West Baton Rouge School Board v. Deshotel et al

Filing 110

RULING: The West Baton Rouge Parish School Board's 62 Motion for Summary Judgment is granted in part and denied in part. The State of Louisiana's 57 Motion to Dismiss is hereby GRANTED, and the Deshotels' claims against the State Defendants are dismissed without prejudice. The Deshotels' 58 Motion to Dismiss and/or for Summary Judgment is hereby DENIED. Signed by Judge Shelly D. Dick on 3/31/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WEST BATON ROUGE PARISH
SCHOOL BOARD

CIVIL ACTION

v.
WILLIAM JUDE DESHOTEL AND
ANGELA GAIDRY DESHOTEL
INDIVIDUALLY AND ON BEHALF
OF THEIR MINOR CHILD, T.D.

NO. 11-00053-SDD-SCR

RULING
Oral argument in this IDEA case was held on February 19, 2014 on the following
dispositive motions:

Motion for Summary Judgment filed on behalf of West Baton

Rouge Parish School Board (“WBRPSB”)1; Motion to Dismiss and/or for Summary
Judgment filed on behalf of William Jude Deshotel, Angela Gaidry Deshotel, on behalf
of their Minor Child T.D. and Trustee Samera Abide

(“Deshotels”)2; and Motion to

Dismiss Pursuant to 12(B)(1) and 12(B)(6) filed on behalf of the Louisiana State
Superintendent of Education, the Louisiana Department of Education, and the Louisiana
Board of Elementary and

Secondary

Education

(“State

Defendants”).3

After

consideration of the law and argument of the parties’, the Court grants the Motion for
Summary Judgment filed by the WBRPSB and the Motion to Dismiss filed by the State
Defendants and denies the Deshotels’ Motion to Dismiss and/or for Summary
Judgment.

1

Rec. Doc. 62.
Rec. Doc. 58.
3
Rec. Doc. 57.
2

1

I.

FACTS AND PROCEDURAL HISTORY
At the very heart of this case is the right of individuals with disabilities, such as

the Deshotels’ son, T.D., to an education and related services under the Individuals with
Disabilities Education Act (IDEA).4 In 2007, T.D. began attending classes at Brusly
Elementary School.5 During this time, T.D.’s behavior began to deteriorate and he
became more aggressive at school.6 It is during this time period that the Deshotels
contend that, unbeknownst to them, school employees utilized a Rifton Chair to control
and discipline T.D.7 By the end of the 2007-2008 school year, T.D.’s behavior had
become so dysfunctional that the Deshotels requested that the WBRPSB assess T.D.
and provide free appropriate public education (FAPE) in accordance with the IDEA.8
The parties attempted an Individualized Educational Plan (IEP) for T.D. in May of 2008,
but the IEP was not completed.9 In the summer of 2008, the Deshotels removed T.D.
from school and enrolled him at Abilities, a private facility “for intensive, remedial
services.”10 Due to continued disagreements between the WBRPSB and the Deshotels

4

20 U.S.C. §§ 1400-1485. Louisiana’s Exceptional Student Act is codified at La. R.S. 17:1941, et seq.
The State’s regulations for implementing the Act are located in Title 28, Part XLIII, Bulletin 1706. These
regulations establishing the state complaint procedure are specifically located in Sections 152(A) and
151(A)(1).
5
Rec. Doc. 7, p. 22, ¶90.
6
Rec. Doc. 7, p. 23, ¶91.
7
Rec. Doc. 7, p. 23, ¶¶96-97. The allegations relating to the use of the Rifton Chair and other physical
abuse are subject to Complaint 3:10cv0081 presently pending before Chief Judge Jackson. In this
separate civil matter, the Deshotels are seeking damages arising out of tort for the School’s decision to
take such measures unilaterally without the parents’ consent, knowledge, or permission.
8
U.S.C. §1412(a)(1)(A) provides that “[a] state is eligible for assistance under this subchapter for a fiscal
year if the State submits a plan that provides assurances to the Secretary that the State has in effect
policies and procedures to ensure that the State” provides free appropriate public education, whereby “to
all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including
children with disabilities who have been suspended or expelled from school.” Section 101 of Bulletin
1706 sets forth Louisiana’s parallel regulation.
9
Rec. Doc. 7, p.24, ¶103.
10
Rec. Doc. 7, p. 25, ¶104.
2

regarding the best educational placement for T.D., the Deshotels have refused to send
T.D. back to Brusly Elementary School.11
On July 10, 2009, the Deshotels filed an Administrative Complaint against the
WBRPSB with the Louisiana Department of Education (LDE) alleging that T.D. had
been deprived of his rights under the IDEA.12 Approximately two weeks later, on July
27, 2009, the WBRPSB requested a due process hearing on all of the issues raised in
the 2009 Administrative Complaint, which the Deshotels opposed.13 The Independent
Hearing Officer (IHO) granted the WBRSB’s 2009 Due Process Hearing Request on
only one issue: whether the Deshotels were entitled to an Independent Educational
Evaluation (IEE) at the public’s expense.14 The remaining issues were to be considered
by the LDE via the Administrative Complaint process.15 The IHO’s decision regarding
which issues within the parents 2009 Administrative Complaint would be subject to a
due process hearing was non-appealable.16 In reaching his decision, the IHO relied
upon Section 153(G)(1) of Bulletin 1706 for the position that “if a written complaint is

11

Rec. Doc. 7, p. 26, ¶110 (“The Deshotels again asked that T.D. be re-evaluated by the school and that
it be a multi-disciplinary evaluation and particularly include psychological and behavioral components.”);
¶112 (“An IEP meeting was set for February 2, 2009…the school refused to include specific evaluation
components that the Deshotels desired.”);¶115 (“The IEP itself called for T.D. to be at the campus the
very next day, and provided no transition plan…”); ¶123 (“Dr. Levelle’s report was reviewed and rejected
by the IEP team, and the school refused to consider additional information from T.D.’s primary doctor
despite no one on the IEP team being qualified to reject the findings of these two
professionals.”)(emphasis original). Rec. Doc. 7-1, 2009 Administrative Complaint. During oral argument,
it was expressed that the Deshotels want to put their son back in school.
12
Rec. Doc. 1-2, p. 2, ¶4; Rec. Doc. 7-1. The 2009 Administrative Complaint filed by the Deshotels was
logged by the LDE as Docket No. 90-C-2.
13
Rec. Doc. 1-2, p.2, ¶5; Rec. Doc. 7-6; Rec. Doc. 7-7. The 2009 Due Process Hearing Request was
docketed as 90-H-3.
14
Rec. Doc. 1-2, p.2, ¶5; Rec. Doc. 59-1.
15
Rec. Doc. 1-2, p.2, ¶5. (“All other issues which the School Board sought to address in the due process
were effectively returned to the authority of the LDE to address via the applicable state complaint
process.”).
16
During oral argument, the Deshotels argued that WBRPSB should have filed a complaint after the IHO
entered his final ruling on the November 3, 2009 seeking review and requesting the Court issue a
mandamus directing the hearing officer to hear and rule upon all issues in the Deshotels’ State
Administrative Complaint.
3

