K.M. v. Adams

20-4128
K.M. v. Adams
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 TO 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 31st day of August, two thousand twenty-two.
PRESENT:
DENNY CHIN,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
K.M., individually and on behalf of M.M.
and S.M. and all others similarly situated,
C.N., individually and on behalf of V.N.
and all others similarly situated, J.J.,
individually and on behalf of Z.J. and all
others similarly situated,
Plaintiffs-Appellants,
J.T., individually and on behalf of D.T. and
all others similarly situated,
Plaintiff,
v. No. 20-4128
ERIC ADAMS, in his official capacity as
Mayor of New York City, DAVID C. BANKS,
in his official capacity as Chancellor of the
New York City Department of Education,
NEW YORK CITY DEPARTMENT OF
EDUCATION, NEW YORK STATE DEPARTMENT
OF EDUCATION, SCHOOL DISTRICTS IN THE
UNITED STATES, STATE DEPARTMENTS OF
EDUCATION IN THE UNITED STATES,
CONNECTICUT REGIONAL SCHOOL DISTRICT
NO. 10 (HARWINTON & BURLINGTON),
CLAYTON COUNTY PUBLIC SCHOOLS, COBB
COUNTY SCHOOL DISTRICT, DEKALB
COUNTY SCHOOL DISTRICT, MARIETTA CITY
SCHOOLS, CITY OF BRISTOL SCHOOL
DISTRICT, PENTUCKET REGIONAL HIGH
SCHOOL, TOWN OF BRANFORD SCHOOL
DISTRICT, TOWN OF CLINTON AND CLINTON
BOARD OF EDUCATION, POMFRET CT SCHOOL
DISTRICT, TOWN OF PLAINVILLE AND
PLAINVILLE BOARD OF EDUCATION,
SEYMOUR BOARD OF EDUCATION, TOWN OF
WATERTOWN AND WATERTOWN BOARD OF
EDUCATION, TOWN OF WINDHAM AND
WINDHAM BOARD OF EDUCATION, TOWN OF
GROTON AND GROTON BOARD OF
EDUCATION, TOWN OF WALLINGFORD AND
WALLINGFORD BOARD OF EDUCATION,
TOWN OF PLYMOUTH AND PLYMOUTH
BOARD OF EDUCATION, MARTHA'S VINEYARD
HIGH SCHOOL, PENNSYLVANIA DEPARTMENT
OF EDUCATION, ALPINE UNION SCHOOL
DISTRICT, BONSALL UNION SCHOOL
DISTRICT, BORREGO SPRINGS UNIFIED
SCHOOL DISTRICT, CARDIFF ELEMENTARY
SCHOOL DISTRICT, CARLSBAD UNIFIED
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SCHOOL DISTRICT, CHULA VISTA
ELEMENTARY SCHOOL DISTRICT, CORONADO
UNIFIED SCHOOL DISTRICT, DEHESA SCHOOL
DISTRICT, DEL MAR UNION SCHOOL
DISTRICT, ENCINITAS UNION SCHOOL
DISTRICT, ESCONDIDO UNION ELEMENTARY
SCHOOL DISTRICT, ESCONDIDO UNION HIGH
SCHOOL DISTRICT, FALLBROOK UNION
ELEMENTARY SCHOOL DISTRICT, FALLBROOK
HIGH SCHOOL UNION DISTRICT, GROSSMONT
UNION HIGH SCHOOL DISTRICT, JAMUL-
DULZURA UNION SCHOOL DISTRICT, JULIAN
UNION SCHOOL DISTRICT, JULIAN UNION
HIGH SCHOOL DISTRICT, LA MESA-SPRING
VALLEY SCHOOL DISTRICT, LAKESIDE JOINT
SCHOOL DISTRICT, LEMON GROVE SCHOOL
DISTRICT, MCCABE UNION SCHOOL
DISTRICT, MOUNTAIN EMPIRE UNIFIED
SCHOOL DISTRICT, RAMONA UNIFIED
SCHOOL DISTRICT, RANCHO SANTA FE
ELEMENTARY SCHOOL DISTRICT, SAN DIEGO
COUNTY OFFICE OF EDUCATION, SAN
DIEGUITO UNION HIGH SCHOOL DISTRICT,
SAN MARCOS UNIFIED SCHOOL DISTRICT,
SAN PASQUAL UNION ELEMENTARY SCHOOL
