D. A., et al v. Houston Indep School District, et al

Filing

PUBLISHED OPINION FILED. [09-20551 Affirmed ] Judge: EHJ , Judge: ECP , Judge: RCO Mandate pull date is 01/18/2011 [09-20551]

D. A., et al v. Houston ase: 09-20551 Document: 00511334347 C Indep School District, et al

Page: 1 Date Filed: 12/28/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20551 December 28, 2010 Lyle W. Cayce Clerk D . A., by next friend and individually; LATASHA A., P la in t iffs - Appellants v. H O U S T O N INDEPENDENT SCHOOL DISTRICT; CELESTINA MARTINEZ; S H A R O N COLVIN, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR, District J u d g e .* E D I T H H. JONES, Chief Judge: D .A ., through his mother L.A., brought suit against the Houston I n d e p e n d e n t School District ("HISD") and two school officials, alleging that D .A .'s rights under various federal laws were violated because two of its schools fa ile d to test him timely for special education. They sought declaratory relief, c o m p e n s a t o r y and punitive damages, for violations of the Individuals with D is a b ilit ie s Education Act (20 U.S.C. § 1400 et seq.) ("IDEA"), § 504 of the R e h a b ilita t io n Act (29 U.S.C. § 794) ("§ 504"), the Americans with Disabilities

*

District Judge, Northern District of Texas, sitting by designation.

Dockets.Justia.com

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No. 09-20551 A c t (42 U.S.C. § 12101 et seq.) ("ADA"), the Age Discrimination Act (42 U.S.C. § 6104(f)), the Texas and United States Constitutions, and 42 U.S.C. § 1983. The d is t r ic t court granted summary judgment for the defendants. We affirm

p r in c ip a lly because appellants have not furnished proof of intentional d is c r im in a t io n as required by § 504 and the ADA, and § 1983 offers no additional c a u s e of action for D.A. I. BACKGROUND D .A . attended HISD as a pre-kindergarten student from 2005 until he w it h d r e w from the district in January 2008. In pre-kindergarten, D.A.'s teacher n o tic e d that he had trouble completing work and following directions. He was n o t tested for special education while in pre-kindergarten and was advanced to k in d e r g a r t e n . In kindergarten, he was still unable to complete his work. L.A., D .A .'s mother, wanted him to have special education testing. A substitute t e a c h e r for D.A.'s kindergarten class recommended special education testing, but t h e school counselor agreed only to conduct a speech therapy evaluation. When D .A .'s regular teacher returned, she had no trouble understanding D.A.'s speech. The school officials decided not to test D.A., but they failed to inform his mother o f the decision. D e s p ite warning that D.A. might have to repeat kindergarten, his teacher p r o m o t e d him to the first grade. She believed there would be more testing and s p e c i a l education opportunities for D.A. in the first grade. The school had a p r a c t ic e of waiting until the first grade to test children for special education, in o r d e r to give them a chance to develop. I n first grade, D.A. immediately misbehaved and performed below grade le v e l. His teacher referred him for special education testing. D.A. was removed 2

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No. 09-20551 f r o m class to help him do his work. Eventually, L.A. had to sit with her son d u r in g class. A private speech pathologist who had been treating D.A. since k in d e r g a r t e n wrote to the school to express concern about D.A.'s psychoe d u c a t io n a l problems. In October 2007, two months into the school year, the I n t e r v e n t io n Assistance Team ("IAT") first met to consider D.A.'s needs and d e c id e d that a special education evaluation was premature because his teacher h a d not sufficiently documented D.A.'s problems. The IAT reached the same c o n c lu s io n again on December 5. r e q u e s tin g that D.A. be tested. L.A. wrote several letters to the school The school evaluation specialist collected

u p d a t e d documentation from D.A.'s teacher and a psychologist and submitted t h e documents to a Committee of Evaluation Specialists, which ultimately d e t e r m in e s whether a student's behavior warrants a special education referral. The IAT met before Christmas but delayed D.A.'s referral until after the h o lid a y s . On January 31, 2008, before any testing had occurred, L.A. withdrew D .A . from the HISD. D.A. entered the Conroe Independent School District w h e r e he was immediately recommended for special education testing. L .A . filed an IDEA claim with the Texas Education Agency, which held a d u e process hearing in April 2008. A special hearing officer determined that H I S D violated IDEA by failing to refer D.A. to an eligibility screening in October 2007. During the proceeding, L.A. requested that HISD fully test D.A.'s

