Childs v. Dale County Board of Education

Filing 64

MEMORANDUM OPINION AND ORDER: it is ORDERED that: (1) Plaintiffs' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion is GRANTED with respect to Count I. It is DENIED with respect to Counts II, III, and IV. (2) Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Defendant's motion is GRANTED with respect to the equal protection claim asserted in Count IV. Defendant's motion is GRANTED with respect to any ADA or § 504 discrimination or retaliation claim arising from J.S.R.'s exclusion from playing baseball. Defendant's motion is DENIED with respect to Counts I, II, III, and the remainder of Count IV. (3) Defendant's alternative motion fo r judgment on the pleadings is DENIED. On or before October 26, 2015, Plaintiffs shall submit their request for attorney's fees owed for the administrative due process hearing. Defendant may file any objections to Plaintiffs' fee request on or before November 9, 2015. The parties shall consider the IDEAs statutory standards for fee awards and related costs. See 20 U.S.C. § 1415(i)(3)(C)(G). Signed by Chief Judge William Keith Watkins on 9/28/2015. (kh, ) (Main Document 64 replaced on 9/28/2015) (kh, ). Modified on 9/28/2015 to replace main pdf document and correct typographical errors (kh, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
J.S.R., a minor, by his Mother,
Susan Tarter Childs, as his Next
Friend, and SUSAN TARTER
CHILDS,
Plaintiffs,
v.
DALE COUNTY BOARD
OF EDUCATION,
Defendant.

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CASE NO. 1:13-CV-582-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This action arises under various federal statutes including the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, § 504 of the
Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983 for alleged violations of
the Fourteenth Amendment.

The suit follows an administrative due process

hearing held pursuant to the IDEA and Alabama law.
Before the court are cross-motions for summary judgment, (Docs. # 25, 27),
which have been briefed fully, (Docs. # 26, 29, 30, 31, 32, 33, 34, 35, 40, 41, 42,

43, 44, 45).1

2 3

Defendant moves in the alternative for a judgment on the

pleadings. Upon consideration of the parties’ arguments, the evidence, including
the administrative record, and relevant law, the court finds that Plaintiffs’ motion
for summary judgment is due to be granted on Count I, Defendant’s motion for
summary judgment is due to be granted with respect to any discrimination or
retaliation claim related to J.S.R.’s exclusion from baseball (Counts II and III) and
to Plaintiffs’ equal protection claim asserted as part of Count IV. The crossmotions for summary judgment are due to be denied in all other respects.
I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343. Personal jurisdiction and venue are uncontested.
II. STANDARDS OF REVIEW
A.

Summary Judgment
To succeed on summary judgment, the movant must demonstrate “that there

is no genuine dispute as to any material fact and [he] is entitled to judgment as a
1

With the court’s leave, Defendant substituted a replacement brief (Doc. # 40) for the
original summary judgment brief (Doc. # 28).
2

Plaintiffs designate their motion as a motion for partial summary judgment even though
they request summary judgment on all of her claims. The motion is partial in that they seek a
ruling that Plaintiffs are entitled under the IDEA for their attorney’s fees, but Plaintiffs do not yet
seek a specific sum for fees.
3

Any citation to document numbers assigned by CM/ECF are to the page numbers
created by CM/ECF. Where record citations lack a reference to CM/ECF document numbers,
the citations are to the page numbers provided on the documents as they were prepared
originally.
2

matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).4

4

Defendant has set out the standard of review for judicial review of an administrative
hearing officer’s decision under the IDEA. (Doc. # 40, at 21–23.) See also Loren F. ex rel.
Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313–14 (11th Cir. 2003) (describing the
federal court’s standard of review of an IDEA case after an administrative decision is rendered).
However, neither party – particularly Defendant – challenges the outcome of the administrative
decision. (See Def.’s Brief, Doc. # 40, at 22–23 (“The [c]ourt’s independent review of the
administrative record will show that [the] decision is clearly supported by the law and the factual
evidence in the administrative record.”).) The only IDEA issue before the court is in Count I,
3

B.

Judgment on the Pleadings
“Judgment on the pleadings is appropriate when there are no material facts

in dispute and the moving party is entitled to judgment as a matter of law.”
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008). “All
facts alleged in the complaint must be accepted as true and viewed in the light most
favorable to the nonmoving party.” Id.5
III. BACKGROUND
As a preface to the facts supporting Plaintiffs’ claims, the court begins with
an explanation of the federal statutes affording special education and related
services, accommodations, and procedural protections to disabled students.
A.

Relevant Statutes
1.

The IDEA

Originally enacted in 1970 as the Education of the Handicapped Act
(“EHA”) Congress passed the IDEA “to ensure that all children with disabilities
have available to them a free appropriate public education [(“FAPE”)] that

which is Plaintiffs’ claim for attorney’s fees as prevailing parties in the administrative due
process hearing. The parties dispute whether Plaintiffs are in fact prevailing parties, but this is a
legal question that can be decided in accordance with Rule 56. In the absence of a challenge to
the propriety of the hearing officer’s decision, the IDEA standard of review offered by
Defendant will not be used.
5

Defendant offers no explanation for why a judgment on the pleadings would be
appropriate.
4

emphasizes special education and related services designed to meet their unique
needs.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines a FAPE as
special education and related services that – (A) have been provided at
public expense, under public supervision and direction, and without
charge; (B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary
school education in the State involved; and (D) are provided in
conformity with [a disabled student’s] individualized education
program [(“IEP”)]. . . .
Id. at § 1401(9). The IDEA contains “an affirmative obligation of every [local]
public school system to identify students who might be disabled and evaluate those
students to determine whether they are indeed eligible.”

N.G. v. D.C., 556

F. Supp. 2d 11, 16 (D.D.C. 2008) (citing 20 U.S.C. § 1412(a)(3)(A)).

This

obligation is known as “Child Find,” and a local school system’s “[f]ailure to
locate and evaluate a potentially disabled child constitutes a denial of FAPE.” Id.
A state must evaluate a child for a disability under the IDEA upon the request of
the child’s parent. 20 U.S.C. § 1414(a)(1)(B).
A child with a disability is one “with intellectual disabilities, hearing
impairments (including deafness), speech or language impairments, visual
impairments (including blindness), serious emotional disturbance . . . , orthopedic
impairments, autism, traumatic brain injury, other health impairments, or specific
learning disabilities” “who, by reason thereof, needs special education and related
services.” Id. at § 1401(3) (emphasis added). Once a child is determined to have a
5

disability, and his parent consents to the provision of special education services,
local educational agencies are obligated by the IDEA to reevaluate him when it is
determined that a reevaluation is warranted or the child’s parent or teacher asks for
reevaluation. Id. at § 1414(a)(2)(A). Subject to a few exceptions, reevaluations
should not occur more often than annually but at least every three years. Id.
at § 1414(a)(2)(B).
The local school system must develop an IEP for each child with a disability
covered by the IDEA. “The IEP is a comprehensive document developed by a
team of parents, teachers, and other school administrators outlining the goals of the
child, and the special education and related services needed to meet those goals.
M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1157 (11th Cir. 2006) (citing 20
U.S.C. § 1414(d)).
States are required by the IDEA to “establish and maintain procedures in
accordance with [the IDEA] to ensure that children with disabilities and their
parents are guaranteed procedural safeguards with respect to the provision of a
[FAPE].” 20 U.S.C. § 1415(a). The requisite safeguards include the provision of
[a]n opportunity for any party to present a complaint – (A) with
respect to any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of [FAPE] to such
child; and (B) which sets forth an alleged violation that occurred not
more than [two] years before the date the parent or public agency
knew or should have known about the alleged action that forms the
basis of the complaint . . . .
6