also the subject of a due process hearing it shall be set aside.”17 The IHO reasoned
that “[t]o rule that a school district could force parents who file state complaints to
defend themselves in a due process hearing is contrary to the language of Bulletin
1706.”18 It was the IHO’s position that the choice of forum or process is left to the sole
discretion of the parents, or the Deshotels.
Following the due process hearing,19 the IHO found that the Deshotels were
entitled to an IEE at public expense to include a Functional Behavioral Assessment and
a Psychological Assessment.20 Upon completion of the IEE, the WBRPSB was directed
to convene a new IEP meeting and prepare a new IEP. WBRPSB did not appeal the
IHO ruling.21
In the meantime, the LDE administrative complaint process was ongoing as to
the following allegations: WBRPSB’s failure to provide Extended School Year Program
(“ESYP”) for the Summer of 2008 and initial provision of FAPE for the 2008-2009
School Year; WBRPSB’s refusal to reschedule an IEP meeting, and invoking a change

17

Rec. Doc. 59-1. Bulletin 1706 contains the regulations for the implementation of the Louisiana Children
with Exceptionalities act. The formal written complaint procedure is found in Section 153. Subsection
(G)(1) of Section 153 specifically provides that “[i]f a written complaint received is also the subject of a
due process hearing under §507 or §§530 through 532 or, if it contains multiple issues, of which one or
more is part of that hearing, the LDE shall set aside any part of the complaint that is being addressed in
the due process hearing until the conclusion of the hearing. However, any issue of the complaint that is
not part of the due process action shall be resolved, using the time limit and procedures described in
Subsections A and B of this Section.”
18
Rec. Doc. 59-1, p. 1.
19
The hearing was docketed as LDE Docket No. 90-H-3, and was held from October 6 through October
7, 2009. The IHO’s 2009 Ruling was rendered on November 3, 2009.
20
Rec. Doc. 7-8; Rec. Doc. 78-1, p.5, ¶10. Because the IHO determined that the “Re-Evaluation of T.D.
was incomplete because the school board knew or should have known T.D. had behavioral concerns and
they did not complete a Functional Behavioral Assessment,” he concluded that the Deshotels were
“entitled to an Independent Educational Evaluation at public expense to include a Functional Behavioral
Assessment and a psychological assessment. Upon the completion of the Independent Educational
Evaluation, the board shall convene a new IEP meeting to prepare a new IEP.” Rec. Doc. 7-8, p. 13.
21
Rec. Doc. 78-1, p. 4, ¶7.
4

of placement for T.D. without parental consent; WBPRSB’s refusal to reschedule an IEP
meeting; and WBRPSB’s rulemaking resulting in a denial of FAPE.22
On October 13, 2009,23 the LDE ruled in favor of the Deshotels ordering that the
WBRPSB implement a Corrective Action Plan (“CAP”).24

The WBRPSB moved for

reconsideration25 alleging numerous errors. The LDE rendered its Final Decision on
November 20, 2009 and, aside from one issue pertaining to reimbursement, it upheld
the CAP.26
The WBRPSB attempted to appeal the LDE 2009 Administrative Complaint
Decision by filing a Petition in the 19th Judicial District Court27 but was met with a
dilatory exception filed by the LDE.28 The LDE argued that the WBRPSB’s appeal was
premature because the appropriate remedy was to request a due process hearing on

22

Rec. Doc. 7-1; Rec. Doc. 7-3.
Rec. Doc. 1-2, p. 3, ¶6; Rec. Doc. 7-3. The LDE stayed consideration of the issue of the WBRPSB’s
“[f]ailure to reevaluate in all areas of suspected disability, as requested by parent” until the final resolution
of the 2009 Due Process Hearing. Rec. Doc. 7-3, p. 11.
24
Rec. Doc. 7-3, pp. 14-15. The CAP Summary required the WBRPSB to (1) “Within thirty (30) days of
the date of this letter … amend its homebound policy and Physician’s Information Form to provide for
services for students with disabilities within the parameters of IDEA”; (2) provide reimbursement to the
Deshotels for various services (e.g. educational services, occupational therapy services, psychological
services, speech therapy, mileage) provided by the parents for T.D. for various time periods; (3) hold
within thirty (30) days of the date of this letter, “an IEP meeting to determine the quantity and quality of
compensatory services for the same time periods listed above in which T.D. was denied FAPE. The IEP
team may rely on testing results, evaluation report, or an IEE report should it be required in making this
determination”; (4) “”Within thirty (3) days of the date of this letter, appropriate WBRPSS staff and T.D.’s
parents must meet to determine T.D.’s appropriate placement. The Deshotels may include Dr. Levelle or
any other person knowledgeable about T.D.’s needs. If that group determines that T.D. is ready to begin
returning to school, WBRPSS must convene an IEP meeting to write a transition plan prior to his return to
school.”
25
Rec. Doc. 7-4.
26
Rec. Doc. 7, Rec. Doc. 7-5, and Rec. Doc. 21. In its final ruling, the LDE affirmed its previous
corrective action plan with one exception. The LDE made modifications to “the portion of the complaint
decision that order[ed] reimbursement for services and mileage from July 10, 2008 through the beginning
of the 2008-2009 school year” thereby reducing some of the repayment owed by the WBRPSB. Rec.
Doc. 7-5, p. 8.
27
Rec. Doc. 8-4. West Baton Rouge Parish School Board v. Louisiana Department of Education, 19th
Judicial District Court, Division C, Civil Action No. 585, 789.
28
Rec. Doc. 8-5. The Deshotels attempted to intervene in the 19th Judicial District proceeding. Rec. Doc.
8-6 and 8-7.
23

