RLM), 2017 WL 6557478, at *1-3 & n.5 (E.D.N.Y. Dec. 22, 2017) (discussing AG's suspensions). It appears that he is currently in first grade for the third time. (Compl., at ¶ 55; Defs.' Br., at 3 (noting that AG is still in first grade as of August 2018).)

AG is disabled and "other health impaired" due to Beta-thalassemia, a rare blood disorder, which causes him to have "below average academic performance, ... speech[,] and language skills," as well as disruptive and dangerous behavior. (Compl. at ¶¶ 56-58.) As a result, he has an Individualized Education Plan ("IEP"), which entitles him to special education services, including speech and language therapy, counseling, and an individual crisis management para-professional. (Id. at ¶ 57.)

A. 2016-2017 School Year

AG was six years old when he started at Success Academy in the 2016-2017 school year. (Id. at ¶ 55.) At that time, AG was in first grade. (Id. ) Between October 27 and December 20, 2016, AG was suspended from school "on multiple occasions." (Id. at ¶¶ 60-61.) According to Plaintiff Kim Patrick ("Patrick"), AG's mother, during this period she was told by Defendants "nearly every day ... to remain at school for several hours to assist her son ... due to his behavioral deficits." (Id. at ¶ 62.) Patrick further alleges that she was told by Defendant-Principal Sydney Solomon that if Patrick "was not available and AG had a behavior issue, the school would call 911." (Id. ) Patrick subsequently asked for a meeting with AG's IEP team, which was scheduled for December 20, 2016, to reevaluate AG's special education needs. (Id. at ¶ 63.) Under the IDEA, an IEP team "must include the parents of the child, the child's regular and special education teachers, and a knowledgeable representative of the District," Doe ex rel. Doe v. Todd Cty. Sch. Dist. , 625 F.3d 459, 461 (8th Cir. 2010) (citing 20 U.S.C. §§ 1414(d)(1)(B), (d)(3) & (4) ), and its role, inter alia , is to determine the appropriate "educational or related services needs" of the disabled child, 20 U.S.C. § 1414(a)(2)(1).

On December 19, 2016, the day before the IEP meeting, Principal Solomon contacted the New York City Fire Department's Bureau of Emergency Medical Services ("EMS") when "AG exhibited tantruming behavior but was not experiencing any medical emergency." (Compl., at ¶ 64.) According to Plaintiffs, Defendants "were familiar with these [tantrum] behaviors and knew that [AG] had never hurt himself in school before." (Id. ) Upon learning that EMS had been called, Patrick "rushed" to Success Academy and spoke to EMS. (Id. ) AG was ultimately released to Patrick and missed the remainder of the school day. (Id. ) On December 20, 2016, Patrick attended the scheduled IEP meeting. (Id. at ¶ 65.) The IEP team agreed to an integrated co-teaching program and added more speech, occupational therapy, and counseling services for AG. (Id. )

Between December 20, 2016 and early February 2017, AG was issued suspensions, all for fewer than 10 school days, for additional behavioral incidents. (Id. at ¶¶ 66-67.) On February 14, 2017, a Success Academy staff member, "Torcivia," called Patrick "and threatened to call 911 if Ms. Patrick did not come to the school to take AG home as he was having a tantrum." (Id. at ¶ 68.) Patrick went to the school and took AG home. (Id. ) On February 16, 2017, Plaintiffs' attorney met with the IEP team to conduct a Manifestation Determination Review ("MDR"), (id. at ¶ 69), to discuss whether, pursuant to the IDEA, the conduct leading to the January and February suspensions were "caused by, or had a direct and substantial relationship to, [AG's] disability," 20 U.S.C. § 1415(k)(1)(E). The IEP team determined that AG's behaviors were a manifestation of his disability and, as a result, AG was not required to serve the suspensions. (Compl., at ¶¶ 69-70.) Under the IDEA, "[i]f the student's behavior is not a manifestation of his disability, then the relevant discipline may be administered in the same manner applicable to a non-disabled student. If the behavior is a manifestation of the disability, then the child's placement is not changed (absent parental consent) and the IEP team must prepare a functional behavior assessment and a behavior intervention plan." Molina v. Bd. of Educ. , 157 F.Supp.3d 1064, 1068 (D.N.M. 2015) (citations omitted); 20 U.S.C. §§ 1415(j), (k)(1)(E) & (F). AG was suspended again on February 17, 2017, the day after the MDR, and twice more thereafter, on February 22 and 23, 2017; each of these suspensions was for fewer than 10 school days. (Compl., at ¶ 70.)

On February 24, 2017, an unidentified Success Academy employee called EMS when AG exhibited "tantruming behavior." (Id. at ¶ 71.) According to Defendants, AG "caused serious bodily injury and extreme pain by, inter alia , dragging the Assistant Principal down the hall by the hair while using the other hand to hit her, yanking a lanyard around the Assistant Principal's neck, kicking Principal Solomon," and "inflict[ing] serious bodily injury and extreme physical pain upon [his] para[-professional]." (Id. at ¶ 79.) Defendants did not call Patrick until EMS and police officers from the New York City Police Department were at the school. Patrick, who was at work, asked a Success Academy staff member to let her speak to EMS, but the staff member did not allow Patrick to do so. (Id. at ¶ 72.) According to Plaintiffs, AG's allegedly injured para-professional then called Patrick and told her "that the school staff took [AG] and told the EMS workers to take him to the hospital" even though he had been "calmly sitting on the para[-professional]'s lap." (Id. ) AG was ultimately taken to the emergency room over Patrick's objections and was released from the hospital later the same day "with no treatment or referral." (Id. at ¶¶ 72-74.) AG missed the rest of the school day and Patrick was charged $ 1,860 for the cost of EMS transport. (Id. at ¶¶ 75, 77.)