Id. at § 1415(b)(6). Generally, where the local school system is unable to resolve a
complaint, the complainant is entitled to “an impartial due process hearing . . .
conducted by the State educational agency.” Id. at § 1415(f)(1)(A).
In Alabama, the aggrieved parent files a complaint with the State
Department of Education and requests an impartial due process hearing. The State
Superintendent of Education appoints a qualified hearing officer to conduct the
hearing.

See generally Ala. Admin. Code

r. 290-8-9-.08.

The hearing is

conducted by an impartial hearing officer with knowledge of the IDEA who is not
involved in the child’s education. 20 U.S.C. at § 1415(f)(3)(A). The impartial
hearing officer is required to render a decision as to whether the child received a
FAPE, and he or she may find that a child did not receive a FAPE “only if the
[local school system’s] procedural inadequacies – (I) impeded the child’s right to a
[FAPE]; (II) significantly impeded the parents’ opportunity to participate in the
decisionmaking process regarding the provision of [FAPE] to the parents’ child; or
(III) caused a deprivation of educational benefits.” Id. at § 1415(f)(3)(E). A party
aggrieved by the hearing officer’s decision may bring a civil action in state or
federal court. Id. at § 1415(i)(2)(A). Further, a prevailing party may initiate an
action in federal district court to recoup his or her reasonable attorney’s fees. Id.
at § 1415(i)(3)(A)–(C).

7

2.

Section 504

All children with disabilities under the IDEA, as well as some children who
are ineligible for special education under the IDEA, are also protected by § 504 of
the Rehabilitation Act. Section 504 is thus broader than the IDEA in its coverage
of students with disabilities.

It is distinguishable from the IDEA in that it

“provide[s] relief from discrimination while the IDEA provides relief from
inappropriate educational placement decisions, regardless of discrimination.”
Hornstine v. Twp. of Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 2003); see
also 2 Ronna Greff Schneider, Education Law § 6:15 (“In contrast with the
affirmative obligation for a [FAPE] under the IDEA, § 504 is phrased negatively,
prohibiting discrimination on the basis of disability.”). “[I]n the special education
context,” § 504 prohibits a school district from “exclud[ing], deny[ing] benefits to,
or discriminat[ing] against any student solely on the basis of his or her disability.”
Jennifer B. v. Chilton Cnty. Bd. of Educ., 891 F. Supp. 2d 1313, 1321 (M.D. Ala.
2012) (internal citation omitted).

The U.S. Department of Education has

promulgated regulations under § 504. See 34 C.F.R. § 104.1. “[These federal]
regulations clarify that a school district has an affirmative duty to identify, locate,
and evaluate all children with disabilities in order to ensure that they receive a
FAPE.” Kimble v. Douglas Cnty. Sch. Dist. RE-1, 925 F. Supp. 2d 1176, 1181 (D.
Colo. 2013) (citing 34 C.F.R. §§ 104.32–104.35)).
8

“[T]he provision of an

appropriate education is the provision of regular or special education and related
aids and services that (i) are designed to meet individual educational needs of
handicapped persons as adequately as the needs of nonhandicapped persons are
met. . . .” 34 C.F.R. § 104.33(b)(1)
At the request of a parent or a school official (usually a classroom teacher), a
school district should evaluate a student to determine whether his physical or
mental impairments substantially limit his ability to learn and participate in a
classroom environment. See 34 C.F.R. § 104.35(a) (requiring evaluation of “any
person who, because of handicap, needs or is believed to need special education or
related services”). A student is “handicapped” if he or she “(i) has a physical or
mental impairment which substantially limits one or more major life activities, (ii)
has a record of such an impairment, or (iii) is regarded as having such an
impairment.” 34 C.F.R. § 104.3(j)(1). If the child is determined to be handicapped
and in need of special education and related services, the school district must
provide reasonable accommodations to assist the child. The school district must
also make “periodic reevaluations of students who have been provided special
education and related services.” 34 C.F.R. § 104.35(d).
To make reasonable accommodations, the school district does not have to
fundamentally or substantially alter its programs. Mark H. v. Hamamoto, 620 F.3d
1090, 1098 (9th Cir. 2010). Moreover, the school district does not have to provide
9

“potential-maximizing education” for the child – just “reasonable accommodations
that give [him] the same access to the benefits of a public education as all other
students.” J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 71 (2d Cir. 2000). The school
system must conduct an “individualized analysis” of the child’s circumstances to
determine what accommodations might offer the child equal and “meaningful
access” to the benefit of public education available to non-disabled students. Mark
H., 620 F.3d at 1098.
The accommodations to be provided are typically documented by the school
in a § 504 Plan, sometimes called a Personal Education Plan (“PEP”), which is
devised by a team of people that normally includes the child’s teachers, school
principal, and parent(s). See 34 C.F.R. § 104.35(c)(3) (requiring that the school
“ensure that the [child’s] placement decision is made by a group of persons . . .
knowledgeable about the child). School officials review and make adjustments to
a student’s § 504 plans annually. “An IEP is sufficient to satisfy the [FAPE]
requirement under Section 504, but a [§] 504 plan [or PEP] will not necessarily
satisfy the same requirement under the IDEA.” K.D. v. Starr, 55 F. Supp. 3d 782,
785 n.3 (D. Md. 2014).
Finally, the Department of Education’s regulations for § 504 include
“procedural safeguards.” 34 C.F.R. § 104.36. School districts must “establish and
implement . . . a system of procedural safeguards that includes notice, an
10

opportunity for the parents or guardian of the person to examine relevant records,
an impartial hearing with opportunity for participation by the person’s parents or
guardian and representation by counsel, and a review procedure.” Id. A district’s
compliance with the IDEA’s similar procedural safeguards meets that requirement.
Id.
B.

Facts
1.