5

the LDE’s administrative findings.29

Apparently finding some merit in the LDE’s

argument, the WBRPSB filed a request for a Due Process Hearing on July 7, 201030 on
the issues addressed in the 2009 Administrative Complaint Decision.
The Deshotels opposed the 2010 Due Process Hearing Request contending the
WBRPSB had not made a good faith effort to comply with the 2009 Due Process
Ruling.31 The Deshotels further argued that the IHO had not set a deadline for obtaining
the IEE; therefore, the WBRPSB had to let the process run its course.32 Above all else,
the Deshotels argued that the WBRPSB was attempting to use the 2010 Due Process
Hearing Request as a means to relitigate issues that had already been considered in
the 2009 Due Process Hearing; hence, they were barred by res judicata and
prescription.33

After considering the parties’ arguments, the WBRPSB’s 2010 Due

Process Hearing Request was ultimately denied.34
Deshotels’ res judicata and prescription arguments.35

The IHO found merit in the
He further found that the

WBRPSB’s request for a Declaratory Judgment—to approve its actions taken in

29

The 19th Judicial District Court also found merit in the LDE’s argument as Judge Caldwell granted the
LDE’s exception. The WBRPSB’s lawsuit was dismissed for lack of subject matter jurisdiction. Rec. Doc.
59-4.
30
Rec. Doc. 1-2, p.2, ¶7. Rec. Doc. 62-4. (LDE Log. No. 01-H-1).
31
Rec. Doc. 62-7; Rec. Doc. 62-8.
32
Rec. Doc. 62-7, p. 4.
33
Rec. Doc. 7-10, p. 6; Rec. Doc. 62-7, p. 6. “WBRPSB is also attempting to use this new Due Process
request to re-litigate issues which are already a final ruling by a prior IHO and to make claims based on
actions/inactions that are prescribed. In contrast to WBRPSB’s ‘Description of the Nature of the Problem’
defining it as an impasse over enforcement of the November 2009 DP Ruling, the majority of the content
of the five ‘Issues’ enumerated in its Request simply re-hash pre-October 2009 events and complain of
the supposed incorrectness of the prior IHO’s Ruling. More specifically, the majority of Issue #1 and then
the entirety of Issues #2-5 are res judicata from the earlier Hearing, and/or are prescribed as to any new
action, and/or are otherwise irrelevant to the current problem which is the enforcement of the prior ruling.
The Deshotels OBJECT to the attempted re-opening or re-litigation of any prescribed or ruled upon
issues….”
34
Rec. Doc. 1-2, p. 3, ¶8; Rec. Doc. 58-3, p. 3, ¶18; Rec. Doc. 78-1, p.7; ¶18. The IHO on the WBRPSB’s
2010 Due Process Hearing Request issued two rulings in response to the Deshotels’ objections to the
sufficiency of the complaint. The first ruling was rendered on July 20, 2010 and the second ruling was
rendered on July 27, 2010. Rec. Doc. 62-6 and Rec. Doc. 62-5.
35
Rec. Doc. 62-6.
6

response to the November 3, 2009 Due Process Decision—did not propose or refuse to
initiate or change the identification, evaluation, or educational placement of the student,
or the provision of FAPE.36 Thus, to the extent the WBRPSB sought a declaratory
judgment, the 2010 Due Process Hearing Request did not satisfy the mandatory
requirements of La. Bulletin 1706, Section 504.37
Undeterred, the WBRPSB filed a State Court Petition in the 18th Judicial District
Court against the Deshotels appealing the denial of 2010 Due Process Hearing
Request.38 Subsequently, on January 27, 2011, the Deshotels removed the state court
matter to this Court.39

Upon removal, the Deshotels’ filed an Answer and a

Counterclaim against the WBRPSB and the State Defendants.40
II.

LAW
A.

Rule 12(b)(1) and Rule 12(b)(6) Motions to Dismiss

“A complaint must be dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the court lacks the statutory or constitutional power to hear the case.
The burden of proof on a Rule 12(b)(1) motion to dismiss is on the party asserting

36

Rec. Doc. 62-5, p. 4; Rec. Doc. 78-1, p. 7, ¶18.
Rec. Doc. 62-5, p. 4.
38
Rec. Doc. 58-3, p. 3, ¶19; Rec. Doc. 78-1, p. 7; ¶19. West Baton Rouge Parish School Board v. William
Jude Deshotel and Angela Gaidry Deshotel, on Behalf of Their Minor Child, T.D., Case Number 38,933,
Division B, 18th Judicial District Court. Rec. Doc. 1-2. In their Notice of Removal, the Deshotels alleged
that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 “as the subject-matter alleged
by plaintiffs in the Petition arises under the Constitution, laws or treaties of the United States, the ‘IDEA’
20 U.S.C. § 1401, et seq. as explicitly stated in paragraph 9, 10, and 11 of the Petition.” Rec. Doc. 1-1, p.
2, ¶ III.
39
Rec. Doc. 1.
40
Rec. Doc. 7. The Deshotels filed their First Amended Counterclaim against the Louisiana Public
Schools Risk Management Agency (LARMA) on June 14, 2013. Rec. Doc. 54.
37

7

jurisdiction.”41 Rule 12(b)(1) motions are subject to the same standard employed in
determining whether Plaintiff has stated a viable claim under Rule 12(B)(6).
In deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.’”42 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”43 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”44 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”45

A complaint is also

insufficient if it merely “tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’”46 However, “[a] claim has facial plausibility when the plaintiff pleads the
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”47 In order to satisfy the plausibility standard, the

41

Williams v. Ascension Parish School Bd., 2011 WL 2011481, *2 (M.D.La. 5/16/11)(citing Home Builders
Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) and Strain v. Harrelson Rubber
Co., 742 F.2d 888, 889 (5th Cir. 1984)).
42
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
43
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)(quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
44
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (5th Cir. 2007)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929(2007)).
45
Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (internal citations and brackets omitted)(hereinafter
Twombly).
46
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations
omitted)(hereinafter “Iqbal”).
47
Id. at 678.
8

plaintiff must show “more than a sheer possibility that the defendant has acted
unlawfully.”48 “Furthermore, while the court must accept well-pleaded facts as true, it
will not ‘strain to find inferences favorable to the plaintiff.’”49 On a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.”50
The Court “has the power to dismiss for lack of subject-matter jurisdiction on any
of one of three bases: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by the
undisputed facts plus the court’s resolution of disputed facts.”51 “If lack of subject matter
is challenged on the basis of the face of the complaint itself, then the well-plead
allegations of fact within the complaint are assumed to be true for that purpose. If,
however, subject matter jurisdiction is challenged from a factual standpoint, then the
court has the right to consider testimony, affidavits, or other evidence outside the
pleadings to satisfy itself that subject matter jurisdiction does in fact exist.”52
B.

