Derek S. v. Ballston Spa Cent. Sch. Dist.

• Court: Court of Appeals for the Second Circuit
• Decided: December 11, 2025
• Docket: 25-668
• Status: Unpublished

Opinion

25-668 Derek S. v. Ballston Spa Cent. Sch. Dist.

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 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 11th day of December, two thousand twenty-five.

PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

DEREK S. and ASHLEY T.S., individually and as Guardians Ad Litem of their minor child, J.S.,

Plaintiffs-Appellants,

v. 25-668

THE BALLSTON SPA CENTRAL SCHOOL DISTRICT, BALLSTON SPA BOARD OF EDUCATION,

Defendants-Appellees. * _____________________________________

For Plaintiffs-Appellants: CARLO A.C. DE OLIVEIRA, Cooper Erving & Savage, LLP, Albany, NY.

For Defendants-Appellees: SCOTT P. QUESNEL, Girvin & Ferlazzo, P.C., Albany, NY.

Appeal from a judgment of the United States District Court for the Northern

District of New York (Anne M. Nardacci, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the March 6, 2025 judgment of the district

court is AFFIRMED.

Derek S. and Ashley T.S., the parents of an autistic child (“J.S.”), appeal from

the district court’s order denying their motion for a preliminary injunction. That

motion sought to compel their school district and local board of education (the

“School”) to provide J.S. with Applied Behavior Analysis (“ABA”), which is a form

of therapy that aids early cognitive and behavioral development. Plaintiffs

initially sued the School for compensatory damages under Title II of the

* The Clerk of Court is respectfully directed to amend the caption as set forth above.

2 Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12101 et seq., and section

504 of the Rehabilitation Act of 1973, 42 U.S.C. § 794. They later moved for a

preliminary injunction, which the district court denied because Plaintiffs had

failed to exhaust the administrative remedies required by the Individuals with

Disabilities Education Act (the “IDEA”). We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on appeal, to which we refer

only as needed to explain our decision. 1

“[A] district court’s decision to grant or deny a preliminary injunction is

generally reviewed for abuse of discretion.” Zervos v. Verizon N. Y., Inc., 252 F.3d

163, 166 (2d Cir. 2001). As relevant here, “[a] district court abuses . . . the

discretion accorded to it when . . . its decision rests on an error of law (such as

application of the wrong legal principle).” Id. at 169 (internal quotation marks

omitted); see also JTH Tax, LLC v. Agnant, 62 F.4th 658, 666 (2d Cir. 2023).

To determine whether the district court erred, we must first sketch the

relationship between the several statutes at issue. The first of these are Title II of

the ADA and section 504 of the Rehabilitation Act – the general

1We have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), which vests courts of appeals with “jurisdiction of appeals from . . . [i]nterlocutory orders of the district courts . . . refusing . . . injunctions.” See Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 71 (2d Cir. 1991) (noting that denial of a “motion for a preliminary injunction . . . is appealable under 28 U.S.C. § 1292(a)(1)”).

3 “antidiscrimination laws” applicable to disability claims, Fry v. Napoleon Cmty.

Schs., 580 U.S. 154, 159 (2017), that Plaintiffs invoked in their complaint. While

“Title II forbids any ‘public entity’ from discriminating based on disability[,]

section 504 applies the same prohibition to any federally funded ‘program or

activity.’” Id. (quoting 42 U.S.C. §§ 12131–32; 29 U.S.C. § 794(a)). Both statutes –

which we “consider . . . together” because their “standards . . . are nearly identical”

– require a plaintiff to “demonstrate that . . . he was denied the opportunity to

participate in or benefit from the defendant’s services, programs, or activities, or

was otherwise discriminated against by the defendant because of his disability.”

McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012).

Title II and section 504 sometimes run parallel to the IDEA, which is more

narrowly “designed to ‘ensure that all children with disabilities have available to

them a free appropriate public education [a “FAPE”] that emphasizes special

education and related services designed to meet their unique needs.’” A.R. v.