J.S.R.’s Experience in Dale County Schools

Since first grade, Plaintiff J.S.R. has been enrolled in the Dale County
Schools. He has repeated the first and fourth grades and is therefore two years
older than his classmates.6 The alleged ADA and § 504 violations at issue in this
case occurred during his time as a student at G. W. Long School in Ariton,

6

The following table displays the dates that J.S.R. was in each grade level and the time
that Defendant was providing J.S.R. with special education and related services or
accommodations pursuant to § 504 or the IDEA.
First Grade
First Grade (R)
Second Grade
Third Grade
Fourth Grade
Fourth Grade (R)
Fifth Grade
Sixth Grade
Seventh Grade
Eighth Grade
Ninth Grade
Tenth Grade

2003–04 academic year
2004–05 academic year
2005-06 academic year
2006–07 academic year
2007–08 academic year
2008–09 academic year
2009–10 academic year
2010–11 academic year
2011–12 academic year
2012–13 academic year
2013–14 academic year
2014–15 academic year
11

(PEP implemented)
(PEP continued)
(PEP continued)
(IEP implemented in January 2013)
(IEP continued)
(IEP continued)

Alabama during his seventh- and eighth- grade academic school years.7 Plaintiffs’
administrative due process complaint was filed in October 2012 during J.S.R.’s
eighth-grade year. The due process complaint raised the ADA, § 504, and civil
rights claims under § 1983 now before this court.

Plaintiffs filed this suit in

August 2013 at the beginning of his ninth-grade year.8 J.S.R. has recently finished
tenth grade and, by the court’s calculation, is approaching his eighteenth birthday
if he has not already turned eighteen.
J.S.R. was evaluated for special education services in second grade (2007)
and during his second year in fourth grade (2009), but he did not qualify under the
discrepancy model method that Defendant used for classifying children as learning

7

Plaintiffs aver that they are “well aware of the [two-]year statute of limitations” and
assert that they “did not request relief beyond the statute of limitations. To the contrary, [Ms.
Childs] testified that she and J.R.S. [sic] were satisfied with J.S.R.’s teachers during his [fifth-]
and sixth-] grade years.” (Doc. # 44, at 8.) Plaintiffs reference the IDEA’s statute of limitations,
see 20 U.S.C. § 1415(b)(6), but neither party addresses that Alabama’s two-year statute of
limitations for personal injury claims applies to Plaintiffs’ discrimination claims under the ADA
and § 504. Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1409–10 (11th Cir. 1998); Horsley
v. Univ. of Ala., 564 F. App’x 1006, 1008 (11th Cir. 2014). At the pretrial conference held on
May 15, 2015, Plaintiffs assented to this statute of limitations and say they only discuss
Defendant’s actions going back to J.S.R.’s elementary school years in order to provide context
for Defendant’s actions in later years. Counsel also expressed her belief that IDEA, ADA,
and/or § 504 violations have been ongoing through the tenth grade, but there is no dispute that
events following J.S.R.’s eighth-grade year have not been administratively exhausted.
8

Although Plaintiffs discuss circumstances that have arisen or persisted during J.S.R.’s
ninth- (2013–14) and tenth-grade (2014–15) academic school years, these facts are not in the
operative pleading which has not been amended since October 2013. (See Am. Compl.)
Additionally, Plaintiffs’ complaints against Defendant arising since the completion of the due
process proceedings may not be considered until he and Ms. Childs exhaust their administrative
remedies.
12

disabled and eligible for special education services.9 Defendant placed J.S.R.
under a personal education plan (“PEP”), pursuant to § 504, during his fifth-grade
year at the prompting of his fifth-grade teacher. (See Def.’s Ex. I (Doc. # 27-9).)
The PEP provided, among other things, that: J.S.R. be seated in an area free from
distraction; that J.S.R. be given time to clean his desk and locker and to organize
his materials each day; that J.S.R.’s worksheets be visibly clear and adequately
spaced; that J.S.R. not be required to copy from the board, if possible; that J.S.R be
assigned a reduced amount of school work; that J.S.R. be told the purpose of each
lesson and what he would be expected to do; that J.S.R. be given one direction at a
time; that J.S.R. not be called upon to read orally in class; that J.S.R. be given tests
orally when needed; that J.S.R. not be penalized for spelling errors in non-spelling
related academic assignments; and that J.S.R. be offered a substitute assignment in
lieu of a test as needed. These were common accommodation strategies that
Defendant’s employees believed would help J.S.R.
9

This method of evaluation requires the district to determine whether there is a sixteen
point or greater discrepancy between what a student presumably can do, based on his IQ scores,
and what he is actually doing, based on his achievement tests. (Doc. # 30, at 117.) According to
the testimony of Mia Jones, a Dale County Schools psychometrist, the school system has
“always used” that model for assessing learning disabilities in students. (Doc. # 30, at 118.) Dr.
Michael Passler, who later tested J.S.R. and diagnosed his learning disabilities, testified that “the
discrepancy model has been under question” for some time “because it misses so many” students
with learning disabilities. (Doc. # 30, at 1132.) Other methods of diagnosing learning
disabilities include what Dr. Passler called “response to instruction” and “strengths and
weaknesses.” (Doc. # 30, at 1133.) He also testified that, to his knowledge, the State of
Alabama has always made exceptions for “clinical judgment” when a student appears to have a
learning disability but does not qualify under the severe discrepancy model. (Doc. # 30,
at 1133.) Plaintiffs say that Defendant should have used another method to diagnose J.S.R.’s
learning disability.
13

With the assistance of his fifth and sixth grade teachers who followed the
PEP, it is undisputed that J.S.R. did well academically. The PEP remained in place
when J.S.R. moved to seventh grade. At this point, Plaintiffs say that the PEP was
just a “sham” that was “inappropriate” for J.S.R. and did not, in theory or practice,
accommodate his individual needs or provide him with a FAPE. (Doc. # 26,
at 19.) Defendant’s failure to accommodate J.S.R. was most evident in J.S.R.’s
math class performance.

Although he was not identified to receive special

education services, J.S.R. was removed from his seventh-grade math class and
placed on the computer-based I-learn math program under the supervision of a
special education teacher, Dana Barron, working at a first-grade math level.
J.S.R.’s PEP was modified to include the I-learn math program as one of his
accommodations. Defendant passed J.S.R. from seventh to eighth grade even
though he failed most of his seventh-grade classes. During J.S.R.’s seventh-grade
school year, Ms. Childs had J.S.R. evaluated by a neuropsychologist, Dr. Passler,
at her own expense. Dr. Passler determined that J.S.R. had a learning disability
and that J.S.R. needed special education services.
On October 10, 2012, Ms. Childs filed a due process hearing complaint with
the Alabama Department of Education. In November 2013, J.S.R. was referred for
special education eligibility and services. On January 8, 2013, Defendant officially
determined that J.S.R. was eligible for special education and related services,
14

identified J.S.R. as having “specific learning disability,” and provided J.S.R. with
an IEP. (See Def.’s Exs. Y & Z (Docs. # 27-26, 27-27).)10 Ms. Childs complains
that the IEP failed to include (1) a provision that J.S.R. be removed from his math
class for thirty minutes each day for special education or (2) any provision
concerning J.S.R.’s involvement in school sports. Plaintiffs contend that J.S.R.
needs to be allowed to play on the school baseball team for his social development
and as a motivator to J.S.R. to apply himself academically.11 J.S.R. continues to
receive special education services under the IEP.
2.

