Vlasaty et al v. Wake County Public School System Board of Education et al
Filing
33
ORDER the court GRANTS the school defendants' partial motion to dismiss [D.E. 15]. Plaintiffs' IDEA claims against WCPSS survive. The court DISMISSES without prejudice all other claims against the school defendants. The court GRANTS the state defendants' motion to dismiss [D.E. 18], and DISMISSES without prejudice the claims against the state defendants. Signed by Chief Judge James C. Dever III on 9/20/2018. (Sellers, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-578-D
JENNINE VLASATY, DEREK VLASATY, )
andN.V.,
)
)
Plaintiffs,
)
)
v.
)
)
WAKE COUNTY PUBLIC SCHOOL
)
SYSTEM BOARD OF EDUCATION,
)
KAREN HAMILTON, ROBERT BENDEL, )
WILLIAM HUSSEY, MARK JOHNSON,
)
and NORTH CAROLINA STATE BOARD )
OF EDUCATION,
)
)
Defendants. )
ORDER
On November 21, 2017, N. V., a minor, Jennine Vlasaty, and Derek Vlasaty, individually 'and
on behalf ofN.V. ("plaintiffs") filed a complaint against the Wake County Public School System
Board of Education ("WCPSS" or "Board"), Karen Hamilton (Assistant Superintendent of Special
Education Services for WCPSS, in her individual capacity) '("Hamilton"), and Robert Bendel
(Principal of Jones Dairy Elementary School, in his individual capacity) ("Bendel") (collectively,
"school defendants"), and the North Carolina State Board of Education, ("SBE"), Mark Johnson
(State Superintendent of Public Instruction, in his individual capacity) ("Johnson"), and William
Hussey, (North Carolina Department of Public Instruction Director QfExceptional Children, in his
individual capacity) ("Hussey") (collectively, "state defendants"). Plaintiffs allege violations ofthe
Individuals with Disabilities Education Improvement Act ("IDEA") and corresponding state law, and
discriminatory conduct against plaintiffs based on N. V.' s disability in violation of section 504 ofthe
Rehabilitation Act, Title II of the Americans with Disabilities Act ("ADA"), and 42 U.S.C. § 1983
[D.E. 1]. On January 25, 2018, the school defendants filed a partial motion to dismiss for lack of
subject-matter jurisdiction and for failure to state a claim upon which relief can be granted [D.E. 15]
and filed a memorandum in support [D.E. 16]. On January 26, 2018, the state defendants filed a
motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which
relief can be granted [D.E. 18] and filed a memorandum in support [D.E. 19]. On February 13, 2018,
plaintiffs answered Bendel's counterclaim [D.E. 20]. On February 15, 2018, plaintiffs responded
to the school defendants' partial motion to dismiss [D.E. 21], filed a memorandum in support [D.E.
22], responded to the state defendants' motion to dismiss [D.E. 23], and filed a memorandum in
support [D.E. 24]. On March 1, 2018, the school defendants replied [D.E. 25]. As explained below,
the court grants the school defendants' partial motion to dismiss and grants the state defendants'
motion to dismiss.
I.
N.V. is an eleven year old child who lives with his parents in Wake County, North Carolina
and attends Wake County public schools. See Compl. [D.E. 1] ~~ 36-37,46-47.
N.V.... has been diagnosed with Down syndrome; mild intellectual disability;
Hirschprung' s disease resulting in a permanent colostomy; receptive, expressive, and
pragmatic/social language delays; attention deficit hyperactivity disorder (ADHD);
obstructive sleep apnea; and sensorineural hearing loss in his right ear.
Id.
~
46. Before attending Wake County public schools, N.V. lived in Tennessee where his
Individualized Educational Program ("IEP") permitted him to "enroll in his neighborhood school"
and to "take the bus to school ... every day." Id.
~
47. Plaintiffs allege that the WCPSS
systematically "exclu[ded] N.V. from the regular education environment and . . . from his
2
nondisabled peers, solely on the basis of [his] disability," by removing him from a general
educational setting and "provid[ing] all of his specially designed instruction in [a] segregated
classroom, thereby denying [him] access to his nondisabled peers and to the general curriculum."
Id.
