|FP 58|  Lindsley v gerard school district
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    |FP 58|  Lindsley v gerard school district |FP 58| Lindsley v gerard school district Document Transcript

    • Special Ed Connection Case Report24 NDLR 114 for the student to concentrate on her schoolwork. Her102 LRP 17178 grades declined. She had nightmares about being stabbed, was afraid to attend school, and missedNicole LINDSLEY, a minor, through her school frequently. She further alleged that the parent and legal guardian, Theresa KOLODZIEJCZACK, Plaintiff v The defendants violated the IDEA, the ADA and the GIRARD SCHOOL DISTRICT; the Rehabilitation Act by failing to identify her as a BOARD OF DIRECTORS FOR THE disabled child and by not providing her with GIRARD SCHOOL DISTRICT; Robert appropriate services. The District Court dismissed all SNYDER, personally and in his official charges against the defendants. capacity as a Principal for the Girard Although Lindsley only sought monetary School District; Greg MCCLELLAND, damages, she presented issues that should have been personally and in his official capacity as submitted to an administrative body in the first an Assistant Principal for the Girard instance. Because she did not submit these issues, sheSchool District, and Gayla DEMARRCO, failed to exhaust her administrative remedies. Evenpersonally and in her official capacity as a though Lindsley sought only damages in her court Guidance Counselor for the Girard claims for disability discrimination, the applicable School District, Defendants. federal statutes required her to utilize the available 213 F.Supp.2d 523 administrative procedures whenever the procedures U.S. District Court, Western District of are capable of providing relief. Exhaustion would Pennsylvania allow the educational professionals to address the 01-180 Erie case in the first instance and provide, if needed, a valuable record for the court. August 1, 2002Related Index Numbers Full Text37.100 Specific Conditions, Mental Appearances:Illnesses/Disorders/Impairments APPEARANCES:15.132 Public Entities, In General David C. Long, Olivesburg, PA, Michael L.50.062 In General Rosenfield, Pittsburgh, PA, for Plaintiff.97.045 Exhaustion Patricia K. Smith, Esq., Knox, McLaughlin,Judge / Administrative Officer Gornall & Sennett, Erie, PA, for Defendants.McLaughlin, J. Memorandum OpinionCase Summary Plaintiff, Nicole Lindsley, through her parent and A former middle school student alleged that the legal guardian, Theresa Kolodziejczack, (hereinafterGirard School District, along with various "Plaintiff") seeks in this action declaratory relief andadministrators and officials, violated her compensatory and punitive damages for allegedconstitutional rights to equal protection, substantive violations of the Civil Rights Act of 1871, 42 U.S.C.due process, and freedom of speech. She contended # 1983, the Individuals with Disabilities Educationthat they did so by failing to protect her from the Act ("IDEA"), 20 U.S.C. # 1400, et. seq., as amendedsevere teasing and abuse that her classmates inflicted by Pub.L. 105-17 at # 615(I)(3)(A) 1997; theupon her because she wore clothing covered with Rehabilitation Act of 1973, 29 U.S.C. # 794, and thereligious declarations. As a result of daily verbal and Americans with Disabilities Act of 1990, 42 U.S.C. #physical harassment, it became increasingly difficult 12101. The Defendants are the public school districtCopyright # 2007 LRP Publications 1
    • Special Ed Connection Case Reportwhere Plaintiff formerly attended school and various Coming King."administrators and officials of this district. Presently k. "Praise the Lord."before this Court are Defendants Motion to Dismiss l. "Soldiers of Christ."[Doc. No. 3] and Plaintiffs Motion to Amend the m. W.W.J.D. [What Would Jesus Do?]Complaint to Delete Requested Forms of Relief [Doc.No. 6]. In the latter motion, Plaintiff seeks to amend n. "With God All Things Are Possible."the Complaint to request only compensatory and Cmplt. # 33. Plaintiff alleges that other studentspunitive damages. For the reasons set forth below, we harassed her verbally and physically on an almostwill grant the Defendants motion and deny the daily basis. Cmplt. # 34. She was repeatedly calledPlaintiffs. names such as "Jesus Freak," "God Praiser," "Jesus Lover, "bitch," and "whore." Students said things I. Background such as "God is never coming back. We hate God" Plaintiff first attended Rice Avenue Middle and "Im Jesus, you have to worship me now." ASchool, a public school within the Girard School female student threatened to stab Plaintiff and onDistrict, as a sixth-grade student in the 1999-2000 another occasion, a male student twisted her arm.school year. Cmplt. # 30. Her sixth-grade year was Two boys doused Plaintiff with cologne andprimarily without incident, and in late August 2000, threatened to light her on fire while she was walkingshe began the seventh grade at the same school. home from her bus stop. In one class, students leftCmplt. # 30. In this year, Plaintiff wore some article notes stating that " "Jesus Sucks," "Nicole Sucks,"of clothing bearing a religious declaration "virtually and Natasha "does her mother." Cmplt. ## 34- 35.every day." Cmplt. # 33. The Complaint is silent as to Plaintiffs house and her mothers car were pelted withwhether she wore similar clothing during her eggs and their telephone and cable lines were cut.sixth-grade year. Natasha, a friend of Plaintiffs who Cmplt. # 36. When Plaintiff and Natasha objected to aalso attended Rice Avenue Middle School, dressed Reading class assignment on the subject of witches,similarly. Examples of the pictures and declarations the teacher stated in front of the class, "[i]f you donton the students clothing include: want to do this kind of work, you should go to another a. A rendition of Jesus carrying a cross with the school." Cmplt. # 35.words "The Sin of the World" inscribed on the cross. It is alleged that both Plaintiff and NatashaThe message on the shirt states "Lords Gym. Bench complained to defendants Snyder and McClelland, thePress This!" Principal and Vice-Principal of the school, b. "U Must Be Born Again. Jesus Saves. John respectively, on numerous occasions. Cmplt. # 37. In3:3." response, these defendants generally indicated that c. "Get a Life. Follow Jesus." they would investigate the complaints but did not d. "Sing Unto the Lord." effectively discipline any of the students. Snyder and McClelland often indicated that the problems were e. "Rejoice. Jesus Christ. Hes the Real King." the girls own fault and on one occasion McClelland f. A rendition of a young man holding a lamb, said to Plaintiff, "[w]e all know you are a Christian.with the message "I have a Good Shepherd." You dont have to wear those clothes everyday." g. "Our God is an Awesome God." Cmplt. # 37. Allegedly to discourage Plaintiff and h. A rendition of a hand bloodied by a large Natasha from making more complaints, thesespike, with the message "His Pain Our Gain." defendants told them that if they punished the i. "There is Only One Way. Hes Jesus." students who were the subject of the complaints, they would have to punish the girls as well. Cmplt. # 37. j. "Christ our Savior Sanctifier, Healer andCopyright # 2007 LRP Publications 2
