Ms. H v. Montgomery County Board of Education

Filing 108

MEMORANDUM OPINION AND ORDER that 1. Ms. H's class claims are DISMISSED for lack of standing; 2. Ms. H's Motion for Class Certification 56 is DENIED AS MOOT; 3. The cross Motions for Summary Judgment 68 and 70 are DENIED; 4. This cas e will proceed to trial with respect to Ms. H's individual § 504 claim and her request for attorney's fees claim. The damages claim will be tried to a jury and the other claims to the court; 5. The parties are DIRECTED to discuss in th eir trial briefs the standard that must be met by the Plaintiff to receive declaratory or injunctive relief under the § 504 claim. They should either agree on the standard and state what it is, or, if they cannot agree, state and support their separate positions. Signed by Honorable W. Harold Albritton, III on 5/12/2011. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

Ms. H., individually and as
mother and next friend of
T.H., a minor,
Plaintiff,
v.
MONTGOMERY COUNTY
BOARD OF EDUCATION
Defendant.

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) CIVIL ACTION NO. 2:10cv247-WHA-SRW
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(WO)
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on Plaintiff’s Motion for Class Certification, and the parties’
cross Motions for Summary Judgment. The plaintiff in this action, Ms. H, who is filing this
lawsuit individually and on behalf of her daughter, T.H., filed a Motion for Class Certification
on December 22, 2010 (Doc. #56). Additionally, Ms. H filed a Motion for Partial Summary
Judgment on January 28, 2011 (Doc. #68). On the same day, Defendant, Montgomery County
Board of Education (the “Board”), filed its own Motion for Summary Judgment (Doc. #70). The
cross Motions for Summary Judgment have been filed with respect to individual claims brought
by Ms. H, but not her class claims.
Ms. H filed a Second Amended Complaint in this court on January 26, 2011 (Doc. #67).
In the Second Amended Complaint, Ms. H (1) made individual and class claims under § 504 of
the Rehabilitation Act of 1973 (“§ 504”); (2) sought to appeal all issues on which she did not
prevail at an Individuals with Disabilities Education Act (“IDEA”) hearing; and (3) sought to

recover attorney’s fees. This court granted summary judgment in favor of the Board and against
Ms. H on the IDEA issue. See Ms. H. v. Montgomery Cnty. Bd. of Educ., No.
2:10cv247-WHA-SRW, 2011 WL 666033 (M.D. Ala. Feb. 14, 2011).
The court concludes, after consideration of the parties’ briefs, supporting evidence, and
the law, that Ms. H’s class claims are due to be DISMISSED for lack of standing, Ms. H’s
Motion for Class Certification is due to be DENIED AS MOOT, and the cross Motions for
Summary Judgment are due to be DENIED.

II. STANDARD OF REVIEW
A.

Motion for Class Certification
The question of class certification is a procedural one distinct from the merits of the

action. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980).1 In deciding whether to certify a
class, a district court has broad discretion. Washington v. Brown & Williamson Tobacco Corp.,
959 F.2d 1566, 1569 (11th Cir. 1992). Although a district court is not to determine the merits of
a case at the certification stage, sometimes “it may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question.” Id. at 1560 n.11.
A class action may only be certified if the court is satisfied, after a rigorous analysis, that
the prerequisites of Federal Rule of Civil Procedure 23 have been satisfied. Gilchrist v. Bolger,
733 F.2d 1551, 1555 (11th Cir. 1984). “A class action may be maintained only when it satisfies
all the requirements of Fed. R. of Civ. Pro. 23(a) and at least one of the alternative requirements

1

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent the decisions of the former Fifth Circuit.
2

of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997). A
court must evaluate whether the four requirements of Rule 23(a) are met: numerosity,
commonality, typicality, and adequacy of representation. Furthermore, the court must determine
whether the action may be maintained as one of the classes under Rule 23(b). The party seeking
to maintain the class action bears the burden of demonstrating that all prerequisites to class
certification have been satisfied. Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir.
1984).

B.

Motion for Summary Judgment
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .

the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include

3

“depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
In resolving the present cross Motions for Summary Judgment the court will construe the
facts in the light most favorable to the nonmovant when the parties’ factual statements conflict or
inferences are required. Barnes v. Sw. Forest Indus., 814 F.2d 607, 609 (11th Cir. 1987).

III. FACTS
The admissible evidence submitted by the parties reveals the following facts, viewed in a
light most favorable to the non-movant, as required by the governing standard:2

2

Factual issues are evaluated differently when evaluating a motion for class certification
as compared with a motion for summary judgment. This opinion, for the sake of brevity and
simplicity, discusses the facts of this case in this section under the summary judgment standard.
The court is not, however, using the summary judgment standard to evaluate facts for the
purposes of the class certification inquiry.
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A.

The Board’s Section 504 Procedures
The Board oversees the operations of Montgomery Public Schools (“MPS”). MPS is a

recipient of federal financial assistance. Therefore, it is required to comply with § 504, which
prohibits, generally, the exclusion of, denial of benefits to, or discrimination against, an
individual solely on the basis of that individual’s disability. See 29 U.S.C. § 794(a). In an
attempt to comply with § 504, the Board has created a Procedural Guide.3
The Procedural Guide establishes a timeline for evaluating and accommodating disabled
students under § 504. This timeline is a outline-style list of steps that explain, inter alia, how to
identify, evaluate, and accommodate disabled students, as well as how to deal with parental
complaints. The Procedural Guide’s appendix contains a number of documents that are
applicable to various timeline events. For example, Appendix G is a list of example
accommodations that can be provided to § 504 students. Doc. #84-7 at 14-16. Appendix R is a
form given to parents to notify them of the rights established by § 504. Doc. #84-7 at 33.
The first point in the § 504 timeline is a referral for a § 504 evaluation. A child may be
referred from a number of sources, including parents and teachers.
After a child is referred, the timeline requires that evaluators “evaluate/gather
information/data.” This includes gathering (1) medical documentation if available; (2) grades;
(3) test scores; (3) observations; (4) behavioral rating scales; (5) disciplinary information; (6)
individual achievement/assessment inventories; and (7) special education information.

3

There are two copies of the Procedural Guide in evidence, one from 2004 and one from
2010. Because neither party argues that they materially differ or did not apply at relevant times
during this case, the court will treat them as establishing the same procedures during all relevant
times of T.H.’s educational career.
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Next, an eligibility determination team convenes to determine the child’s eligibility for §
504 services. This team includes, among others, (1) teachers; and (2) the local school § 504
coordinator. The team is instructed to consider the gathered information and data, to make a
determination, and to complete two forms. The first form is a “Record of Eligibility Placement
Determination,” which, among other things, requires the evaluators to certify that they (1)
notified parents or guardians of their intent to evaluate a child; and (2) considered a variety of
documented information. The second form is a “Parent Notification of Eligibility
Determination,” that requires the team to notify the parent of an eligibility determination, invite
the child’s parents to a § 504 meeting, and ask the parent to indicate whether he or she will
attend the meeting.
Subsequently, an accommodation planning team meets, which includes (1) a local school
§ 504 coordinator; (2) parents; and (3) teachers. The accommodation planning team is told to
write an accommodation plan by (1) considering accommodations appropriate to a student's
disability;4 (2) considering participation in a state assessment program; and (3) completing a §
504 student accommodation plan form. The team then notifies faculty or staff who need to know
about the plan, share the plan if necessary, and monitor its implementation.
The Procedural Guide also requires that a student’s § 504 plan be reviewed at least every
year, by (1) sending a request for the parent to attend the review; (2) reconvening the § 504
planning committee; (3) sending the parent a new “notice of intent to evaluate” document; and

4

The Procedural Guide contains a list of example accommodations in Appendices G and
I. Appendix G states that it is merely a list of examples, and is “not exhaustive.”
6

(4) revising the plan if needed. The Procedural Guide does not require that this review include
additional tests or assessments of the student.
The Procedural Guide also discusses how to deal with disputes over the § 504 process, as
well as impartial due process hearings. Upon receiving a complaint, the school must provide the
complainant with a “§ 504/Americans with Disabilities Act Grievance Procedure” form that
explains the impartial due process procedure that MPS provides to parents if they request such a
hearing.