~~
48-49. Plaintiffs contend that N.V. does not have access to the general curriculum in his
segregated environment and that he "only worked on IEP goals and skills that were not on grade
level or even aligned to the general curriculum." Id. ~~ 50-51. N. V.' s parents repeatedly asked that
the school defendants "allow N.V. to receive his specially designed instruction in the general
education classroom." Id.
~
52. The school defendants denied their requests and lacked "cogent
reasons, evidence-based support, or rational basis for their decision to exclude N.V." Id. ~~53-54.
Plaintiffs also allege that N.V. was segregated from his peers despite N.V. making ''the requisite
progress under the law to justify remaining in the general education classroom" and "not exhibit[ing]
any behavioral challenges" in a general education setting. Id. ~ 56.
On November 24, 2015, plaintiffs filed a due process hearing petition and alleged several
IDEA violations, claiming that WCPSS had denied N.V. access to a free appropriate public
education ("FAPE"). See id. ~ 292; [D.E. 15-3]. An Administrative Law Judge ("ALJ") conducted
a hearing over eleven days between February 14,2017, and March 9, 2017. See Compl. ~ 301; [D.E.
15-1] 1. On June 26, 2017, the ALJ issued a final decision. [D.E. 15-1]; see Compl. ~~ 308--09.
The ALJ found that "[plaintiffs] met their burden of proof ... that [WCPSS] failed to ensure N.V.
was placed in the [least restrictive environment ("LRE")] and had access to the gene:r:al education
curriculum during both the 2014--2015 and 2015-2016 school years." Compl. ~ 309; [D.E. 15-1]
73-74.
On July 26, 2017, plaintiffs and WCPSS cross-appealed the ALJ decision. See Compl. ~
3
31 0; [D.E. 15-2]. On August 23, 2017, the State Hearing Review Officer ''upheld all issues in which
[WCPSS] prevailed, and found against Plaintiffs on all issues in which Plaintiffs prevailed in the
ALJ's final decision." Compl. ~~312-13; see [D.E. 15-2]. OnNovember21, 2017, plaintiffs filed
this action seeking declaratory, injunctive, and monetary relief.
II.
The IDEA creates a federal grant program to assist state and local agencies to educate
disabled children. See 20 U.S.C. § 1412(a). Under the IDEA, states must provide disabled children
the opportunity to receive a free appropriate public education in the least restrictive environment.
Seeid. § 1412(a)(5)(A); Fryv. NapoleonCmty. Sch., 137 S. Ct. 743,748--49 (2017). When a school
district determines that a child is eligible to receive special education services, the school district
must develop an Individualized Education Program ("IEP") for the child. See MM ex rei. DM v.
-
'
Sch. Dist., 303 F.3d 523, 526 (4th Cir. 2002). The IEP team-which includes the child's teachers,
parents, a representative of the local educational agency, and other persons with specialized
knowledge concerning the child-formulates the IEP. See id. at 526-27. The IEP must detail the
student's current educational performance, include measurable annual goals for the student's
education, describe the special educational services that the child will receive, and state the projected
date that the services will begin. See id. at 527; E.L. ex rei. Lorsson v. Chapel Hill-Carrboro Bd. of
Educ., 773 F.3d 509, 517-18 (4th Cir. 2014); Emery v. Roanoke City Sch. Bd., 432 F.3d 294,
297-98 (4th Cir. 2005); Kirkpatrick v. Lenoir Cty. Bd. ofEduc., 216 F.3d 380,383 (4th Cir. 2000).
Under the IDEA, an aggrieved party can file a civil action in a United States District Court
without regard to the amount in controversy. See 20 U.S.C. § 1415(i)(2)(A). In reviewing the
I
complaint, a court must review the records of the administrative proceeding based on the
4
preponderance of the evidence. See id. § 1415(i)(2)(C).