Conn. State Bd. of Educ., 5 F.4th 155, 157 (2d Cir. 2021) (quoting 20 U.S.C.

§ 1400(d)(1)(A)). A FAPE must include both “’instruction’ tailored to meet a

child’s ‘unique needs’” and “sufficient ‘supportive services’ to permit the child to

benefit from that instruction.” Fry, 580 U.S. at 158 (quoting 20 U.S.C. § 1401(26),

4 (29)). Schools implement FAPEs through so-called “individualized education

program[s]” (“IEPs”), which are “personalized plan[s]” that school officials,

teachers, and parents use to track students’ progress, articulate goals, and come

up with strategies to help achieve those goals. Id. at 158–59 (citing 20 U.S.C.

§ 1414(d)).

In the event that New York parents object to an IEP’s proposed plan, they

must first seek relief from neutral state officials. See 20 U.S.C. §1415(f), (g), (i);

accord N.Y. Educ. Law § 4404(1)(a), (2). It is only after they have exhausted this

administrative remedy that they may demand judicial review. See 20 U.S.C.

§§ 1415(g), (i); accord N.Y. Educ. Law § 4404(3)(a). This requirement comes directly

from the IDEA, which mandates “that any available administrative remedies be

exhausted before a lawsuit is filed in federal court.” Ventura de Paulino v. N.Y.C.

Dep't of Educ., 959 F.3d 519, 530 (2d Cir. 2020) (citing 20 U.S.C. § 1415(i)(2)(A)).

The same rule applies to ADA and Rehabilitation Act claims that overlap

with the IDEA. Section 1415(l) of the IDEA provides that “a plaintiff bringing suit

under the ADA, the Rehabilitation Act, or similar laws must in certain

circumstances – that is, when ‘seeking relief that is also available under’ the IDEA

– first exhaust the IDEA’s administrative procedures.” Fry, 580 U.S. at 161

5 (quoting 20 U.S.C. § 1415(l)). All in all, this lattice of statutes (and acronyms)

leaves us with a single issue: whether we should treat Plaintiffs’ request for ABA

therapy as a claim for educational supportive services “that [are] also available

under [the IDEA],” 20 U.S.C. § 1415(l), or as a “standalone discrimination claim[],”

Reply Br. at 2.

To answer that question, we must determine “whether a lawsuit seeks relief

for the denial of a FAPE.” Fry, 580 U.S. at 168. If so, “[P]laintiff[s] cannot escape

[section] 1415(l) merely by bringing [their] suit under a statute other than the

IDEA.” Id. But “[t]he [IDEA’s] administrative exhaustion requirement applies

only to suits that ‘see[k] relief . . . also available under’ the IDEA.” Luna Perez v.

Sturgis Pub. Schs., 598 U.S. 142, 147 (2023) (quoting 20 U.S.C. § 1415(l)). Where

plaintiffs are seeking a “remedy . . . [that the] IDEA cannot supply,” such as

compensatory damages, id. at 147, then section 1415(l) will not stand in their way.

Here, Plaintiffs indisputably failed to exhaust their administrative remedies

even though they seek relief – implementing ABA therapy as part of J.S.’s

educational routine – that the IDEA can supply. 2 They nevertheless contend that

2 In their complaint, Plaintiffs focus on compensatory damages, which are not available under the

IDEA. For this reason, the district court correctly separated Plaintiffs’ damages claim – which remains live – from its motion for injunctive relief, which, as discussed below, cannot clear section

6 they are not barred by section 1415(l)’s exhaustion requirement because they are

not challenging the denial of a FAPE. Plaintiffs insist that their complaint focuses

on general disability discrimination, and that it alleges violations of the ADA and

Rehabilitation Act, not the IDEA. But section 1415(l)’s very “premise is that the

plaintiff is suing under a statute other than the IDEA, like the Rehabilitation Act”

and “a ‘magic words’ approach would make [its] exhaustion rule too easy to

bypass.” Fry, 580 U.S. at 170. Instead of deferring to the “particular labels and

terms” used in a complaint and the “artful pleading” of plaintiffs, courts “look to

the substance, or gravamen, of the plaintiff's complaint” to determine whether it

is asserting the denial of a FAPE. Id. at 169, 165.