B.

Elementary School
T.H. is a student in Montgomery Public Schools. She began attending MPS as a first

grade student in the Fall of 1999. In first and second grade, T.H. had behavioral problems: she
was disruptive in class, and had difficulty finishing her school work. T.H. did not receive § 504
services at this time.
In January, 2001, a school psychologist evaluated T.H. and concluded that she had
symptoms of attention deficit disorder.5 Because of this, and the fact that T.H. had bladder
control problems and had a seizure at an early age, the psychologist recommended further
testing, follow-up counseling, and various aids and services.

5

The psychologist’s perception of T.H. was not wholly negative. The psychologist noted,
among other observations, that T.H. (1) “was socially confident;” (2) “generally understood
instructions;” (3) had “good concentration;” (4) had an IQ score in the “low-average” range; and
(5) had “average” verbal comprehension. Doc. #59-2 at 6-11.
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At the beginning of third grade, in the fall of 2002, T.H.’s doctor diagnosed her with
attention deficit hyperactivity disorder and placed her on medication. After T.H. continued to
have trouble in school, Ms. H asked MPS whether T.H. was eligible for § 504 services.
In October, 2002, MPS determined that T.H. was disabled as defined by § 504, and was
entitled to § 504 services. Accordingly, MPS began creating a new § 504 plan for T.H. each
year.

C.

Middle School
T.H. entered middle school as a seventh-grader in August 2005. MPS created a new §

504 plan for T.H. in September, 2005.
At the time this new § 504 plan was created, T.H.’s disabilities had worsened. T.H.’s
bladder control problem caused T.H. to wet herself multiple times per week, and this forced T.H.
to occasionally leave school to go home to shower and change. T.H.’s § 504 plan thus included
a notation that T.H. must be allowed to go to the restroom when needed.
In eighth grade, T.H.’s health problems continued to worsen. T.H. developed an
additional health condition: a mitral valve prolapse, which caused her to have trouble breathing,
and an abnormal racing heartbeat.
Throughout middle school, despite the fact that T.H. received a § 504 plan for both
seventh and eighth grade, she struggled academically. While T.H. graduated from middle school
to high school, MPS informed Ms. H that T.H. did not earn her passing grades, rather, her grades
were modified upward so that she would pass.

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D.

High School
T.H. began high school at Sidney Lanier High School, an MPS high school, in August,

2007. T.H. received a new § 504 plan in May, 2007, just prior to finishing middle school, and
received a new § 504 plan in September, 2007, approximately one month after she began ninth
grade.
MPS developed a new § 504 plan for T.H. each year while T.H. was in high school.
Despite these new plans, T.H.’s grades remained low throughout high school. See, e.g., Doc.
#59-1 at 3. Even though T.H. struggled academically, T.H.’s § 504 plans remained essentially
the same6 until her twelfth grade plan.
In twelfth grade, the current academic year, MPS granted Ms. H’s request to transfer
T.H. to Lee High School. Subsequently, MPS made substantial changes to T.H.’s twelfth grade
§ 504 plan, adding thirteen new accommodations, some of which were on the pre-printed
accommodations checklist and some were inserted as notations, as well as notations to explain
specifically how to implement T.H.’s accommodations. Doc. #59-1 at 5-7.7 These
accommodations included (1) having T.H. attend afternoon math tutoring; (2) providing T.H. a
study guide so she would not have to copy information from the chalkboard onto her own paper;
and (3) giving T.H. alternative testing techniques, such as multiple choice tests, word banks, or
clues. Id.

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For example, from ninth grade to tenth grade, MPS removed two accommodations it
previously gave T.H. and added only one: “[m]onitor the rate you present material.” Doc. #59-3
at 7. From tenth grade to eleventh grade, MPS removed six accommodations, and added three:
(1) “[s]eat student near someone who will be helpful and understanding;” (2) “[u]se verbal
cues;” (3) “[c]ommunicate orally, visually, and repeat as needed.” Doc. #59-2 at 51.
7

Some of these new accommodations were added at Ms. H’s request.
9

In addition to T.H.’s low grades, T.H. passed two and failed two of her Alabama High
School Graduation Examinations. As a tenth grader, T.H. passed the language section of the
graduation exam, and also passed the biology section, despite failing biology during the school
year. T.H. narrowly failed the math and social studies sections of the exam. As of today, T.H.
has passed only three of her four graduation exams; she has yet to pass the social studies exam.
In 2009, T.H. was evaluated for special education services under IDEA. However, as
discussed in this court’s prior Opinion, T.H. was found ineligible for special education services
under IDEA.
The evidence establishes that MPS and Ms. H had trouble communicating with each
other. On multiple occasions during T.H.’s time in high school, Ms. H called and wrote letters to
MPS, complaining that T.H.’s grades were poor and that her § 504 plans were insufficient. On
some occasions, MPS failed to respond. Other times, Ms. H was not satisfied with the response
because, for instance, MPS did not incorporate her suggested accommodations into T.H.’s § 504
plan. On the other hand, the Board points out that Ms. H could not attend several § 504
meetings, see, e.g., Doc. #59-2 at 57-79; canceled several meetings after they were scheduled,
see, e.g., Doc. #59-2 at 62; showed up so late to a meeting that it had to be canceled, see, e.g.,
Doc. #59-2 at 65, and did not respond to a request for her to attend a meeting, see, e.g., Doc.
#59-2 at 67.

E.

Ms. H’s Asserted Reasons for T.H.’s Academic Failures
Ms. H places the blame for T.H.’s academic failures on MPS’s alleged failure to properly

deal with T.H.’s disability. She asserts that MPS failed to comply with a number of procedures

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described in the Department of Education’s § 504 regulations for identifying T.H.’s disability
and making accommodations for T.H.8 Additionally, Ms. H notes that MPS never materially
adjusted T.H.’s § 504 plans despite the fact that T.H.’s grades were not improving, or, at times,
were worsening. Ms. H also presents evidence that John Goff, a clinical psychologist and
neuropsychologist who evaluated T.H., said that the § 504 accommodations “obviously weren’t
working.” Doc. #24-5 at 55:3-14.9 Finally, Ms. H states that the Board never conducted new
tests and assessments on T.H. when it created new § 504 plans for T.H. each year.

F.

The Board’s Asserted Reasons for T.H.’s Academic Failures
While Ms. H claims that the sole reason for T.H.’s poor performance during high school

was T.H.’s disability, the Board argues that T.H.’s poor performance was caused by other issues.
First, the Board notes that T.H. was frequently absent or tardy from school, or left school early.
For example, during the 2008-09 school year, T.H. was tardy 21 times, absent 7 times, and Ms.
H often checked T.H. out of school early. Some of these tardies, absences, and early check-outs
were unexcused. T.H. not only had unexcused tardies to her first class of the day, but also to
classes in the middle and end of the day, after she was already at school.