The standard of review does not invite "courts to substitute their own notions of sound
educational policy for those of school authorities which they review." Bd. ofEduc. v. Rowley, 458
U.S. 176, 206 (1982). Rather, the court must "conduct a modified de novo review, giving 'due
weight' to the underlying administrative proceedings." MM ex rel. DM, 303 F .3d at 530--31. "Due
weight" means the court must consider the findings of fact made in the state administrative
proceedings to be prima facie correct. J.P. ex rel. Peterson v. Cty. Sch. Bd.., 516 F .3d 254, 259 (4th
Cir. 2008); Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991). Ifboth the ALJ
and reviewing officer have reached the same conclusion, a court must afford greater deference to
their findings. See MM ex rel. DM, 303 F .3d at 531. A reviewing officer must not depart from the
normal process of fact fmding in reaching a decision opposed to that of a hearing officer or the
"decision may be entitled to little or no deference." See G ex rel. RG v. Fort Bragg Dependent Sch.,
343 F.3d 295, 303 (4th Cir. 2003). If the district court does not' follow the administrative factual
findings, the district court must explain the reason for not doing so. See A.B. ex rel. D.B. v. Lawso!1,
354 F.3d 315, 325 (4th Cir. 2004).
Here, plaintiffs bear the burden ofproof in challenging the state administrative decision. See
Barnett ex rel. Barnett v. Fairfax Cty. Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991). Plaintiffs also
bear the burden of proof in establishing that an IEP is deficient. See Schaffer ex rel. Schaffer v.
Weast 546 U.S. 49, 62 (2005).
III.
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); BellAtl. Corp. v. Twombly, 550 U.S. 544, 554-
5
63 (2007); Giarratano v. Johnson, 521 F.3d298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on.its face." Iqbal, 556 U.S. at 678 (quotation omi~ed); see Twombly, 550 U.S. at
·~·
570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and
reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759
F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015). A court need not accept as true a complaint's legal conclusions, ''unwarranted
inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation
omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must "nudge[] his claims,"
Twombly, 550 U.S. at 570, beyond the realm of"mere possibility'' into "plausibility." Iqbal, 556
U.S. at 678-79.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
"attached or incorporated into the complaint." E.I. duPont de Nemours & Co. v. Kolon Indus .. Inc.,
637 F.3d 435,448 (4th Cir. 2011); see Fed. R. Civ. P. lO(c); Thompson v. Greene, 427 F.3d 263,
268 (4th Cir. 2005). A court may also take judicial notice of public records without converting the
motion to dismiss into amotion for summary judgment. See,~' Fed. R. Evid. 201 (d); Tellabs. Inc.
v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572
F .3d 176, 180 (4th Cir. 2009).
A.
The·school defendants contend that the court should dismiss any IDEA claim based on events
that occurred before November 24, 2014, based on the statute of limitations. See [D.E. 15] 1. In
6
support, the school defendants note that the IDEA requires a parent or agency to "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." 20 U.S.C. § 1415(f)(3)(C); see [D.E. 16] 4--6. NorthCarolinahasadoptedaone-yeartime
limit. See N.C. Gen. Stat.§ 115C-109.6(b); 1 P.L. ex rei. Liuzzo v. Charlotte-Mecklemburg Bd. of
1
N.C. Gen. Stat.§ 115C-109.6 states:
(a) Any party may file with the Office of Administrative Hearings a petition to
request an impartial hearing with respect to any matter relating to the identification,
evaluation, or educational placement of a child, or the provision of a free appropriate
public education of a child, or a manifestation determination. The party filing the
petition must notify the other party and the person designated under G.S.
115C-107.2(b)(9) by simultaneously serving them with a copy of the petition.
(b) Notwithstanding any other law, the party shall file a petition under subsection (a)
of this section that includes the information required under IDEA and that sets forth
an alleged violation that occurred not more than one year before the party knew or
reasonably should have known about the alleged action that forms the basis of the
petition. The issues for review under this section are limited to those set forth in
subsection (a) of this section. The party requesting the hearing may not raise issues
that were not raised in the petition unless the other party agrees otherwise.
(c) The one-year restriction in subsection (b) ofthis section shall not apply to a parent
if the parent was prevented from requesting the hearing due\ to (i) specific
misrepresentations by the local educational agency that it had resolved the problem
forming the basis of the petition, or (ii) the local educational agency's withholding
of information from the parent that was required under State or federal law to be
provided to the parent. ...
(f) Subject to G.S. llSC-109.7, the decision. of the administrative law judge shall be
made on substantive grounds based on a determination ofwhether the child received
a free appropriate public education. Following the hearing, the administrative law
judge shall issue a written decision regarding the issues set forth in subsection (a) of
this section. The decision shall contain findings of fact and conclusions of law.
Notwithstanding Chapter 150B of the General Statutes, the decision of the
administrative law judge becomes final and is not subject to further review unless
appealed to the Review Officer under G.S. 115C-109.9.