DISTRICT, SAN PASQUAL VALLEY UNIFIED
SCHOOL DISTRICT, SANTEE SCHOOL DISTRICT,
SOLANA BEACH ELEMENTARY SCHOOL
DISTRICT, SPENCER VALLEY ELEMENTARY
SCHOOL DISTRICT, SWEETWATER UNION
HIGH SCHOOL DISTRICT, VALLECITOS
ELEMENTARY SCHOOL DISTRICT, VALLEY
CENTER-PAUMA UNIFIED SCHOOL DISTRICT,
WARNER UNIFIED SCHOOL DISTRICT, CHERRY
HILL PUBLIC SCHOOLS, MIDDLETOWN
TOWNSHIP PUBLIC SCHOOLS, WEST ORANGE
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PUBLIC SCHOOLS, READINGTON TOWNSHIP
PUBLIC SCHOOLS, CERTAIN SCHOOL
DISTRICTS LOCATED IN THE STATE OF
VIRGINIA, CERTAIN SCHOOL DISTRICTS
LOCATED IN THE STATE OF CALIFORNIA,
TOWN OF STRATFORD BOARD OF EDUCATION,
CITY OF NORWALK BOARD OF EDUCATION,
CITY OF STAMFORD BOARD OF EDUCATION,
CITY OF BRIDGEPORT BOARD OF EDUCATION,
OMAHA PUBLIC SCHOOL DISTRICT, AUSTIN
INDEPENDENT SCHOOL DISTRICT, ATLANTA
INDEPENDENT SCHOOL SYSTEM, FULTON
COUNTY SCHOOL DISTRICT, MINNESOTA
STATE DEPARTMENT OF EDUCATION, STATE
OF WASHINGTON, WASHINGTON STATE
SCHOOL FOR THE BLIND, WASHINGTON
STATE SCHOOL FOR THE DEAF, SOUTH
CAROLINA DEPARTMENT OF EDUCATION,
Defendants-Appellees. *
_____________________________________
For Plaintiffs-Appellants: RORY J. BELLANTONI (Peter Glenn
Albert, on the brief), Brain Injury
Rights Group, Ltd., New York, NY.
For Defendants-Appellees Eric Adams, DIANA LAWLESS, Assistant
David C. Banks, and New York City Corporation Counsel (Georgia M.
Department of Education: Pestana, Acting Corporation
Counsel, Richard Dearing, Devin
Slack, on the brief), City of New
York, New York, NY.
* The Clerk of Court is respectfully directed to amend the caption as reflected above. Pursuant
to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mayor Adams and Chancellor Banks
are automatically substituted as Defendants-Appellees for the former Mayor, Bill de Blasio, and
the former Chancellor, Richard Carranza, respectively.
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For Defendants-Appellees School JOHANNA ZELMAN, FordHarrison
Districts in the United States: LLP, Hartford, CT (Michael J.
Scarinci, Deputy Attorney General,
Pennsylvania Office of Attorney
General, Harrisburg, PA; Eric L.
Harrison, Methfessel & Werbel,
PC, Edison, NY; Curtis A. Johnson,
Bond, Schoeneck & King, PLLC,
Rochester, NY; Nicholas F. Miller,
Baird Holm LLP, Omaha, NE;
Christopher A. Long, Louis F.
Eckert, Litchfield Cavo LLP, New
York, NY; Ryan P. Driscoll,
Berchem Moses, Milford, CT; Beth
Kaufman, Schoeman Updike
Kaufman & Gerber LLP, New
York, NY; Lewis R. Silverman,
Caroline B. Lineen, Silverman &
Associates, White Plains, NY;
Adam I. Kleinberg, Sokoloff Stern
LLP, Carle Place, NY; Darren
Cunningham, Office of the
Attorney General, State of
Connecticut, Hartford, CT;
Kathleen D. Monnes, Joseph K.
Scully, Daniel J. Raccuia, Day
Pitney LLP, Hartford, CT; Bryce L.