s u s p e c t e d disabilities, but the hearing officer ruled this claim moot because D.A. h a d left HISD and was already being tested for special education in the other d is t r ic t . The hearing officer rejected for insufficient proof the medical expenses a lle g e d ly incurred on D.A.'s behalf and concluded that monetary damages were u n a v a ila b le under IDEA.

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No. 09-20551 D .A . appealed the administrative decision to the district court, requesting d e c la r a to r y relief, compensatory and punitive damages. D.A. asserted claims u n d e r IDEA, § 504, ADA, the Age Discrimination Act, the Texas and United S t a te s Constitutions, and 42 U.S.C. § 1983. In a comprehensive and thoughtful o p in io n , the district court granted summary judgment in favor of the appellees. The district court held that the plaintiff's IDEA claim for compensatory damages w a s not moot, but it affirmed the hearing officer's findings that the plaintiff la c k e d any evidence to support claims for compensatory relief. The court

r e je c t e d liability under the ADA and § 504 because plaintiffs failed to demons t r a t e that the school's actions were motivated by bad faith or gross m isju d g m e n t . The district court dismissed the plaintiff's Age Discrimination Act c l a i m for failure to exhaust the proper administrative remedies. The district c o u r t concluded that § 1983 cannot be used as an additional vehicle to redress v io la t io n s of the ADA, § 504 or the IDEA. The plaintiff's constitutional claims w e r e also dismissed. D.A. has appealed, contending that genuine issues of m a t e r ia l fact exist concerning the district's liability and that the district court a p p lie d incorrect legal standards when interpreting the statutes. II. D IS C U S S IO N 1

A lt h o u g h this case was filed to challenge the rejection of D.A.'s IDEA c la im by the administrative hearing officer, the appeal relies only on the other s t a t u t o r y claims. The appellant's argument concerning the district court's a d verse decision on the IDEA claim raises two points, mentioned only in passing. Because appellant neither briefs nor seeks relief under IDEA in this appeal, he h a s abandoned any such claim. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1 9 9 0 ). Waiving another point, appellant also chose not to brief the dismissal of t h e individual defendants. 4

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No. 09-20551 T h e district court's grant of summary judgment on the non-IDEA claims is reviewed de novo. Summary judgment is appropriate when, viewing the e v id e n c e and all justifiable inferences in the light most favorable to the nonm o v a n t , there is no genuine issue of material fact and the movant is entitled to ju d g m e n t as a matter of law. See Bridgmon v. Array Sys. Corp., 325 F.3d 572, 5 7 6 (5th Cir. 2003). A. § 504 and ADA Claims D .A . contends that the record reveals genuine material fact issues c o n c e r n in g whether, paraphrasing § 504: [h e ] was excluded from participation in, denied the benefits of, and s u b je c t to discrimination at school included, but [not] limited to b e in g excluded from the classroom activities, learning, work a s s i g n m e n ts and lunch, being denied the benefits of receiving s p e c i a l education testing, speech testing, speech therapy, special e d u c a t io n and free appropriate public education, and being subject t o discrimination regarding his disability, race and age. T h e district court, he asserts, erroneously heightened the standard for a d is t r ic t 's liability under § 504. Because this court has equated liability

s t a n d a r d s under § 504 and the ADA, we evaluate D.A.'s claims under the s t a t u t e s together. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Pace v . Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en banc). A student may assert claims under IDEA as well as § 504 and the ADA. Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983). This c o u r t and others have explained that while IDEA imposes an affirmative o b lig a t io n on states to assure disabled children a free appropriate public e d u c a t io n , see, e.g., 20 U.S.C. § 1412(l), § 504 and the ADA broadly prohibit d is c r im in a t io n against disabled persons in federally assisted programs or a c t iv it ie s . See 29 U.S.C. § 794(a); 42 U.S.C. § 12132; see also Sellers v. Sch. Bd. 5