7
'
Educ., No. 3:07-CV-170-GCM, 2010 WL 2926129, at *4 (W.D.N.C. July 23, 2010) (unpublished)
(error in original title). The school defendants argue that, because plaintiffs filed their IDEA due
process hearing request on November 24,2015, any IDEA claims that occurred before November
24,2014, are time-barred. See [D.E. 16] 4--6. In support, the school defendants note that the ALJ
received motions concerning the IDEA one-year statute oflimitations and dismissed all claims and
causes of action arising before November 24,2014. [D.E. 15-1] 3 n.l. The State Hearing Review
Officer noted that the plaintiffs appealed the dismissals and argued that at least one ofthe exceptions
to the statute of limitations applied. See [D.E. 15-2] 4, 7-8. The State Hearing Review Officer
rejected the argument and concluded that none of the exceptions applied. See id.
Plaintiffs respond that section 115C-1 09 .6(b) is not a one-year statute oflimitations because
"·
(g) A copy ofthe administrative law judge's decision shall be served upon each party
and a copy shall be furnished to the attorneys of record. The written notice shall
contain a statement informing the parties of the availability of appeal and the 30-day
limitation period for appeal as set forth in G.S. 115C-109.9.
(h) In addition to the petition, the parties shall simultaneously serve a copy of all
pleadings, agreements, and motions under this Part with the person designated by the
State Board under G.S. 115C-107.2(b)(9). The Office of Administrative Hearings
shall simultaneously serve a copy of all orders and decisions under this Part with the
person designated by the State Board under G.S. 115C-107.2(b)(9)....
(j) The State Board, through the Exceptional Children Division, and the State Office
of Administrative Hearings shall develop and enter into a binding memorandum of
understanding to ensure compliance with the statutory and regulatory procedures and
timelines applicable under IDEA to due process hearings and to hearing officers'
decisions, and to ensure the parties' due process rights to a fair and impartial hearing.
This memorandum of understanding shall be amended if subsequent changes to
IDEA are made. The procedures and timelines shall be made part of the Board's
procedural safeguards that are made available to parents and the public under G.S.
115C-109.1 and G.S. 115C-109.5.
N.C. Gen. Stat.§ 115C-109.6.
8
it says that a petition may allege only "violation[s] that occurred not more than one year before the
party knew or reasonably should have known about the alleged action that forms the basis of the
petition," N.C. Gen. Stat. § 115C-109.6(b), but does not explicitly set a filing deadline. See [D.E.
22] 6. The court rejects this argument. See Karen M. v. Bd. ofEduc., 1:15-CV-48, 2015 WL
10490551, at *3 (W.D.N.C. Sept. 29, 2015) (unpublished). Accordingly, the statute oflimitations
for IDEA claims is one year from the date on which the parents knew or should have known about
the alleged action that forms the basis for the complaint. On November 24, 2015, plaintiffs filed
their IDEA due-process hearing request. See [D.E. 15-3]. Therefore, the statute oflimitations bars
any IDEA claim concerning events that occurred before November 24, 2014.
In opposition to this conclusion, plaintiffs make two arguments. First, they argue that the
date on which they "knew or should have known" about the actions complained of is when they
discovered that the WCPSS ''violated their child's right to aFAPE." [D.E. 22] 7; see E.G. v. Great
Valley Sch. Dist., No. CV 16-5456, 2017 WL 2260707, at *8-9 (E.D. Pa. May 23, 2017)
(unpublished). The court rejects this argument. A "cause of action in an IDEA case accrues when
the plaintiff knows of an allegedly faulty IEP or a disagreement over the educational choices that a
school system has made for a student." Emery, 432 F.3d at 300 n.2 (quotation omitted); see R.R.
ex rei. R. v. Fairfax Ccy. Sch. Bd., 338 F.3d 325, 332-33 (4th Cir. 2003). Plaintiffs' complaint
recounts N. V. 's parents' extensive involvement with his education, including that they knew of, and
disagreed with, N.Y.'s IEPs in eaclryear for which he had an IEP. See Compl. ~~ 78-291.