Rule 12(c) Motion for Judgment on the Pleadings

Because the Deshotels and the State Defendants filed Answers53 before filing
their respective dispositive motions, to the extent the motions seek dismissal under Rule
12(b)(6) they are converted to Motions for Judgment on the Pleadings under Rule 12(c)
48

Id.
Taha v. William Marsh Rice Univ., 2012 WL 1576099 at *2 (S.D. Tx. May 3, 2012)(quoting Southland
Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
50
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
51
Jasper v. FEMA, 414 Fed.Appx. 649, at 651 (5th Cir. 2011)(citing Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981)); see also, Deshotel v. West Baton Rouge Parish School Bd., 937 F.Supp. 826
(M.D.La. 2011), on reconsideration in 584 F.Supp.2d 894, the Court held that parents failed to exhaust
administrative remedies and settlement agreement unenforceable and Court had no subject matter
jurisdiction over case and granted Defendants’ Motion to Dismiss.
52
J.M.C. ex rel. E.G.C. v. Louisiana Bd. of Elementary and Secondary Educ., 562 F.Supp.2d 748, at 752
(M.D.La. 2008)
53
Rec. Doc. 7; Rec. Doc. 21.
49

9

of the Federal Rules of Civil Procedure. A motion for judgment on the pleadings under
Rule 12(c) of the Federal Rules of Civil Procedure is evaluated on the same basis as a
motion to dismiss under Rule 12(b)(6), previously discussed.54
C.

Rule 56 Motion 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.”55 “When assessing whether a dispute to any material fact exists, we
consider all of the evidence in the record but refrain from making credibility
determinations or weighing the evidence.”56 A party moving for summary judgment
“must ‘demonstrate the absence of a genuine issue of material fact,’ but need not
negate the elements of the nonmovant’s case.”57

If the moving party satisfies its

burden, “the non-moving party must show that summary judgment is inappropriate by
setting ‘forth specific facts showing the existence of a genuine issue concerning every
essential component of its case.’”58 However, the non-moving party’s burden “is not
satisfied with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”59

54

Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010)(citing Doe v. MySpace, Inc., 528 F.3d 413, 418
(5 Cir. 2008)).
55
Fed.R.Civ.P. 56(a).
56
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, at 398-99 (5th Cir. 2008).
57
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, at 494 (5th Cir. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, at 323-25, 106 S.Ct. at 2552)).
58
Rivera v. Houston Independent School Dist., 349 F.3d 244, at 247 (5th Cir. 2003)(quoting Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
59
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, at 315 (5th Cir. 1995) )(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
th

10

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”60 All reasonable factual
inferences are drawn in favor of the nonmoving party.61 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the
summary judgment is required to identify specific evidence in the record and to
articulate precisely how this evidence supports his claim.”62 “Conclusory allegations
unsupported by specific facts … will not prevent the award of summary judgment; ‘the
plaintiff [can]not rest on his allegations … to get to a jury without any “significant
probative evidence tending to support the complaint.”’”63
D.

The IDEA and Louisiana’s Correlating State Law

Under the IDEA, any party has the opportunity to present a complaint with
respect to any matter relating to the identification, evaluation, or educational placement
of the child, or the provision of a FAPE to such child.64 In certain instances when a
complaint has been filed, the parents or the LEA shall have an opportunity for an
impartial due process hearing, which shall be conducted by the State Educational
Agency (SEA) or by the LEA, as determined by State law or by the SEA.65
The federal regulations provide that if a written complaint is received that is also
subject to a due process hearing, then the State must set aside any part of the
complaint being addressed via hearing until the hearing concludes.66

60

If an issue

Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
61
Galindo v. Precision American Corp., 754 F.2d 1212, at 1216 (5th Cir. 1985).
62
RSR Corp. v. International Ins. Co., 612 F.3d 851, at 857 (5th Cir. 2010).
63
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, at 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
64
20 U.S.C. § 1415(b)(6)(A).
65
20 U.S.C. §1415(f)(1)(A).
66
34 C.F.R. §300.152(c).
11

asserted in a complaint has previously been decided in a due process hearing involving
the same parties, then the due process hearing decision is binding on that issue.67
Louisiana’s state complaint procedure provides that “an organization or individual
… may file a signed written complaint” related to “the identification, evaluation,
educational placement, or the provision of a free appropriate public education (FAPE) to
a student with a disability.”68 Whereas, the state complaint procedures permit either “a
parent or public agency may file a Request for Due Process Hearing . . . (relating to the
identification, evaluation, or educational placement of a student with a disability, or the
provision of FAPE to the student).”69 “The due process hearing request shall allege a
violation that occurred not more than one year before the date the parent or public
agency knew or should have known about the alleged action that forms the basis of the
request for due process hearing.”70 The regulations set forth additional specifics for
what must be included within the request for a due process hearing, objections to
sufficiency of such requests, and notice requirements.71

67

Id.
Bulletin 1706, Sections 152 and 151(A)(1).
69
Bulletin 1706, Section 507(1).
70
Bulletin 1706, Section 507(2).
71
Bulletin 1706, Section 508.
68

12

III.

THE WBPRSB’S AND DESHOTELS’ CROSS-MOTIONS FOR SUMMARY
JUDGMENT72
The Deshotels contend that the WBRPSB’s complaint fails to state a claim upon

which relief can be granted, as the 2009 Administrative Complaint Decision cannot be
the subject of redress in a judicial court. They further contend there are no genuine
issues of material fact because all of the underlying causes of action arising out of its
2009 Administrative Complaint have prescribed, are barred by res judicata, or are
moot.73
In its cross-motion for summary judgment, the WBRPSB contends that it is
entitled as a matter of law to a due process hearing under the IDEA on those issues that
were severed and the subject of the LDE’s October 2009 Administrative Complaint, as
well as the November 2009 and March 2010 IEPs. The WBRPSB also contends that
the issues constitute appropriate subject matter for such request and that its request
was timely. In the alternative, it argues that if the Court finds the 2009 Administrative
Complaint issues are time barred, hearings on the 2009 and 2010 IEPs are nonetheless
timely. The WBRPSB seeks summary judgment vacating the IHO’s 2010 Ruling which
denied the WBRPSB’s 2010 Due Process Hearing Request regarding issues of FAPE
for T.D.