    • Special Ed Connection Case ReportPlaintiffs mother also made frequent complaints to A motion to dismiss under Rule 12(b)(1) maythe Principal and Vice-Principal to no avail; after one present either a facial or a factual challenge to subjectcomplaint McClelland told her that, "[y]our daughter matter jurisdiction. Mortensen v. First Fed. Savingsis asking for trouble, wearing those shirts." Cmplt. ## and Loan Assn, 549 F.2d 884, 891 (3d Cir. 1977). A39-40. motion which makes a facial challenge to a complaint Plaintiff alleges that as a result of the students requires that the court consider the allegations of theconduct, it became difficult for her to concentrate and complaint as true and make all reasonable inferencesfocus on her schoolwork and consequently, that her in plaintiffs favor. Id. In the case of a factualgrades declined substantially in her seventh grade challenge to the complaint, the court is free toyear. Cmplt. # 41. She also had nightmares about consider and weigh evidence outside the pleadings tobeing stabbed, was afraid to attend school and missed resolve factual issues bearing on jurisdiction and to21 days in the first three grading periods. Cmplt. # 36. "satisfy itself as to the existence of its power to hearAt the end of the first quarter, Nicole received failing the case." Id. Consequently, the plaintiff must presentgrades in Science, English and World Cultures and "affidavits or other competent evidence thatdefendant DeMarco, a guidance counselor at the jurisdiction is proper ." Dayhoff, Inc. v. H.J. Heinzschool, sent a letter to Plaintiffs mother informing her Co., 86 F.3d 1287, 1302 (3d Cir. 1996), cert. denied,that Plaintiff was in academic danger for the school 519 U.S. 1028, 117 S.Ct. 583, 136 L.Ed.2d 513year. Cmplt. # 41. DeMarco sent a similar letter after (1996). In this instance, Defendants do not rely onPlaintiff received failing grades in Science, Reading extrinsic evidence outside the pleadings andand English in the second quarter. In the third quarter, accordingly, we must consider the allegations in thePlaintiff received failing grades English and Complaint as true and draw all reasonable inferencesMathematics, and incomplete marks in Science and in Plaintiffs favor. Mortensen, 549 F.2d at 891.World Cultures. Cmplt. ## 41- 42. No district official In ruling on a motion to dismiss pursuant to Ruleever requested permission to evaluate Plaintiff. 12(b)(6), the district court must accept as true allCmplt. # 6. In order to lessen Plaintiffs contact with well-pleaded allegations, and must view the facts andsome of the worst students, Defendants changed her inferences to be drawn from the pleadings in the lightclass schedule. Cmplt. # 37. On March 31, 2001, most favorable to the non-moving party. JanneyPlaintiff transferred to Girard Alliance Christian Montgomery Scott, Inc. v. Shepard Niles, Inc., 11Academy. F.3d 399, 406 (3d Cir. 1993) (citation omitted). The Plaintiff contends that the Defendants have proper inquiry is "whether relief could be granted ...violated her federal constitutional rights to equal under any set of facts that could be proved consistentprotection, substantive due process and freedom of with the allegations." Gasoline Sales, Inc. v. Aero Oilspeech. She also contends that they have violated her Co., 39 F.3d 70, 71 (3d Cir. 1994) (quoting Nationalrights under IDEA, the Rehabilitation Act of 1973, Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256,and the Americans with Disabilities Act of 1990. 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)). Judgment willDefendants move to dismiss pursuant to Federal only be granted if it is clearly established that noRules of Civil Procedure 12(b)(1) and 12(b)(6) on the material issue of fact remains to be resolved and thatbasis that Plaintiff has failed to state any claim. the movant is entitled to judgment as a matter of law.Plaintiff opposes this motion and has also filed a Regalbuto v. City of Philadelphia, 937 F.Supp. 374,motion to amend her complaint to delete her request 377 (E.D.Pa. 1995), affd, 91 F.3d 125 (3d Cir. 1996),for declaratory relief. cert. denied, 519 U.S. 982, 117 S.Ct. 435, 136 L.Ed.2d 333 (1996) (citing Inst. for Scientific Info., II. Standard of Review Inc. v. Gordon and Breach, Science Publishers, Inc.,Copyright # 2007 LRP Publications 3
    • Special Ed Connection Case Report931 F.2d 1002, 1005 (3d Cir. 1991), cert. denied, 502 S.Ct. 1661, 143 L.Ed.2d 839 (1999), the United StatesU.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). Supreme Court held that the recipients of federal The Federal Rules of Civil Procedure provide educational funds may be held liable for violations ofthat leave to amend a pleading "shall be freely given Title IX, 20 U.S.C. # 1681(a), pursuant to # 1983 ifwhen justice so requires." Fed.R.Civ.P. 15(a). they are deliberately indifferent to known acts ofAlthough the decision to grant or deny leave to amend student-on-student sexual harassment. Title IXa complaint is committed to the sound discretion of provides that:the district court, leave should, consistent with the [n]o person in the United States shall, on thecommand of Rule 15(a), be liberally granted. Gay v. basis of sex, be excluded from participation in, bePetsock, 917 F.2d 768, 772 (3d Cir. 1990); Coventry denied the benefits of, or be subjected tov. U.S. Steel Corp., 856 F.2d 514, 518-19 (3d Cir. discrimination under any education program or1988). The United States Supreme Court has activity receiving Federal financial