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Ms. H asserts that neither Gloria Bean, MPS’s § 504 coordinator, nor Ardelia Skipper,
Lanier High School’s § 504 coordinator, are “qualified to interpret the results of any
evaluations.” Doc. #69 at 44. Rather, Ms. H states that, because Bean and Skipper do not have a
clinical background, they are not “guidance counselors, not clinicians.” Id.
9

For more information about T.H.’s independent educational evaluations, see this court’s
prior opinion on Ms. H’s IDEA claims. Ms. H., 2011 WL 666033, at *1.
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Second, T.H. had a poor attitude toward school. A personal inventory conducted of T.H.,
prior to T.H.’s sophomore year, revealed that T.H. hates school.10 T.H. “often would either not
answer test questions or would not complete them. On occasion [T.H.] would simply lay her
head on the table where she sat and refuse to participate in class.” Doc. #24-14 at 42. Meredith
Edwards, one of T.H.’s teachers, said that T.H. was “very capable” of doing her school work, but
she was only “sometimes” attentive, and simply did not complete her assignments.11 The Board
also notes that part of the reason for T.H.’s poor grades was that she did not turn in work or did
not complete her class work. T.H. had also been disciplined for using her cell phone in school at
least three times, one of those times resulting in a suspension because T.H. did not cooperate
while being disciplined. Doc. #59-2 at 55.
Third, the Board states that T.H.’s grades declined at a time when T.H. had conflicts at
home. Specifically, Ms. H testified that she and T.H. fought about T.H.’s friends and T.H.’s
school performance.
Fourth, the Board noted that T.H. and Ms. H did not take advantage of opportunities to
improve T.H.’s grades and improve her chances at passing her graduation exams. The evidence

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This personal inventory revealed that T.H. had a very negative attitude toward school,
associating with others, and her family. In this personal inventory: (1) in response to the prompt,
“I do not like . . .,” T.H. wrote: “people;” (2) in response to the prompt, “I would like to learn
about . . .,” T.H. wrote: “nothing;” (3) in response to the prompt, “I would be much better off if .
. .,” T.H. wrote: “people leave me alone;” (4) in response to the prompt, “[i]f I was allowed to
help in class I would . . .,” T.H. wrote: “i wouldnt help;” and (5) in response to the prompt, “[i]f I
could change anything I would first . . .,” T.H. wrote: “I would change my family.” Doc. #24-9
at 14.
11

The Board notes that T.H.’s played volleyball on her high school volleyball team in
tenth grade. Although she did not play during eleventh grade due to her poor grades, T.H.
continued to practice with the volleyball team, attended the games, and sat with the team.
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establishes that MPS offered tutoring to T.H. but T.H. failed to attend tutoring. See, e.g., Doc.
#59-2 at 12, 54. For example, Meredith Edwards, T.H.’s biology teacher, stated that she offered
tutoring to T.H., but T.H. never attended her tutoring sessions, while other students did.

G.

Impartial Due Process Hearing
Prior to bringing this suit, Ms. H requested an impartial due process hearing under both §

504 and IDEA. The Board held an IDEA hearing, but not a § 504 hearing. The parties never
administratively adjudicated the issues now before this court.
The parties dispute as to whose fault it is that the § 504 claims were not adjudicated in an
impartial due process hearing. The Board argues that Ms. H made a request for a due process
hearing in a letter dated July 21, 2009, and then withdrew that request. Specifically, the Board
claims that (1) Deborah Mattison, Ms. H’s counsel, told the Board via telephone that she was
withdrawing her request for a § 504 hearing on September 8, 2009 (Doc. #70-3 at 5); (2) the next
day, the Board sent a letter to Mattison, confirming withdrawal of the § 504 hearing, and sending
a copy to the Board’s § 504 coordinator (Doc. #70-3 at 7); and (3) in subsequent correspondence
one month later, Rachel McGinley, Ms. H’s other counsel, sent a letter to the Board regarding
the development of T.H.’s § 504 plan without referencing a § 504 hearing (Doc. #70-3 at 8).
Ms. H asserts that she never withdrew the request for a § 504 hearing. Ms. H states that
she made two requests for a due process hearing. First, on July 21, 2009, Ms. H requested a §
504 hearing, to which the Board never responded. Ms. H subsequently reiterated her request for
a § 504 hearing on August 25, 2009. Ms. H does not deny stating that she would withdraw the
request on the telephone, saying that she agreed to do so in exchange for a settlement of some

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sort, but claims that she did not receive any letter from the Board confirming withdrawal of the §
504 hearing request.
The IDEA hearing transcript provides additional information regarding the status of the
parties’ § 504 hearing. Early in the IDEA hearing on September 10, 2009, the following
discussion occurred:
MS. TATUM [Counsel for Defendant]: . . . . I realize there may be some Section
504 issues that could come up related to Child Find, but that this is not a Section
504 hearing.
THE HEARING OFFICER: Yeah, it’s not. But I do think 504 is relevant because
I think it’s the position of the Petitioner – or at least my understanding they are
saying even though she was getting 504 services that she should have been being
evaluated for special ed services.
MS TATUM: I just don’t want –
THE HEARING OFFICER: But it’s not a 504 hearing. And they have asked for a
504 hearing. I don’t know what the status of that is. But the school system needs
to tend to that and get something arranged for the 504 hearing.
MS. MATTISON [Counsel for Plaintiffs]: We do understand that. And our
reference to it – I mean, because of Babicz [v. Sch. Bd. of Broward Cnty., 135
F.3d 1420, 1422 n.10 (11th Cir. 1998)], we did want to make clear that at the very
least, this is an attempt to exhaust under 504. We don’t intend to try the 504
claims, obviously, but there will be reference to 504.
THE HEARING OFFICER: All right. That’s fine. But it is not a 504 hearing.
Doc. #24-1 at 26:11 - 27:23. No evidence shows that the parties had any further discussion
regarding a § 504 hearing.

IV. DISCUSSION
The court will first address Plaintiff’s Motion for Class Certification, and then will
discuss the cross Motions for Summary Judgment.
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A.

Motion for Class Certification
Ms. H seeks, on behalf of a proposed class, declaratory and prospective injunctive relief,

to include: (1) an order declaring that the Board’s policies violate the rights of students with
disabilities under § 504; and (2) an injunction enjoining the Board from continuing to violate
such students’ rights. She suggests that the injunction should include an order requiring the
Board to revise its procedures, properly implement § 504's regulations, and properly train its
staff. See Docs. #67 at 29-30; #57 at 57; #89 at 66.
The proposed class is as follows:
All students with a disability, as that term is defined by § 504 of [the]
Rehabilitation Act, 29 U.S.C. 794, who have resided within the Montgomery
County Board of Education’s jurisdiction at any time since July 2007, excluding
those students who have received special education under the Individuals with
Disabilities Education Improvement At, 20 U.S.C. 1400 et[] seq. for that entire
time period.
See Doc. #56 at 1.
The Eleventh Circuit has stated that “any analysis of class certification must begin with
the issue of standing.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). “Only after the
court determines the issues for which the named plaintiffs have standing should it address the
question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to
assert the rights of others.” Id.; see also AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 494 F.3d 1356, 1359 (11th Cir. 2007) (“ Standing . . . ‘is a threshold jurisdictional
question which must be addressed prior to and independent of the merits of a party’s claims.’”)
(citations omitted).
To establish Article III standing, a plaintiff has the burden to show that (1) she has “an
injury-in-fact;” (2) “the injury is fairly traceable to the defendant[’s] conduct;” and (3) “a
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favorable judgment is likely to redress the injury.” Mulhall v. UNITE HERE Local 355, 618
F.3d 1279, 1286 (11th Cir. 2010) (citation omitted). With regard to redressability, the Supreme
Court requires that it is “likely,” not merely “speculative,” that the “plaintiff’s injury will be
remedied by the relief plaintiff seeks in bringing suit.” Sprint Commc’ns Co. v. APCC Servs.,
Inc., 554 U.S. 269, 273-74 (2008) (emphasis added) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)).
In this case, the problematic element of the standing inquiry is redressability. In her
briefs, Ms. H stated that T.H. will graduate from MPS this year, whether or not she passes her
graduation exams.12 Because MPS’s school year ends this month, this means that T.H. will no
longer be a student at MPS by the time this court could grant any class relief, and therefore,
prospective injunctive relief affecting how MPS treats its § 504 students, which is what Ms. H
seeks as class relief, would have no impact on T.H. In fact, at the pretrial conference, held on
May 5, 2011, the court asked Ms. H’s counsel whether the relief she sought on behalf of the
class would affect T.H., and she responded that it would not.13 Therefore, Ms. H fails to satisfy
the redressability element of the standing inquiry. See, e.g., Roberts v. Madigan, 921 F.2d 1047,
1052 (10th Cir. 1990) (holding that injunctive relief could not redress plaintiff’s injury because

