Killoran v. Westhampton Beach School District

• Court: Court of Appeals for the Second Circuit
• Decided: July 13, 2023
• Docket: 22-204
• Status: Unpublished

Opinion

22-204 Killoran v. Westhampton Beach School District

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 13th day of July, two thousand twenty-three. 4 5 PRESENT: 6 MYRNA PÉREZ, 7 ALISON J. NATHAN, 8 MARIA ARAÚJO KAHN, 9 Circuit Judges. 10 ____________________________________________ 11 12 Christian Killoran, 13 14 Plaintiff-Appellant, 15 16 Terrie Killoran, individually and on behalf of 17 their son, A.K., a minor, 18 19 Plaintiff, 20 21 22 v. No. 22-204 23 24 Westhampton Beach School District, Michael 25 Radday, individually and in his official capacity as 26 Superintendent, Suzanne M. Mensch, Halsey C. 27 Stevens, Stacy Rubio, Claire Bean, James N. 28 Hulme, Joyce Donnesson, George R. Kast, Jr., 29 Individually and Collectively as Board of Education 30 Members, 31 32 Defendants-Appellees. 33 1 FOR PLAINTIFF-APPELLANT: CHRISTIAN KILLORAN, pro se, 2 Killoran Law P.C., Westhampton 3 Beach, NY. 4 5 FOR DEFENDANTS-APPELLEES: SCOTT J. KREPPEIN, Devitt Spellman 6 Barrett, LLP, Smithtown, NY, Anne 7 C. Leahey, Anne Leahey Law, LLC, 8 Huntington, NY. 9

10 Appeal from a judgment of the United States District Court for the Eastern District of New

11 York (Brown, J.).

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

13 DECREED that the judgment of the district court is AFFIRMED.

14 This is one of three appeals related to a long-running dispute between Plaintiff-Appellant

15 Christian Killoran (“Plaintiff”) and the Westhampton Beach School District (“Westhampton”)

16 over the education of Plaintiff’s son, A.K, a young man who has Down syndrome. 1

17 Plaintiff, on behalf of A.K., appeals from a judgment entered on January 28, 2022 by the

18 United States District Court of the Eastern District of New York (Brown, J.), awarding summary

19 judgment in favor of Defendants-Appellees, Westhampton and various Westhampton officials and

20 Board of Education members in their individual and official capacities (collectively,

21 “Defendants”), on Plaintiff’s claims under the Individuals with Disabilities Education Act

22 (“IDEA”), 20 U.S.C. § 1400 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C.

23 § 12101 et seq., and the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794 et

24 seq.

1 See Killoran v. Westhampton Beach UFSD, 21-2647 (2d Cir.); Killoran v. Westhampton Beach Sch. Dist., No. 22- 1753 (2d Cir.). 2 1 In awarding summary judgment, the district court concluded that Plaintiff failed to assert

2 a prima facie claim under the ADA or the Rehabilitation Act. It also upheld the decision of a State

3 Review Officer (“SRO”) affirming the findings of an Impartial Hearing Officer (“IHO”) who

4 rejected Plaintiff’s challenge to the Individualized Education Plans (“IEPs”) developed for A.K.

5 for the 2016–2017 and 2017–2018 school years. The SRO primarily concluded that A.K.’s two

6 IEPs, which recommended out-of-district placements, were reasonably calculated to provide A.K.

7 a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). We

8 assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on

9 appeal, which we reference only as necessary to explain our decision to affirm. 2

10 I. Standard of Review

11 This Court reviews a district court’s award of summary judgment de novo. See McBride

12 v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Summary judgment is

13 warranted only where, construing the evidence in the light most favorable to the non-movant, and

14 drawing all reasonable inferences in that party’s favor, “there is no genuine dispute as to any

15 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

16 also McBride, 583 F.3d at 96. “A fact is ‘material’ . . . if it ‘might affect the outcome of the suit

17 under the governing law,’” and an issue is “‘genuine’ if ‘the evidence is such that a reasonable

2 At the outset, we resolve Defendants’ motion to strike, which challenges our jurisdiction, Plaintiff’s standing to represent his son, and the sufficiency of Plaintiff’s briefs and appendix. The motion is DENIED. Defendants argue that the notice of appeal improperly designated an order rather than a judgment, but a notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B) (emphasis added). Further, “[a]n appeal must not be dismissed . . . for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.” Fed. R. App. P. 3(c)(7). As to Plaintiff’s standing to represent his son, Plaintiff is an attorney who was admitted pro hac vice in Killoran v. Westhampton Beach UFSD, 21-2647 (2d Cir.), and we perceive no issue with his standing in the instant case. While Defendants correctly identify extensive deficiencies with Plaintiff’s briefing and appendix, we exercise our discretion at this late date to resolve this appeal and its companions on the merits. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 133 (2d Cir. 2004).