assistance.articulated the following standard to be applied in 20 U.S.C. # 1681(a). Under Davis, liability onlyevaluating whether to grant or deny leave to amend: attaches in instances where the recipients response or In the absence of any apparent or declared reason lack thereof is "clearly unreasonable in light of the-- such as undue delay, bad faith or dilatory motive on known circumstances" and the harassment itself is "sothe part of the movant, repeated failure to cure severe, pervasive, and objectively offensive that it candeficiencies by amendments previously allowed, be said to deprive the victims of access to theundue prejudice to the opposing party by virtue of educational opportunities or benefits provided by theallowance of the amendment, futility of amendment, school." Id. at 648, 650. The Court also stated thatetc. -- the leave sought should, as the rules require, be liability would not attach on the basis of "simple acts"freely given." of teasing and name-calling among school children," Foman v. Davis, 371 U.S. 178, 183, 83 S.Ct. and provided the following examples: (1) an227, 9 L.Ed.2d 222 (1962). overweight child who skips gym class because she is teased about her weight; (2) a child who refuses to III. Discussion wear glasses because other students call her A. Claims for Violations of Equal Protection, "four-eyes;" and (3) a child who refuses to go toSubstantive Due Process and Freedom of Speech school because a bully calls her "scaredy-cat" atPursuant to 42 U.S.C. # 1983 (Claims I, II and III) recess. Id. at 652. Section 1983 does not itself create substantive Subsequent to Davis, the Court of Appeals forrights or impose obligations on government officials. the Third Circuit observed in a footnote that itsRather, the statute provides a cause of action by rationale would apply equally to harassment "on thewhich persons may seek relief for governmental basis of the personal characteristics enumerated inviolations of the United States Constitution or federal Title VI and other relevant federal anti-discriminationlaw. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. statutes." Saxe v. State College Area School District,807, 127 L.Ed.2d 114 (1994). In Counts I, II, and III, 240 F.3d 200, 206 n. 5 (3d Cir. 2001). We are notPlaintiff alleges that the Defendants conduct relating aware of any case law, however, that has extendedto the harassment she allegedly endured at the hands Davis to create a claim under the Due Process Clauseof other students violated her federal constitutional of the Fourteenth Amendment and we decline to do sorights to substantive due process, equal protection and here. Primarily, it is inherently unsound to assumefreedom of speech. We will consider Plaintiffs that the Courts rationale in Davis, a Title IX case, cansubstantive due process claim first. be applied in the context of a federal constitutional In Davis v. Monroe, 526 U.S. 629, 642, 119 due process claim. Moreover, the extension of DavisCopyright # 2007 LRP Publications 4
    • Special Ed Connection Case Reportin the due process context is very problematic in light involuntarily committed is weakened further by theof DeShaney v. Winnebago County Dept. Of Social fact that school children remain resident in theirServices, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d homes. Thus, they may turn to persons unrelated to249 (1989), and its progeny. the state for help on a daily basis. In DeShaney, the United States Supreme Court Id. at 1372 (internal citations omitted). Thus,held that absent a special relationship between a state even if we assume that the students conduct of whichand an individual in which the state affirmatively Plaintiff complains and which took place on schoolrestrains the individuals liberty, such as the states premises was sufficiently severe to infringe Plaintiffsrelationship to a prisoner, the Due Process Clause liberty interest for purposes of due process analysis,does not obligate states to protect individuals from an issue we do not decide, the Defendants failure toacts of private violence. Id. at 195-198. Subsequent to protect her from that conduct is not constitutionallyDeShaney, the Court of Appeals for the Third Circuit actionable.held that compulsory school attendance paired with in In Castaldo v. Stone, 192 F.Supp.2d 1124,loco parentis authority during the school day does not 1154-1155 (D.Colo. 2001), the parents of a slain hightrigger an obligation on the part of schools to protect school student alleged, among other things, that thestudents from private harm. D.R. v. Middle Bucks defendants violated their sons right to substantive dueArea Vocational Technical School, 972 F.2d 1364 (3d process by failing to protect him from the privateCir. 1992), cert. denied, 506 U.S. 1079, 113 S.Ct. harm that caused his death. Similar to the Third1045, 122 L.Ed.2d 354 (1993) (school had no Circuit, the Tenth Circuit held following DeShaneyobligation under the Due Process Clause to protect that schools owe no duty under the Due Processstudents from sexual assault by other students that Clause to protect students from assaults by otheroccurred on school property and during school hours). students, even when they know or have reason toThe Court began its analysis by noting that in general, know of the danger. Graham v. Independent Schoolthe Due Process Clause does not impose an Dist. No. I-89, 22 F.3d 991, 994-995 (10th Cir.affirmative duty upon the state to protect its citizens 2000). In Castaldo, the district court rejected thebut rather serves as a limitation on the states ability to argument that DeShaneys application to schoolsact. Id. at 1368. In contrast to the relationship between should be reevaluated in light of Davis:the state and prisoners, which is an exception to the [t]he decisions in Davis and Murrell do notgeneral rule in which an affirmative obligation to address the appropriate inquiry of duty under theprotect does exist, the Court observed that: Fourteenth Amendment. Davis and Murrell address [b]y requiring D.R. to attend assigned classes at liability pursuant to Title IX, which proscribesMiddle Bucks as part of her high school educational discrimination on the basis of gender. Plaintiffs argueprogram, and authorizing officials to engage in that DeShaneys application to schools must bedisciplinary control over the students, the school reassessed in light of the Supreme Courtsdefendants did not restrict D.R.s freedom to the interpretation of Title IX of the Educationextent that she was prevented from meeting her basic Amendments of 1972. The notion that the elements ofneeds. Thus, the school defendants authority over a Title IX claim are transferable to a Due ProcessD.R. during the school day cannot be said to create Claim impermissibly presumes that a statute canthe type of physical custody necessary to bring it amend the U.S. Constitution.within the special relationship noted in DeShaney, Id. at 1154 (internal citations omitted).particularly when their channels for outside We fundamentally agree with Castaldo. Incommunication were not totally closed. The analogy Davis, the Court stated that Title IX has "longbetween school children and prisoners or theCopyright # 2007 LRP Publications 5
