BM et al v. South Callaway R-II School District

Filing 100

ORDER entered by Judge Nanette Laughrey. Plaintiffs' Second Motion to Reconsider or Alter or Amend Judgment [Doc. # 95] is DENIED. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
B.M., a Minor, by and through His
Next Friends, ROGER MILLER and
SHARON MILLER, and ROGER
MILLER, Individually, and SHARON
MILLER, Individually,
Plaintiffs,
v.
SOUTH CALLAWAY R-II SCHOOL
DISTRICT,
Defendant.

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Case No. 11-4029-NKL

ORDER
Pending before the Court is the Plaintiffs’ Second Motion to Reconsider
and Alter or Amend Its Order and Judgment [Doc. # 95]. Plaintiffs filed a twocount Complaint [Doc. # 1] on January 20, 2011, alleging that Defendant violated
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 791 (“Section 504”)
and the Americans with Disabilities Act, 42 U.S.C.A. § 12132 (“ADA”). In Count
I of the Complaint, Plaintiff B.M. requested relief under the ADA and Section 504
for alleged discrimination based on disability. In Count II, Plaintiffs Roger and
Sharon Miller, parents of B.M., requested relief for disability discrimination in
their individual capacities. Defendant filed a Motion for Summary Judgment
[Docs. ## 54, 55], which the Court granted, on the grounds that Plaintiffs had
failed to exhaust their administrative remedies. [Doc. # 86]. On May 8, 2012,

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Plaintiffs filed a Motion to Reconsider and Alter or Amend Judgment, introducing
new facts in support of their allegation that they had been unable to exhaust
administrative remedies. [Doc. # 88]. In response, this Court entered an Order on
July 23, 2012, vacating the previous Order to the extent that it granted summary
judgment to the Defendants based on Plaintiffs’ failure to exhaust administrative
remedies. In the same order, the Court determined that whether or not Plaintiffs
had exhausted their administrative remedies, summary judgment was proper on
the merits of the case. [Doc. # 94]. Plaintiffs have now filed a Second Motion to
Reconsider and Alter or Amend Judgment, alleging that this Court misapplied the
law to the merits of the case. [Doc. # 95].
The Court adopts the facts as set forth in this Court’s Order of July 23,
2012 [Doc. # 94]. For the reasons stated below, the Court DENIES the Plaintiffs’
Motion to Reconsider or Alter or Amend Judgment.
I.

Standard of Review
A district court has broad discretion in determining whether to grant a

motion to alter or amend judgment. Fed. R. Civ. P. 59(e); see also United States v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 59(e)
motions “serve the limited function of correcting manifest errors of law or fact or
to present newly discovered evidence.” Metro. St. Louis Sewer Dist., 440 F.3d at
933 (internal quotes omitted). The purpose of the Rule is to allow the district
court “the power to rectify its own mistakes in the period immediately following
the entry of judgment.” Norman v. Arkansas Dep’t of Educ., 79 F.3d 748, 750

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(8th Cir. 1996) (quoting White v. New Hampshire Dep't of Employment Sec., 455
U.S. 445, 450, 102 S. Ct. 1162, 1166 (1982)). A Rule 59(e) motion to alter or
amend must show: “1) an intervening change in controlling law; 2) the availability
of new evidence not available previously; or 3) the need to correct a clear error of
law or prevent manifest injustice.” Bannister v. Armontrout, 807 F. Supp. 516,
556 (W.D. Mo. 1991), aff'd, 4 F.3d 1434 (8th Cir. 1993).
Importantly, a motion to reconsider “cannot be used to raise arguments
which could, and should, have been made before the trial court entered final
judgment.” Garner v. Arvin Indus. Inc., 77 F.3d 255, 258 (8th Cir. 1996); see also
Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) (stating that
a Rule 59(e) motion should not “serve as the occasion to tender new legal theories
for the first time”)(internal quotes omitted); Innovative Home Health Care, Inc. v.
P.T.-O.T. Associates of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (Rule
59(e) “cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of
judgment”).
II.

Discussion
The Court finds that Plaintiffs’ Rule 59(e) Motion to Reconsider presents a

new legal theory, and so must deny the Motion. However, in order to lay to rest
Plaintiffs’ repeated attempts to circumvent the final decision of this Court, some
discussion of the Plaintiffs’ contention regarding the appropriate standard to be
applied to the merits is warranted.

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A.