12

According to statements made by the parties at the pretrial conference for this case,
T.H. will graduate with a non-standard diploma if she does not pass all of her graduation exams.
Ms. H’s counsel suggested that T.H. may receive some tutoring from MPS so that she can pass
her graduation exams after graduation and then receive a standard diploma, though this tutoring
would not occur in a standard classroom setting. Ms. H’s counsel also indicated that T.H. would
not graduate if she failed any classes this year, though she has not suggested that is a likely
possiblity. These facts do not indicate that the relief Ms. H requests is “likely” to affect T.H.
instead of simply “speculative.”
13

The court appreciated Ms. H’s counsel’s candor and professionalism in admitting this

fact.
16

plaintiff was no longer in the classroom where the prospective injunctive relief would apply); see
also Schanou v. Lancaster Cnty. Sch. Dist. No. 160, 62 F.3d 1040, 1043 (8th Cir. 1995) (holding,
on mootness grounds, that a request for injunctive relief no longer presented a live controversy
after the plaintiff student had graduated); Pederson v. La. State Univ., 213 F.3d 858, 874 (5th
Cir. 2000) (“As is so often the case in suits for injunctive relief brought by students, graduation
or impending graduation renders their claims for injunctive relief moot . . . . Because the named
plaintiffs will not benefit from a favorable ruling on the question implicating injunctive relief,
we hold that this question is moot as to them.”).
Ms. H cannot satisfy the redressability element of the standing inquiry, so the court
concludes that she lacks standing to bring claims on behalf of the proposed class. Therefore, her
class claims are due to be DISMISSED for lack of standing, and her Motion for Class
Certification is due to be DENIED AS MOOT.

B.

Cross Motions for Summary Judgment
The court now turns to the parties’ cross Motions for Summary Judgment. This court

previously found that T.H. was not eligible for special education services under IDEA. See Ms.
H., 2011 WL 666033, at *21. The issue currently before the court is different. Unlike the IDEA
issue, where the question was whether T.H. was eligible for the protections of the statute, T.H.’s
eligibility for § 504 is not at issue here.14 Rather, both the Board and Ms. H agree that T.H. is

14

The Board argues that because it was found not to have violated IDEA by this court, it
cannot be liable under § 504, because IDEA’s protections exceed those of § 504 in the special
education context. Whether or not the Board’s presumption of § 504's scope is correct, its
argument is due to be rejected. The reason this court previously held that the Board did not
violate IDEA was because T.H. was not eligible for special education under IDEA; the court
17

eligible for § 504 services. The question presented today deals with the Board’s compliance
with § 504.

1.

Applicable Statutes and Regulations
i.

Section 504 of the Rehabilitation Act

IDEA and § 504 both apply to the context of special education. While the statutes have
some overlap, they are distinct. IDEA contains a detailed “web of procedural regulations . . .
[that] govern[] the school district’s identification, assessment and treatment plans for disabled
students.” See, e.g., D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453-54
(5th Cir. 2010). If a child qualifies as a “child with a disability,” as defined by IDEA, the child
gains the protections of IDEA, and schools subject to IDEA’s requirements have an “affirmative
obligation” to ensure that the child receives a free appropriate public education (“FAPE”). Id. at
453.
Section 504's statutory text, unlike IDEA’s, is short and straightforward. Section 504
states, in pertinent part:
No otherwise qualified individual with a disability in the United States . . . 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 or under any program or activity
conducted by any Executive agency or by the United States Postal Service. The head
of each such agency shall promulgate such regulations as may be necessary to carry
out the amendments to this section made by the Rehabilitation, Comprehensive
Services, and Developmental Disabilities Act of 1978.

never actually addressed whether the Board had complied with IDEA. In this case, however, the
Board concedes that T.H. is eligible for § 504 protection, which makes the § 504 “compliance”
issue in this case wholly different than the IDEA “eligibility” issue. To put it another way, § 504
compliance is to “apples” as IDEA eligibility is to “oranges.”
18

29 U.S.C. § 794(a) (emphasis added). In contrast to IDEA, § 504’s statutory text does not create
a number of different procedures that a school district must follow to comply with the statute.
See Sellers by Sellers v. Sch. Bd. of Mannassas, Va., 141 F.3d 524, 528 (4th Cir. 1998)
(“Whereas IDEA affirmatively requires participating States to assure disabled children a free
appropriate public education . . . section 504 of the Rehabilitation Act instead prohibits
discrimination against disabled individuals.”). Rather, under § 504's text, a school district may
not (1) (a) exclude; (b) deny benefits to; or (c) subject to discrimination; (2) any student; (3)
solely on the basis of his or her disability.

ii.

Section 504's Regulations15

The Department of Education has promulgated regulations under Section 504.
First, 34 C.F.R. § 104.4 reiterates § 504’s textual prohibition by stating, in similar
wording to § 504, that “[n]o qualified handicapped person16 shall, on the basis of handicap, be
excluded from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity which receives Federal financial assistance.”
Section 104.4(b) adds additional rules that federal funding recipients, such as MPS, which
provide an “aid, benefit, or service,” must follow. These rules generally reiterate that qualified
handicapped persons are due fair treatment, and generally must be provided an opportunity to

15

This is intended only as a general, not comprehensive, discussion of § 504's regulations.

16

“Qualified handicapped person” means, with respect to “public preschool[,] elementary,
[or] secondary . . . educational services, a handicapped person (i) of an age during which
nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory
under state law to provide such services to handicapped persons, or (iii) to whom a state is
required to provide a free appropriate public education under [IDEA].” 34 C.F.R. § 104.3(l)(2).
19

participate in aids, benefits, or services provided to the non-disabled. Section 104.4(b)(1)(iii)
requires that aids, benefits or services provided to the disabled must be “as effective as that
provided to others.” Section 104.4(b)(2) explains that, “to be equally effective,” an aid, benefit,
or service need not “produce the identical result or level of achievement for handicapped and
nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the
same result, to gain the same benefit, or to reach the same level of achievement, in the most
integrated setting appropriate to the person’s needs.”
While § 104.4(b) arguably interprets the language of § 504, other regulations go further
and speak with more specificity. Section 104.32, like the “child find” duty spelled out in
IDEA,17 requires that federal funding recipients who operate public elementary or secondary
schools “identify and locate every qualified handicapped person residing in the recipient’s
jurisdiction who is not receiving a public education . . . [and t]ake appropriate steps to notify
handicapped persons and their parents or guardians of the recipient’s duty” under the § 504
regulations.
The “duty” referred to in § 104.32 is explained by other regulations. Section 104.33(a)
requires, like IDEA, but unlike § 504's text, that federal funding recipients “provide a free
appropriate public education to each qualified handicapped person who is in the recipient’s
jurisdiction.” Section 104.33(b)(1) explains that an “appropriate education is the provision of
regular or special education and related aids and services that (i) are designed to meet individual