Administrative Due Process Decision

In response to the due process complaint, Steve P. Morton, Jr., the stateappointed impartial hearing officer, held a hearing spanning six nonconsecutive
days in January, February, and April 2013. On June 13, 2013, Hearing Officer
Morton rendered a fifty-two page decision substantially in favor of J.S.R. (Doc.
# 27-1 (“Admin. Decision”).)

Nevertheless, Defendant disputes that Plaintiffs

were “prevailing parties” in the IDEA administrative proceedings.
10

Since the administrative due process hearing, Plaintiffs represent that J.S.R. has also
been diagnosed with a panic disorder, and Defendant is allegedly aware of the diagnosis. For
purposes of the time period at issue in this suit, J.S.R.’s disability was his learning disability.
11

For different reasons, J.S.R. was not permitted to play baseball in seventh or eighth
grade. In seventh grade, J.S.R. had been suspended from school for bringing brass knuckles to
campus, and his suspension coincided with the day of team tryouts. In eighth grade, J.S.R.’s
grades were so poor that he was ineligible to play on the team. In ninth grade, J.S.R. tried out for
and made the varsity team, but the coach moved him to the junior varsity team. By tenth grade,
J.S.R. was too old to play on the junior varsity team, and he did not make the varsity team, so he
did not play at all last season. Plaintiffs contend that J.S.R.’s exclusion from baseball has been
in retaliation for his complaints against Defendant.
15

Hearing Officer Morton declined to consider Plaintiffs’ claims raised under
§ 504, the ADA, the No Child Left Behind Act, or 42 U.S.C. § 1983, citing his
lack of jurisdiction over non-IDEA claims. (Admin. Decision, at 9–10.) He also
declined to consider issues that were not timely or properly raised in the due
process complaint.

(Admin. Decision, at 10–11.)

Hearing Officer Morton

enunciated the following “general” issues that were properly before him:
1)
Was J denied a [FAPE], due to [Defendant’s] failure to
properly identify, locate, and evaluate J pursuant to Child Find?
2)
Whether . . . J is due reimbursement for the cost of an
independent Neuropsychological Exam secured by [Ms. Childs’s]
from Dr. Michael Passler (incorporating two testing dates, October 23,
2012 & October 31, 2012)?
3)
Was J denied a FAPE due to [Defendant’s] failure to
properly develop and implement the [IEP] and did [Defendant]
discriminate against J?
(Admin. Decision, at 11.)12
As to the first issue, Hearing Officer Morton concluded that Defendant
failed in its duty under Child Find, but he found that the evidence did not support
Ms. Child’s contention that Defendant should have identified J.S.R. as of October
12, 2010, two years prior to her filing the due process complaint. Instead, the
12

Included within these main issues, the hearing officer noted “component” issues
including whether the two-year statute of limitation in IDEA was due to be adjusted because Ms.
Childs had been prevented from requesting a due process hearing, whether J.S.R. was prevented
from playing baseball, and whether that violated his right to FAPE, and if J.S.R. has been denied
a FAPE due to a violation of Child Find, how long the denial of a FAPE lasted. (Admin.
Decision, at 11–12.)
16

hearing officer ruled that the evidence “support[ed] the conclusion that as of
November 29, 2011, the District had sufficient information that should have
triggered notice . . . .” (Admin. Decision, at 35.) The evidence supporting this
conclusion included the letter from Ms. Childs to the district on November 29,
2011, raising her concerns about a lack of proper adjustments to J.S.R.’s § 504
plan based on his developmental and learning disorders, in addition to what the
District knew about J.S.R. (e.g., that he had repeated two grades), J.S.R.’s very
poor academic performance from the outset of seventh grade, identified behavioral
concerns, and the timing of the § 504 review.

(Admin. Decision, at 30–31.)

Hearing Officer Morton found that the special education coordinator for Dale
County Schools, Beverly Lampkin, did not deny that communication continued to
flow from Ms. Childs from “late 2011 through the fall of 2012.”

(Admin.

Decision, at 33.) Ultimately, Hearing Officer Morton determined that Defendant
denied a FAPE to J.S.R. for roughly one year from November 29, 2011 until
November 11, 2012, when J.S.R. was referred and identified for special education
services. (Admin. Decision, at 36.)
As to the second issue, Hearing Officer Morton found that Defendant was
obligated to pay the costs incurred by Ms. Childs in 2012 to have J.S.R.
independently tested by Dr. Passler. (Admin. Decision, at 42.)

17

Finally, on the third question, Hearing Officer Morton determined that J.S.R.
was denied a FAPE to the extent that he was not provided with an IEP from
roughly December 1, 2011, through January 10, 2013. (Admin. Decision, at 44.)
However, Hearing Officer Morton concluded that J.S.R.’s exclusion from
participation in baseball in seventh or eighth grade did not constitute
discrimination.13
As compensatory educational relief for J.S.R., Hearing Officer Morton
ordered Defendant to furnish services through the Learning Center to recover at
least two and up to three semesters of one-on-one services in math. Hearing
Officer Morton further ordered that Defendant continue with the responsibility to
pay for at least one year of counseling for J.S.R. with the counselor with whom the
family already had an established relationship.
C.

Procedural History
Plaintiffs filed this suit on August 14, 2013, and amended their complaint on

October 30, 2013. None of the facts alleged in the Amended Complaint relates to
events or circumstances arising during J.S.R.’s ninth- or tenth-grade years, and as
stated previously, the court proceeds on the assumption that J.S.R.’s seventh- and

13

Mr. Morton concluded that the consequences of J.S.R.’s own behavior that led to a
brief suspension caused him to be unable to try out for baseball in seventh grade, and that the
application of the Alabama High School Athletic Association’s standards, over which Mr.
Morton had no authority, later precluded J.S.R.’s participation on account of his poor grades.
(Admin. Decision, at 44–45.)
18

eighth-grade years are the subject of Plaintiffs’ claims. The Amended Complaint
sets out four counts.
Count I: Plaintiffs were required to retain legal counsel, Bobbie S. Crook
and Michael P. Lasseter, to assist with the administrative claim. Plaintiffs have
incurred attorney’s fees in excess of $100,942 and expenses totaling $4,630, for
which they seek reimbursement through this action as prevailing parties under the
IDEA.
Counts II and III: Plaintiffs sue Defendant for intentional discrimination and
retaliation against J.S.R. on the basis of his disabilities and for violations of Title II
of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation
Act. Plaintiffs’ discrimination claims are based upon Defendant’s deprivation of
reasonable, individualized accommodations for J.S.R, Defendant’s failure to
provide a FAPE, and Defendant’s exclusion of J.S.R. from sports. The Amended
Complaint is non-specific about the retaliation J.S.R. allegedly suffered.14
Count IV:

Plaintiffs sue Defendant pursuant to 42 U.S.C. § 1983 for

allegedly violating J.S.R.’s constitutional rights under the Fourteenth Amendment
to substantive and procedural due process and equal protection.
14

Plaintiffs allege in their briefing (but not their pleading) that Defendant has retaliated
by (1) not permitting J.S.R. to play baseball during his tenth-grade year (i.e., the most recent
academic school year), (2) not providing counseling to J.S.R., and (3) filing truancy petitions
against J.S.R. for tardies and absences that were excused by his doctor. (Doc. # 26, at 26.)
These grievances concerning Defendant’s provision of counselling and its acquiescence to
truancy proceedings appear to have been resolved during mediation.
19