    • Special Ed Connection Case Reportprovided funding recipients with notice that they may With respect to the latter, the nature of Plaintiffsbe liable for their failure to respond to discriminatory freedom of speech theory is not entirely clear fromacts of certain non-agents." Davis, 526 U.S. at 643. the face of the Complaint. She does not allege thatThe decision solely addresses Title IX and does not any defendant ever affirmatively prevented her frompertain to the obligations of schools under the Due wearing clothes with religious messages. As far as weProcess Clause. Because, as previously discussed, the can ascertain, Plaintiff means to assert that therelationship between the Defendants and Plaintiff Defendants allegedly inadequate responses to herdoes not give rise to a special relationship in which complaints discouraged her from wearing theseshe is owed a duty of protection under controlling clothes and thereby had a chilling effect on herauthority, she may not maintain a due process claim freedom of expression. Her claim, however, concernsunder this theory. See generally D.R., 972 F.2d 1364. a discrete period in the past and her Complaint fails to Quite apart from a due process claim predicated allege that her expression was in fact chilled. Seeon a special relationship between the state and a Aiello v. City of Wilmington, 623 F.2d 845, 857 (3dspecific individual, state defendants may be held Cir. 1980) (when claim for unconstitutional chillingliable for the deliberate and reckless establishment effect concerns a discrete period in the past, it isand maintenance of a custom, practice or policy that reasonable to consider whether the plaintiffs conductcauses harm to a student. D.R., 972 F.2d at 1376 is consistent with the claim). In this regard, Plaintiff(citing Stoneking v. Bradford Area School Dist., 882 alleges that virtually every day she attended RiceF.2d 720, 725 (3d Cir. 1989), cert. denied, 493 U.S. Avenue Middle School, she wore some article of1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990)). clothing bearing a religious declaration. Cmplt. # 33.Plaintiff cannot maintain a due process claim under In short, Plaintiff does not allege that the schoolthis theory either, however, because again assuming required her to cease her First Amendmentthat the underlying complained-of conduct is expression, nor does she allege that she voluntarilysufficiently severe to be actionable for due process ceased the expression in response to the acts ofpurposes, it was committed by private actors. See id. alleged harassment. Otherwise stated, as in Aiello, the(linchpin of due process claim for custom, practice or Plaintiffs claim that her freedom of expression waspolicy theory is an underlying constitutional violation chilled is inconsistent with her own conduct asby state actors). alleged in the Complaint. Accordingly, we will dismiss Counts I, II, and III of the Complaint pursuant We also find that Plaintiff has failed to state to Rule 12(b)(6) for failure to state a claim uponclaims in Counts I and III of her Complaint, which which relief could be granted.respectively allege violations of her federalconstitutional rights to equal protection and freedom B. IDEA, Rehabilitation Act and ADAof speech. With respect to the former, it is Claims Pursuant to 42 U.S.C. # 1983fundamental that in order to maintain an equal (Counts IV, V, and VI)protection claim, a plaintiff must allege that he or she Under IDEA, states that implement policies thatreceived different treatment from other similarly ensure a "free appropriate public education" for all ofsituated individuals or groups. Brown v. Abundant their disabled children are entitled to federal funds. 20Life Ministries, 35 F.3d 846, 850 (3d Cir. 1994) U.S.C. # 1412(1). The Act defines "children with(citing City of Cleburne v. Cleburne Living Center, disabilities" as not only those traditionally recognized473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 as handicapped, such as those children with mental(1985)). Here, Plaintiff has not alleged that any retardation, hearing impairments, speech or languagesimilarly situated student was treated differently by impairments and visual impairments, but also thosethe Defendants. with "serious emotional disturbance ... who by reasonCopyright # 2007 LRP Publications 6
    • Special Ed Connection Case Reportthereof, need special education and related services." Rehabilitation Act, a "disabled individual" is one who20 U.S.C. # 1401(3)(A). An "emotional disturbance" "has a physical or mental impairment whichis a condition exhibiting one or more of the following substantially limits one or more of such personscharacteristics over a long period of time and to a major life activities." 29 U.S.C. # 705(20)(B)(I). Themarked degree explained by intellectual, sensory, or ADA defines disability as a "physical or mentalhealth factors; (2) an inability to build or maintain impairment that substantially limits one or more ofsatisfactory interpersonal relationships with peers and the major life activities of such an individual." 42teachers; (3) inappropriate types of behavior or U.S.C. # 12102(2)(A). "Learning" is a major lifefeelings under normal circumstances; (4) a general activity. 34 C.F.R. # 104.3(j)(2)(ii).pervasive mood of unhappiness or depression; and/or To establish a violation of the Rehabilitation Act,(5) a tendency to develop physical symptoms or fears Plaintiff must establish that: (1) she was disabled asassociated with personal or school problems. 