That evening, Defendants informed Patrick that AG was suspended for 45 school days for the incident and would be placed in an Interim Alternative Educational Setting ("IAES") for the duration. (Id. at ¶ 79.) Although AG was immediately suspended from attending class at Success Academy, his IAES did not begin until 5 days later. Plaintiffs dispute whether the alternative instruction AG was provided properly constituted an IAES, (Plaintiffs' Brief ("Pls.' Br."), Dkt. 40, at 6), because, under the IDEA, an IAES "shall be determined by the IEP Team," 20 U.S.C. § 1415(k)(2). The IDEA provides that a student with a disability generally remains in his educational placement after he is suspended until an MDR is conducted. 20 U.S.C. § 1415(j). However, "school personnel may ... order a change in placement for a child with a disability who violates a code of student conduct." Id. § 1415(k)(1)(A). If the suspension is for "not more than 10 school days," a school may suspend a disabled student from their current placement and remove the student "to an appropriate [IAES], another setting, or suspension[,] ... [ ]to the extent such alternatives are applied to children without disabilities[ ]." Id. ; see Farrin v. Me. Sch. Admin. Dist. No. 59 , 165 F.Supp.2d 37, 41 (D. Me. 2001). But, "school officials [who] unilaterally (i.e., without the parent's consent) remove a disabled child for more than ten days" must provide the child with an IAES "so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." Todd Cty. Sch. Dist. , 625 F.3d at 463 (quoting 20 U.S.C. § 1415(k)(1)(D)(i) ); Farrin , 165 F.Supp.2d at 41-43 ("[A]s of the eleventh day of suspension (i.e. the change of placement), the school must provide the child with an alternative educational setting."). According to Plaintiffs, AG's supposed IAES began on March 2, 2017 (Pls.' Br., at 6 n.3)-four school days after the February 24 incident-and consisted of only two hours per day of general education in a public library with an unlicensed teacher and no special education services (Compl., at ¶ 88).

Additionally, under the IDEA, "[w]ithin ten school days of a decision changing the child's placement because of misconduct," the IEP team must conduct an MDR. Todd Cty. Sch. Dist. , 625 F.3d at 461 (citing 20 U.S.C. § 1415(k)(1)(E) ). If, as in this case, the change in placement to an IAES (1) "exceed[s] 10 school days" and (2) "the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability[,] ... the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities." 20 U.S.C. § 1415(k)(1)(C). An MDR was held with respect to the February 24, 2017 incident on March 10, 2017-10 school days after AG's suspension began-which determined that AG's behavior was not a manifestation of his disability. As a result, AG continued to serve his 45-day suspension and received a purported IAES for the duration of the suspension. (Dkt. 7-4, at ECF 37; Compl., at ¶ 88.)

Plaintiffs allege that they were provided with "no notice or opportunity for a hearing to contest the charge, or any information about their due process rights" before AG was suspended for 45 school days for the February 24, 2017 incident. (Compl., at ¶ 80.) Plaintiffs therefore requested, pursuant to the IDEA, an expedited impartial due process hearing "challenging Defendants' actions as illegal, and asserting [that] the allegations against AG were false and exaggerated." (Id. at ¶ 81.) Under the IDEA, "[t]he parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination ... may request a hearing" overseen by an Impartial Hearing Officer ("IHO"). 20 U.S.C. § 1415(k)(3)(A). After the hearing, an IHO may either "(I) return a child with a disability to the placement from which the child was removed" or "(II) order a change in placement to an appropriate [IAES] for not more than 45 school days if the hearing officer determines that maintaining the current placement of [the] child is substantially likely to result in injury to the child or to others." 20 U.S.C. § 1415(k)(3)(B)(ii). "That decision can then be appealed to a state review officer [ ("SRO") ] of the New York Education Department." Cave v. E. Meadow Union Free Sch. Dist. , 514 F.3d 240, 245 (2d Cir. 2008) ("New York has opted for a two-tier administrative system for review of IEPs. First, an impartial hearing officer is selected ... to conduct the initial hearing and issue a written decision. That decision can then be appealed to a[n] [SRO] of the New York Education Department."). "[T]he child shall remain in the interim alternative educational setting pending the decision of the hearing officer." 20 U.S.C. § 1415(k)(4)(A).

According to Plaintiffs, on March 29, 2017, the IHO issued a written decision, finding that: (1) Defendants had failed to provide Patrick with notice and an opportunity for a suspension hearing in "plain violation of due process," but the IHO "did not have jurisdiction to order a suspension hearing in the matter;" (2) the allegations made by Defendants "did not rise to the level of serious bodily injury" as defined by the IDEA; (3) AG should be immediately reinstated to Success Academy; and (4) the DOE must provide "compensatory education" and related services for the days AG was out of school. (Compl., at ¶¶ 82-84.) AG returned to Success Academy after having missed approximately 24 days of school (out of the original 45-day suspension), during which he did not receive any of his special education support services. (Id. at ¶¶ 87-89.)

AG was subsequently suspended four times, each time for fewer than 10 school days, in April 2017 for "tantruming behaviors." (Id. at ¶ 90.) On April 25, 2017, while Patrick was attending an MDR meeting regarding the April suspensions, Torcivia again contacted Patrick to tell her that Defendants had called EMS due to AG's behavior. (Id. at ¶ 91.) Patrick "ran out" of the meeting and went to Success Academy to prevent AG from being taken to the hospital. (Id. at ¶¶ 92-93.) Patrick spoke with an EMS worker on the phone who "said he would not take [AG] to the hospital and [that] he did not believe there was any legitimate reason to do so." (Id. at ¶ 94.) Patrick took AG home and he was suspended for three school days. (Id. at ¶¶ 95-97.) Plaintiffs allege that "Defendants called EMS to harass, scare, intimidate, and retaliate against [Patrick] for enforcing her rights at the MDR meeting, and to force AG out of the school due to his disability." (Id. at ¶ 93.) AG was suspended three more times, each for fewer than 10 days, between April 25, 2017 and June 6, 2017. (Id. at ¶ 98.)

B. 2017-2018 School Year

On August 16, 2017, AG returned to Success Academy for the 2017-2018 school year. (Id. at ¶ 99.) The suspensions for the 2016-2017 school year resulted in AG missing enough class time-"over half of th[e] academic school year"-at Success Academy that he had to repeat the first grade. (Id. at ¶ 134.)