3 1 jury could return a verdict for the nonmoving party.’” Holtz v. Rockefeller & Co., 258 F.3d 62, 69

2 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

3 “In a district court proceeding under the IDEA, the parties and the court typically style the

4 decision as a ruling on a motion for summary judgment, but ‘the procedure is in substance an

5 appeal from an administrative determination, not a summary judgment motion.’” Bd. of Educ. of

6 Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 165 (2d Cir. 2021) (quoting M.H. v. N.Y.C. Dep’t

7 of Educ., 685 F.3d 217, 226 (2d Cir. 2012)). The district court must conduct “an independent

8 review of the administrative record and make a determination based on a ‘preponderance of the

9 evidence,’” but “the role of the federal courts in reviewing state educational decisions under the

10 IDEA is ‘circumscribed.’” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir.

11 2007) (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Muller v.

12 Comm. on Special Educ., 145 F.3d 95, 101 (2d Cir. 1998)). The review “is by no means an

13 invitation to the courts to substitute their own notions of sound educational policy for those of the

14 school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

15 Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982). Courts “‘defer to the final decision of the

16 state authorities,’ even where ‘the reviewing authority disagrees with the hearing officer,’” A.C.

17 ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009)

18 (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (1984)),

19 and “[d]eference is particularly appropriate when . . . the state hearing officers’ review has been

20 thorough and careful,” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

21 II. Discussion

22 A. ADA and Rehabilitation Act Discrimination Claims

23 Plaintiff argues that Defendants discriminated against A.K. on account of his disability, in

4 1 violation of the ADA and the Rehabilitation Act, by failing to enroll A.K. for the 2015–2016 school

2 year and by failing to place him for the 2016-2017 school year. These arguments are unavailing

3 because Plaintiff does not assert a prima facie claim under either statute.

4 Though there are “subtle differences” between the ADA and the Rehabilitation Act, we

5 generally “treat claims under the two statutes identically,” applying the same standards to both.

6 Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citation and internal quotation marks

7 omitted). To make a claim under either statute, Plaintiff must show that (1) A.K. “is a qualified

8 individual with a disability”; (2) Defendants are “subject to one of the Acts”; and (3) A.K. “was

9 denied the opportunity to participate in or benefit from [Defendants’] services, programs, or

10 activities, or was otherwise discriminated against by the [Defendants] because of his disability.”

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

12 “Under both statutes, a defendant discriminates when it fails to make a reasonable

13 accommodation that would permit a qualified disabled individual to have access to and take a

14 meaningful part in public services.” Id. at 640 (citation and internal quotation marks omitted). “A

15 plaintiff alleging that he was denied a reasonable accommodation bears the burdens of both

16 production and persuasion as to the existence of some accommodation that would allow him to

17 meet the essential eligibility requirements of the service, program, or activity at issue.” Id. at 642.

18 As an initial matter, Plaintiff fails to adduce sufficient evidence that A.K. was

19 discriminated against due to his disability. In support of his claims, Plaintiff primarily points to

20 a previous IHO’s decision concluding that Defendants failed to provide A.K. a FAPE for the 2015–

21 2016 and 2016–2017 school years. Evidence of an IDEA violation, without more, however, is

22 insufficient to demonstrate a violation under either Act. See Wenger v. Canastota Cent. Sch. Dist.,

23 979 F. Supp. 147, 152 (N.D.N.Y. 1997), aff’d mem., 208 F.3d 204 (2d Cir. 2000) (“[S]omething

5 1 more than a mere violation of the IDEA is necessary in order to show a violation of Section 504

2 in the context of educating children with disabilities . . . .”).

3 Regardless, Plaintiff also does not, as he must, show that his proposed accommodation—

4 A.K.’s placement in Westhampton Beach Middle School—was reasonable. Plaintiff concedes that

5 implementing A.K.’s IEP, as he envisioned, was not possible in an existing program in

6 Westhampton Beach Middle School. But he does not provide non-conclusory evidence that A.K.’s

7 placement at Westhampton Beach Middle School in a newly developed program or in a

8 mainstreamed classroom was possible, let alone reasonable. See McBride, 583 F.3d at 100 (“[T]he

9 ADA imposes liability for, inter alia, discriminatory refusal to undertake a feasible

10 accommodation, not mere refusal to explore possible accommodations where, in the end, no

11 accommodation was possible.”). This is not enough to defeat summary judgment. See Heublein,

12 Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (“Genuine issues of fact are not created

13 by conclusory allegations.”); cf. Jackan v. N.Y. State Dep’t of Lab., 205 F.3d 562, 566 (2d Cir.