I
Second, plaintiffs argue that the one-year statute of limitations does not apply
if the parent was prevented from requesting the hearing due to (i) specific
misrepresentations by the local educational agency that it had resolved the problem
forming the basis of the petition, or (ii) the local educational agency's withholding
9
of information from the parent that was required under State or federal law to be
provided to the parent.
N.C. Gen. Stat.§ 115C-109.6(c); see 20 U.S.C. § 1415(f)(3)(D). A local educational agency must
provide "[w]ritten prior notice to the parents of the child ... whenever [the agency] proposes to
initiate or change[,] or refuses to initiate or change, the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to the child." 20
U.S.C. § 1415(b)(3). This written notice must include:
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take the action and a
description of each evaluation procedure, assessment, record, or report the agency
used as a basis for the proposed or refused action;
(C) a statement that the parents of a child with a disability have protection under the
procedural safeguards ofthis subchapter and, ifthis notice is not an initial referral for
evaluation, the means by which a copy of a description of the procedural safegitards
can be obtained;
(D) sources for parents to contactto obtain assistance in understanding the provisions
of this subchapter;
(E) a description of other options considered by the IEP Team and the reason why
those options were rejected; and ·
(F) a description of the factors that are relevant to the agency's proposal or refusal ..
ld. § 1415(c)(l).
Plaintiffs contend that the written notice that they received failed to inform them ofWCPSS' s
decisions and prevented thein from making an IDEA complaint both because they were unaware of
certain decisions ofN.V.' s IEP team and because they were not informed about their right to request
a due process hearing. See [D.E. 22] 10; Compl.
~~
93, 96, 119, 15l, 185, 194. The school
defendants respond that plaintiffs failed to make this allegation concerning the statute oflimitations
to the ALJ; therefore, plaintiffs have not exhausted their administrative remedies. See [D.E. 25] 3-4.
As mentioned, the IDEA grants plaintiffs the right to file a civil action in a federal court if
10
they are "aggrieved by the findings and decision" of either an "impartial due process hearing"
conducted by a state or local agency, or a hearing to dispute certain formal decisions regarding a
student's placement. 20 U.S.C. § 1415(±)(1 )(A), (i)(2)(A), (k)(3)(A). The district court reviews the
final fmdings and decision of the state decisionmaker. See 20 U.S.C. § 1415(i)(2)(A); E.L. ex rel.
Lorsson, 773 F.3d at 514-15; MM ex rel. DM, 303 F.3d at 536.
Plaintiffs must exhaust
administrative remedies before a federal court can exercise jurisdiction over a claim. See E.L. ex
rel. Lorsso!!, 773 F.3d at 513..:..15; MM ex rel. DM, 303 F.3d at 536; McGraw v. Bd. ofEduc., 952
F. Supp. 248,255 (D. Md. 1997); see also Scruggs v. Campbell, 630 F.2d 237,239 (4th Cir. 1980).
The IDEA's exhaustion requirement allows "states to use their special expertise to resolve
educational disputes." E.L. ex rel. Lorsso!!, 773 F.3d at 514.
North Carolina provides a two-tiered administrative review process for IDEA claims. First,
an aggrieved party files a petition for a due process hearing with the Office of Administrative
Hearings, which appoints anALJ to conduct the hearing. See N.C. Gen. Stat.§ 115C-109.6(a), G);
E.L. ex rel. Lorsso!!, 733 F.3d at 513. Second, a party may appeal the ALJ's decision to a Review
Officer that the State Board-of Education appoints. See N.C. Gen. Stat.§ 115C-109.9(a). Parties
must obtain the State Hearing Review Officer's decision to exhaust their administrative remedies.
See E.L. ex rel. Lorsso!!, 733 F.3d at 513-15.
Three exceptions exist to the IDEA exhaustion requirement:
(1) when resort to the
administrative process would have been futile; (2) when a school board failed to give parents proper
notice of their administrative rights; or (3) when administrative exhaustion ;would have worked
severe harm upon a disabled child. See MM ex rel. DM, 303 F.3d at 536; A.H. ex rel. H.C. v.
Craven Czy. Bd. ofEduc., No. 4:16-CV-282-BO, 2017 WL 3493612, at *3-5 (E.D.N.C. Aug. 14,
11
2017) (unpublished).
Absent one of these exceptions, this court lacks jurisdic#on over an
unexhausted claim. See MM ex rei. DM, 303
F.~d
at 536.