72

In response to the WBRPSB’s Statement of Facts of Which There is No Genuine Issue to be Tried, the
Deshotels submitted a 43 page document in rebuttal. (Rec. Doc. 62-2). In their response, the Deshotels
contend that certain facts are undisputed (Nos. 1, 2, 3, and 7); others are disputed but not material (Nos.
4, 10. 15, 18, 20); and that certain facts are immaterial (Nos. 5, 6, 9, 11, and 13). However, the
Deshotels argue that five (5) of the WBRPSB’s facts are disputed and material. (Nos. 12, 14, 16, 17, and
19). The Court disagrees as it finds that the Deshotels’ disputed facts are more accurately described as
“argument” better reserved for their memoranda. And as to some of the contested facts, the Deshotels
are actually in agreement. (i.e., The Deshotels do not dispute the amount of time it took to submit the IEE
to the WBRPSB). However, the Court does agree with the Deshotels on one point: as to the substance of
the procedural documents at issue, the documents in the record speak for themselves.
73
Rec. Doc. 58; Rec. Doc. 58-1.
13

A.

Standing to Bring Appeal

The Deshotels argue that the WBRPSB’s IEE claims are moot because it
produced a completed IEE to the school board in October of 2010. In opposition, the
WBRPSB stands firm in its position that it is neither contesting the time it took the
Deshotels to complete the IEE, nor the requirement that the IEE be paid by public
monies.74 Rather, the school board argues that it has standing because the “dicta from
the IHO’s 2009 due process decision indicated that the FAPE offer could not be
determined until the [IEE] was completed.”75 It is the WBRPSB’s position that after
completion of the IEE, while the LDE determined that the May 2011 IEP was an offer of
FAPE, the LDE never acknowledged whether the IEPs offered between February of
2009 and May of 2011 were also valid offers of FAPE. Hence, the WBRPSB contends
its appeal is justiciable.
“Mootness is the doctrine of standing in a time frame.

The requisite personal

interest that must exist at the commencement of litigation (standing) must continue
throughout its existence (mootness).”76 Before considering any other issues presented
by the parties, the Court must resolve the issue of mootness “as a threshold matter of
jurisdiction.”77 “A claim becomes moot when ‘the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.’”78 Pursuant to the
LDE’s CAP, the WBPRSB must reimburse expenses to the Deshotels until FAPE is

74

The WBRPSB specifically argues that the Deshotels “apparently misconstrue the IEE delay as
contesting the IEE itself and not, as the School Board has argued, [a]s one pertaining to the IEP process
and development of IEPs.” Rec. Doc. 78, p.10, n. 34.
75
Rec. Doc. 78, p. 11; Rec. Doc. 7-8.
76
Environmental Conservation Organization v. City of Dallas, 529 F.3d 519, 524-25 (5th Cir. 2008).
77
Id. at 525 (quoting Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).
78
Libertarian Party v. Dardenne, (M.D.La. Mar. 24, 2009)(quoting Smith v. Winter, 782 F.2d 508, 510 (5th
Cir. 1986), citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491, 502
(1969)).
14

deemed offered.

The 2009 Due Process Ruling indicated that there could be no

determination of whether there had been an offer of FAPE until the IEE was completed.
Although the IEE was not completed until October of 2010, there were IEPs offered
prior to its completion that if deemed offers of FAPE could mitigate the school board’s
reimbursement payment. The Court finds that there exists a controversy between the
parties and the appeal is not moot.

Accordingly, the Deshotels’ Motion to Dismiss

and/or for Summary Judgment is denied as to the issue of mootness.
B.

Subject Matter of the 2010 Due Process Hearing Request

In its summary judgment motion, the WBRPSB argues that its 2010 Due Process
Hearing Request satisfies Louisiana’s Notice Requirements set forth under Section
504(A) of Louisiana Bulletin 1706 because the subject matter of the request pertained to
FAPE for T.D.79

In opposition and in its cross-motion for summary judgment, the

Deshotels contend that the IHO’s decision should be upheld as he correctly found the
issues within the 2010 Due Process Hearing Request were barred by res judicata and
prescription, and fell outside of the scope of the IDEA’s framework.
1.

Weight Afforded to IHO on Review and Burden of Proof

The parties do not dispute that the Court exercises de novo review of the IHO’s
decision on the due process hearing under the IDEA. The Court must receive the
record of the administrative proceedings and, if requested, it must take additional
evidence.80 The Court “must accord ‘due weight’ to the hearing officer’s findings, but

79

The WBRPSB contends that IHO’s Ruling “was fatally flawed in that it did not explain how the School
Board, in seeking to address multiple issues pertaining to T.D.[’s] special education and related services,
including but not limited to his individualized education program (IEPs), failed to constitute issues which
fell under the legal parameters of ‘any matter’ pertaining to FAPE or fall within one of the few very narrow
exceptions to the School Board’s right to hearing.” Rec. Doc. 62-1, p. 10.
80
Houston Independent School District v. Bobby R., 200 F.3d 341, at 347 (5th Cir. 2000).
15

‘must ultimately reach an independent decision based on a preponderance of the
evidence.”81 The U.S. Supreme Court has explained that the burden of proof “in an
administrative hearing challenging an IEP is properly placed upon the party seeking
relief … the rule applies with equal effect to school districts: if they seek to challenge an
IEP, they will in turn bear the burden of persuasion before an ALJ.”82

Hence, the

WBRPSB bears the burden of proof in this case.
2.

Sufficiency of Due Process Complaint Notice

Pursuant to the IDEA and Section 507 of the Louisiana Bulletin 1706, a party
filing a due process hearing complaint must include certain information in its notice.83
Insufficient notice may result in dismissal of the due process hearing.84 In this case, the
Deshotels filed two sufficiency challenges to the WBRPSB’s notice; the WBRPSB filed
its response to the challenge.85

The IHO issued two Rulings in response to the

challenges and determined that the claims brought in the 2009 LDE Administrative
Complaint were res judicata or had prescribed and that the WBRPSB’s request for a
declaratory judgment fell beyond the scope of the IDEA.86