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No. 09-20551 o f Manassas, Va., 141 F.3d 528-29 (4th Cir. 1998); Pace, 403 F.3d at 290-91. A w e b of procedural regulations, including the "Child Find" mandate applicable h e r e ,2 governs the school district's identification, assessment and treatment p la n s for disabled students. The regulations seek to maximize educational p r o fe s s io n a ls ' coordination and collaboration with the parents. Substantively, I D E A aims to provide an adequate educational opportunity, not necessarily the m a x im iz a tio n of a disabled child's abilities, and it leaves considerable discretion in the hands of professionals. See Monahan v. Nebraska, 687 F.2d 1164, 1170 (8 t h Cir. 1982); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 4 5 8 U.S. 176, 102 S. Ct. 3034 (1982) (interpreting EAHCA, the statutory p r e d e c e s s o r to IDEA). E x a c t ly what remedies remain under § 504 and the ADA for children w h o s e parents are dissatisfied with the school's determinations under IDEA are u n c le a r . This court applies issue preclusion where the legal standards

u n d e r ly in g such claims are not significantly different. See Pace, 403 F.3d at 290. In reaching this conclusion, Pace cited favorably an Eighth Circuit decision that a p p lie d claim and issue preclusion to "short-circuit redundant claims" when I D E A 's administrative process "produces an administrative decision that is u p h e ld on judicial review." Ind. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th C ir . 1996). Thus, the resolution of an IDEA claim in the school district's favor w ill frequently preclude parents' resort to redundant claims under § 504 and ADA. F u r t h e r constraining the viability of claims under the disability nond is c r im in a t io n laws is this court's long-established rule that:

2

S e e Child Find, 34 C.F.R. § 300.111(a) (2006). 6

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No. 09-20551 [ A ] cause of action is stated under § 504 when it is alleged that a sch o o l district has refused to provide reasonable accommodations for t h e handicapped plaintiff to receive the full benefits of the school program . M a r v in H, 714 F.2d at 1356 (emphasis in original); see also Tatro v. Texas, 7 0 3 F.2d 823, 832 (5th Cir. 1983) (Tatro II); Helms v. McDaniel, 657 F.2d 800, 8 0 6 n.10 (5th Cir. 1981). Marvin H used the term "refusal" because the statute r e q u i r e s intentional discrimination against a student on the basis of his d is a b ility . See 714 F.2d at 1357; Sellers, 141 F.3d at 528. Marvin H. is

c o n s is t e n t with courts that have held that to establish a claim for disability d is c r im in a t io n , in this educational context, "something more than a mere failure t o provide the `free appropriate education' required by [IDEA] must be shown." Monahan, 687 F.2d at 1170; see also Sellers, 141 F.3d at 529; Lunceford v. D.C. B d . of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984). As Monahan reasoned, e x p e r t s often disagree on what the special needs of a handicapped child may be a n d the proper placement of a child is often is an arguable matter. T h a t a court may, after hearing evidence and argument, come to the c o n c lu s io n that an incorrect evaluation has been made, and that a d iffe r e n t placement must be required . . . is not necessarily the same t h in g as a holding that a handicapped child has been discriminated a g a in s t solely by reason of his or her handicap. 6 8 7 F.2d at 1170. The court did not read § 504 as creating "general tort liability fo r educational malpractice" because the Supreme Court in interpreting the I D E A3 has warned against a court's substitution of its own judgment for e d u c a t io n a l decisions made by state officials. Monahan concluded that bad faith o r gross misjudgment must be shown in order to state a cause of action under

S e e , e.g., Rowley, 458 U.S. at 181, 102 S. Ct. at 3038 (interpreting E A H C A , the statutory predecessor to IDEA). 7