On this record, plaintiffs have plausibly alleged that the Board failed to give them proper
notice, which would create an exception to the one-year statute oflimitations. Moreover, the court
cannot resolve this issue on the current record. The court will consider further arguments on the
statute of limitations and this exception on a fully developed record.
B.
As for plaintiffs' claims against WCPSS under section 504, the ADA, and 42 U.S.C. § 1983
and plaintiffs' claims against Hamilton and Bendel under 42 U.S.C. § 1983, plaintiffs did not
exhaust their administrative remedies. See [D.E. 15-3]. Thus, defendants argue that this court
should disn:iiss those claims for failure to exhaust administrative remedies. See Fed. R. Civ. P.
12(b)(l).
A motion to dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court's
"statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 89 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood. Inc.,
669 F.3d 448,453 (4th Cir. 2012); Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474,479-80 (4th Cir. 2005). "[T]he party invoking federal jurisdiction bears the burden of
establishing its existence." Steel Co., 523 U.S. at 104; see Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4thCir. 1999); Richmond.Fredericksburg&PotomacR.R. v. United States, 945 F.2d 765,768
(4th Cir. 1991).
In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may
consider evidence outside the pleadings without converting the motion into one for summary.
12
judgment. See,~' Richmond. Fredericksburg & Potomac R.R., 945 F.2d at 768. However, if a
defendant "contend[s] that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based," then "all the facts alleged in the complaint are assumed to b~ true and the
plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule
12(b)(6) consideration." Adams v. B~ 697 F.2d 1213, 1219 (4th Cir. 1982); see Kerns v. United
States, 585 F.3d 187, 192-93 (4th Cir. 2009). Thus, ''when a defendant asserts that the complaint
fails to allege sufficient facts to support subject matter jurisdiction," a court must "assume the
truthfulness of the facts alleged" in the complaint and any attached materials. Kerns, 585 F.3d at
193; see Fed. R. Civ. P. lO(c).
The IDEA exhaustion requirement applies equally to claims under section 504; the ADA, and
42 U.S.C. § 1983 where the gravamen of the plaintiff's claim concerns the denial of a FAPE. See
cry, 137 S. Ct. at 749-55; Z.G. ex rei. C. G. v. Pamlico Cty. Pub. Schs. Bd. ofEduc., No. 17-1290,
2018 WL 3428696, at *6-7 (4th Cir. July 16, 2018) (unpublished); A.H. ex rei. H.C., 2017 WL
3493612, at *4-5 (quotation omitted); see also 20 U.S.C. § 1415(1).
Under cry, a court must "examine the substance of plaintiffs' claims to ensure that plaintiffs
do not evade the IDEA's exhaustion requirement by artful pleading." A.H. ex rei. H. C., 2017 WL
3493612, at *4; see
cry,
137 S. Ct at 755-56. A court should look to the substance "of ~e
plaintiff's complaint to determine whether it seeks relief for the denial of a FAPE. If it does,
administrative exhaustion requirements apply... [and] the plaintiff cannot escape [section] 1415(1)
merely by bringing her suit under a statute other than the IDEA." O.V. v. Durham Pub. Sch. Bd. of
Educ., No. 1:17-CV-691, 2018 WL 2725467, at *14 (M.D.N.C. June 6, 2018) (unpublished)
(citation, quotation, and alteration omitted), report and recommendation adopted by 2018 WL
13
3370644 (M.D.N.C. July 10,2018) (unpublished); see Ery, 137 S. Ct. at 752-56.
In Ery, "[t]he Supreme Court offered direction for determining whether the gravamen of a
complaint against a school or board concerns the denial of a FAPE or instead addresses some other
form of disability-based discrimination." A.H. ex rei. H. C., 2017 WL 3493612, at *4. "There are
two questions the courts can ask when assessing the problematic claim." Id.
First, could the plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school-say, a public theater
or library? And second, could an adult at the school-say, an employee or
visitor-have pressed essentially the same grievance? When the answer to those
questions is yes, a complaint that does not expressly allege the denial of a FAPE is
also unlikely to be truly about that subject; after all, in those otlter situations there is
no FAPE obligation and yet the same basic suit could go forward. But when the
answer is no, then the complaint probably does concern a FAPE, even if it does not
explicitly say so; for the FAPE requirement is all that explains why only a child in
the school setting (not an adult in that setting or a child in some other) has a viable
claim.