34 defined by the Act; (2) she was otherwise qualified toC.F.R. # 300.7(c)(4)(I). Among the conditions participate in school activities; (3) the school or boardrecipient states must satisfy under IDEA is the of education received federal financial assistance; andrequirement that it demonstrate that "all children (4) she was excluded from participation in, deniedresiding in the State who are disabled, regardless of benefits of, or subject to discrimination at, the school.the severity of the disability, and who are in need of Matula, 67 F.3d at 492 (citing Nathanson v. Medicalspecial education and related services are identified, College of Pennsylvania, 926 F.2d 1368, 1380 (3dlocated, and evaluated." 20 U.S.C. # 1414(a)(1)(A); Cir. 1991)). In Jeremy H. v. Mount Lebanon SchoolW.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995). This Dist., 95 F.3d 272, 279 (3d Cir. 1996), the Court ofis commonly referred to as the "child find" duty. Id. at Appeals for the Third Circuit held that 42 U.S.C. #492. The Rehabilitation Act imposes a similar duty on 12132 (a provision of the ADA) extended thestates to provide a free, appropriate public education. nondiscrimination rule of the Rehabilitation Act to29 U.S.C. # 794(a); see also Matula, 67 F.3d at entities that do not receive federal funds.492-493 (observing that there are few differences Accordingly, Plaintiffs claims under the two statutesbetween the obligations of IDEA and the are equivalent.Rehabilitation Act in this regard, although the former One basis upon which Defendants urge us tois phrased as an affirmative duty and the latter is dismiss Plaintiffs IDEA and Rehabilitation Actphrased as a negative prohibition). claims brought pursuant to 42 U.S.C. # 1983 is The Rehabilitation Act provides that "[n]o jurisdictional, and accordingly, we will address itotherwise qualified individual with a disability ... first. Defendants contend that this Court lacksshall, solely by reason of his or her disability, be jurisdiction to hear these claims because Plaintiff hasexcluded from participation in, be denied the benefits failed to exhaust her administrative remedies pursuantof, or be subjected to discrimination under any to 20 U.S.C. # 1415(l). This section states that:program or activity receiving Federal financial [n]othing in this chapter shall be construed toassistance ... " 29 U.S.C. # 794(a). Under the ADA, restrict or limit the rights, procedures, and remedies"no qualified individual with a disability shall by available under the Constitution, the Americans withreason of such disability be excluded from Disabilities Act of 1990 [42 U.S.C. # 12101 et seq.],participation in or be denied the benefits of the Title V of the Rehabilitation Act of 1973 [29 U.S.C. #services, programs, or activities of a public entity, or 791 et seq.], or other Federal laws protecting thebe subjected to discrimination by any such entity." 42 rights of children with disabilities, except that beforeU.S.C. # 12132. The two statutes have virtually the filing of a civil action under such laws seekingsynonymous definitions of disability. Under the relief that is also available under this subchapter, theCopyright # 2007 LRP Publications 7
    • Special Ed Connection Case Reportprocedures under subsections (f) and (g) of this to the schools child study team for an evaluation andsection shall be exhausted to the same extent as would the school refused. In February of 1992, the schoolbe required had the action been brought under this finally relented and the team determined that E.J. hadsubchapter. ADHD and was eligible for Rehabilitation Act 20 U.S.C. # 1415(l); see also W.B. v. Matula, 67 services but not for IDEA services because he wasF.3d 484., 495 (3d Cir. 1995). Subsections (f) and (g) performing at or above his grade level. Id. at 489. Theof the statute set forth the administrative procedures school nonetheless failed to provide Rehabilitationin detail that states must make available. 1 Act services and W.B. then instituted her first administrative proceeding and requested an In Matula, the Court of Appeals for the Third independent evaluation of her son. The School BoardCircuit held that monetary damages are recoverable agreed to her request and the evaluation revealed that,for IDEA claims brought pursuant to # 1983 and also in addition to ADHD, E.J. also suffered fromelaborated on the circumstances under which IDEAs Tourettes syndrome and a severe form ofexhaustion requirement would be excused due to obsessive-compulsive disorder. Id.futility. Matula, 67 F.3d at 495-496. The Courtpreliminarily rejected the notion that exhaustion could In the beginning of his second-grade year, thebe circumvented simply by "casting an IDEA claim as school still was not providing E.J. with any speciala # 1983 action predicated on IDEA." ID. At 495. In services and in November, 1992, the schoolsorder for us to resolve the present jurisdictional committee determined that he was perceptually butdispute, it is necessary that we review Matula in some not neurologically impaired, meaning that he wasdetail. entitled to a respectively lower level of IDEA services. Id. W.B. filed a petition to have her son In the case, W.B., the mother of Mansfield classified as neurologically impaired and the schoolTownship Elementary School student E.J., met with cross-petitioned to have him classified as perceptuallythe principal of the school before her son began the impaired. After almost ten days of administrativefirst grade there in the fall of 1991. Id. at 488. At the hearings, a settlement was reached in which E.J.meeting, W.B. raised her concerns about E.J.s would be classified as neurologically impaired, anbehavior problems, such as touching and hitting, and extensive Individualized Education Program ("IEP")she also completed forms indicating that E.J. had would be implemented, and the school would payreceived speech therapy. Within the first few weeks $14,000 in attorneys fees and costs. Id. at 490. Afterof school, E.J.s teacher informed W.B. that the boy even further administrative hearings spanning aboutmight have Attention Deficit Disorder/Attention 17 days, an Administrative Law Judge ordered theDeficit Hyperactivity Disorder ("ADHD"). Id. The School Board to place E.J. in a private school at itsteacher also reported in the beginning of the school expense, to pay prospectively for his private therapyyear that E.J. exhibited numerous disruptive sessions, to reimburse W.B. for the