17

Pursuant to the “child find” provision of IDEA, a school district “has a duty to identify
and evaluate children who are suspected of having a qualifying disability within a reasonable
time after school officials are placed on notice.” D.R. ex rel. Courtney R. v. Antelope Valley
Union High Sch. Dist., 746 F. Supp. 2d 1132, 1145 (C.D. Cal. 2010).
20

educational needs of handicapped persons as adequately as the needs of nonhandicapped persons
are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§
104.34, 104.35, and 104.36.” This requirement may be met by providing a child with an
Individualized Education Program in compliance with IDEA. 34 C.F.R. § 104.33(b)(2).
Section 104.34 requires funding recipients to attempt 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).
Section 104.35 describes requirements for evaluating students who need or are suspected
to need special education or related services due to handicap. Under this section, prior to making
an initial placement of a handicapped student in regular or special education, and prior to “any
subsequent significant change in placement,” a recipient must conduct an evaluation. 34 C.F.R.
§ 104.35(a). To make this placement decision, recipients must (1) consider information from a
variety of sources, “including aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background, and adaptive behavior;” (2) establish procedures to
ensure information obtained from these sources is documented and carefully considered; (3)
ensure placement decisions are made by a group of persons, including a person “knowledgeable
about the child, the meaning of the evaluation data, and the placement options;” and (4) ensure
that the placement complies with § 104.34. Recipients must also establish “standards and
procedures” for evaluations that ensure that the tests and evaluation materials are selected,
administered, and interpreted effectively. 34 C.F.R. § 104.35(b), (c).
Section 104.35 further requires that recipients establish procedures for periodic
reevaluations that comply with the above requirements for evaluations. 34 C.F.R. § 104.35(d).

21

One way to comply with reevaluation requirements is to comply with IDEA’s reevaluation
requirements. Id.18
Finally, § 104.36 requires that recipients establish and implement “a system of procedural
safeguards that includes notice, an 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.” One way to comply
with this provision is to comply with IDEA’s procedural safeguard requirements. 34 C.F.R. §
104.36.

2.

Damages Claims Under § 504

A parent has a private right of action to sue a school system for violating § 504. See, e.g.,
Arline v. Sch. Bd. of Nassau Cnty., 772 F.2d 759, 760 n.1 (11th Cir. 1985) (citing Jones v. Metro.
Atlanta Rapid Transp. Auth., 681 F.2d 1376, 1377 n.1 (11th Cir. 1982)). To prevail on a § 504
claim, a plaintiff must show “(1) the plaintiff is an individual with a disability under the
Rehabilitation Act; (2) the plaintiff is otherwise qualified for participation in the program; (3) the
plaintiff is being excluded from participation in, being denied the benefits of, or being subjected
to discrimination under the program solely by reason of his or her disability; and (4) the relevant
program or activity is receiving federal financial assistance.” See, e.g., L.M.P. ex rel. E.P. v.

18

IDEA’s reevaluation requirements, in general, require, inter alia: (1) evaluations need
not occur more frequently than once a year, but must occur at least once every three years, unless
the parents and school agree otherwise; (2) notice to the parent prior to evaluation; and (3) the
school meets IDEA’s evaluation requirements, such as the requirement that the school use a
variety of assessment tools that are effective at determining the child’s needs. 20 U.S.C. §
1414(a)(2), (b).
22

Sch. Bd. of Broward Cnty., Fla., 516 F. Supp. 2d 1294, 1301 (S.D. Fla. 2007) (citations omitted).
The only element that the parties in this case dispute is the third element.

i.

Intentional Discrimination is Required to Recover Damages Under
Section 504

To state a claim for compensatory relief under § 504, a plaintiff must show intentional
discrimination. See, e.g., J.D.P. v. Cherokee Cnty., Ga. Sch. Dist., 735 F. Supp. 2d 1348, 1364
(N.D. Ga. 2010) (citing Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219
(11th Cir. 1992)).
The definition of “intentional discrimination” in the § 504 special education context is
unclear. In 2010, the Eleventh Circuit stated that it “has not decided whether to evaluate claims
of intentional discrimination under section 504 under a standard of deliberate indifference or a
more stringent standard of discriminatory animus.” T.W. ex rel. Wilson v. Sch. Bd. of Seminole
Cnty., Fla., 610 F.3d 588, 604 (11th Cir. 2010) (citing Wood, 978 F.2d at 1218-20). In this case,
neither party has made a serious contention that the discriminatory animus standard applies, and
have apparently argued this case under the deliberate indifference standard. Accordingly, this
court will analyze the damages claims under that standard, which is a more lenient standard than
discriminatory animus. See J.D.P., 735 F. Supp. 2d at 1365 (analyzing a compensatory damages
claim under § 504 using the deliberate indifference standard because the parties argued the case
under that standard); Saltzman v. Bd. of Comm’rs of the N. Broward Hosp. Dist., 239 F. App’x
484, 487 (11th Cir. 2007) (same).
In the Eleventh Circuit, to show deliberate indifference, “a plaintiff must prove that the
defendant knew that harm to a federally protected right was substantially likely and that the
23

defendant failed to act on that likelihood.” T.W., 610 F.3d at 604 (finding no deliberate
indifference on the part of a school system that placed a student with a teacher who abused the
student and had a prior “proclivity toward abuse with students,” because the school system
“investigated all complaints of abuse that parents lodged” against the teacher, and “were unable
to substantiate the complaints”). A defendant’s “good faith attempts to pursue legitimate ends
are not sufficient to support an award of compensatory damages under section 504.” Wood, 978
F.2d at 1219.
While Section 504 can be used as the basis for a cause of action in many contexts, it has
taken on a unique meaning in the special education context when a plaintiff’s claim is based on
an alleged failure to accommodate. See, e.g., Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th
Cir. 1982) (analyzing the standard under which § 504 special education claims must be brought
by comparing § 504 to the IDEA); Doe v. Arlington Cnty. Sch. Bd., 41 F. Supp. 2d 599, 608
(E.D. Va. 1999) (“In the special education context, the standard of proving a § 504 claim is
extraordinarily high.”) (emphasis added); see also 34 C.F.R. §§ 104.1-.54 (establishing separate
regulations for § 504 in the following contexts: (1) employment; (2) accessability; (3) preschool,
elementary, and secondary education; (4) postsecondary education; and (5) health, welfare, and
social services). Therefore, courts have applied a unique standard to § 504 special education
failure-to-accommodate claims.
Much of that difference in treatment appears to come from the existence of IDEA. See,
e.g., Sellers, 141 F.3d at 529 (specifically stating that a § 504 disability discrimination claim is
different than an IDEA claim). These courts have consistently held that it is harder for a plaintiff
to prevail on a failure-to-accommodate claim under § 504 than a failure-to-accommodate claim

24

under IDEA, assuming that the plaintiff is covered under both § 504 and IDEA.19 Id. A
Northern District of Georgia case, squarely facing the failure-to-accommodate issue under § 504,
stated that: “[t]o make a claim under section 504 in the education context, something more than
an IDEA violation for failure to provide a FAPE in the least restrictive environment must be
shown. . . . A plaintiff must also demonstrate some bad faith or gross misjudgment by the school
or that he was discriminated against solely because of his disability.” W.C. ex rel. Sue C. v.
Cobb Cnty. Sch. Dist., 407 F. Supp. 2d 1351, 1363-64 (N.D. Ga. 2005) (citing N.L. ex rel. Mrs.
C. v. Knox County Schs., 315 F.3d 688, 695 (6th Cir. 2003); Sellers, 141 F.3d at 529; Monahan,
687 F.2d at 1170; Alex G. ex rel. Dr. Steven G. v. Bd. of Trustees of Davis Joint Unified Sch.
Dist., 387 F. Supp. 2d 1119, 1124 (E.D. Cal. 2005); Brantley v. Indep. Sch. Dist. No. 625, St.
Paul Pub. Schs., 936 F. Supp. 649, 657 (D. Minn. 1996)).
The above proposition—that § 504 claims necessarily require more than IDEA
violations—originated in part from dicta in an Eighth Circuit case called Monahan v. Nebraska.
In Monahan, the Eighth Circuit examined the differences between § 504 and IDEA. 687 F.2d at
1170. The court noted, consistent with Supreme Court precedent, that § 504 “is not, generally
speaking, an affirmative action statute.” Id. (citing Se. Cmty. Coll. v. Davis, 442 U.S. 397, 411,
(1979)). Instead, § 504 merely prohibits “certain conduct on the part of recipients of federal
financial assistance.” Id. Section 504 does not create “general tort liability for educational
malpractice.” Id. To state a claim under § 504, “either bad faith or gross misjudgment should be