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No. 09-20551 § 504. Id. at 1171. "So long as state officials involved have exercised

p r o fe s s i o n a l judgment, in such a way as not to depart grossly from accepted s t a n d a r d s among educational professionals, we cannot believe that Congress in t e n d e d to create liability under § 504." Id. We concur that facts creating an in fe r e n c e of professional bad faith or gross misjudgment are necessary to s u b s t a n t ia t e a cause of action for intentional discrimination under § 504 or ADA a g a in s t a school district predicated on a disagreement over compliance with ID E A . T h e state hearing officer found that the school violated IDEA by failing to t e s t D.A. for special education needs in October 2007, two months before the fin a l testing decision was made. Because this was the only violation found, it c o u ld be contended that D.A. may not seek to recharacterize the district's other p r e -r e fe r r a l and pre-intervention actions, which the hearing officer did not im p u g n , as discriminatory violations of § 504 or ADA. See Indep. Sch. Dist. No. 2 8 3 , 88 F.3d at 562 (citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 796-99, 1 0 6 S. Ct. 3220, 3224-27 (1986)). Moreover, it could be argued that D.A. has no c o g n iz a b le claim under § 504 or the ADA because the gravamen of his disagreem e n t is the district's failure to diagnose his disability at an appropriate age. He c a n n o t be discriminated against because of his disability until it has been d e m o n s t r a t e d to exist. Under these scenarios, the district court might have fo u n d the § 504/ADA claims precluded or subject to dismissal. The school d is t r ic t , however, does not make these arguments on appeal. W h a t is preserved for review is that even though the hearing officer's fin d in g s may suggest an untimely diagnosis of D.A.'s psycho-educational p r o b le m s , the error reflects no more than negligence. The district's actions, in c lu d in g its pre-referral attempts to use a disciplinary strategy with D.A., were 8

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No. 09-20551 fo u n d "well intended" by the hearing officer. The district court properly relied o n the hearing officer's determination that the district delayed evaluating D.A. b e c a u s e the professionals believed that behavioral interventions would be s u c c e s s fu l and that the classroom teacher had not properly documented his b e h a v io r . Further, construing the facts in the light most favorable to D.A., we, lik e the district court, find no fact issue as to whether HISD officials "departed g r o s s ly from accepted standards among educational professionals." D.A.'s mere d is a g r e e m e n t with the correctness of the educational services rendered to him d o e s not state a claim for disability discrimination. Marvin H., 714 F.2d at 1356. That HISD authorized an evaluation for special education within two months a ft e r its initial denial further demonstrates at most misjudgment, not bad faith. The district court correctly granted judgment as a matter of law on D.A.'s § 504 a n d ADA claims.4 B. A g e Discrimination Act Claims S t r a n g e as it may seem, D.A. could file a claim under the Age Discriminat io n Act, which provides that "no person . . . shall, on the basis of age, be e x c lu d e d from participation in, be denied the benefits of, or be subjected to d is c r im in a t io n under, any program or activity receiving Federal financial a s s is t a n c e ." 42 U.S.C. § 6102. U n d e r the Age Act, however, a plaintiff must exhaust his administrative r e m e d ie s before filing an action in the district court. See 42 U.S.C. § 6104(f); 3 4 C.F.R. § 110.39 (Department of Education enforcement regulations). Appellant did not fulfill any of the exhaustion requirements. Instead, L.A.

T h e court also correctly observed that D.A. has failed to offer proof of m o n e ta r y damages either before the hearing officer or in court. 9

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No. 09-20551 c o n t e n d s that she only became aware of the Age Act claim at the IDEA a d m i n is t r a t iv e hearing and that fulfilling both the IDEA and Age Act filing d e a d lin e s would have been impossible. Her sworn testimony, to the contrary, w a s that D.A.'s pre-kindergarten teacher told her that HISD probably would not t e s t D.A. because of his young age. L.A. thus knew of the alleged age

d is c r im in a t io n two years before the IDEA hearing. Despite this, appellant a r g u e s that L.A. did not know that age was a motivating factor in HISD's d e c is io n to delay testing because the pre-kindergarten teacher gave her a " p r e t e x u a l reason" [sic]--that young children need time to develop before special e d u c a t io n testing occurs. Whether right or wrong, the policy behind HISD's a lle g e d discrimination does not excuse D.A. from the exhaustion requirement. C. § 1983 Claims S e c t io n 1983 provides a cause of action when a person has been deprived o f federal rights under color of state law. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 2 1 1 , 215 (5th Cir. 1998). To state a § 1983 cause of action, a plaintiff must allege a violation of rights secured by the Constitution or by federal laws. Id.