Over the first two weeks of school, AG was suspended three times for a total of seven school days. (Id. at ¶¶ 100-01.) On September 12, 2017, someone at Success Academy called AG's parents to inform them that EMS had been called but did not take AG to the hospital. (Id. at ¶ 102.) Additionally, AG's father, Gavin, was told that AG "had engaged in dangerous behavior and that he had hit his para[-professional] and stabbed her in the eye with a pencil, and that the para[-professional] immediately left the school via EMS." (Id. at ¶ 103.) However, after Gavin arrived at Success Academy, he allegedly "[saw] the para[-professional] in the hall" and she "did not appear to be in distress or in pain." (Id. ) He told Success Academy staff, including Principal Solomon, what he had observed. (Id. ) The following day, Patrick received a letter stating that AG could not attend school, was suspended for the prior day's behavior, would be removed to an IAES for 20 school days, and would receive a suspension hearing. (Id. at ¶¶ 104-105.) According to Plaintiffs, this was the first time that Patrick and Gavin had been offered a hearing to determine whether one of AG's suspensions was appropriate. (Id. at ¶ 106.)

On September 18, 2017, an "informal" hearing was held at Success Academy before Defendant LaMae de Jongh, the Managing Director of Success Academy Charter Schools, to assess whether the 20-day IAES placement was appropriate. (Id. at ¶¶ 107-08.) Defendant Solomon, AG's teacher, and AG's father all testified at the hearing; none were put under oath and no verbatim record or recording of the hearing was maintained. (Id. at ¶¶ 109, 111-12, 115-16, 118.) The school also introduced as evidence an index card from the allegedly injured para-professional that contained her recitation of the events, but she did testify and no evidence regarding medical treatment for her alleged injuries was introduced. (Id. at ¶¶ 113-14.) On September 20, 2017, Managing Director de Jongh found that "the IAES was appropriate" because AG had "[i]nflicted serious bodily injury upon another person." (Id. at ¶¶ 117-18.) The following day, Plaintiffs filed an expedited hearing request under the IDEA seeking AG's immediate reinstatement. (Id. at ¶ 119.) However, the hearing date was set for October 17, 2017, at which point AG would have already served the full suspension, and the request was subsequently withdrawn without prejudice. (Id. ); 20 U.S.C. § 1415(k)(4)(B) ("[T]he State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within ten school days after the hearing.").

On September 26, 2017-10 school days after AG's suspension began-an MDR was conducted regarding the September 12, 2017 incident. (Compl., at ¶¶ 120-23.) AG's behavior was determined to be a manifestation of his disability and the MDR team "directed that AG be returned to school immediately." (Id. at ¶ 123.) The next day, however, when Patrick attempted to take AG to school, Success Academy staff "informed her that [AG] was not allowed to attend school and was required to serve his suspension[,] as he had inflicted serious bodily injury and/or serious bodily harm on the para[-professional], regardless of the MDR finding." (Id. at ¶ 124.) As discussed supra (see note 9), under the IDEA, school personnel may "remove a student to an [IAES] for not more than 45 school days without regard to whether the behavior [at issue] is determined to be a manifestation of the child's disability," inter alia , "where a child has inflicted serious bodily injury upon another person while at school." 20 U.S.C. § 1415(k)(1)(G) (emphasis added).

On September 29, 2017, Plaintiffs filed an internal appeal of Managing Director de Jongh's findings to Defendant Samuel Cole, the Success Academy Board Chairperson. The suspension was upheld on October 17, 2018 by Defendant Catherine Shainker, a Success Academy board member. (Compl., at ¶¶ 16, 125-26.) In response to this determination, Plaintiffs re-filed their IDEA Impartial Hearing Request, and a hearing was held on November 6, 2017. (Id. at ¶¶ 127-28.) On November 14, 2017-by which point, AG had already served the entirety of his suspension and was back at Success Academy-the IHO "found the appropriateness of both the suspension hearing held by Defendants and the suspension to an IAES to be outside his jurisdiction, ... [but also] found that based on the record, it was highly unlikely that the standard of serious bodily injury was met." (Id. at ¶¶ 125, 128.) Additionally, the IHO awarded Plaintiffs compensatory special education services for each day of school that AG was in an IAES placement. (Dkt. 7-4, at ECF 59-60.)

An IEP meeting was held on November 17, 2017, during which Success Academy's employees opposed AG continuing in an integrated co-teaching placement, and asked the Committee on Special Education ("CSE")-a New York City DOE committee that handles the special education process for students enrolled in non-DOE charter schools, N.Y. Educ. Law § 3214-to change AG to a classroom with fewer students, which is not offered at Success Academy. According to Plaintiffs, Success Academy employees "expressly stated that they did not want AG to remain at the school." (Compl., at ¶¶ 130-31.) That same day, when Gavin went to pick up AG from school, Success Academy employees "told [Gavin] that AG would not be allowed back to school" because they "had found a bedbug on AG's clothing and he would be barred from attending school until AG's parents had their home inspected and, if necessary[,] treated, by an exterminator at their own expense and provided proof of such." (Id. at ¶ 132.) A professional inspection of Plaintiffs' home "showed no sign" of bedbugs. (Id. at ¶ 133.) Five days later, Plaintiffs filed the instant action.

II. Procedural History

On November 22, 2017, Plaintiffs filed their complaint and motion for preliminary injunction in this action. (Dkts. 1, 7.) The motion for preliminary injunction was denied on December 22, 2017 and the Court declined to exercise supplemental jurisdiction over the novel state law issue of whether New York Education Law § 3214 -which, inter alia , establishes the disciplinary procedures for publicly educated students in the state-applies to charter schools like Success Academy. Patrick , 2017 WL 6557478, at *1-6 & n.7. Following a pre-motion conference on April 24, 2018, Plaintiffs withdrew their remaining state law claims. (Dkt. 33.) Defendants' motion to dismiss as to the remaining claims was fully briefed on August 13, 2018. (Dkt. 41.)

LEGAL STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937 (citation omitted). "In addressing the sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or legal conclusions couched as factual allegations." Rothstein v. UBS AG , 708 F.3d 82, 94 (2d Cir. 2013).