19

In this case, as previously noted, this court previously found that T.H. was not eligible
for IDEA, as opposed to finding that the Board treated T.H. appropriately under IDEA.
Accordingly, this court’s earlier ruling does not mean that T.H.’s § 504 claims are automatically
precluded.
25

shown.” Id. at 1171. As a result, a school does not violate § 504 merely by failing to provide a
FAPE, by providing an incorrect evaluation, by providing a “substantively faulty individualized
education plan,” or “merely because a court would have evaluated [a] child differently.” Id.
Rather, “[s]o long as the [school] officials involved 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. Id.
This dicta has been adopted by courts throughout the country. See, e.g., D.A., 629 F.3d at
454; N.L., 315 F.3d at 695; Sellers, 141 F.3d at 529; Lunceford v. Dist. of Columbia Bd. of Educ.,
745 F.2d 1577, 1580 (D.C. Cir. 1984). The courts agree that “[t]he ‘bad faith or gross
misjudgment’ standard is extremely difficult to meet.” See, e.g., Doe, 41 F. Supp. 2d at 609.20
For example, the D.C. District Court granted summary judgment in favor of a school
system despite its failure to provide the child an individualized education plan for two years, and
its failure to hold a timely due process hearing. Walker v. Dist. of Columbia, 157 F. Supp. 2d 11,
13-14, 36 (D.D.C. 2001). Similarly, in Sellers, plaintiffs alleged that their child’s test scores in
fourth grade should have alerted a school system that the child needed special education, yet the
school system did not diagnose the child as disabled until shortly before the child turned
eighteen. 141 F.3d at 525. The Fourth Circuit held that plaintiffs failed to state a claim, writing
that the plaintiffs’ allegations stated, “at best, a negligence claim,” due to misdiagnosis. Id. at
528-29. In Torrence v. District of Columbia, 669 F. Supp. 2d 68 (D.D.C. 2009), the D.C.

20

While the Eleventh Circuit has not explicitly adopted this standard, district courts
within the Eleventh Circuit, including another judge in this district, have. See, e.g., JR ex rel.
EAR v. Pike Cnty. Bd. of Educ., No. 2:06–cv–1120–MEF, 2008 WL 2438664, at *12 (M.D. Ala.
June 13, 2008) (Fuller, C.J.); J.D.P., 735 F. Supp. 2d at 1364; W.C., 407 F. Supp. 2d at 1363-64;
E.W. v. Sch. Bd. of Miami-Dade Cnty. Fla., 307 F. Supp. 2d 1363, 1371 (S.D. Fla. 2004).
26

District Court held that plaintiff failed to state a § 504 claim by alleging that the school system
failed to timely evaluate her child. Id. at 72.
On the other hand, if a school system simply ignores the needs of special education
students, this may constitute deliberate indifference. See, e.g., Scaggs v. N.Y. Dep’t of Educ.,
No. 06-CV-0799 (JFB)(VVP), 2007 WL 1456221, *16 (E.D.N.Y. May 16, 2007) (“Plaintiffs’
extensive list of Riverhead’s failures and omissions with regard to disabled students, as set forth
supra, combined with their assertions that defendants were aware of plaintiffs’ disabilities, that
plaintiffs’ parents requested accommodation and programs to address such disabilities and that
defendants intentionally refused to take any remedial or corrective action to remedy the
problems, are sufficient to plead causes of action under the [Americans with Disabilities Act
(“ADA”)]21 and Section 504.”); BD v. DeBuono, 130 F. Supp. 2d 401, 438 (S.D.N.Y. 2000)
(denying summary judgment when officials knew plaintiffs needed more than ten hours of
weekly therapy but adopted a rule limiting therapy to ten hours per student).

ii.

Significance of Regulatory Violations

As previously discussed, the Eleventh Circuit recognizes that a student, or a student’s
representative, has a private right of action to sue for a violation of § 504 and to recover
damages. However, the Eleventh Circuit has not recognized a private right of action to enforce §
504's special education regulations.

21

See Fedorov v. Bd. of Regents for the Univ. of Ga., 194 F. Supp. 2d 1378, 1387 (S.D.
Ga. 2002) (citing Waddell v. Valley Forge Dental Assoc., 276 F.3d 1275, 1279 n. 3 (11th Cir.
2001)) (stating that because § 504 and the ADA are identical, “interpretations of one Act apply
to the other”).
27

Some parts of Ms. H’s briefs imply that the Board can be liable to her under § 504 simply
by violating one of § 504’s regulations. See, e.g., Doc. #90 at 2 (“MCBOE appears to be making
the argument that Section 504 does not mean what it says, and that even if it did not comply with
[Section 504’s] regulations, it cannot be found to have discriminated against T.H.”). If Ms. H
truly meant this, she would effectively be arguing that she has a private cause of action to
enforce § 504’s regulations. However, Ms. H has not cited Alexander v. Sandoval, Cort v. Ash,
or any of the seminal private cause of action cases to support this proposition.
While the Eleventh Circuit has not ruled on this issue, the weight of authority holds that
there is no private right of action to enforce § 504’s special education regulations, to the extent
these regulations create any duties separate and apart from the statutory text. See, e.g., Power ex
rel. Power v. Sch. Bd. of Va. Beach, 276 F. Supp. 2d 515, 519 (E.D. Va. 2003) (“[N]o private
cause of action exists to enforce this regulatory due process provision.”); A.W. by Ms. C. v.
Marlborough Co., 25 F. Supp. 2d 27, 31 (D. Conn. 1998) (“A procedural error, by itself, is
insufficient to warrant the protections of the Rehabilitation Act.”); Brennan v. Reg’l Sch. Dist.
No. Bd. of Educ., 531 F. Supp. 2d 245, 278 (D. Conn. 2008) (“A violation of these regulations,
solely in themselves, does not give rise to a private right of action under the Rehabilitation
Act.”). Instead, “to be enforceable through the 504 implied private right of action, regulations
must be tightly enough linked to § 504 that they ‘authoritatively construe’ that statutory section,
rather than impose new obligations.” Mark H. v. Lemahieu, 513 F.3d 922, 922 (9th Cir. 2008)
(quoting Alexander v. Sandoval, 532 U.S. 275, 284 (2001)).
Yet this court need not address whether there is a private right of action to enforce §
504’s regulations because Ms. H conceded, in her final brief filed with the court on this issue,

28

that she does not assert a private right of action with respect to § 504’s regulations. Ms. H
clarified, when confronted with the argument that she has no private right of action to enforce
the regulations, that:
Plaintiffs claim that . . . . MCBOE’s failure to adhere to the applicable regulations
is strong evidence that it discriminated . . . . Technical failures to adhere to
regulations may not amount to discrimination. However, consistent failure to adhere
to the regulations combined with a failure on the part of school district personnel to
even know what adherence to the regulations would mean results in a high likelihood
of discrimination in violation of Section 504. . . . MCBOE’s failure [to comply with
procedural regulations] demonstrates that MCBOE is deliberately indifferent . . . .
Plaintiffs are not attempting to “assert a claim of procedural inadequacy, separate
and apart from a claim of discrimination.”
Doc. #98-1 at 2-3, 6 (emphasis added). In other words, based on this brief, it is clear that Ms. H
no longer argues that the Board can be liable due to a mere violation of one of § 504’s
regulations.
However, violation of the § 504 regulations is still relevant to Ms. H’s damages claim.
As previously stated, the Board can be liable to Ms. H if Ms. H can show that it acted with
deliberate indifference. As Ms. H correctly suggests, If the Board ignores the regulations that
the Department of Education has ordered it to follow to ensure proper treatment of disabled
students, this may show that the school district is deliberately indifferent to the needs of disabled
students. See Mark H., 513 F.3d at 938.