Concerning Counts II, III, and IV, Plaintiffs allege that Defendant has
subjected J.S.R. to humiliation, embarrassment, and degradation due to his
disabilities, denied him access to sports, and caused him to suffer permanent
educational and social setbacks. Plaintiffs request that this court award J.S.R.
extensive declaratory, injunctive, and monetary relief. (Am. Compl. at 12–14.)
There has been little discovery in this case; the parties rely primarily on the
evidence submitted during the administrative proceeding. The parties have filed
cross-motions for summary judgment. Plaintiffs request summary judgment on
each of their claims. Defendants seek summary judgment on Plaintiffs’ claims
under the ADA, § 504 of the Rehabilitation Act, and § 1983. Defendant does not
seek summary judgment on Count I, but Defendant does oppose Plaintiffs’ motion
for summary judgment on Count I.
The court held a pretrial conference on May 15, 2015, at which time the
parties agreed to mediate, at a minimum, Defendant’s obligations to J.S.R. going
forward until J.S.R.’s projected graduation in 2017. Following their mediation, the
parties reported that they “resolved all of [Plaintiffs’] non-monetary claims.”
(Doc. # 59.)

The parties’ Memorandum of Mediated Settlement Agreement

represents that what remains in contention is Plaintiffs’ claim of $10,000.00 in
compensatory damages due to J.S.R. for the claims alleged in Counts II, III, and

20

IV, and their claim for an unspecified amount of attorney’s fees and costs. (Doc.
# 59-2, at 1.)
IV. DISCUSSION15
A.

Award of Attorney’s Fees Under IDEA (Count I)
In their motion for summary judgment, Plaintiffs request a judgment as a

matter of law on the issue of their entitlement to attorney’s fees under the IDEA
(Count I). Defendant has not moved for judgment as a matter of law on Count I,
but it opposes Plaintiffs’ motion for summary judgment.
The IDEA provides that “[i]n any action or proceeding brought under this
section, the court, in its discretion, may award reasonable attorneys’ fees as part of
the costs . . . to a prevailing party who is the parent of a child with a disability.” 20
U.S.C. § 1415 (i)(3)(B). Consequently, “parents may bring an independent claim
for attorney’s fees in a district court after their child prevails” in a state
administrative hearing. Matthew V. ex rel. Craig V. v. DeKalb Cnty. Sch. Sys., 244
F. Supp. 2d 1331, 1335 (N.D. Ga. 2003); see also Robert v. Cobb Cnty. Sch. Dist.,
279 F. App’x 798, 800 (11th Cir. 2008).
“[T]o succeed on such a claim, [the plaintiff] must satisfy two elements:
that there was a dispute between her and the school authority, and that she was the
15

Defendant objects generally that Plaintiffs fail to support their summary judgment
arguments with any relevant case law or record citations in their summary judgment brief. (Doc.
# 41, at 12, 15.) The objection is noted, but Plaintiffs’ grounds for summary judgment on
Count I are sufficiently stated and Plaintiffs’ motion for summary judgment on Counts II, III,
and IV is due to be denied.
21

prevailing party in the dispute.”

Doucet v. Chilton Cnty. Bd. of Educ., 65

F. Supp. 2d 1249, 1254 (M.D. Ala. 1999). The IDEA does not define “prevailing
party,” so federal courts have borrowed from precedents interpreting other federal
fee-shifting statutes.

Hence, an IDEA plaintiff is a prevailing party if she

“receive[d] at least some relief on the merits of her claim,” id. at 1256 (citation and
alteration omitted), and so long as that relief was afforded in the form of a
judgment, consent decree, or similar court-ordered change in the parties’ legal
relationship, Robert, 279 F. App’x at 801. See also Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001).16
Defendant protests that Plaintiffs cite little to no case law in support of their
motion for summary judgment on Count I. Plaintiffs, have however, made clear
that they seek fees per the IDEA and have identified the portion of the IDEA under
which they claim entitlement to relief. Further, they have identified the relief
J.S.R. was granted on the merits of the due process complaint.
Defendant contrasts the extensive relief sought by J.S.R. in the due process
complaint with the actual relief awarded by the hearing officer and argues that
Defendant was actually the prevailing party. Defendant asserts that the relief
provided to J.S.R. was on “very limited issues.” (Doc. # 41, at 10.) Defendants

16

The term “court-ordered” in this opinion or any similar IDEA precedent encompasses
relief ordered by a non-judicial, administrative hearing officer. See Abraham v. D.C., 338
F. Supp. 2d 113, 120 (D.D.C. 2004).
22

contend that J.S.R. cannot be considered the prevailing party if he only won a
“minor, inconsequential victory.” (Doc. # 41, at 10 (citing Canup v. ChipmanUnion, Inc., 123 F.3d 1440, 1443 (11th Cir. 1997)).) Defendants offer as examples
various case precedents where fees were denied to IDEA plaintiffs who achieved
very slight success or who enjoyed only a Pyrrhic victory. (See Doc. # 41, at 11.)
Yet the relief awarded by the hearing officer cannot be characterized as
slight or hollow. Hearing Officer Morton found that J.S.R. had been denied a
FAPE for one year, awarded his mother reimbursement for her expense of
independently obtaining neuropsychological testing that Defendant should have
provided, and required Defendant to pay for at least one year of third-party
remedial math education services and counseling for J.S.R. Under the logic of
Defendant’s argument, Plaintiffs should be penalized now for asking for more due
process relief than J.S.R. ultimately received. But that argument fails. The fact
that J.S.R. requested more relief than was granted does not render his victory
inconsequential.

Further, what Hearing Officer Morton awarded was not de

minimis relief. His ruling satisfies the legal requirement that J.S.R. obtain at least
some of the relief sought, by virtue of a ruling that altered his legal relationship
with Defendant. See Buckhannon, 532 U.S. at 604. The court concludes that
Plaintiffs are entitled, as a matter of law, to an award of attorney’s fees for the
prosecution of the due process complaint for IDEA relief.
23

The only issue remaining is the amount of attorney’s fees due to Plaintiffs’
counsel. Plaintiffs allege that as of June 24, 2013, counsel had incurred $100,942
in fees and $4,630 in costs. (Am. Compl. at ¶ 40; see also Docs. # 34-2; 34-3; 35
at 1–13.) Plaintiffs have requested an opportunity to prove the reasonableness of
their fee request. (Doc. # 26, at 16.) Plaintiffs will be allowed to update and
resubmit their fee request, and Defendant will be given the opportunity to object to
the reasonableness of the sum of fees sought.
B.

Relief Under the ADA and § 504 (Counts II and III)
1.