DISCUSSION

Defendants move to dismiss Plaintiffs' complaint in its entirety. Regrettably, Plaintiffs' complaint and opposition brief are woefully unclear as to (1) the contours of Plaintiffs' claims, (2) which claims are being brought against which Defendants, and (3) which claims are being brought by which Plaintiff. The Court, however, has attempted to construe Plaintiffs' claims liberally, given the significant constitutional questions implicated by these claims, Patrick , 2017 WL 6557478, at *3, and the current stage of this action. Moreover, both parties have given short shrift to the novel and complex constitutional and statutory claims at issue here, which has necessitated the Court's independent identification and review of a multitude of school disciplinary due process cases. The Court addresses each claim in turn.

I. Claims Against the Individual Defendants

For the reasons stated herein, the Court dismisses Plaintiffs' claims against the four individual Defendants.

A. Defendant de Jongh

The Court construes Plaintiffs' complaint as alleging that Defendant de Jongh violated AG's Fourteenth Amendment due process rights by: (1) upholding AG's suspension; (2) not providing Plaintiffs with a transcript or recording of the September 12, 2017 suspension hearing; (3) not putting the witnesses under oath at the hearing; and (4) failing to have the allegedly injured para-professional testify at the hearing. Defendants' motion to dismiss is granted as to these claims against de Jongh in their entirety.

1. Upholding AG's September 12, 2017 Suspension

To the extent that Plaintiffs argue that de Jongh's decision was incorrect, that is not a cognizable basis for a procedural due process claim. While Plaintiffs may "express[ ] their dissatisfaction with the outcome of their interactions with Defendants, ... procedural due process guarantees only a process, not a specific outcome."

S.C. v. Monroe Woodbury Cent. Sch. Dist. , No. 11-CV-1672 (CS), 2012 WL 2940020, at *9 (S.D.N.Y. July 18, 2012) (collecting cases); see also Wilk v. St. Vrain Valley Sch. Dist. , No. 15-CV-1925 (RPM), 2017 WL 3190443, at *8 (D. Colo. July 27, 2017) ; Schomburg v. Johnson , No. 08-CV-11361 (GAO), 2009 WL 799466, at *3 (D. Mass. Mar. 25, 2009) ("[P]rocedural due process does not guarantee satisfactory, or even correct, outcomes. It only requires that [plaintiff] have been given notice of the proposed discipline and an opportunity to speak [his or her] piece to the decision-maker prior to the imposition of the punishment.") (citing Donovan v. Ritchie, 68 F.3d 14, 18 (1st Cir. 1995) ).

To the extent that Plaintiffs may also be arguing that Defendant de Jongh was biased against them, this claim fails as well. (See Pls.' Br., at 19-20); Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ("[A] biased decisionmaker [is] constitutionally unacceptable [and] 'our system of law has always endeavored to prevent even the probability of unfairness.' ") (quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ). There is a presumption "that administrators are honest and impartial, and therefore capable of judging a particular controversy fairly on the basis of its own circumstances. The presumption is a rebuttable one, but the burden of rebuttal is heavy indeed: To carry that burden, the party claiming bias must lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable." Hess v. Bd. of Trs. , 839 F.3d 668, 675 (7th Cir. 2016) (citations and internal quotation marks omitted); see also Doe v. Cummins , 662 F. App'x 437, 449-50 (6th Cir. 2016) (collecting cases). "Actual bias could be 'personal animosity, illegal prejudice, or a personal or financial stake in the outcome.' To survive a motion to dismiss, [a plaintiff] needs to allege specific, non-conclusory facts that if taken as true show actual bias." Doe v. Ohio State Univ. , 219 F.Supp.3d 645, 656 (S.D. Ohio 2016) (quoting Ikpeazu v. Univ. of Neb. , 775 F.2d 250, 254 (8th Cir. 1985) ); Duke v. N. Tex. State Univ. , 469 F.2d 829, 834 (5th Cir. 1972) ("Alleged prejudice of [school] hearing bodies must be based on more than mere speculation and tenuous inferences."). Plaintiffs have made no such allegations here. See DeFabio v. E. Hampton Union Free Sch. Dist. , 658 F.Supp.2d 461, 492 (E.D.N.Y. 2009) (concluding that, where plaintiffs provided "no evidence to support [their] conclusory assertion of bias[,].... [their] subjective belief that the decision-makers were not sufficiently open-minded about their position [was] insufficient to create an issue of fact on a procedural due process claim"), aff'd , 623 F.3d 71 (2d Cir. 2010). Additionally, even if de Jongh had displayed bias, Plaintiffs "[were] able to (and did) appeal that administrator's decision [suspending AG] to another adjudicative body[, as alleged in Plaintiffs' complaint,] ... and there is no contention that any of the latter individuals was biased against [AG]." Hess , 839 F.3d at 677 (rejecting procedural due process claim where, inter alia , the allegedly biased decision was affirmed on appeal and there was no allegation of bias against the appellate authority).

2. Claims Regarding Lack of Transcript, Unsworn Witnesses, and Failure to Call the Para-Professional as a Witness

Although the Court finds that AG has stated a due process claim with respect to whether the burden of proof was met for a suspension (see infra Section III(D)(2)(c) ), Defendant de Jongh is entitled to qualified immunity as to Plaintiffs' claims that they were not provided a transcript of the September 12, 2017 suspension hearing, that witnesses were not placed under oath at the hearing, and that the para-professional who allegedly was injured by AG was not called as a witness at the hearing.

"[T]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citation and internal quotation marks omitted). In this circuit, "a right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful." Luna v. Pico , 356 F.3d 481, 490 (2d Cir. 2004) (quoting Anderson v. Recore , 317 F.3d 194, 197 (2d Cir. 2003) ); see also White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) ("[I]t is ... necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality. As this Court explained decades ago, the clearly established law must be particularized to the facts of the case.") (per curiam) (citations and internal quotation marks omitted). The parties have not put forth, and the Court has not identified, any Supreme Court or Second Circuit case law recognizing a procedural due process right to a transcript or sworn testimony in connection with a school suspension hearing, or establishing the burden of proof in such a hearing. See Rubino v. Saddlemire , No. 3:05-CV-1955 (PCD), 2007 WL 685183, at *8 (D. Conn. Mar. 1, 2007) (noting that "the Second Circuit has not specifically addressed the issue of the sufficiency of the evidence in school disciplinary proceedings").