cost of thebehaviors, had difficulty beginning and completing independent learning disability evaluation it hadtasks, coloring within lines, and using the bathroom refused to provide, and to provide a supplementalproperly. Id. In October, W.B. met with the teacher occupational therapy evaluation. Id. W.B. thenand the school official responsible for compliance commenced the civil action in which she soughtwith IDEA and the Rehabilitation Act, but neither compensatory and punitive damages. The districtmentioned an evaluation or the possibility that E.J. court held that the settlement of the administrativewould be entitled to special services. Id. E.J. began proceeding barred W.B.s claims for damages. Theseeing a private therapist who diagnosed him with Third Circuit reversed on this point and held thatADHD sometime in the fall. After her son was monetary damages were available to redress IDEAdiagnosed, W.B. requested that the school refer himCopyright # 2007 LRP Publications 8
    • Special Ed Connection Case Reportviolations brought pursuant to # 1983, and also that recommended that Timothy be placed in regularunder the circumstances, exhaustion would have been education with no special aids or services. Id. Shortlyfutile. Id. at 495-496. On the latter point, the court thereafter, the plaintiffs and the defendant agreed toobserved that: transfer Timothy to another, mutually acceptable [i]n the matter before us, it would be futile, public school where he remained for approximatelyperhaps even impossible, for plaintiffs to exhaust their one year before quitting due to emotional problems.administrative remedies because the relief sought by Id. at 860, 862 n. 4. As in Matula, the Plaintiff inplaintiffs in this action was unavailable in IDEA Ronald D. sought only compensatory and punitiveadministrative proceedings. We have some damages.reservations about whether the administrative tribunal Here, Plaintiff contends that Matula and Ronaldwould even be competent to hear plaintiffs IDEA D. stand for the proposition that, under IDEA, theclaim since any rights that can be had have already futility exception to exhaustion is satisfied wheneverbeen settled, and both parties are required to adhere to a plaintiff requests relief that an administrativethe settlement agreement. tribunal cannot provide, i.e., monetary damages, Id. at 496. The Court went on to say that: regardless of the factual backdrop against which that request is made. We do not find that Matula stands for [w]e note that a second rationale for excusing such a broad proposition. Nor was it our intention thatexhaustion, identified in Lester H., is also present Ronald D. would be read so broadly either.2here. In Lester H., we pointed out that IDEAmandates resort in the first instance to administrative Matula, like the instant case, involved the "childhearings so as to develop the factual record and find" duty. Unlike the instant case, however, when theresolve evidentiary disputes concerning, for example, plaintiff in Matula believed that her son had not beenevaluation, classification, and placement. Here, E.J.s found, she pursued the available administrativeclassification and placement have been resolved in the procedures in order that he could be evaluated,numerous proceedings before ALJ McGill. The rendered eligible under IDEA, and ultimatelyfactual record has been developed and an action provided with special education and related servicesseeking compensation for the alleged IDEA violations appropriate for him.3 Indeed, prior to commencingis now ripe for judicial resolution. her action, W.B. had obtained an administrative determination that her child was a child with a Id. (internal citations omitted). disability entitled to IDEA services and an agreement Subsequent to Matula, we excused exhaustion in under which the school would provide him withRonald D. v. Titusville School District, 159 F.Supp.2d services pursuant to a complex IEP. Here, however,857, 862 (W.D.Pa. 2001) in large measure because we are without an administrative determination onthe childs educational issues with the defendant even the fundamental issue of eligibility. Thus, thisdistrict had been resolved. Prior to commencing the case is materially distinguishable from Matula in ataction, Ronald and Diane D., the parents of Timothy least one regard because, as Judge Caputo hasD., requested that the defendant conduct an evaluation observed, "one of the principal reasons for theof their son to determine his eligibility for special exhaustion requirement -- to allow the administrativeeducation and related services. Id. at 860. The district body with the relevant expertise to create anperformed the evaluation and concluded in a evidentiary record prior to judicial review" did notComprehensive Evaluation Report ("CER") that apply in Matula because the administrative body hadTimothy had wilfully chosen to be academically already performed this function. Falzett v. Poconounsuccessful, and after two meetings with the Mountain School District, 150 F.Supp.2d 699, 703plaintiffs at which the CER results were discussed, it (M.D.Pa. 2001). Here, not only are we without anCopyright # 2007 LRP Publications 9
    • Special Ed Connection Case Reportevidentiary record, we are without an administrative "do well to allow state officials with expertise in thedetermination on the most fundamental question education of handicapped children to conductpresented by a child find claim; whether Plaintiff was factfinding" regarding these issues before engaging ina child with a disability within the meaning of the it ourselves. Falzett, 150 F.Supp.2d at 704.Act. Notwithstanding this deficiency, Plaintiff Ultimately, the Falzett court required exhaustionsuggests that it would be appropriate for us to pass in because the Plaintiff, in addition to monetarythe first instance on the issue of whether she was damages, sought relief that an administrative tribunaldisabled within the meaning of IDEA. We decline this could provide but resisted the temptation to reach ainvitation. broader conclusion: Under the IDEA procedural scheme, aggrieved [t]he court is tempted to conclude that recourseparties first present their complaints to administrative to IDEA administrative procedures is required prior tobodies that have expertise in the area of educating the filing of a civil action seeking to vindicate thedisabled children; upon exhaustion