Standard for Evaluating ADA and § 504 Claims

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). The ADA very similarly states that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity. 42 U.S.C.
§ 12132.
The ADA contemplates that the same remedies available under the
Rehabilitation Act are applicable to ADA Title II disability discrimination claims.
24

42 U.S.C. § 12133. “The remedial scheme for a non-employment discrimination
claim under the Rehab Act . . . is found in Title VI of the Civil Rights Act of
1964.” Taylor v. Altoona Area Sch. Dist., 737 F. Supp. 2d 474, 487 (W.D. Pa.
2010) (citing 29 U.S.C. § 794a(a)(2)). Because “[d]iscrimination claims under the
Rehabilitation Act are governed by the same standards used in ADA cases,”
“[c]ases decided under the Rehabilitation Act are precedent for cases under the
ADA, and vice-versa.” Cash v. Smith, 231 F.3d 1301, 1305, 1305 n.2 (11th Cir.
2000). It is therefore proper to consider Plaintiffs’ discrimination claims under the
ADA and § 504 together, applying the same standards.
As stated in the parties’ Memorandum of Mediated Settlement Agreement,
Plaintiffs seek compensatory damages. “[C]ompensatory damages are precluded
in cases of unintentional discrimination, but are permissible on a showing of
intentional discrimination.” Wood v. President & Trs. of Spring Hill Coll. in City
of Mobile, 978 F.2d 1214, 1219–20 (11th Cir. 1992) (addressing § 504 claim);
W.C. ex rel. Sue C. v. Cobb Cnty. Sch. Dist., 407 F. Supp. 2d 1351, 1363 (N.D. Ga.
2005) (same); see also J.D.P. v. Cherokee Cnty., Ga. Sch. Dist., 735 F. Supp. 2d
1348, 1364 (N.D. Ga. 2010) (extending principle to ADA claims). In the Eleventh
Circuit, intentional discrimination claims under § 504 are subject to a standard of
deliberate indifference, which requires the plaintiff to prove that “the defendant
knew that harm to a federal protected right was substantially likely and that the
25

defendant failed to act on that likelihood.” Ms. H. v. Montgomery Cnty. Bd. of
Educ., 784 F. Supp. 2d 1247, 1262 (M.D. Ala. 2011) (Albritton, J.) (quoting T.W.
ex rel. Wilson v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588, 604 (11th Cir.
2010)). The parties’ primary dispute is whether Defendant discriminated against
J.S.R. because of his disability. Hence, the focus of the discussion will be on this
issue.
2.

Alleged Discrimination
a.

Plaintiffs’ Contentions

Plaintiffs claim that Defendant violated the ADA by denying J.S.R.
“reasonable accommodations” necessary to ensure that J.S.R. was provided the
same educational opportunity that Defendant provides for non-disabled students.
(Doc. # 26, at 19.)

Plaintiffs do not assert definitively what reasonable

accommodations and services should have been provided during J.S.R.’s seventhand eighth-grade years.17 Plaintiffs contend that Defendant may have tried to
provide accommodations for J.S.R., but the accommodations “were not developed
to help [him]” in particular. (Doc. # 43, at 5.)
Plaintiffs contend that Defendant violated § 504 by failing to provide J.S.R.
with a FAPE, i.e., “regular or special education and related aids and services that
17

Plaintiffs assert that Defendant should now provide J.S.R. with “further individualized
instruction from the Learning Center and more appropriate counseling.” (Doc. # 26, at 20.) That
demand appears to have been met by Defendant to Plaintiffs’ satisfaction at the parties’
mediation. (See Doc. # 59-1.) That demand does not answer the question what reasonable
accommodations and services should have been provided to J.S.R. in seventh and eighth grades.
26

. . . are designed to meet individual educational needs of handicapped persons as
adequately as the needs of nonhandicapped persons are met.” (Doc. # 26, at 22
(citing 34 C.F.R. § 104.33) (emphasis added).) While Defendant provided some
aid or service to J.S.R., Plaintiffs aver that the aids or services were not designed to
meet J.S.R.’s individual needs.

(Doc. # 43, at 8.)

Plaintiffs reiterate that

Defendant refused to properly evaluate J.S.R. for special education eligibility.
“When [Defendant] did provide services” to J.S.R., Plaintiffs claim that
“[Defendant] violated all the rules and regulations” made applicable by § 504.
(Doc. # 26, at 24 (emphasis added).) In spite of the accusation that Defendant
offended all rules, Plaintiffs focus almost entirely on one § 504 infraction: J.S.R.’s
removal from his math class in seventh grade in contravention of § 504’s
requirement that students be accommodated and supported so as to participate in
the general education curriculum.18 See 34 C.F.R. § 104.34(a).

18

Plaintiffs admit that J.S.R.’s removal from seventh-grade math class could have been
technically appropriate if J.S.R. had been under an IDEA IEP, but there was no IEP in place
during J.S.R.’s seventh-grade year. (Doc. # 26, at 25 n.8.) J.S.R. was under a PEP at the time.
Under the § 504 regulations, a school must try to educate handicapped and nonhandicapped
students in the same setting “to the maximum extent appropriate to the needs of the handicapped
person” by using “supplementary aids and services.” 34 C.F.R. § 104.34(a).
Defendant accuses Plaintiffs of “continually switch[ing] gears,” alleging that removal
from grade-level math classes amounted to discrimination while demanding removal from gradelevel math instruction. (Doc. # 41, at 19.) Defendant ignores that J.S.R. should not have been
treated as a special education student without and prior to his official diagnosis and designation
for special education.
In Ms. H., the court found that there is no private right of action for a violation of a
regulation promulgated in support of § 504, but reasoned that a school district’s ignorance of
27

Plaintiffs maintain that Defendant acted in bad faith and with reckless
disregard for J.S.R.’s rights inasmuch as Defendant’s personnel did not know
Defendant’s obligations to disabled students under federal law. Plaintiffs assert
that Defendant’s § 504 coordinator and special education director did not know
that a student could be identified for special education services apart from
identification by the discrepancy model and did not know that a special education
student’s curriculum could be modified. (Doc. # 40, at 12–13.) Additionally,
during the pretrial conference, Plaintiffs represented that the special education
coordinator did not know that the law required that J.S.R. continue to receive the
same services after the due process complaint was filed in eighth grade, and that
Defendant violated this requirement by changing J.S.R.’s counselor.19 Plaintiffs
claim these failures to know and follow special education law constituted “gross
misjudgment” on the part of Defendant’s employees.
b.

Defendant’s Contentions

With respect to Plaintiffs’ ADA discrimination claim, Defendant asserts that
accommodations were made for J.S.R., and that the accommodations that were

“the regulations that the Department of Education has ordered it to follow to ensure proper
treatment of disabled students . . . may show that the school district is deliberately indifferent to
the needs of disabled students.” 784 F. Supp. 2d at 1265. The court will give the same weight to
any evidence of Defendant’s violation of a Department of Education regulation in this case.
19

During the pretrial conference, Plaintiffs’ lawyer referred to this requirement as “stay
put.” There is no mention of a violation of “stay put” or any reference to a change of counselor
in Plaintiffs’ briefing.
28

implemented on J.S.R.’s behalf are the same as the accommodation suggested by
J.S.R.’s neuropsychologist, Dr. Passler – a fact that Plaintiffs dispute. (Doc. # 41,
at 13.)