14 2000) (“The burden of persuasion on the existence of an effective accommodation is not satisfied

15 by mere speculation.” (internal quotation marks omitted)).

16 B. IDEA Claims

17 On appeal, Plaintiff principally argues that A.K.’s IEPs violated the LRE requirement of

18 the IDEA by failing to recommend in-district placements. Because the IDEA does not require a

19 district to develop an in-district placement for one child and the out-of-district placements offered

20 to A.K. satisfied the LRE requirement, Plaintiff’s IDEA claims are unavailing.

21 “In determining whether an IEP complies with the IDEA, courts make a two-part inquiry

22 that is, first, procedural, and second, substantive.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167,

23 189–90 (2d Cir. 2012). Here, Plaintiff does not allege any procedural violations. Accordingly,

6 1 our analysis focuses on the second part of the inquiry. At the second step, “[c]ourts . . . examine

2 whether the IEP was substantively adequate, namely, whether it was reasonably calculated to

3 enable the child to receive educational benefits.” Id. at 190 (alterations, citations, and internal

4 quotation marks omitted). “In determining the substantive adequacy of the IEP, we must . . .

5 consider whether the state complied with the IDEA’s LRE requirement by educating the child, to

6 the maximum extent appropriate, with children who are not disabled.” T.M. ex rel. A.M. v.

7 Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014).

8 Plaintiff argues, entirely without supporting case law, that under the IDEA’s LRE

9 requirement, a district must analyze whether it could create a placement for a child in the district

10 before recommending an out-of-district placement. We are unpersuaded. Though a school district

11 “must consider an appropriate continuum of alternative placements” and “offer the disabled

12 student the least restrictive placement from that continuum that is appropriate for his or her needs,”

13 it “need not itself operate all of the different educational programs.” Id. at 165. The school district

14 “may instead include free public placements at educational programs operated by other entities,

15 including other public agencies or private schools.” Id. Here, the record reflects that in developing

16 A.K.’s IEPs, the various Committees on Special Education (“CSEs”) considered several placement

17 options, including placement in Westhampton Beach Middle School, and concluded that

18 placement in an out-of-district special class 3 was most appropriate for A.K.’s needs.

19 Plaintiff also argues that the placements proposed in the IEPs were not the LRE and thus

20 violated the IDEA. We disagree. To determine whether a student’s placement is the LRE, we

21 apply the test articulated in P. ex rel. Mr. And Mrs. P. v. Newington Bd. of Educ., which instructs

3 Under New York law, a “[s]pecial class means a class consisting of students with disabilities who have been grouped together because of similar individual needs for the purpose of being provided specially designed instruction . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(uu).

7 1 us to consider (1) “whether education in the regular classroom, with the use of supplemental aids

2 and services, can be achieved satisfactorily for a given child,” and (2) “if not, then whether the

3 school has mainstreamed the child to the maximum extent appropriate.” 546 F.3d 111, 120 (2d

4 Cir. 2008) (citation and internal quotation marks omitted). Here, Plaintiff contends that the LRE

5 was Westhampton Beach Middle School. The record does not support this claim. As discussed

6 above, Westhampton did not have a special class suited to A.K.’s needs, nor does the law require

7 it to create one. Moreover, Plaintiff does not dispute that A.K. scored at or below the first

8 percentile in reading comprehension, spelling, listening comprehension, and mathematics; in the

9 low range in single-word reading and in the low average range in pseudo-word decoding; and

10 below the first percentile in speech-language skills. In light of A.K.’s unique needs, we agree with

11 the SRO’s well-reasoned conclusion that educating A.K. in a regular classroom could not be

12 satisfactorily achieved even with the use of supplemental aids and services. As to the second prong

13 of the test, we again agree with the SRO’s conclusion that the IEPs mainstreamed A.K. to the

14 maximum extent possible. Both IEPs recommended that A.K. be placed in an out-of-district

15 general education school so that he could attend nonacademic activities, like extracurricular

16 activities, electives, and lunch, with his general education peers. Accordingly, we conclude that

17 A.K.’s IEPs satisfied the IDEA’s LRE requirement.

18 We have considered all of Plaintiff’s remaining arguments and find them to be without

19 merit. Accordingly, we AFFIRM the judgment of the district court.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22 23