of the educational rights of a handicapped child wheneveradministrative procedures, they are entitled to bring those administrative procedures are capable oftheir complaints to a court of competent jurisdiction providing relief to the plaintiff ... It is also consistentfor review.4 The Act does not envision courts as the with [Matula], which excused exhaustion where thefactfinders in the first instance and provides the due plaintiffs could receive no relief whatsoever throughprocess procedures so that state and local agencies the available administrative processes. It is likewisecan take "primary responsibility for formulating the supported by the Supreme Courts recent Bootheducation to be accorded to a handicapped child." decision holding that a prisoner seeking onlyJeremy H. v. Mount Lebanon School Dist., 95 F.3d monetary damages must exhaust the administrative272, 283 (3d Cir. 1996) (quoting Bd. of Educ. v. process even where damages are unavailable, so longRowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 as that process is capable of providing the prisonerL.Ed.2d 690 (1982)). The basis of Plaintiffs claim is some relief.presumably that the Defendant failed to identify her Falzett, 150 F.Supp.2d at 706 (internal citationsas a disabled child and provide appropriate services, omitted). In Richter v. School District of the City ofand notwithstanding that she seeks only damages via Erie, Civ. A. No. 01-152 Erie, 2002 WL 655674# 1983 as opposed to injunctive relief, the highly (W.D.Pa. March 25, 2002), we were presented withfactual nature of the appropriateness of Plaintiffs similar facts and likewise narrowly held thateducation is within the peculiar expertise of the exhaustion was required because the Plaintiff soughtadministrative body. See Joseph M. v. Southeast relief that an administrative tribunal could provide inDelco School Dist., C.A. No. 99-4645, 2001 U.S. addition to monetary damages. The instant case isDist. LEXIS 2994, (E.D.Pa. March 19, 2001) different because Plaintiff seeks solely monetary(exhaustion is typically required when complaints damages, a form of relief that an administrativeconcern the identification, evaluation, educational tribunal unquestionably cannot provide. For theplacement, or provision of a free appropriate public reasons we have already stated, however, we find thateducation to a child; in contrast, exhaustion is not the remedy Plaintiff seeks does not alone make thisrequired when a complaint concerns the failure to case analogous to Matula.implement an IEP because it is not within the peculiar In this instance, we find that Plaintiff has failedexpertise of a hearing officer). Accordingly, despite to demonstrate that resort to the availablethe relief that Plaintiff requests, her claim presents administrative remedies would be futile. Unlikeissues that should be submitted to an administrative Matula, in which all of the rights that could have beenbody in the first instance. Fundamentally, we would obtained through the administrative process had beenCopyright # 2007 LRP Publications 10
    • Special Ed Connection Case Reportpursued and settled by a binding settlement deals with acts that have both an educational sourceagreement, there is relief that could be obtained and an adverse educational consequence; thethrough the administrative process in this case that complaint contends that his education has suffered ashas not been pursued. Under IDEA and its a result of the events in fourth grade; if he is doingimplementing regulations, Plaintiff has the right to fine in school today, then it is hard to see what thisrequest an administrative hearing concerning the case is about ... Perhaps Charlies adverse reaction toDefendants compliance with its child find the events of the fourth grade cannot be overcome byobligations, and the hearing officer has the ability to services available under the IDEA and theorder that the school district provide compensatory regulations, so that in the end money is the only balm.education if it is ultimately determined that a school But parents cannot know that without asking, anyfailed to identify a disabled child and to provide that more than we can.child with a free appropriate public education. See Id. at 993. Similarly here, Plaintiff contends thatFrith v. Galeton Area School Dist., 900 F.Supp. 706, her education suffered as a result of events occurring714 (M.D.Pa.1995) (19-year-old had right to file in the seventh grade and that she was a disabled childadministrative claims for compensatory education within the meaning of IDEA. Nonetheless, she hasalleging that defendants failed to take reasonable elected to forego remedies available under IDEA thatsteps to identify him as an exceptional child while he might compensate her for her alleged loss and haswas enrolled in school); see also Corpus Christi sought, in the first instance, a damage remedyIndep. Sch. Dist., 31 IDELR 41 (1991) (parents claim pursuant to # 1983. We find that proceeding in thisfor compensatory education was premature in light of fashion is contrary IDEAs scheme, under whichfact that child had not been determined eligible for "educational professionals are supposed to have atspecial education services; school district was ordered least the first crack at formulating a plan to overcometo assess the student in all suspected areas of the consequences of educational shortfalls." Id.disability as soon as practicable). We therefore reject the notion that the relief a As noted above, the Third Circuit in Matula held plaintiff requests dictates the answer to the futilitythat IDEAs exhaustion requirement cannot be issue in any given case. Rather, we hold that prior tocircumvented merely by casting an IDEA claim as a # bringing an IDEA claim pursuant to # 1983, even in1983 claim predicated on IDEA. Matula, 67 F.3d at instances when only damages are sought, a plaintiff495. Yet in this action, by requesting only damages who is able must utilize the available administrativeand claiming that Plaintiffs current educational procedures whenever they are capable of providingplacement is sufficient, Plaintiff is attempting to do relief, even if it is not the relief that the plaintiffjust that. A similar claim was addressed by the Court would prefer.5 Exhaustion in such instances wouldof Appeals for the Seventh Circuit in Charlie F. v. Bd. both permit the educational professionals with theof Educ. of Skokie School Dist., 98 F.3d 989 (7th Cir. requisite expertise to address the case in the first1996). As in this case, the parents sought only instance and provide, if necessary for purposes ofdamages to redress the alleged prior educational appeal, a valuable record for the court.6 Accordingly,mistreatment of their child. The Court expressed its we will dismiss Counts IV, V, and VI of theconceptual difficulty with this claim: Complaint pursuant to Rule 12(b)(1) for lack of Charlies parents believe that his current jurisdiction.educational program is apt, which they think means IV. Conclusionthat any psychological services would not be For the reasons set forth in this opinion, we will"required to assist [Charlie] to benefit from special dismiss Counts I, II, and III of Plaintiffs Complainteducation." Yet the complaint they filed on his behalfCopyright # 2007 LRP Publications 11