81

Id. (citing Board of Education v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) and
Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997)).
82
Schaffer ex rel. v. Weast, 546 U.S. 49, 126 S.Ct. 528, 537, 163 L.Ed.2d 387 (2005).
83
For instance, Section 508(B) of the Bulletin provides that the following content must be included in the
written request for due process: The student’s name; the address of the residence of the child; the name
of the school the child is attending; in the case of a homeless student or youth (within the meaning of
Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434 a(2)), available
contact information for the student, and the name of the school the student is attending; a description of
the nature of the problem of the student relating to the proposed or refused initiation or change, including
the facts; a proposed resolution of the problem to the extent known and available to the person
requesting the hearing at the time.
84
Louisiana Bulletin 1706, Section 508(D).
85
Rec. Doc. 7-10; Rec. Doc. 7-11; Rec. Doc. 8-2. Within the WBRPSB’s response, it also sought
reconsideration of the IHO’s initial ruling on the sufficiency challenge.
86
As to the WBRPSB’s request for declaratory judgment through the 2010 Due Process Hearing Request
the IHO concluded that the WBRPSB’s inability to implement the findings of a prior Due Process ruling is
not an authorized basis for a Due Process Hearing request, and that the WBRSPB’s request for a
declaratory judgment “does not propose, nor refuse, to initiate or change the identification, evaluation, or
16

The Court finds that, to the extent the WBRPSB seeks review of the 2009 Due
Process Hearing or a declaration that it has complied with the 2009 Due Process Ruling
requiring an IEE at public expense, the IHO’s finding is correct. However, this does not
resolve this issue in its entirety.87
The sole issue before the IHO in 2009 was the Deshotels’ request for an IEE.88
Therefore, the ruling had no bearing on the validity of past or future IEPs. While the
LDE found that the May 2011 IEP was an offer of FAPE, the LDE did not address
whether the other IEPs offered between February 2009 and May 2011 were valid
offers/opportunities for FAPE. WBRPSB contends that a determination as to when an
IEP offered FAPE is critical to the issue of reimbursement under the LDE’s CAP, and is
appropriate subject matter for a due process hearing. The Court agrees. Therefore, to
the extent the WBRPSB seeks a due process hearing on whether the IEPs offered
between February 2009 and March 2010 are valid offers of FAPE to T.D., the Court
finds such a due process hearing is appropriate because the subject matter falls within
the purview of the IDEA and Section 504 of Louisiana Bulletin 1706.89

educational placement of the student of the provision of FAPE to the student also does not meet the
requirements of Section 504.” Rec. Doc. 7-10; Rec. Doc. 7-11.
87
In response to the Deshotels’ sufficiency challenge, the WBRPSB did explain that it sought a
declaratory ruling that “it has and continues to offer and make FAPE available to T.D. via the November
2009 and March 2010 IEPs” and because “no conclusive ruling has been issued via a due process on
whether any IEP offered by the WBRPSB was consistent with the child’s right to a FAPE.” Rec. Doc. 8-2,
p. 6.
88
Rec. Doc. 7-8; p.3. “The school board filed the due process request to contest the parents’ request for
an Independent Educational Evaluation (‘IEE’).”
89
Louisiana Bulletin 1706, Section 504(A)(1) and (2) provides: “Written notice that meets the
requirements of Subsection B of this Section shall be given to the parents of a student with a disability a
reasonable time before the public agency: (1) Proposes to initiate or change the; or (2) Refuses to initiate
or change the identification, evaluation, or educational placement of the student or the provision of a free
appropriate public education to the student.”
17

The Court finds that the WBRPSB has carried its burden of proof and is entitled
to a due process hearing because these claims are neither barred by res judicata nor
prescription.
B.

Are LDE Administrative Complaint Decisions Final Adjudications?

The Deshotels contend any claims addressed by the LDE in its 2009
Administrative Complaint Decision are barred by res judicata because they are not
subject to appeal or judicial review. In other words, according to the Deshotels, such
administrative decisions are final adjudications. The Court disagrees.
As this Court has explained, before a party can seek judicial review under the
IDEA, exhaustion of the due process hearing procedures is required; however, “the
state complaint procedure, being ‘different in purpose, scope and procedure’ is
insufficient to satisfy the exhaustion requirement.”90 Notably, as the Deshotels correctly
point out, Louisiana’s state complaint procedure provides no regulatory or statutory
authority for judicial review of an LDE complaint decision. And yet, in order for the
WBRPSB to seek review under the IDEA, a hearing is required. The Court finds this
statutory impasse between the LAC and the IDEA problematic.
In an effort to bridge this gap, and finding no controlling Fifth Circuit authority, the
Court looks to the “great lakes state” of Michigan for guidance. In Grand Rapids Public
Schools v. P.C. and T.C. ex rel. D.C.,91 one of the issues before the District Court was
whether a due process hearing could be used to challenge the findings of a state

90

J.M.C. v BESE, 562 F.Supp.2d 748 (M.D.La. 2008)(“IDEA requires exhaustion of the due process
hearing procedures before filing for judicial review”). On reconsideration, the J.M.C. court altered its
original ruling on jurisdiction over the enforcement of a settlement agreement between the parties;
however, this has alteration has no bearing on the legal premise upon which this Court relies. 584
F.Supp.2d 894.
91
308 F.Supp.2d 815 (W.D.Mich. 2004).
18

agency’s complaint investigation. In reaching its decision, the court reasoned that “in
the event of statutory ambiguity, the IDEA is better read to permit more process (a due
process hearing following a separate investigation) as opposed to less process (the
investigation foreclosing a later statutorily referenced due process hearing).”92 The
Louisiana Supreme Court has similarly interpreted the state’s Administrative Procedures
Act (APA) as providing more process as opposed to less: “It is well settled that the right
of judicial review of the administrative proceedings is presumed to exist. It has been
held that such review is necessary to the validity of administrative proceedings under
our legal system and traditions.”93 Clearly, the Court finds that where there is a void of
process provided under the IDEA or the state administrative complaint process, more
process, whether that be in the form of a hearing or judicial review, is necessary.
The Court also finds Louisiana jurisprudence in the context of the APA
instructive. The Louisiana Supreme Court has explained that “[a]n adjudication is a
proceeding resulting in an order or decision. A decision or order is, for purpose of the
act, a disposition required by constitution or statute to be made only after notice and a
hearing.