Applying that approach here, we agree with the district court that Plaintiffs

are indeed challenging the School’s FAPE determination. Plaintiffs contend that

their complaint survives this substantive analysis because ABA therapy is “not an

educational service,” but is instead an “accommodation[]” under the ADA and

Rehabilitation Act. Reply Br. at 4. Recognizing the potential “overlap in coverage”

of the three statutes at issue here, the Supreme Court has listed “clue[s]” that can

1415(l)’s exhaustion bar. See Sp. App’x at 21; Doe v. Franklin Square Union Free Sch. Dist., 100 F.4th 86, 102 n.9 (2d Cir. 2024) (citing Luna Perez, 598 U.S. at 150).

7 guide courts when assessing “whether the gravamen of a complaint against a

school concerns the denial of a FAPE, or instead addresses disability-based

discrimination.” Fry, 580 U.S. at 171. These clues “come from asking a pair of

hypothetical questions”: (1) “could the plaintiff have brought essentially the same

claim if the alleged conduct had occurred at a public facility that was not a school

– say, a public theater or library?”; and (2) “could an adult at the school – say, an

employee or visitor – have pressed essentially the same grievance?” Id. “[W]hen

the answer [to those questions] is no, then the complaint probably does concern a

FAPE . . . for the FAPE requirement is all that explains why only a child in the

school setting (not an adult in that setting or a child in some other) has a viable

claim.” Id.

Here, Plaintiffs seek a “structured ABA program” with a “1:1 aide” to “help

J.S. make progress” while he is in school. App’x at 60. But adults visiting the school

could not have complained of the lack of such a program for themselves; nor could

Plaintiffs have expected such support from a library or theater. Indeed, the only

reason that Plaintiffs could plausibly expect such services from the School is that

their complaint clearly concerns J.S.’s educational needs. It follows that Plaintiffs

8 are seeking IDEA-style relief and that they must exhaust their administrative

remedies under section 1415(l).

Finally, Plaintiffs argue that the Fifth Circuit’s decision in Lartigue v.

Northside Independent School District, 100 F.4th 510 (5th. Cir. 2024), “distinguishes

claims under the IDEA for denial of FAPE . . . from an ADA claim for failure to

provide reasonable accommodation to a disabled student necessary for him to

access education.” Pls. Br. at 6. But Lartigue turned on the second prong of the two-

part test described above; as the Fifth Circuit explained, “[t]he district court

determined the gravamen of Lartigue’s complaint was the denial of a FAPE, a

finding no party disputes on appeal.” Lartigue, 100 F.4th at 518. The court

nevertheless found that “Lartigue was not required to exhaust her claims before

the administrative agency” because she “s[ought] compensatory damages

unavailable under the IDEA.” Id. at 519. Lartigue thus accords with the district

court’s order here, which explained that only “the requested preliminary

injunction [was] barred,” and that “the claims . . . [that] seek only compensatory

damages not provided for in the IDEA[] remain live.” Sp. App’x at 21.

To be clear, J.S. might urgently need ABA therapy. But the way to get that

relief is to follow the well-worn path of the IDEA – which enlists specialized

9 officials who are “experienced in addressing exactly the issues [J.S.] raises,” Fry,

580 U.S. at 168 – not by seeking damages in an ADA and Rehabilitation Act suit,

waiting seven months, and then tacking on a motion for an injunction that would

entangle a federal district court in delicate and difficult decisions regarding the

education of a disabled child.

We have considered Plaintiffs’ remaining arguments and conclude that they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court.