Accordingly, all claims against Defendant de Jongh are dismissed.

B. Defendants Cole and Shainker

The Court construes Plaintiffs' complaint as alleging that Defendants Cole and Shainker, Success Academy Board Chair and member, respectively, violated AG's Fourteenth Amendment due process rights by affirming Managing Director de Jongh's suspension decision. The Court finds that this claim fails for two reasons. First, Plaintiffs' claim "runs counter to precedent holding that those subject to school discipline do not enjoy a due process right to any appellate review." Oladokun v. Ryan , No. 06-CV-2330 (KMW), 2010 WL 3910578, at *12 (S.D.N.Y. Sept. 30, 2010) (emphasis in original) (collecting cases); see also Heyne v. Metropolitan Nashville Public Schools , 655 F.3d 556, 569-70 (6th Cir. 2011) ("Any greater process provided by a state, such as review by a school board, is completely gratuitous. Any such additional procedural protections are not required by due process nor do they give rise to any due process rights.") (citations and internal quotation marks omitted) (collecting cases);

Brewer ex rel. Dreyfus v. Austin Indep. Sch. Dist. , 779 F.2d 260, 263 (5th Cir. 1985) ("Although schools may wish to provide appellate mechanisms to cure procedural errors that can creep into initial suspension proceedings, they are not required to do so by the Constitution. Due process need only be provided once."). Plaintiffs have cited no cases to the contrary.

Second, even assuming AG did have a right to appeal, Plaintiffs do not allege how, or in what way, Defendants Cole and Shainker violated AG's appellate due process rights. Therefore, Defendants' motion to dismiss is granted as to Defendants Cole and Shainker.

C. Defendant Solomon

Plaintiffs allege that the Success Academy Defendants and Defendant Solomon violated AG's Fourth Amendment rights relating to seizure by "physically removing AG from his school to a hospital emergency room when there was no medical necessity to take such action." (Compl., at ¶ 174.) "To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law." McGugan v. Aldana-Bernier , 752 F.3d 224, 229 (2d Cir. 2014). In this case, "the relevant Fourth Amendment inquiry is whether there was a seizure and, if so, whether that seizure was reasonable. In the schoolhouse, a seizure is reasonable if it was (1) 'justified at its inception' and (2) 'reasonably related in scope to the circumstances which justified' the seizure in the first place." Schafer v. Hicksville Union Free Sch. Dist. , No. 06-CV-2531 (JS)(ARL), 2011 WL 1322903, at *8 (E.D.N.Y. Mar. 31, 2011) (quoting Bisignano v. Harrison Cent. Sch. Dist. , 113 F.Supp.2d 591, 597 (S.D.N.Y. 2000) ); Camac v. Long Beach City Sch. Dist. , No. 09-CV-5309 (DRH)(ARL), 2011 WL 3030345, at *8 (E.D.N.Y. July 22, 2011). At the same time, the Supreme Court "has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools."

Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). "In evaluating a challenged seizure, the Court reviews the totality of the circumstances." Schafer , 2011 WL 1322903, at *8.

Plaintiff's Fourth Amendment claim against Defendant Solomon fails for two reasons. First, although Plaintiffs allege that Solomon called EMS on December 19, 2016, they do not allege that AG was actually "seized," i.e., removed from school, by EMS on that occasion. (See Compl., at ¶ 64.) Second, and more generally, although Fourth Amendment claims for unlawful seizure may be brought against a third-party defendant who is not the seizing government actor, but who affirmatively "request[s]" or "compels" the unlawful seizure, McGugan , 752 F.3d at 230, "liability will not attach to a defendant who merely seeks police [or medical] assistance or furnishes information to law enforcement [or medical] authorities who are then free to exercise their own judgment as to whether [a seizure] should be made," Camac , 2011 WL 3030345, at *8 (citation and internal quotation marks omitted); see also Defalco v. MTA Bus Co. , 333 F.Supp.3d 191 (E.D.N.Y. 2018) (collecting cases).

Plaintiffs cite to two cases, both distinguishable from the facts of this case, in support of their allegation that calling EMS on AG constituted instigating or procuring an unlawful seizure. (Pls.' Br., at 22-23.) In Camac , the Honorable Denis R. Hurley allowed such a claim to survive a motion to dismiss. 2011 WL 3030345, at *8. However, in that case, the plaintiff alleged that the defendant-school administrators had "intentionally contacted the police and provided false information that would cause the police to confine [the student]." Id. Judge Hurley determined that a question of fact existed as to whether knowingly providing false information to the police rose to the level of instigating or procuring an arrest. Id. Here, Plaintiffs do not allege that Defendant Solomon, or any of the other Success Academy staff members, provided false information to EMS. In fact, Plaintiffs do not dispute that AG engaged in the "tantruming behavior" for which Success Academy staff members called EMS; instead, in conclusory fashion, they merely state that the behavior was not a medical emergency. (See Compl., at ¶¶ 64, 68, 71, 91, 93, 102.)

Second, Plaintiffs cite to Eze v. Scott , in which a city college's coordinator and psychologist called EMS to take a student to a hospital for psychiatric evaluation. 11 F.Supp.3d 376, 379 (E.D.N.Y. 2014). Although the Honorable Margo K. Brodie allowed an unreasonable seizure claim against the non-EMS defendants to proceed, the defendants in that case physically prevented the plaintiff from leaving the room once they had called EMS by blocking the exit and refusing the plaintiff's requests to leave the psychologist's office. Id. Here, there is no indication that AG was physically restrained, or that Plaintiff Patrick, once she arrived at Success Academy, was prevented from taking custody of her child. (See Compl., at ¶¶ 64, 68, 94, 102.)