Section 504 and ADA Claims

Section 504 of the Rehabilitation Act and the ADA provide similar
protections to disabled individuals, and so may be subject to the same analysis.
Hoekstra By & Through Hoekstra v. Indep. Sch. Dist. No. 283, 103 F.3d 624, 626
(8th Cir. 1996) (“This court has held that enforcement remedies, procedures and
rights under Title II of the ADA are the same as under § 504, and has consistently
applied § 504 case law to ADA cases.”); Pottgen v. Missouri State High Sch.
Activities Ass'n, 40 F.3d 926, 930 (8th Cir. 1994) (“Congress intended Title II [of
the ADA] to be consistent with section 504 of the Rehabilitation Act.”).
Disability, under both laws, is defined as “a physical or mental impairment that
substantially limits one or more of the major life activities” of the individual. 28
C.F.R. § 35.104; 34 C.F.R. § 104.3.
Unlike the Individuals with Disabilities Education Act (“IDEA”),1 Section
504 and the ADA do not statutorily create a right to a free appropriate public
education (“FAPE”) tailored to the individual student’s needs. However, the
federal regulations promulgated to enforce Section 504’s nondiscrimination
provisions create a similar requirement, stating, “A recipient [of federal funding]
that operates a public elementary or secondary education program or activity shall

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Under the Individuals with Disabilities Education Act (“IDEA”), schools must provide
all children with disabilities a free appropriate public education (“FAPE”) tailored to their
individual needs. 20 U.S.C. § 1412(a)(1). Schools must also develop an “individualized
education program” (“IEP”) that is “developed, reviewed, and revised for each child with
a disability in accordance” with IDEA’s statutory requirements. 20 U.S.C.A. §
1412(a)(4).

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provide a free appropriate public education to each qualified handicapped person
who is in the recipient’s jurisdiction, regardless of the nature or severity of the
person’s handicap.” 34 C.F.R. § 104.33(a). This regulation defines an
appropriate education as “the provision of regular or special education and related
aids and services that (i) are designed to meet the individual 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 [the 504 regulations].” 34 C.F.R. § 104.33(b)(1).2
Damages also differ under the IDEA and Section 504. The IDEA provides
for injunctive or prospective relief, such as compensatory educational services, but
generally not monetary damages. See, e.g., Sellers by Sellers v. Sch. Bd. of City of
Mannassas, Va., 141 F.3d 524, 527 (4th Cir. 1998); Hall v. Knott County Bd. of
Educ., 941 F.2d 402, 407 (6th Cir. 1991); Charlie F. by Neil F. v. Bd. of Educ. of
Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996). As part of compensatory
educational services, the IDEA allows for reimbursement of educational services

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Implementation of an IEP developed under the IDEA is one means of satisfying Section
504’s FAPE requirement. 34 C.F.R. §104.33(b)(2). As the Eighth Circuit has explained,
“Both § 504 and IDEA have been interpreted as requiring states to provide a free
appropriate public education to qualified handicapped persons, but only IDEA requires
development of an IEP… .” Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1376 (8th Cir.
1996). The Ninth Circuit has recently made clear that “FAPE under the IDEA and FAPE
as defined in the § 504 regulations are similar but not identical.... FAPE under § 504 is
defined to require a comparison between the manner in which the needs of disabled and
non-disabled children are met, and focuses on the “design” of a child's educational
program.” Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). Under Section
504’s FAPE requirement, “school districts need only design educational programs for
disabled persons that are intended to meet their educational needs to the same degree that
the needs of nondisabled students are met, not more.” Id. at 936-37.

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where the public school district had failed to provide free appropriate public
education to a disabled child. School Comm. of Burlington v. Department of Educ.
of Mass., 471 U.S. 359, 370, 105 S. Ct. 1996, 2002-03 (1985). On the other hand,
Section 504 and the ADA provide for monetary damages, as well as equitable
relief. See Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642, 644 (8th Cir. 1994);
Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1107 (9th
Cir. 1987); Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630, 104 S. Ct. 1248,
1252 (1984). In calculating reimbursement for educational services, the measure
of “definable and concrete” costs expended by the parents is important; such
“actual costs borne by parents for special education and related services provide an
ascertainable benchmark for calculating the relief to which they may be entitled.”
Sellers by Sellers, 141 F.3d at 528.
To state a prima facie case of disability under Section 504 and the ADA,
the plaintiff must prove that “he or she (1) is a qualified individual with a
disability; (2) was denied the benefits of a program or activity of a public entity
receiving federal funds; and (3) was discriminated against based on her disability.”
M.Y., ex rel., J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888 (8th Cir. 2008). In
addition, the Eighth Circuit has made clear that “[t]he reference in the
Rehabilitation Act to ‘discrimination’ must require, we think, something more
than an incorrect evaluation, or a substantively faulty individualized education
plan, in order for liability to exist.” Monahan v. State of Neb., 687 F.2d 1164,
1170 (8th Cir. 1982). Beginning with the Eighth Circuit in Monahan, courts have