However, where a statutory regime already provides a comprehensive set of r e m e d ie s for its enforcement, there is a presumption against the availability of t h e more general remedial measures of § 1983. See Lollar v. Baker, 196 F.3d 6 0 3 , 609 (5th Cir. 1999). This principle renders further discussion of the

in t r ic a c ie s of § 1983 unnecessary. 1. B a s e d on alleged IDEA violations I n Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457 (1984), the Supreme C o u r t held that the EAHCA [IDEA] contained a comprehensive enforcement s c h e m e through which disabled children could assert violations of their rights a n d that EAHCA claims cannot be pursued through § 1983. Id. at 1004-05, 10

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No. 09-20551 1 0 1 3 , 104 S. Ct. 3464-65, 3469. Congress amended the statute to state:

"[N]othing in this title shall be construed to restrict or limit the rights, p r o c e d u r e s , and remedies available under . . . other Federal statutes protecting t h e rights of handicapped children and youth." 20 U.S.C. § 1415(l).5 Since the a d d it io n of § 1415(l), this circuit has not addressed whether recovery may be had t h r o u g h § 1983 for IDEA violations.6 Other circuits have held that this a m e n d m e n t did not abrogate Smith's holding that EAHCA/IDEA violations may n o t support § 1983 claims. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 7959 6 (3d Cir. 2007); Sellers, 141 F.3d at 529; Padilla v. Sch. Dist. No. 1, 233 F.3d 1 2 6 8 , 1273 (10th Cir. 2000). We agree with the reasoning of these circuits. The c o m p r e h e n s iv e enforcement scheme established for IDEA violations justifies the p r e s u m p t io n that it is meant to be exclusive absent congressional intent to c r e a t e additional remedies. See Lollar, 196 F.3d at 609. Nothing in § 1415(l) in d ic a te s an intent to facilitate the expansive remedies under § 1983 in addition t o IDEA's carefully calibrated mechanism to prevent or remedy violations. See J e r s e y City Pub. Sch., 486 F.3d at 802. D.A. cannot assert an IDEA claim t h r o u g h § 1983. 2. B a s e d on alleged § 504 and ADA violations D . A . 's argument that he can use § 1983 as a method to enforce alleged v io la t io n s of rights under the ADA and § 504 is foreclosed by this court's decision in Lollar v. Baker, 196 F.3d at 603. Lollar held that because Congress created

T h is provision was originally codified at 20 U.S.C. § 1415(f), but is now at § 1415(l). B e fo r e the addition of § 1415(l), we held that violation of EAHCA may not b e enforced through § 1983 because the EAHCA provided the exclusive remedy. Marvin H., 714 F.2d at 1357-58. 11
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No. 09-20551 a specific and comprehensive enforcement mechanism under § 504 to ensure the r ig h t s of the disabled persons, the presumption controls against invoking a more g e n e r a l remedial scheme to vindicate those rights. Id. Appellant cannot pursue h is ADA and § 504 claims through § 1983. 3. B a s e d on alleged constitutional violations A p p e lla n t s argue that HISD violated D.A.'s constitutional rights by r e q u ir in g him to show greater evidence of special needs than it required of nonb la c k children. Appellants believe that because HISD has a history of overid e n tify in g black children as requiring special-needs education, the district is n o w over-correcting by holding black children to a higher showing. T h e r e is no actual evidence of the asserted over-correction. The only " e v id e n c e " D.A. points to is a statement by HISD's counsel during the closing a r g u m e n t before the hearing officer that HISD was concerned about o v e r -id e n t ify in g black children. This is not sufficient, not only because

a r g u m e n t s by counsel are not evidence, but also because it establishes only that H I S D was concerned about over-identification, not that HISD actually treated b la c k children differently. III. F o r these reasons, the judgment of the district court is AFFIRMED.

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