Therefore, unless there is some provision in the constitution or statutes

requiring a hearing, an agency disposition is not a ‘decision’ or ‘order’ as defined for

92

Id. at 817. (emphasis added). In another decision out of the Western District if Michigan, Lewis Cass
Intermediate School Dist. V. M.K. ex rel. J.K., 290 F.Supp.2d 832 (W.D. Mich. 2003), the court referred to
interpretive rulings of the IDEA by the U.S. Department of Education’s Office of Special Education
Programs (OSEP). When asked if a State complaint decision may be appealed, the OSEP provided the
following response: “[t]he regulations are silent as to the whether a state complaint decision may be
appealed. Part B neither prohibits nor requires the establishment of procedures to permit either party to
request reconsideration of a State complaint decision … However, if the issue(s) is still in dispute, the
parent or public agency may, if they have not already done so, initiate a due process hearing.” Id. at 836.
(emphasis original). The Lewis Cass Court further explained that “[i]n short, OSEP construes the IDEA as
granting a parent or public agency the right to raise ‘complaint issues’ related to the ‘provision of FAPE to
the child’ in a due process hearing.” Id.
93
Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330, at 336 (La. 1980).
19

purposes of the act.”94 Accordingly, the Court finds that the LDE’s decision on the
Deshotels’ 2009 Administrative Complaint is not an adjudication that would bar the
WBRPSB from requesting a due process hearing on those issues.
Accordingly, the Court denies the Deshotels’ res judicata Motion to Dismiss for
Failure to State a Claim Due to a Lack of Judicial Procedure for Review and Motion for
Summary Judgment.
C.

Prescription of the 2009 LDE Complaint’s Underlying Claims

The Deshotels argue that WBRPSB’s 2010 Due Process Hearing Request is
time barred by virtue of the one year prescriptive period in La. R.S. 17:1946(B)(1). The
Deshotels argue that the claims raised in the school board’s 2010 Due Process Hearing
Request relate back to its 2009 Administrative Complaint, which involves matters that
occurred between July 10, 2008 and July 10, 2009. WBRPSB responds that the 2010
Due Process Hearing Request was filed timely in July of 2010, because prescription did
not begin to run until November 13, 2009, when the LDE issued its Final 2009
Administrative Complaint Decision.
La. R.S. 17:1946(B)(1) provides that
[t]he right of a parent or public agency to initiate a request for a special
education due process hearing shall prescribe within one year of the date
the parent or public agency knew or should have known about the alleged
action that forms the basis of the request.
Unable to find any Fifth Circuit jurisprudence applying the foregoing statute to a similar
fact pattern such as this, the Court finds the recent District Court of Eastern Michigan
decision, Atlanta Community Schools v. Alpena-Montmorency-Alcona, instructive.95

94

Id. at 333.
Atlanta Community Schools v. Alpena-Montmorency-Alcona Educational Service District, 2012 WL
4133563 (E.D. Mich. Sept. 18, 2002).
95

20

In Atlanta Community Schools, the plaintiffs (school districts), sought to appeal
the final decision of the Michigan Department of Education (MDE) in an IDEA based
state complaint context. Under Michigan’s regulations, there was no express statutory
authority to appeal such a final decision.
Relying on Section 1415(f)(3)(C) of the IDEA, the school district argued that,
because Michigan had no express time limitation for requesting a due process hearing,
it had two years from the final decision of the Michigan Department of Education to
appeal the decision.96

The court reasoned that while the Michigan Department of

Education authorizes the appeal of an agency decision:
“this state-established procedure cannot trump a party’s right to a due
process hearing granted under the IDEA.’ Although the authority cited by
[the Educational Service District] outlines the timeline for appealing
through the state-established procedures, the language of the IDEA
provides for a two-year time limit on seeking a due process hearing. The
reasoning by the court in Lewis Cass is sound, and Plaintiffs’ argument
that [the] governing time limit is two-years is persuasive.97
Accordingly, the Atlanta County Schools court found that the school districts’ request to
appeal the MDE’s final state complaint decision was, in fact, timely.98
For similar reasons, the Court finds that the WBRPSB’s 2010 Due Process
Hearing Request has not prescribed. Prescription does not begin to run until the final
administrative agency’s decision is rendered. Therefore, Louisiana’s one year
prescriptive period for requesting a due process hearing did not begin to run until the

96

Section 1415(f)(3)(C) under the IDEA which provides in pertinent part:
Timeline for requesting a hearing.
A parent or agency shall request an impartial due process hearing within 2 years of the date the
parent or agency knew or should have known about the alleged action that forms the basis of the
complaint, or, if the State has an explicit time limitation for requesting such a hearing under this
subchapter, in such time as the State law allows.
97
2012 WL 4133563, at *20 (E.D. Mich. Sept. 18, 2012), citing, Lewis Cass Intermediate School District v.
M.K., 290 F.Supp.2d 832 (W.D. Mich. 2003).
98
The Plaintiffs were permitted to amend their complaint to add an appeal of the MDE’s final decision.
21

LDE rendered its Final 2009 Administrative Complaint Decision on November 20, 2009.
Because the WBRPSB 2010 Due Process Hearing request was filed on July 7, 2010,
the Court finds it was timely.

For these reasons, the WBRPSB prevails on its

prescription argument, while the Deshotels’ opposing argument fails. Accordingly, the
Deshotels’ Motion to Dismiss for Failure to State a Claim Due to a Lack of Judicial
Procedure for Review and Motion for Summary Judgment based upon prescription is
denied, and the WBRPSB’s Motion for Summary Judgment as to prescription will be
granted.
IV.

STATE DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST
In their Counterclaim, the Deshotels assert claims against the State Defendants

under the IDEA, Section 504 of the Rehabilitation Act, the Americans with Disabilities
Act (ADA), 42 U.S.C. Section 1983, and supplemental state law claims arising under
article 2315 of the Louisiana Civil Code. The State Defendants contend that, as a
threshold matter, this Court lacks subject matter jurisdiction over the claims asserted
against them because the Deshotels have failed to exhaust the administrative remedies
available under the IDEA.

Additionally, the State Defendants contend that the

Deshotels have failed to state claims under Section 504 of the Rehabilitation Act and
the ADA. For the following reasons, the Court agrees.
“Under the IDEA parties must exhaust administrative remedies prior to filing
suit.”99

Additionally, the IDEA administrative requirements must also be exhausted

before filing claims under Section 504 of the Rehabilitation Act, the ADA, and 42 U.S.C.

99

Thomas v. East Baton Rouge Parish School Board, 29 F.Supp.2d 337, 338 (M.D.La. 1998)(citing
Gardner v. School Board of Caddo Parish, 958 F.2d 108, 111 (5th Cir. 1992)).
22

Section 1983 when a party is seeking relief that is also available under the IDEA.100
The Fifth Circuit has explained why administrative exhaustion is so important: “[the]
IDEA allows us to review the administrative proceedings, including the evidentiary due
process hearing, but does not provide for us to act as the first hearing body.”
Nevertheless, there are exceptions to the general rule. “Parents may bypass the
administrative process where exhaustion would be futile or inadequate.”101 However,
the Deshotels “bear the burden of proving exhaustion would be futile or inadequate.”102
“To show futility, a plaintiff must demonstrate that adequate remedies are not
reasonably available or that the wrongs alleged could not or would not have been
corrected by resort to the administrative hearing process.”103
The Deshotels maintain that exhaustion of administrative remedies is futile in this
case.