Friedman, Simpson Thacher &
Bartlett LLP, New York, NY; Jill M.
O’Toole, Shipman & Goodwin
LLP, New York, NY; Eric A.
Mentzer, Senior Counsel, R. July
Simpson, Assistant Attorney
General, Attorney General of
Washington, Olympia, WA;
Barbara J. Myrick, Office of the
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General Counsel, School Board of
Broward County, Florida, Fort
Lauderdale, FL, on the brief).
For Defendant-Appellee New York MATTHEW GRIECO, Assistant
State Department of Education: Solicitor General (Barbara D.
Underwood, Solicitor General,
Anisha S. Dasgupta, Deputy
Solicitor General, on the brief), for
Letitia James, Attorney General,
State of New York, New York, NY.
For Defendant-Appellee Austin JONATHAN GRIFFIN BRUSH (Amy
Independent School District: Demmler, on the brief), Rogers,
Morris & Grover, L.L.P., Houston,
TX.
For Amici Curiae New York State Jay Worona, New York State
School Boards Association, Inc. and School Boards Association, Inc.,
National School Boards Association, in Latham, NY; Francisco M. Negrón,
support of Defendants-Appellees: Jr., National School Boards
Association, Alexandria, VA.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Colleen McMahon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal from the district court’s denial of
a preliminary injunction is DISMISSED AS MOOT; the judgment of the district
court as to Defendants-Appellees Mayor Eric Adams, Chancellor David C. Banks,
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and the New York City Department of Education is AFFIRMED in all other
respects; and the appeal as to all other Defendants-Appellees is DISMISSED.
Plaintiffs-Appellants – school-aged children suffering from various
disabilities, and their parents and guardians – appeal from the district court’s
judgment denying their motion for a preliminary injunction and dismissing their
claims under the Individuals with Disabilities Education Act (the “IDEA”),
20 U.S.C. § 1400 et seq., and the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. §§ 1961–1968, against school districts across the nation
that shut down or shifted to remote schooling during the initial months of the
COVID-19 pandemic.
More specifically, Plaintiffs-Appellants include 104 parents or guardians
(the “Parents”) of students (the “Students”) who are classified as “child[ren] with
a disability” under the IDEA, 20 U.S.C. § 1401(3), and were enrolled between
March and July of 2020 in public schools either in New York City (the “NYC
Plaintiffs”) or in one of sixty-five other school districts across New York and
fourteen other States. On behalf of putative nationwide classes of all such
students and all parents or guardians of such students, the Students and Parents
sued (or purported to sue) defendants including the Mayor of New York City in
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his official capacity, the New York City Department of Education (the
“NYCDOE”), and the Chancellor of the NYCDOE in his official capacity
(collectively, the “NYC Defendants”), as well as all 13,821 public school districts
in the United States and the state departments of education of all fifty States, the
District of Columbia, and Puerto Rico (collectively, the “Non-NYC Defendants”).
Alleging principally that the shift from in-person to remote instruction constituted
a per se deprivation of the “free appropriate public education” guaranteed to
disabled students under the IDEA, 20 U.S.C. § 1412(a)(1)(A), the Students and
Parents brought claims – as relevant to this appeal – under the IDEA and RICO. 1
Now before us on appeal are the Students and Parents’ arguments that the district
court erred in (1) dismissing their IDEA claims against the NYC Defendants for
1 In their initial complaint, the Students and Parents also asserted claims under 42 U.S.C. § 1983;
the Federal Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq.; and an assortment of state-law constitutional and statutory provisions. At
oral argument, however, counsel for the Students and Parents conceded that they are no longer
“pursuing any of the claims in th[is] case . . . other than the IDEA claim against the [NYC]
Defendants” and “the RICO [claim].” Oral Argument at 1:43–3:23. “[T]o the extent that certain
statements in [the Students and Parents’] briefs here or in the district court are to the contrary,
[they] are nevertheless bound by concessions made by their counsel at oral argument.” Dorce v.
City of New York, 2 F.4th 82, 102 (2d Cir. 2021).