Defendant says it “implemented . . . environmental, organizational,

assignment, curriculum, presentation, and evaluational accommodations” for
J.S.R., as well as recommendations from J.S.R.’s counselor. (Doc. # 40, at 30–31
(citing J.S.R.’s PEP for the 2009–2010 and 2010–2011 academic years (Doc. # 279) and due process hearing testimony of two of J.S.R.’s teachers (Docs. # 27-10,
27-11).) Defendant argues that Ms. Childs expected Defendant to ensure J.S.R.’s
optimal academic success when she should have only expected reasonable
accommodations for him.
Assuming arguendo that it failed to provide accommodations and services as
alleged, Defendant argues that Plaintiffs have no evidence of causation that the
missing accommodations and services contributed to or caused J.S.R.’s academic
failure. (Doc. # 41, at 15 (citing Brown v. Dist. 299– Chicago Pub. Sch., 762
F. Supp. 2d 1076, 1085 (N.D. Ill. 2010)).)

In Brown, the court granted the

defendant’s motion for summary judgment, refusing the plaintiffs’ request to infer
that, if the school had fully complied with an IEP, then the plaintiff would have
passed his classes. The court explained that the plaintiff failed to present evidence
of causation, such as the plaintiff’s performance with the assistance of a special
education teacher as compared to his performance without assistance, or
29

performance on tests where accommodations were provided versus performance on
tests without accommodations. Id. Defendant contends that Plaintiffs likewise fail
to present evidence to support their claim that Defendant was the cause of J.S.R.’s
academic failure.
With respect to Plaintiffs’ § 504 discrimination claim, Defendant suggests
again that causation is lacking, and goes further by arguing that its evidence at the
due process hearing credibly suggested that J.S.R.’s poor academic performance
was due in part to J.S.R.’s lack of effort and his passive approach to learning that
has been fostered by his family. (Doc. # 41, at 17–18 (citing Schnelting v. St. Clair
R-XIII Sch. Dist., No. 4:10-CV-01240-JAR, 2011 WL 5913483, at *10 (E.D. Mo.
Nov. 28, 2011)).)
Lastly, Defendant argues that Plaintiffs cannot prove the requisite element of
intentional discrimination to support a claim for compensatory damages under
either the ADA or § 504.20 Section 504 claims arising in the context of public
education are sometimes resolved at summary judgment on the intentional
discrimination element because a plaintiff must show “something more than an

20

The court pauses to note what has not been disputed in the summary judgment briefing.
Defendant has not denied that J.S.R. is (1) a person with a disability (2) who is otherwise
qualified to participate in (3) a program receiving federal financial assistance. See Ms. H, 784
F. Supp. 2d at 1261 (enumerating the elements of a § 504 claim). Similarly, Defendant has not
contested that it is a public entity or that J.S.R. is a “qualified individual with a disability,” as
required to support a claim under the ADA. See 42 U.S.C. § 12132. Defendant disputes that it
has denied benefits or services to J.S.R. or otherwise subjected J.S.R. to discrimination because
of his disability.
30

IDEA violation for failure to provide a FAPE.” W.C., 407 F. Supp. 2d at 1363–64;
Ms. H., 784 F. Supp. 2d at 1262 (“[Section] 504 claims necessarily require more
than IDEA violations.”). The plaintiff “must . . . demonstrate some bad faith or
gross misjudgment by the school or that he was discriminated against solely
because of his disability.” W.C., 407 F. Supp. 2d at 1364. Courts have thus said
that a school district’s “mere negligence” is insufficient to support a claim for
compensatory damages. D.A. v. Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614,
622 (D. Idaho 2013) (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th
Cir. 2001)); see also Monahan v. Nebraksa., 687 F.2d 1164, 1170 (8th Cir. 1982)
(“We do not read [§] 504 as creating general tort liability for educational
malpractice.”). If the school officials “have exercised professional judgment in
such a way as not to depart grossly from accepted standards among educational
professionals, the school system is not liable under § 504” or the ADA. Ms. H.,
784 F. Supp. 2d at 1263 (quoting Monahan, 687 F.2d at 1171).
Defendant argues that Plaintiffs’ allegations that it acted with deliberate
indifference or bad faith toward J.S.R. are conclusory and unsubstantiated by the
evidence. Defendant asserts that Plaintiffs can show, at most, that Defendant’s
agents, in the exercise of their professional judgment, made “faulty or incorrect . . .
evaluations and educational placements,” but that such mistakes are legally
insufficient to constitute intentional discrimination. (Doc. # 40, at 48.)
31

3.

Findings

Proving a school district’s deliberate indifference, bad faith, or gross
misjudgment is a high standard that can be difficult for a plaintiff to meet, but the
court may not weigh the evidence at summary judgment.21 Consequently, district
courts have allowed special education cases arising under § 504 and/or the ADA to
proceed to trial where the court could not decide the question of intentional
discrimination as a matter of law.
For example, in D.A., the court found the plaintiff’s evidence that the
defendant provided inadequate testing to a student was sufficient reason to deny
the defendant’s motion for summary judgment, notwithstanding the defendant’s
evidence of its efforts to provide accommodations to the plaintiff. 289 F.R.D.
at 623. Similarly, in Ms. H., the plaintiff presented probative evidence that the
defendant “simply ignored [the student] by failing to conduct tests or assessments,
and by failing to significantly update [the student’s] § 504 plans despite [the
student’s] poor grades.” 784 F. Supp. 2d at 1268. And in BD v. DeBuono, 130
F. Supp. 2d 401, 439 (S.D.N.Y. 2000), the court denied a school district’s motion
for summary judgment where plaintiffs showed that educators knew that the
21

“In practice, cross motions for summary judgment may be probative of the
nonexistence of a factual dispute, but this procedural posture does not automatically empower
the court to dispense with the determination whether questions of material fact exist.” Ga. State
Conference of NAACP v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015)
(internal citation, alteration, and quotations omitted). In this case, the cross motions are not
probative of the nonexistence of a factual dispute.
32

quantity of therapy provided to students was inadequate but nonetheless persisted
in providing that level of therapy.
In view of the evidence and in keeping with the obligation to view the
evidence in the light most favorable to the non-moving party, the court concludes
that a jury should decide whether Defendant discriminated against J.S.R. because
of his disability. Additionally, the court finds that Defendant’s lack of causation
defense should also be presented to a jury.

The parties’ cross-motions for

summary judgment on Plaintiffs’ ADA and § 504 discrimination claims (Counts II
and III) are therefore due to be denied, with one exception discussed below.
4.