The Deshotels’ argue that this is a “‘textbook’ case of futility” because the

“WBRPSB will never voluntarily comply with any administrative Ruling against it, and
the State will never force it to, and it will thus harass the Deshotels indefinitely.”104 The
Deshotels’ argue that, in spite of WBRPSB’s poor reputation with respect to providing
FAPE, the State “has still done nothing to fulfill its IDEA mandates and provide
FAPE”.105 The Deshotels’ allege that the State has maintained some sort of alliance

100

Id. “Exhaustion of administrative remedies is also required by 20 U.S.C. §1415(l) of the IDEA prior to
any suit being filed under the ADA or the Rehabilitation Act.” Id. at 339. 20 U.S.C § 1415(l) states:
“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies
available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. §12101 et seq.],
title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the
rights of children with disabilities, except that before the filing of a civil action under such laws seeking
relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be
exhausted to the same extent as would be required had the action been brought under this subchapter.”
101
Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed. 2d 686 (1988).
102
Thomas, 29 F.Supp.2d at 338.
103
M.L. v. Frisco Independent School Dist., 451 Fed.Appx. 424, at 428 (5th Cir. 2011)(citing Coleman v.
Newburgh Enlarged City School Dist., 503 F.3d 198, 205 (2nd Cir. 2007)).
104
Rec. Doc. 105, pp.1 and 20. (emphasis original).
105
Rec. Doc. 105, p. 19. (emphasis original).
23

with the WBRPSB since late 2010 and “has utterly failed in carrying out its legal
mandates and responsibilities to the Deshotels” and that the two letters sent to
WBRPSB by the State are insufficient.106
The Court rejects the Deshotels’ futility argument. “The IDEA’s exhaustion
requirement serves a number of policy objectives: it allows deference to agency
expertise in resolving educational matters; it gives the agency a first opportunity to
correct errors; it presents courts with a more fully developed record; and it prevents
parties from deliberately disregarding the statute’s comprehensive procedures and
remedies.”107 While the Court appreciates the frustration that the Deshotels may be
experiencing due to the ongoing legal matters with the WBRPSB, the State Defendants
have not been a party to any administrative complaint filed by the Deshotels and,
therefore, have not had an opportunity to address the Deshotels’ complaints and
allegations in a forum with specific expertise in education law, including the IDEA.
Moreover, the Court finds that the Deshotels’ allegations against the State
Defendants are conclusory and speculative at best. There is no factual support for the
Deshotels’ contention that the State Defendants will never take the appropriate remedial
action to address their concerns for T.D. under the IDEA thereby making the IDEA’s
exhaustion requirement futile.
The Deshotels also argue that the State Defendants, as the state education
agency (SEA), may not be named as a party to an administrative complaint. Several
cases, however, stand for the contrary position. For instance, in Bitsilly ex rel. Denet-

106
107

Rec. Doc. 105, p.6 and p. 20.
Marc V. v. North East Independent School District, 455 F.Supp.2d 577, 592 (W.D.Tx. 2006).
24

Yazzie v. Bureau of Indian Affairs,108 the District Court for New Mexico stated: “In most
instances, parents of students bring IDEA lawsuits against the school or the local
educational agency where the school is located, rather than the SEA. However, parents
do have the option of suing at the highest level of accountability, the SEA.”109 Even the
Fifth Circuit decision, St. Tammany Parish Sch. Bd. v. Louisiana,110 relied upon by the
Deshotels, lends support for the position that an SEA may be a party to a complaint
brought under the IDEA.111 In St. Tammany Parish Sch. Bd., the Fifth Circuit voiced its
agreement with the Louisiana Fourth Circuit’s interpretation of liability for SEAs under
the IDEA whereby “both the language and the structure of IDEA suggest that either or
both entities [the SEA and the LEA] may be held liable for the failure to provide free
appropriate public education, as the district court deems appropriate after considering
all relevant factors.”112 The Court finds that the Deshotels’ argument that the State
Defendants, specifically the LDE, may not be named as a party to an administrative
complaint is without merit.
Accordingly, because the Deshotels have failed to establish that exhaustion is
futile or inadequate, the State Defendants’ Motion to Dismiss for Failure to Exhaust
Administrative Remedies Under Rule 12(b)(1) shall be granted without prejudice.

108

253 F.Supp.2d 1257 (D. New Mexico 2003).
Id. at 1264 (D. New Mexico 2003). See also, Cannaday v. Board of Education of Rio Rancho Public
Schools, where the District Court of New Mexico, relying on Bitsilly, explained that it had “found no
authority for the proposition that the IDEA does not contemplate a due process hearing with the SEA as a
party… Certainly, SEAs have been sued and held responsible for IDEA violations.” 2013 WL 5295680, *5
(D. New Mexico July 12, 2013).
110
142 F.3d 779 (5th Cir. 1998).
111
Id.
112
Id. at 784 (quoting Gadsy by Gasby v. Grasmick, 109 F.3d 940, at 955 (4th Cir. 1997)).
109

25

V.

CONCLUSION
Accordingly, for the foregoing reasons, the West Baton Rouge Parish School

Board’s Motion for Summary Judgment113 is granted in part and denied in part. The
2010 Ruling denying the West Baton Rouge Parish School Board’s Due Process
Hearing Request is vacated as to those issues originally dismissed due to res judicata
and prescription, and to the extent it prohibited a determination of whether any IEPs
between February 2009 and March 2010 were offers of FAPE. The 2010 Ruling is
affirmed as to the denial of the WBRPSB’s request for a due process hearing seeking a
declaration that it has complied with the 2009 Due Process Ruling.
The State of Louisiana’s Motion to Dismiss114 is hereby GRANTED, and the
Deshotels’ claims against the State Defendants are dismissed without prejudice.
Furthermore, the Deshotels’ Motion to Dismiss and/or for Summary Judgment115 is
hereby DENIED.
Signed in Baton Rouge, Louisiana, on March 31, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

113

Rec. Doc. 62.
Rec. Doc. 57.
115
Rec. Doc. 58.
114

26