4.

Analysis of Ms. H’s Damages Claim

Ms. H claims that the Board is liable to her due to several categories of alleged § 504
violations, which the court will discuss in turn.

29

i.

Ms. H’s Generalized Regulatory Allegations

Ms. H claims that the Board should be liable to her under § 504 due to its failure to
follow § 504’s regulations. As previously discussed, whether her claims will be successful rests
solely on whether the Board acted with deliberate indifference toward T.H.’s disability needs; a
violation of a regulation does not mean the board is automatically liable. Therefore, the issue is
whether Ms. H can prove that the Board’s behavior, including its alleged regulatory violations,
was so severe that it demonstrates deliberate indifference.
The bulk of Ms. H’s allegations have little probative value. She argues, inter alia, that
the Board is liable to her due to the fact that: (1) the Board failed to spell out in detail, in its
Procedural Guide, when and how to conduct proper evaluations or reevaluations; (2) the majority
of T.H.’s accommodations were made from a pre-printed checklist; (3) the accommodations on
the pre-printed checklist were not good enough; (4) MPS refused to provide certain
accommodations that Ms. H requested; (5) MPS failed to “provide services based on an
adherence to procedures that satisfy the regulatory requirements;” (6) during one evaluation
meeting, the evaluating team failed to discuss or review the results of outside evaluations
obtained by Ms. H; (7) the tests administered to T.H. were not “validated;” (8) no
“knowledgeable person” attended evaluation meetings or made placement decisions; (9) MPS
did not use a sufficient amount and variety of information in evaluating T.H. and determining
T.H.’s placements; and (10) MPS did not document the results of its evaluations.
The above allegations are problematic for several reasons. First, some of these
allegations are “garden-variety IDEA violations” that attack minor procedural issues rather than
substance, which are not actionable under § 504. See, e.g., Alston v. District of Columbia, --- F.

30

Supp. 2d ----, 2011 WL 971610, at *7 (D.D.C. Mar. 21, 2011) (“Defendants’ alleged misconduct
between 2002 and 2006 amounts to nothing more than garden-variety IDEA violations, which do
not reasonably suggest the existence of bad faith or gross misconduct”).
Second, many of these allegations, and other similar allegations made by Ms. H
throughout her briefs, merely recite the regulations promulgated under § 504, and, after making a
generalized statement that the Board failed to comply with a particular regulation, argue that the
Board has the burden of proving its compliance with the regulations. The court rejects this
proposition. Ms. H’s claim that the burden rests with the Board comes from a Ninth Circuit
case, Larry P. By Lucille P. v. Riles, 793 F.2d 969 (9th Cir. 1984), that states, without citing
authority: “[t]he regulations place the burden on the recipient to show it has complied with the
requirements [in the regulations.]” Id. at 980. This case involved facts distinguishable from the
instant case, and is not binding on this court. To the extent its facts are analogous to those at bar,
this court will not follow the quoted statement in this case with respect to a claim for
compensatory damages. Indeed, it would be odd if that proposition were true, because the
weight of authority establishes that there is no cause of action for violation of § 504’s
regulations, without more. See supra.
In the Eleventh Circuit, consistent with ordinary civil cases, Ms. H bears the burden of
proof. T.W., 610 F.3d at 603-04 (“To succeed on his discrimination claim under section 504,
[the plaintiff] must prove, by a preponderance of the evidence, ‘that the [School Board] intended
to discriminate against him on the basis of his disability.’”) (quoting Berg v. Fla. Dep’t of Labor
& Employment Sec., 163 F.3d 1251, 1255 (11th Cir. 1998)). The court sees no reason to deviate
from that standard here. In the context of cross motions for summary judgment, Ms. H cannot

31

prevail on her motion for summary judgment, nor can she defeat the Board’s motion for
summary judgment (if the Board has satisfied its summary judgment burden), without making a
sufficient showing on elements of the case for which she has the burden of proof. See generally
Celotex, 477 U.S. at 322-23; Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819, 825 (11th
Cir. 2009) (stating that once the moving party has met its summary judgment burden, “the
non-moving party must make a sufficient showing on each essential element of the case for
which he has the burden of proof”).
As previously mentioned, if the Board blatantly violated provisions of the § 504
regulations, this is relevant, though not dispositive, to a claim of deliberate indifference. On the
other hand, Ms. H cannot require the Board to prove its non-liability after Ms. H makes a
generalized assertion that the Board violated the regulations. The court has extensively reviewed
the evidence and argument submitted by Ms. H with respect to her above assertions, and this
evidence shows, at most, minor violations of the § 504 regulations.
Finally, the court notes that part of Ms. H’s argument is that the Board failed to establish
proper § 504 procedures through its Procedural Guide. The court has reviewed the 2004 and
2010 versions of the Procedural Guide and finds that, while the Procedural Guide is not as
detailed as the regulations itself, the Procedural Guide is not so lacking that it shows deliberate
indifference. The slight omissions pointed out by Ms. H are far too minor to constitute deliberate
indifference.
In sum, Ms. H’s generalized § 504 arguments, at best, serve as minimal circumstantial
evidence that the Board was deliberately indifferent toward T.H.

32

ii.

Ms. H’s Procedural Safeguard Claims

Ms. H claims that MPS failed to properly satisfy the procedural safeguards provision of
the § 504 regulations by failing to provide a timely § 504 hearing. However, as is evident from
the facts relating to Ms. H’s request for a § 504 hearing, discussed above, the Board’s failure to
provide a hearing exhibited, at worst, confusion, not deliberate indifference.
Ms. H also contends that MPS failed to give her a sufficient summary of her due process
rights. The Board, however, has submitted documents that it gives to parents pursuant to its
Procedural Guide, and these documents do not appear to be so deficient (if at all) that they are
evidence of deliberate indifference. See Doc. #84-7 at 29-33.
In sum, Ms. H’s procedural safeguard arguments do not support her deliberate
indifference claim.

iii.