Baseball Discrimination and Retaliation

Plaintiffs assert that Defendant discriminated against J.S.R. in violation of
§ 504 and the ADA by excluding J.S.R. from participation in extracurricular
sports. Plaintiffs posit that, if J.S.R.’s academic needs had been addressed properly
by Defendant, his grades would not have suffered; ergo, he would have been
eligible to play sports during the eighth grade.
Defendant contends that J.S.R. was not discriminated against on the basis of
his disability. Defendant contends that it provided J.S.R. an equal opportunity to
participate because: (1) Defendant fairly applied a system-wide rule that prevented
J.S.R. from trying out for baseball in seventh grade while he was suspended from
school for bringing brass knuckles to school; and (2) Defendant offered reasonable
33

accommodations to assist J.S.R. in achieving the passing grades required by the
Alabama High School Athletic Association to be eligible to play sports in eighth
grade. (Doc. # 40, at 39–40; see also Doc. # 40, at 27 (citing 34 C.F.R. § 104.37,
which requires a school to “provide . . . extracurricular services and activities in
such manner as is necessary to afford handicapped students an equal opportunity
for participation in such services and activities”) (emphasis added)).) The court
notes that Defendant’s position is consistent with Hearing Officer Morton’s
findings of no discrimination during the IDEA due process proceedings, (see
Admin. Decision, at 44–45), and Plaintiffs have not appealed that decision.
Plaintiffs also assert that Defendant violated the anti-retaliation provisions of
§ 504 by not permitting J.S.R. to play baseball in tenth grade, by not providing
unspecified counseling, and by pursuing truancy issues in juvenile court for
absences that were due to his disability and excused by a doctor. As discussed in a
separate memorandum opinion and order on Defendant’s motion to strike, these
factual predicates for a retaliation claim have not been administratively exhausted
and were not pleaded in Plaintiffs’ Amended Complaint.
For these reasons, Defendants are entitled to summary judgment on the
ADA and § 504 discrimination claims relating to baseball and on any retaliation
claim relating to baseball.

34

C.

Relief Under § 1983 (Count IV)
Defendant contends that it is entitled to summary judgment on Plaintiffs’

§ 1983 claim that Defendant violated J.S.R.’s constitutional rights to substantive
and procedural due process and equal protection. Defendant argues simply that
“[§] 1983 actions for denial of rights conferred by the IDEA are barred because the
IDEA’s comprehensive enforcement scheme provides the sole remedy for statutory
violations.” K.A. ex rel. F.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195, 1210 (11th
Cir. 2013). Defendant’s motion is well-taken to the extent that Plaintiffs attempt to
raise constitutional claims rooted in Defendant’s failure to comply with the
requirements of the IDEA and to the extent that Plaintiffs are claiming that J.S.R.
was denied equal protection when he did not receive the FAPE that Defendant
provided to non-disabled students. See id.; see also Smith v. Robinson, 468 U.S.
992, 1010 (1984), superseded in part by statute, 20 U.S.C. § 1415(e)(4) (holding
that the EHA was the exclusive route by which the plaintiffs could assert an equal
protection claim concerning the right to a FAPE).
However, K.A. did not hold that the constitutional claims can never
accompany IDEA claims.

Rather, the court qualified its holding in K.A. as

follows: “Were there some right at issue conferred by the Constitution or other
federal laws and not by the IDEA, we would be presented with a different
question.” 741 F.3d at 1210 (emphasis added). For example, in Manecke v.
35

School Board of Pinellas County, Fla., 762 F.2d 912 (11th Cir. 1985), the Eleventh
Circuit held that an action could be brought under § 1983 where a school board
deprived a disabled child of her right to due process by effectively denying her
access to the impartial due process hearing required by the IDEA. Id. at 918–21.22
Ms. Childs does not deny that when she finally requested a due process
hearing, she received one. She appears to be alleging instead that Defendant’s
mishandling of J.S.R.’s special education situation and its provision of inaccurate
information about its ability to serve and accommodate J.S.R. caused her to delay
her formal request for due process proceedings. (See Am. Compl. at ¶ 56.) It is
still not clear from Plaintiffs’ submissions how those facts constitute a procedural
due process deprivation.
At the pretrial conference, the court pressed Plaintiffs’ counsel for an
explanation of the nature of the substantive and procedural due process claims.
Counsel responded that J.S.R. was not afforded a complete and full due process
hearing on the ADA and § 504 claims because the hearing officer declined to hear
those claims. There appears to be no question that the hearing officer was correct
that he lacked jurisdiction over any claim arising under the ADA or § 504. Even if
the hearing officer should have entertained the claims in 2013, Plaintiff has not
22

However, “[t]he [Manecke] court explicitly cautioned that the holding was narrowly
limited to the facts of that case and should not be broadly construed to hold that § 1983 may be
employed whenever a procedural deprivation occurs in the context of [what is now] known as
the IDEA.” Sch. Bd. of Manatee Cnty., Fla. v. L.H. ex rel. D.H., 666 F. Supp. 2d 1285, 1296
(M.D. Fla. 2009).
36

explained why Defendant, a co-participant in the proceedings, should be
responsible for the alleged error of a state-appointed hearing officer.
Plaintiffs’ counsel further explained at the pretrial conference that J.S.R. was
denied his substantive due process right to participate in his education and in
school sports. But Plaintiffs have omitted – and perhaps just take for granted – any
legal explanation of the basis of J.S.R.’s substantive due process rights to
participate in either his education or in baseball.
In view of the incompleteness of the parties’ arguments concerning the
§ 1983 claims, the court declines to grant either party’s motion for summary
judgment with respect to Plaintiffs’ due process claims. Defendant has not met its
burden of showing why it is entitled to judgment as a matter of law. Likewise,
Plaintiffs also have failed to provide the court with a legal basis to support their
motion for summary judgment on Count IV. The cross-motions for summary
judgment are therefore due to be denied with respect to Plaintiffs’ substantive and
procedural due process claims.

However, Defendant’s motion for summary

judgment on Count IV is due to be granted on the basis of the Eleventh Circuit’s
holding in K.A., which advises that there can be no equal protection claim for
denial of a FAPE or any other violation of the IDEA that is redressable by the
IDEA.

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V. CONCLUSION
In accordance with the foregoing discussion, it is ORDERED that:
(1)

Plaintiffs’ motion for summary judgment is GRANTED IN PART and

DENIED IN PART. Plaintiffs’ motion is GRANTED with respect to Count I. It is
DENIED with respect to Counts II, III, and IV.
(2)

Defendant’s motion for summary judgment is GRANTED IN PART

and DENIED IN PART. Defendant’s motion is GRANTED with respect to the
equal protection claim asserted in Count IV. Defendant’s motion is GRANTED
with respect to any ADA or § 504 discrimination or retaliation claim arising from
J.S.R.’s exclusion from playing baseball. Defendant’s motion is DENIED with
respect to Counts I, II, III, and the remainder of Count IV.
(3)

Defendant’s alternative motion for judgment on the pleadings is

DENIED.
On or before October 26, 2015, Plaintiffs shall submit their request for
attorney’s fees owed for the administrative due process hearing. Defendant may
file any objections to Plaintiffs’ fee request on or before November 9, 2015. The
parties shall consider the IDEA’s statutory standards for fee awards and related
costs. See 20 U.S.C. § 1415(i)(3)(C)–(G).
DONE this 28th day of September, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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