Aside from the complaint not alleging that Defendant Solomon or any other Success Academy staff member knowingly gave false information to EMS or restrained AG so that he could be seized by EMS, the complaint indicates that EMS had an independent opportunity to observe AG each time they were called to Success Academy, as evidenced by the fact that EMS did not take AG to the hospital three of the four times they were called. (Id. at ¶¶ 64, 68, 72, 93-94). Because "liability will not attach to a defendant who furnishes information to law enforcement authorities who are then free to exercise their own judgment as to whether [a seizure] should be made," Plaintiffs have failed to state a valid claim under the Fourth Amendment. Camac , 2011 WL 3030345, at *8 (citation and internal quotation marks omitted); see also Lozada v. Weilminster , 92 F.Supp.3d 76, 91 (E.D.N.Y. 2015) (finding no liability where a police officer "had the opportunity to observe Plaintiff and make his own determination as to whether her behavior warranted arrest"); Olowosoyo v. City of Rochester , No. 08-CV-6007 (MAT), 2009 WL 1650419, at *4 (W.D.N.Y. June 12, 2009).

II. Claims Brought by Plaintiff Patrick

To the extent Plaintiff Patrick seeks to bring her own due process claims (as opposed to ones brought on behalf of her child, AG), the Court finds that Patrick's individual procedural due process claims must be dismissed because she lacks standing. See Irwin v. W. Irondequoit Cent. Sch. Dist. , No. 6:16-CV-6028 (EAW), 2017 WL 881850, at *3 (W.D.N.Y. Mar. 2, 2017) (finding that the parent-plaintiff "lack[ed] standing to bring the asserted § 1983 claims based solely on the deprivation of the constitutional rights of [her] son") (collecting cases); see also Jarmon v. Batory , No. 94-CV-0284 (HJH), 1994 WL 313063, at *5 (E.D. Pa. June 29, 1994) (finding that the parents of expelled student lacked standing to bring their own due process claim where they failed to allege that "any right personal to them was violated by the defendants ... [and] their claims [were] wholly derivative of [the child's] claims based on her suspension and subsequent expulsion"); Boster v. Philpot , 645 F.Supp. 798, 807 (D. Kan. 1986) ("[W]hen a student is suspended, it is the student who is entitled to due process because it is the student-not [his] parents-who has a right to a free public education.") (emphasis in original). However, Patrick may bring due process claims on behalf of her minor son. Marino v. Chester Union Free Sch. Dist. , 859 F.Supp.2d 566, 568 (S.D.N.Y. 2012) ("[W]here minor children are the real parties in interest, parents appropriately bring litigation on their children's behalf.") (collecting cases). Additionally, Patrick has standing to bring claims in her individual capacity under the IDEA, see generally Winkelman ex rel. Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007), as well as under the ADA and Rehab Act, B.C. v. Mount Vernon Sch. Dist. , 660 F. App'x 93, 95-97 (2d Cir. 2016).

III. AG's Procedural Due Process Claim

AG asserts a Section 1983 claim against the Success Academy Defendants, alleging that they violated his Fourteenth Amendment due process rights in connection with his long-term suspensions on February 24, 2017 and September 12, 2017 and the disciplinary process (or lack thereof) provided in connection with those suspensions.

A. Article 78 Hearing

As an initial matter, Defendants argue that even if the Court could conclude that AG has adequately pleaded that Success Academy's suspension procedures do not satisfy due process, "Plaintiffs cannot state a due process claim when 'there was an adequate state post-deprivation procedure to remedy [P]laintiffs' alleged deprivation of property.' " (Defs.' Br., Dkt. 41, at 17-18 (quoting J.E. ex rel. Edwards v. Ctr. Moriches Union Free Sch. Dist. , 898 F.Supp.2d 516, 546 (E.D.N.Y. 2012) ).) In this case, the alleged post-deprivation procedure would be recourse to an Article 78 proceeding. Horton v. Bd. of Educ. , No. 5:17-CV-45 (MAD)(ATB), 2017 WL 1437186, at *5 (N.D.N.Y. Apr. 21, 2017) ("Where ... Article 78 [gives] [p]laintiff a meaningful opportunity to challenge his academic suspension, he [is] not deprived of due process simply because he fail[s] to avail himself of the opportunity."). Admittedly, it is well-settled that "[a]n Article 78 proceeding is adequate for due process purposes even though the petitioner may not be able to recover the same relief that he could in a § 1983 suit." Hellenic Am. Neighborhood Action Comm. v. City of N.Y. , 101 F.3d 877, 881 (2d Cir. 1996). However, AG argues that "the availability of an Article 78 proceeding does not bar a § 1983 due process claim where, as here, the violations challenged are systemic." (Pls.' Br., at 22.) The Court agrees with AG and finds that he was not required to request an Article 78 hearing.

Where a plaintiff "alleges that the [d]efendant's procedural due process violations are systematic as opposed to random, the Court [may] find[ ] that the [p]laintiff was not required to first initiate an Article 78 proceeding before commen[c]ing [a federal court] action." Reyes v. Cty. of Suffolk , 995 F.Supp.2d 215, 228 (E.D.N.Y. 2014) ; see also Horton , 2017 WL 1437186, at *5 ("In certain situations where the alleged violations are systemic, and not isolated and random, the availability of an Article 78 proceeding does not bar a procedural due process claim."); Pierre v. N.Y.C. Taxi & Limousine Comm'n , No. 17-CV-973 (MKB), 2017 WL 1417257, at *3 (E.D.N.Y. Apr. 19, 2017) (collecting cases). "[T]he existence of independent state relief does not defeat a Section 1983 claim where the deprivation complained of results from the operation of established state procedures." Butler v. Castro , 896 F.2d 698, 700 (2d Cir. 1990) ; see also Reid v. City of N.Y. , 212 F. App'x 10, 11 (2d Cir. 2006) (same). For example, in Ferrari v. Cty. of Suffolk , the Honorable Joanna Seybert, in partially denying the defendant's motion to dismiss, found that the plaintiff had sufficiently pleaded a systematic violation where he alleged that the defendant-county "knowingly train[ed] and/or deliberately permit[ted], the hearing officers who preside[d] over [the relevant] hearings to deliberately and systematically refuse to comport with the requirements of Due Process." 790 F.Supp.2d 34, 45 (E.D.N.Y. 2011). Later in the case, Judge Seybert partially denied summary judgment finding that, inter alia , "[b]ecause the deprivation here is allegedly systemic, and not random, the availability of an Article 78 proceeding does not bar Plaintiff's claim." Ferrari v. Cty. of Suffolk, No. 10-CV-4218 (JS)(GRB), 2013 WL 4017022, at *8 (E.D.N.Y. Aug. 6, 2013), rev'd and remanded on other grounds, 845 F.3d 46 (2d Cir. 2016), as amended (Jan. 4, 2017); see Reyes , 995 F.Supp.2d at 228 (discussing Ferrari ).