    • Special Ed Connection Case Reportpursuant to Rule 12(b)(6) for failure to state a claim. agreed to transfer Timothy to another school. UponWe will dismiss Counts IV, V, and VI pursuant to further reflection, we are of the opinion that theRule 12(b)(1) for lack of jurisdiction. Because we voluntary resolution of a dispute concerning thefind for reasons already stated that amending the education of a disabled or allegedly disabled childcomplaint would not cure its deficiencies, we will does not excuse exhaustion unless the parties stipulatedeny her motion to amend the complaint as moot. on the evaluation, classification and placement of the child or utilize the available administrative procedures Order to develop these factual issues prior to settlement. See AND NOW, this [ ] day of August, 2002, for the Lester H. v. Gilhool, 916 F.2d 865, 869-870 (3d Cir.reasons set forth in the accompanying Memorandum 1990) (in claim for 2 1/2 years of compensatoryOpinion, education, exhaustion was futile when parties IT IS HEREBY ORDERED THAT Defendants stipulated in settlement that profoundly retardedMotion to Dismiss the Complaint [Doc. No. 3] is childs in-home IEP was inappropriate, was designedGRANTED and Plaintiffs Motion to Amend the to be temporary and school nonetheless tookComplaint to Delete Requested Forms of Relief [Doc. approximately 2 1/2 years to locate an appropriateNo. 6] is DISMISSED AS MOOT. program for the child); see also Matula, 67 F.3d at 1 495 (where childs classification and placement had Subsection (f) requires that recipient statesprovide an impartial due process hearing whenever a been resolved in numerous proceedings before ancomplaint is received under subsections (b)(6) or (k) ALJ prior to settlement, factual record had beenof # 1415. Subsection (b)(6), the relevant subsection developed and exhaustion was, in part, futile on thisfor purposes of this action, requires that parents be basis).given: an opportunity to present complaints with 3 20 U.S.C. # 1414 provides that a child must berespect to any matter relating to the identification, fully and individually evaluated prior to beingevaluation, or educational placement of the child, or deemed a child with a disability and consequentlythe provision of a free appropriate public education to eligible for special education and related servicessuch child ... under the Act. 20 U.S.C. # 1414(b) provides that in Subsection (g) requires that any party aggrieved conducting an initial evaluation, a local educationalby the findings of the above-mentioned due process agency must use a variety of assessment tools andhearing be afforded the right to appeal. Pennsylvanias strategies to gather relevant information, useregulations incorporating these requirements are set technically sound instruments and not use any singleforth in some detail in Chapter 14 of Volume 22 of procedure as the sole criterion.the Pennsylvania Administrative Code, which is 4 Indeed, under IDEA, the role of the courtentitled Special Education Services and Programs cannot be properly performed absent initialProcedural Safeguards. 22 Pa.Code # 14. factfinding by an administrative body. 20 U.S.C. # 2 1415(i) provides that in a civil action brought under In Ronald D., in contrast to the instant case,there was at least an initial utilization of the IDEA, the court:administrative process. The plaintiffs requested that (i) shall receive the records of the administrativethe district evaluate Timothy to determine whether he proceedings;was entitled to special education and related services (ii) shall hear additional evidence at the requestand the district issued a Notice of Recommended of a party; andAssignment ("NORA") suggesting that Timothy (iii) basing its decision on the preponderance ofattend a regular education program with no the evidence, shall grant such relief as the courtsupplementary services. Shortly thereafter, the partiesCopyright # 2007 LRP Publications 12
    • Special Ed Connection Case Reportdetermines is appropriate. Further, the court is to give "due weight" to theadministrative proceedings, and although it mayaccept or reject the administrative bodys findings, it"must be careful not to substitute its judgment aboutproper education methods for that of the stateeducational authorities." Jonathan G.V. LowerMerion School Dist., 995 F.Supp. 413 (E.D.Pa.1997)(citing Bd. of Educ. v. Rowley, 458 U.S. 176,206-207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)) 5 In Matula, the Third Circuit observed by way ofexample that exhaustion might be excused in aninstance where the parents of a deceased child seekdamages for a school boards failure to provideservices while the child was still alive, and weconsequently recognize that there may be some verylimited instances in which parents are unable to utilizethe administrative process prior to bringing a suit fordamages. Matula, 67 F.3d at 496. The Court alsonoted that such exceptions "would be rare indeed,"and we do not find that the instant case is one ofthem. Plaintiff had the opportunity to utilize theadministrative process in this case. 6 As indicated supra, however, in lieu of utilizingthe available administrative procedures, the partiesmay stipulate to the critical facts that would haveformed the focus of the administrative proceedings.Statutes Cited29 USC 794(a)42 USC 1213220 USC 1412(1)Regulations Cited34 CFR 104.3(j)(2)(ii)Cases Cited67 F.3d 484159 F.Supp.2d 85795 F.3d 272458 US 176900 F.Supp. 70698 F.3d 989Copyright # 2007 LRP Publications 13