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routinely held that the plaintiff must show that the defendant’s discriminatory
conduct reflected “either bad faith or gross misjudgment.” Monahan, 687 F.2d at
1171 (8th Cir. 1982); Hoekstra By & Through Hoekstra, 103 F.3d at 627 (holding
that “in the context of educational services for disabled children, a showing of
gross misjudgment or bad faith on the part of school officials is necessary to
succeed on an ADA claim”); Sellers by Sellers, 141 F.3d at 529; D.A. ex rel.
Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 455 (5th Cir. 2010);
Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App'x 162, 167 (6th Cir.
2003); Brantley By & Through Brantley v. Indep. Sch. Dist. No. 625, St. Paul Pub.
Sch., 936 F. Supp. 649, 657 (D. Minn. 1996); Maus v. Wappingers Cent. Sch.
Dist., 688 F. Supp. 2d 282, 294 (S.D.N.Y. 2010); Wenger v. Canastota Cent. Sch.
Dist., 979 F. Supp. 147, 152 (N.D.N.Y. 1997), aff'd, 181 F.3d 84 (2d Cir. 1999),
and aff'd, 208 F.3d 204 (2d Cir. 2000).
B.

Application

Plaintiffs contend that this court erroneously applied the standard of “bad
faith and gross misjudgment,” and that this error constituted manifest injustice
meriting reconsideration under Rule 59(e). [Doc. # 95]. Plaintiffs claim that the
requirement of “bad faith or gross misjudgment” under Section 504 is only
applicable with regards to Plaintiffs’ claim for monetary damages and not their
claims for compensatory educational services. They further contend that the
standards requiring bad faith and gross misjudgment are only applicable to a
decision about which experts could reasonably disagree.

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First, this theory was not advanced in Plaintiff’s initial pleadings or in their
response to Defendants’ Motion for Summary Judgment, and as such is not
appropriately raised under a Rule 59(e) motion to reconsider. See Garner, 77 F.3d
at 258; Hagerman, 839 F.2d at 414; Innovative Home Health Care, Inc., 141 F.3d
at 1286. However, for purposes of clarity and finality, the Court will briefly
address the substance of the claim.
Plaintiffs cite two cases in support of their first assertion, Walker v. Dist. of
Columbia, 157 F. Supp. 2d 11 (D.D.C. 2001), and AP ex rel. Peterson v. AnokaHennepin Indep. Sch. Dist. No. 11, 538 F. Supp. 2d 1125 (D. Minn. 2008).
Walker involved two claims, one for monetary damages for violation of the IDEA
via § 1983 and one for monetary damages under Section 504. The court applied
the “bad faith or gross misjudgment” standard to the claim for monetary damages
under Section 504, but said nothing regarding any claim for compensatory
educational services, either via reimbursement for such services or injunctive
relief; indeed, there is no evidence that the plaintiffs in that case were claiming
compensatory educational services. Walker, 157 F. Supp. 2d at 35. As such,
Walker cannot be read to stand for the theory Plaintiffs advance.
AP ex rel. Peterson involved a school district’s failure to provide
reasonable accommodations in a summer day-care program to a disabled student,
allegedly in violation of the ADA, Section 504, and Minnesota’s disability
discrimination statute. The district court in that case determined it was not clear
from the Eighth Circuit’s reasoning in Monahan that “bad faith or gross