Here, AG alleges that he was, at a minimum, deliberately denied due process in connection with his two long-term suspensions. The Court finds that these allegations sufficiently allege a systematic violation. In Perez de Leon-Garritt v. State Univ. of N.Y. at Buffalo , the district court found that a student could-but did not-sufficiently plead a systematic violation where "she was systemically excluded from her other classes," not just the class where the professor was "act[ing] without authority in excluding her." No. 14-CV-456(S) (WMS), 2018 WL 1509354, at *5 (W.D.N.Y. Mar. 27, 2018). In this case, Plaintiffs do not allege that one rogue teacher was frequently suspending AG, particularly since the suspensions have spanned more than one school year; rather, Plaintiffs are alleging that Success Academy's unwritten policy and practice is to suspend students without due process. Therefore, the Court finds that AG has sufficiently alleged a systematic violation of his due process rights and was not required to resort to an Article 78 hearing.

The Court now turns to the question of what process AG was due in connection with his long-term suspensions on February 24, 2017 and September 12, 2017.

B. Legal Standard

In order to sustain an action for deprivation of property without due process of law, a plaintiff must "first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." Local 342, Long Island Pub. Serv. Emps. v. Town Bd. of Huntington , 31 F.3d 1191, 1194 (2d Cir. 1994) (emphasis and citation omitted); see also Victory v. Pataki , 814 F.3d 47, 59 (2d Cir. 2016), as amended (Feb. 24, 2016). The Second Circuit has held that "while there is no federal constitutional right to an education, New York State's education laws 'create a property interest in education protected by the Fourteenth Amendment.' " Irwin , 2017 WL 881850, at *4 (quoting Handberry v. Thompson , 446 F.3d 335, 353 (2d Cir. 2006) ); see also S.C. , 2012 WL 2940020, at *6. As such, a student such as AG "has a protected property interest in his education, meaning that he could not have been deprived of that right without due process of law." Horton , 2017 WL 1437186, at *3 ; see also C.T. v. Valley Stream Union Free Sch. Dist. , 201 F.Supp.3d 307, 317-18 (E.D.N.Y. 2016) (same).

The foundational case on the due process rights and procedures required in the school disciplinary context is the Supreme Court's decision in Goss v. Lopez , 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). In Goss , the Supreme Court held that the Due Process Clause of the Fourteenth Amendment required, for "short suspension[s], not exceeding 10 days," that a student be provided the "rudimentary precautions" of "oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Id. at 581, 584, 95 S.Ct. 729. Although the Supreme Court in Goss noted that "[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures," it did not elaborate on what those procedures should entail and, as described infra , courts disagree on what the procedures should be. Id. at 584, 95 S.Ct. 729. In describing why these procedures are of constitutional import, the Supreme Court stated,

"education is perhaps the most important function of state and local governments," and the total exclusion from the educational process for more than a trivial period ... is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.... The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences.

Id. at 576, 579 (quoting Brown v. Bd. of Educ. , 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ).

However, at the same time, the Supreme Court also recognized that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and [the Court] ha[s] respected the value of preserving the informality of the student-teacher relationship." New Jersey v. T.L.O. , 469 U.S. 325, 339-40, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ; see also Bd. of Curators v. Horowitz, 435 U.S. 78, 88, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) ("A school is an academic institution, not a courtroom or administrative hearing room."); Goss , 419 U.S. at 578, 95 S.Ct. 729 ("Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities.") (citation omitted); Tinker , 393 U.S. at 507, 89 S.Ct. 733 (noting that the Supreme Court "has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials"). "The students' interest in 'unfair or mistaken exclusion from the educational process' must be balanced against the school's interest in 'discipline and order.' " Watson ex rel. Watson v. Beckel , 242 F.3d 1237, 1240 (10th Cir. 2001) (quoting Goss , 419 U.S. at 580, 95 S.Ct. 729 ). "[T]he interpretation and application of the Due Process Clause are intensely practical matters and ... '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' " Goss , 419 U.S. at 577, 95 S.Ct. 729 (quoting Cafeteria Workers v. McElroy , 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) ). Ultimately, "[a] concern for fairness pervades Goss ." Heyne , 655 F.3d at 567.

Therefore, the Court needs to answer the following questions with respect to each long-term suspension imposed on AG: (1) was AG deprived of a property interest; and (2) if so, what process was due?

C. Was AG Deprived of a Property Interest?

Because AG was placed in an IAES during each of his long-term suspensions, there is a serious question as to whether he was deprived of a property interest in connection with those long-term suspensions, as highlighted by this Court in its preliminary injunction decision. See Patrick , 2017 WL 6557478, at *4 ("Because AG is a disabled student, he is placed into [alternative instruction] while he is suspended, rather than being subjected to 'total exclusion from the educational process' as a non-disabled student might be.") (quoting Goss , 419 U.S. at 576, 95 S.Ct. 729 ).

While no court has addressed the interplay between the procedural due process requirements of the Fourteenth Amendment and the IDEA, on a more general level, courts have addressed, and disagreed about, whether a suspended student placed into an alternative educational setting is deprived of a property interest and, therefore, may maintain a procedural due process claim. The Second Circuit has held that a disabled child does not have "a right, under the IDEA, to graduate ... from a particular educational institution-specifically, the child's original school rather than an IAES [Interim Alternative Educational Setting]." Id. (quoting Coleman v. Newburgh Enlarged City Sch. Dist. , 503 F.3d 198, 205-06 (2d Cir. 2007) ). But, as this Court noted in its prior decision in this case, "[t]his does not address ... the question of whether children-disabled or not-have such a right under the Fourteenth Amendment. " Id. (emphasis in original).

Courts have used three very different standards to determine whether a suspended student provided with alternative academic instruction is deprived of a property interest in his or her education. The Second Circuit has not yet ruled on the appropriate standard.