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failure to exhaust administrative remedies, (2) denying them leave to amend their
civil RICO claims, and (3) denying their motion for a preliminary injunction. 2
We review de novo the district court’s dismissal of an IDEA claim for failure
to exhaust administrative remedies. Ventura de Paulino v. N.Y.C. Dep’t of Educ.,
959 F.3d 519, 529–31 (2d Cir. 2020). “[W]e apply a deferential, ‘abuse of
discretion’ standard of review to the district court’s informed” exercise of its
“sound discretion . . . to grant or deny leave to amend.” Iqbal v. Ashcroft, 574 F.3d
820, 822 (2d Cir. 2009) (citation omitted). Finally, we review the district court’s
denial of a preliminary injunction for abuse of discretion. N.Y. Progress & Prot.
PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013).
First, the Students and Parents argue that the district court erred in
dismissing their IDEA claims for failure to exhaust available administrative
remedies. To exhaust their administrative remedies under the IDEA, the
Students and Parents needed to (1) seek relief from an Impartial Hearing Officer
2 While the Students and Parents’ briefs framed their arguments more broadly, the scope of their
appeal has been “limited” significantly “by concessions made by their counsel at oral argument.”
Dorce, 2 F.4th at 102. Based on the Students and Parents’ concession that “on this appeal, [the
Court] do[es]n’t need to worry about any of the Appellees other than the [NYC] Defendants,”
Oral Argument at 2:10–2:22, we dismiss their appeal as to the Non-NYC Defendants. Likewise,
whereas the Students and Parents’ briefs had challenged the merits of the district court’s dismissal
of their civil RICO claim, they are now “bound” by their counsel’s “clarifi[cation],” Dorce, 2 F.4th
at 102, that they are “not appealing the substance of th[at] decision” – “just the ‘with prejudice’
part,” Oral Argument at 2:47–3:26.
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(“IHO”) of the NYCDOE and, if the IHO denied such relief, then (2) seek review
by a State Review Officer (“SRO”) of the New York State Education Department
(the “NYSED”). See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379–80 (2d Cir.
2003) (citing 20 U.S.C. § 1415(f), (g), (i)(2)(A); N.Y. Educ. Law § 4404(1), (2)).
The Students and Parents do not dispute that they failed to exhaust their
administrative remedies, but instead argue that it would have been futile to do so.
They offer two alternative theories of futility: (1) that seeking relief from an IHO
and SRO would have been futile in light of “the delay caused by the COVID
closures, compounded by the delays caused generally by [New York] City and the
administrative processes”; and (2) that “[t]he result [they] were seeking could not
have been ordered by an IHO or an SRO,” as such officers “lack the power to
reopen the public schools.” Students and Parents Br. at 43–44. But while it is
true that “the exhaustion requirement does not apply in situations in which
exhaustion would be futile,” Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d
198, 205 (2d Cir. 2007) (internal quotation marks omitted), neither of the Students
and Parents’ two theories of futility avails them.
The first fails on the merits. To establish futility on account of delay, the
Students and Parents must show that the relevant “administrative bodies
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persistently fail to render expeditious decisions as to a child’s educational
placement.” Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991)
(emphasis added). But beyond vague and conclusory assertions that there was
“delay caused by the COVID closures” or “generally by [New York] City and the
administrative processes,” Students and Parents Br. at 44, the Students and Parents
have failed to show that any such delays actually existed – much less that they
were “persistent[],” Frutiger, 928 F.2d at 74. In their reply brief, the Students and
Parents attempt to remedy this failure by pointing out that the plaintiffs in a
separate case have made more specific allegations of systemic delay in NYCDOE’s
and NYSED’s administrative processes. See Complaint, J.S.M. v. N.Y.C. Dep’t of
Educ., No. 20-cv-705 (EK) (E.D.N.Y. Feb. 7, 2020), ECF No. 1. But the J.S.M.
plaintiffs’ specific allegations of delay will not compensate for these plaintiffs’
failure to offer any such allegations, as we may not “take judicial notice of a
document filed in another court . . . for the truth of the matters asserted” therein.
Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)
(internal quotation marks omitted).
The Students and Parents’ second theory of futility – that IHOs and SROs
would lack the power to reopen the public schools – is not properly preserved for
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our review. Because that argument was neither passed upon by the district court
below nor even suggested to that court, we deem it waived. See Booking v. Gen.
Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In general, ‘a federal appellate
court does not consider an issue not passed upon below.’” (quoting Singleton v.
Wulff, 428 U.S. 106, 120 (1976))).
Because the Students and Parents cannot point to any non-waived basis on
which to excuse their failure to exhaust their administrative remedies as required
by the IDEA, the district court properly concluded that it lacked subject-matter
jurisdiction over Students and Parents’ IDEA claims. See Ventura de Paulino, 959
F.3d at 530 (“[U]nless an exception applies, the exhaustion of administrative
remedies under the IDEA is a ‘jurisdictional prerequisite’ of the statute and . . . a
‘plaintiff’s failure to exhaust deprives a court of subject[-]matter jurisdiction’ over
any IDEA claims.” (first quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,
297 F.3d 195, 199 (2d Cir. 2002); then quoting Polera v. Bd. of Educ., 288 F.3d 478,
483 (2d Cir. 2002)) (alteration omitted)). 3
3 To be sure, we “have questioned . . . the supposed jurisdictional nature of the [IDEA’s]
exhaustion requirement” in the dicta of some of our “recent[]” decisions. Ventura de Paulino, 959
F.3d at 530 (collecting cases). But unless and until Murphy and Polera are “overruled either by
an en banc panel of our Court or by the Supreme Court,” we are “bound” by them. Lotes Co. v.
Hon Hai Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014) (citation omitted).
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Second, the Students and Parents argue that the district court “abused its
discretion by denying [their] motion to amend the[ir] civil RICO claim.” Students
and Parents Br. at 44 (capitalization standardized). This argument
mischaracterizes the record. It was Judge McMahon – not the Students and
Parents – who first (constructively) amended their complaint to include RICO
claims after their filing of a “RICO Case Statement” pursuant to her Individual
Rules. When the Students and Parents subsequently moved for leave to amend
their complaint to “include their [c]ivil RICO claims,” Dist. Ct. Doc. No. 133 at 2,
Judge McMahon essentially denied their request as moot, explaining that she had
already treated their RICO Case Statement as “automatically amend[ing] their
complaint to include a RICO count,” Sp. App’x at 31 (emphasis added). But after
Judge McMahon constructively added the RICO claim to the Students and Parents’
complaint, they never moved to further amend the claim itself with any new
allegations. Indeed, they tacitly concede as much in their reply brief, offering
no response to the NYC Defendants’ observation that “the district court granted
[the Students and Parents] all the relief they sought in terms of amendment.”
NYC Defendants Br. at 40. We therefore reject the Students and Parents’
“contention that the [d]istrict [c]ourt abused its discretion in not permitting an
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amendment that was never requested.” Horoshko v. Citibank, N.A., 373 F.3d 248,
249–50 (2d Cir. 2004).
Third, and finally, the Students and Parents challenge the district court’s
denial of the NYC Plaintiffs’ motion for a preliminary injunction against the NYC
Defendants, pursuant to the IDEA’s so-called “pendency” or “stay-put” provision,
20 U.S.C. § 1415(j). But because we have already affirmed the dismissal of their
underlying IDEA claims, this portion of their appeal is now moot. See, e.g., Pierce
v. Woldenberg, 498 F. App’x 96, 98 (2d Cir. 2012) (“[A]s the merits have already been
decided against him, [the plaintiff-appellant’s] appeal from the denial of his
motion for preliminary relief is moot.” (citing Ruby v. Pan Am. World Airways, Inc.,
360 F.2d 691, 691–92 (2d Cir. 1966))). Indeed, the Students and Parents conceded
as much at oral argument, where they agreed that if we “affirm the dismissal [of
the IDEA claim] on the basis of exhaustion,” we “don’t even need to get to the
issue of [the preliminary] injunction.” Oral Argument at 1:01:55–1:02:24.
We have considered the Students and Parents’ remaining arguments and
find them to be meritless. Accordingly, we DISMISS their appeal as to the
Non-NYC Defendants, DISMISS AS MOOT their appeal from the denial of a
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preliminary injunction, and otherwise AFFIRM the judgment of the district court
to the extent that it dismissed the claims against the NYC defendants.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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