Failure to Evaluate and Update T.H.’s Section 504 Plan

Ms. H contends that two particular facts establish deliberate indifference. Ms. H’s first
contention is that, even when T.H. was receiving poor grades in school, she was rarely
reevaluated pursuant to the § 504 evaluation regulations. Ms. H notes that T.H.’s § 504 file
contains no test or assessment results from 2001 through 2009, which suggests that T.H. was not
given any new tests or assessments during those years. See Doc. #69 at 55-56. In fact, the only
information in T.H.’s § 504 file that was provided to the court is new § 504 plans, without any
new tests or assessments attached to those plans.
In response to the first argument, the Board does not directly deny that it did not conduct
new tests or assessments each year that complied with the § 504 regulations. Instead, it notes

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that it “reviewed” and “revised” T.H.’s § 504 plans each year, and argues that it need not
actually conduct a full-blown reevaluation with tests or assessments each year, under the § 504
regulations or otherwise. While the court agrees with the general proposition that § 504 liability
does not arise merely by the violation of a single § 504 regulation, see supra, a failure to conduct
any new tests or assessments from 2001 through 2009, despite T.H.’s poor academic results,
provides some evidence of deliberate indifference.
Ms. H’s second argument is that T.H.’s § 504 plans were barely altered during her time at
MPS, despite her poor grades. For example, T.H.’s plans were barely altered from the beginning
of ninth grade through the end of eleventh grade, despite the fact that T.H. had failed classes and
graduation examinations during this time period. Ms. H implies that this means that the Board
virtually ignored T.H. for years, despite her academic struggles.
The Board’s only response to Ms. H’s second argument is that it believed that T.H.’s §
504 plans were adequate and that it was not required to provide any additional accommodations
under § 504.
The court concludes that there is a genuine issue of material fact with respect to the two
arguments Ms. H raises here. On the one hand, Ms. H presents persuasive evidence that the
Board simply ignored T.H. by failing to conduct tests or assessments, and by failing to
significantly update T.H.’s § 504 plans despite T.H.’s poor grades. On the other hand, it is not
clear whether T.H.’s needs were being served by her § 504 plans. Specifically, T.H.’s poor
grades may have been caused not by a lack of accommodations but because T.H. put forth little
effort in school and had a poor attitude. MPS presented evidence that (1) T.H. was frequently
absent or tardy from school; (2) T.H. had a poor attitude toward school and often did not

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complete her work; (3) T.H. had conflicts at home with her mother; (4) T.H. and Mrs. H did not
take advantage of opportunities, such as tutoring, to improve T.H.’s grades and improve her
chances at passing her high school graduation examinations; and (5) T.H. was disciplined on at
least three occasions. The Board also presented evidence that it had trouble getting Ms. H to
attend meetings and conferences. Based on this evidence, and the high standard a plaintiff must
meet to prevail on a special education § 504 claim, the Board may have thought that it was
properly accommodating T.H., and T.H. was receiving poor grades because she was not taking
advantage of those accommodations. Cf. 29 U.S.C. § 794(a) (stating that exclusion, denial of
benefits, or discrimination must be caused “solely by reason of . . . her disability”) (emphasis
added). While the Board has some obligations under § 504, ensuring that each student succeed
academically is not one of them.
In sum, while Ms. H has presented evidence that a reasonable jury could find shows
deliberate indifference, the court notes that deliberate indifference is a very high standard to
meet, and the only evidence before the court on that issue today is circumstantial. Because
ruling on this issue today would require weighing the evidence, which this court may not do in
ruling on a motion for summary judgment, the court concludes that it would be improper to grant
summary judgment in favor of either party at this time. Cf. Gabel ex rel. L.G. v. Bd. of Educ. of
Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 336-37 (S.D.N.Y. 2005) (denying defendant’s
motion for summary judgment on § 504 due to “blatant” IDEA violation, but also denying
plaintiff’s cross motion for summary judgment, stating that a blatant IDEA violation does not
automatically rise to the level of § 504 discrimination).

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5.

Declaratory and Injunctive Relief

Ms. H also requests declaratory and injunctive relief under § 504. The court concludes
that the cross Motions for Summary Judgment are due to be DENIED with respect to Ms. H’s
claims for declaratory and injunctive relief.
With respect to injunctive relief, neither Ms. H nor the Board addresses the factors this
court must consider prior to granting an injunction. “To issue a permanent injunction under the
ADA or the Rehabilitation Act, the Court must apply the same factors as it would in any other
case in which a plaintiff sought a permanent injunction.” Wilson v. Broward Cnty., Fla., No.
04-61068-CIV, 2008 WL 708180, at *1 (S.D. Fla. Mar. 14, 2008) (citing Bercovitch v. Baldwin
School, Inc., 133 F.3d 141, 151 (1st Cir.1998)). “‘[A] plaintiff seeking a permanent injunction
must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate:
(1) that [she] has suffered an irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.’” Monsanto Co. v.
Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010) (quoting eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006)). Neither party mentions these factors, despite the fact that a
party asking for summary judgment bears the “responsibility of informing the district court of
the basis for its motion.” See Celotex, 477 U.S. at 322. Thus, the court will not grant summary
judgment to either party on the issue of injunctive relief.

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The court will also not rule on the declaratory judgment issue at this time. The decision
to grant declaratory relief “is a matter for the court’s sound discretion.” Hollis v. Itawamba
Cnty. Loans, 657 F.2d 746, 750 (5th Cir. 1981).
The standard a plaintiff must meet to receive declaratory (or injunctive) relief under §
504 in the special education context differs from the deliberate indifference standard used to
evaluate § 504 monetary damages claims. Ms. H correctly points out that courts discussing the
deliberate indifference standard for § 504 claims have generally referred to the deliberate
indifference standard as the standard for a “compensatory damages claim” as opposed to the
standard for claims for declaratory and injunctive relief. See, e.g., J.D.P., 735 F. Supp. 2d at
1364; K.U. v. Alvin Indep. Sch. Dist., 166 F.3d 341, at *3 n.3 (5th Cir. 1998) (unpublished)
(suggesting that the standard for a § 504 damages claim differs from a § 504 declaratory or
injunctive relief claim); see also Wood, 978 F.2d at 1219-20 (“[C]ompensatory damages are
precluded in cases of unintentional discrimination, but are permissible on a showing of
intentional discrimination.”) (emphasis added).
However, while Ms. H argues (and the Board agrees) that the deliberate indifference
standard is not the standard to be applied to a § 504 claim for declaratory or injunctive relief,
neither Ms. H nor the Board articulates which standard should apply. In fact, at the pretrial
conference, both parties expressed uncertainty about which standard applies. Ms. H suggests
that the standard might be a “reasonable accommodation” standard, though neither she nor the
Board provides any substantial discussion of this standard. See Washington v. Ind. High Sch.
Athletic Ass’n, 181 F.3d 840, 847 (7th Cir. 1999) (holding that discrimination under § 504 may
be established by showing “(1) the defendant intentionally acted on the basis of the disability, (2)

37

the defendant refused to provide a reasonable modification, or (3) the defendant’s rule
disproportionally impacts disabled people”). Ms. H has also presented authority suggesting that
a plaintiff can make a “disparate impact” claim under § 504, without showing discriminatory
intent, though Ms. H is not bringing a disparate impact claim in this case. See, e.g., Alexander v.
Choate, 469 U.S. 287, 292, 309 (1985); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir.
1981).
The court agrees that the standard to be applied to this type of claim is unclear. For
example, in a 1998 case, the Fifth Circuit implicitly noted the uncertainty when it deliberately
avoided answering the question of what standard should be used for evaluating a claim for
“injunctive or declaratory relief under § 504” in the special education context. K.U., 166 F.3d at,
at *3 n.3. Due to the legal uncertainty in this area of law, and the parties’ failure to inform the
court the standard under which it is to evaluate this claim, the court concludes that neither party
has met its summary judgment burden to inform the court of the basis for its motion, with respect
to Ms. H’s claim for declaratory relief.
In short, summary judgment is due to be DENIED with respect to the issues of
declaratory and injunctive relief.

V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
1.

Ms. H’s class claims are DISMISSED for lack of standing;

2.

Ms. H’s Motion for Class Certification (Doc. #56) is DENIED AS MOOT;

3.

The cross Motions for Summary Judgment (Docs. ## 68 and 70) are DENIED;

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4.

This case will proceed to trial with respect to Ms. H’s individual § 504 claim and
her request for attorney’s fees claim. The damages claim will be tried to a jury
and the other claims to the court;

5.

The parties are DIRECTED to discuss in their trial briefs the standard that must
be met by the Plaintiff to receive declaratory or injunctive relief under the § 504
claim. They should either agree on the standard and state what it is, or, if they
cannot agree, state and support their separate positions.

Done this 12th day of May, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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