First, courts have found that the suspension itself constitutes a property deprivation. These courts rely on the language from Goss stating that "the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, 'is not decisive of the basic right' to a hearing of some kind." 419 U.S. at 576, 95 S.Ct. 729 (quoting Fuentes v. Shevin , 407 U.S. 67, 86, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ). Plaintiff urges the Court to adopt this standard, citing to two district court cases from this circuit. In Biswas v. City of N.Y. , the Southern District of New York stated, without analysis, that the plaintiff alleged a deprivation of a property interest even though he "attend[ed] another school, which the plaintiff liken[ed] to a 'reform school,' while the disciplinary charges were pending." 973 F.Supp.2d 504, 513, 525 (S.D.N.Y. 2013). In the second case, J.E. , the Honorable Roslynn R. Mauskopf also found, without elaboration, that the plaintiffs' suspensions "constitute[d] a deprivation of their constitutionally protected right to a public education" even though they were provided with home tutoring during their suspensions. 898 F.Supp.2d at 533-34, 542.

By contrast, there is a second line of cases in which courts have found that where a student is not deprived of classroom instruction during his or her suspension, the student has not been deprived of a property interest. The reasoning behind these cases also relies on language in Goss , reflecting the Supreme Court's concern about the student's "total exclusion from the educational process for more than a trivial period." 419 U.S. at 576, 95 S.Ct. 729. Based on this language, courts have found that "[t]he primary thrust of the educational process is classroom instruction," Cole ex rel. Cole v. Newton Special Municipal Separate Sch. Dist. , 676 F.Supp. 749, 752 (S.D. Miss. 1987), aff'd , 853 F.2d 924 (5th Cir. 1988) ; Hillman v. Elliott , 436 F.Supp. 812, 815 (W.D. Va. 1977) ("Any time a child misses his classes, he is deprived of a learning experience that cannot be repeated."), and, therefore, when "classroom instruction" or its equivalent is provided during a suspension, there is no due process violation. But see Smith v. Rector & Visitors of Univ. of Va. , 115 F.Supp.2d 680, 685 (W.D. Va. 2000) (finding reliance on Goss 's "total exclusion" language "completely mischaracterizes the [Supreme] Court's holding in Goss "). Courts in this camp further note that in Goss itself, although one of the plaintiffs "had been transferred to another school," the Supreme Court did not find that he was entitled to any additional procedural due process protections other than those he was given in connection with his short-term suspension, implying that no procedural due process protections are required where the punishment is a transfer. Donovan , 68 F.3d at 18 (discussing Goss , 419 U.S. at 569 & n.4, 95 S.Ct. 729 ). Defendants urge the Court to adopt this standard. (Defs.' Br., at 15.) Although not cited by either party, the Court notes that in Saggio v. Sprady , the Honorable Brian M. Cogan held that the plaintiff, who was allegedly "coerced" into being home-schooled after she was assaulted at school, "ha[d] a right under State law to an education, but there is nothing under State law providing that such an education cannot include a home schooling component or assignment to a neighboring school to defuse a discipline problem, and thus there has been no deprivation of a federally protected property right." 475 F.Supp.2d 203, 210 (E.D.N.Y. 2007).

In the third and final line of cases, courts have found that a student has not been deprived of a property interest where " 'the sanction imposed is attendance at an alternative school[,] absent some showing that the education received at the alternative school is significantly different from or inferior to that received at his regular public school.' " Buchanan v. City of Bolivar , 99 F.3d 1352, 1359 (6th Cir. 1996) ; (collecting cases); see also E. S. ex rel. D.K v. Brookings Sch. Dist. , No. 4:16-CV-4154 (KES), 2018 WL 2338796, at *3-6 (D.S.D. May 23, 2018) (same); J.K. ex rel. Kaplan v. Minneapolis Pub. Sch. , 849 F.Supp.2d 865, 871 (D. Minn. 2011) ("In short, federal courts generally agree that placement in an alternative school does not implicate procedural due process rights unless there is a showing that the education provided by the alternative school is substantially inferior.") (citation and internal quotation marks omitted) (collecting cases); Chyma v. Tama Cty. Sch. Bd. , No. 07-CV-56 (JSS), 2008 WL 4145894, at *5 n.27 (N.D. Iowa Sept. 8, 2008) (same). In effect, these courts have found that where the provided alternative education is deficient or inadequate, it can "effectively act[ ] as an exclusion from the educational process" and "due process rights may be implicated." Riggan v. Midland Indep. Sch. Dist. , 86 F.Supp.2d 647, 655 (W.D. Tex. 2000) (finding the plaintiff stated a due process claim where he alleged that the alternative education assignment "significantly affected his educational opportunities"). The only similar case in this circuit is Mac Ineirghe v. Bd. of Educ. , in which the Honorable Joseph F. Bianco found that the plaintiff was not deprived of a property interest during a one-day in-school suspension because he "received instruction from a classroom teacher and received his school work." No. 05-CV-4324 (JFB)(AKT), 2007 WL 2445152, at *19 (E.D.N.Y. Aug. 22, 2007).

The Court declines to adopt either of the standards advocated by the parties. Taking into consideration Goss 's "total exclusion" language, the Second Circuit's reasoning in Coleman , and "[the] concern for fairness [that] pervades Goss ," Heyne , 655 F.3d at 567, the Court adopts the third standard: that placement in alternative education does not deprive a student of a property interest unless the education the student received was materially inferior. Although courts have found that state law does not entitle students to "the best possible education attainable, nor to instruction administered under ideal conditions, nor to academic opportunities which conform[ ] to any self-acclaimed expert's subjective ideal vision of a perfect education," Wayne v. Shadowen , 15 F. App'x 271, 285 (6th Cir. 2001) (emphasis omitted); Saggio , 475 F.Supp.2d at 210, in this case, AG alleges that the alternative education provided to him during both of his long-term suspensions was inferior.

In alleging that the alternative education he received in connection with the first long-term suspension, on February 24, 2017, was inferior, AG points to the fact that it contributed to him "missing enough instructional time to have to repeat the first grade." (Pls.' Br., at 19.) He also states that he was provided with an unlicensed tutor, fewer hours of educational instruction, and no special education services. (Compl., at ¶¶ 87-88.) Whil