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misjudgment is a necessary precondition to any § 504 claim,” and decided instead
to apply a deliberate indifference standard which had been adopted by the Ninth
Circuit. First, the Court is not persuaded that the Eighth Circuit would agree with
the Ninth Circuit on this issue. Monahan suggests otherwise. Second, the
Peterson case did not involve a challenge to educational services, but Plaintiffs
clearly have raised such a challenge here. Third, even if the deliberate
indifference standard applied to the claim for compensatory educational services,
Plaintiffs have failed to show facts that support such a claim. Indeed, in Peterson,
the judge ultimately determined the school had not acted with deliberate
indifference, even though its response had been “slow, clumsy, unresponsive, and,
at times, incompetent.” Id. at 1137.
Furthermore, contrary to Plaintiffs’ claim, courts have generally not
distinguished between the type of relief sought under Section 504 when applying
the “bad faith or gross misjudgment” standard. Rather, courts have uniformly
applied this standard regardless of whether the relief requested is in the form of
monetary damages or compensatory educational services. See, e.g., St. Louis
Developmental Disabilities Treatment Ctr. Parents Ass'n v. Mallory, 591 F. Supp.
1416, 1467 (W.D. Mo. 1984), aff'd sub nom. St. Louis Developmental Disabilities
Treatment Ctr. Parents' Ass'n v. Mallory, 767 F.2d 518 (8th Cir. 1985); C. ex rel.
Connor v. Missouri State Bd. of Educ., 2009 WL 2928758 at *8 (E.D. Mo. Sept. 8,
2009); Moubry v. Indep. Sch. Dist. 696, Ely, Minn., 9 F. Supp. 2d 1086, 1110 (D.
Minn. 1998); Sellers by Sellers, 141 F.3d at 529; D.A. ex rel. Latasha A. v, 629

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F.3d at 455; Campbell, 58 F. App'x at 167; Torrence v. Dist. of Columbia, 669 F.
Supp. 2d 68, 71 (D.D.C. 2009); T.B. ex rel. Brenneise v. San Diego Unified Sch.
Dist., 2012 WL 1611021 at *7 (S.D. Cal. May 8, 2012); E.W. v. Sch. Bd. of
Miami-Dade County Florida, 307 F. Supp. 2d 1363, 1371 (S.D. Fla. 2004).
Plaintiffs’ other new legal theory is that the “bad faith or gross
misjudgment” standard applies only to actions about which experts may disagree.
In support of this claim, the Plaintiffs rely primarily on Shirey ex rel. Kyger v. City
of Alexandria Sch. Bd., 229 F.3d 1143 (4th Cir. 2000). That case involved a
school district’s failure to evacuate a disabled student from a school during a
bomb threat. The Fourth Circuit held that the heightened “bad faith or gross
misjudgment” standard was appropriate in cases involving educational plans for
disabled children because “negligent error in the development of an appropriate
IEP [Individualized Education Plan] does not amount to the kind of invidious
discrimination at which the Rehabilitation Act or the ADA is directed.” Id. at *4.
However, the Fourth Circuit determined that this heightened standard did not
apply to the school district’s actions in this case, as “[t]here is nothing ‘arguable’
about safely evacuating disabled children from a school building during an
emergency.” Id. at *5. Instead, the Fourth Circuit determined that the relevant
inquiry was simply whether the district had denied the plaintiff “access to the
program in question – namely, safe evacuation from school buildings during an
emergency.” Id.

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Plaintiffs interpret this case to mean that the “bad faith or gross
misjudgment” standard should only apply to school district actions about which
experts could reasonably disagree. However, even assuming that Shirey ex rel
Kyger stands for that proposition, it is distinguishable from the instant case in
several respects: it explicitly does not involve an educational plan, as the instant
case does, and the damages requested had nothing to do with compensatory
educational services, but were rather explicitly limited by the court to injunctive
relief. Further, relying on Monahan, the Fourth Circuit prior to Shirey had made
clear that when parents merely assert that certain behavior by a child “should have
alerted” defendants to the child’s disability and the need for a FAPE, this is “at
best, a negligence claim – that defendants should have recognized [the student’s]
disability.” Sellers by Sellers, 141 F.3d at 529. Therefore, there is no indication
that the Fourth Circuit would extend its limited ruling in Shirey ex rel Kyger to
cases involving Plaintiffs’ claims.
III.

Conclusion
From the above analysis, it is clear that the applicable standard regarding

Plaintiffs’ claims is the “bad faith and gross misjudgment” standard set forth in
Monahan. As the Court has stated previously, Plaintiffs have not met their burden
of proving that Defendants acted with bad faith or gross misjudgment. Thus, there
is neither a clear error of law or manifest injustice and Plaintiffs’ Second Motion
to Reconsider or Alter or Amend Judgment [Doc. # 95] is DENIED.

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s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 15, 2012
Jefferson City, Missouri

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