Ery, 137 S. Ct. at 756 (emphasis omitted); Z.G. ex rei. C.G., 2018 WL 3428696, at *6-7.
Plaintiffs' non-IDEA claims are fundamentally denial ofFAPE claims. Plaintiffs' factual
allegations are all school-specific and concern the proper setting in which to educate N. V. Plaintiffs'
claims are uniquely tied to the school environln.ent and to N.V.'s status as a student within the
school. Plaintiffs could not bring substantially the same claims against other public facilities.
Indeed, all claims for relief in the initial due-process complaint allege the denial of a FAPE. See
[D.E. 15-3]. Accordingly, the IDEA exhaustion requirement applies, and plaintiffs have failed to
exhaust the available administrative remedies concerning their section 504, ADA and section 1983
claims. See Ery, 137 S. Ct. at 752-56; Z.G. ex rei. C.G., 2018 WL 3428696, at *6-7; A.H. ex rei.
H.C., 2017 WL 3493612, at *4--8.
14
I
c.
Alternatively, plaintiffs have failed to state a claim against WCPSS under section 504, the
ADA, or 42 U.S.C. § 1983 or against Hamilton and Bendel in their individual capacities under 42
u.s.c. § 1983.
As for plaintiffs' claims under section 504 and the ADA, both claims require a showing of
discrimination based on a student's disability. In "limiting liability to discrimination solely by
reason of handicap, Congress did not intend to create general tort liability for reasonable decisions
made by professionals in the educational context." M.Y. exrel. J.Y. v. Special Sch. Dist. No.1, 544
F.3d885, 890 (8thCir. 2008) (quotationandalterationomitted); see Monahan v. Nebrask~ 687F.2d
1164, 1170-71 (8th Cir. 1982). The Fourth Circuit requires something more than a failure to provide
a FAPE to state a claim under section 504. See Sellers ex rel. Sellers v. Sch. Bd., 141 F.3d 524,
528-29 (4th Cir. 1998). "[E]ither bad faith or gross misjudgment should be shown before a [section]
504 violation can be made out, at least in the context of education of handicapped children." Id. at
529; see S.B. ex rel. A.L. v. Bd. of Educ., 819 F.3d 69, 75-76 (4th Cir. 2016). The same
requirements apply to ADA claims. Karen M., 2015 WL 10490551, at *4-5. The "bad faith or gross
misjudgment standard is extremely difficult to meet," given the great deference that courts afford
local school officials' educational judgments. Doe v. Arlington Cty. Sch. Bd., 41 F. Supp. 2d 599,
609 (E.D. Va. 1999), affd sub nom. Doe ex rel. Doe v. Arlington Cty. Sch. Bd., 210 F.3d 361 (4th
Cir. 2000). Plaintiffs must show that school officials departed substantially from "accepted
professional judgment, practice or standards as to demonstrate that the person[s] responSible actually
did not base the decision on such a judgment." M.Y. ex rel. J.Y., 544 F.3d at 889.
Plaintiffs fail to plausibly allege bad faith or gross misjudgment on the part of the school
15
defendants. Despite plaintiffs' dissatisfaction with the actions taken concerning N. V ., the complaint
does not plausibly allege that the school defendants substantially departed from accepted
professional judgment or standards. Thus, plaintiffs' section 504 claim and ADA claim fail, and the
court dismisses plaintiffs' claims. See M.Y. ex rel. J.Y., 544 F.3d at 889-90; Mo~ 687 F.2d
at 1170-71; Doe, 41 F. Supp. 2d at 609.
As for plaintiffs' section 1983 claims, "[b]ecause [the] IDEA provides a comprehensive
remedial scheme for violations of its own requirements, ... parties may not sue under section 1983
for an IDEA violation." Sellers ex rel. Sellers, 141 F.3d at 529. "The IDEA's comprehensive
remedial scheme demonstrated Congress's intent that disabled children pursue claims to a free
appropriate public education solely through the remedial mechanisms established by the statute."
I
J.S. ex rel. Duck v. Isle of Wight Czy. Sch. Bd., 402 F.3d 468, 479 (4th Cir. 2005) (quotation
omitted). To the extent that plaintiffs allege IDEA violations, they cannot state a claim under section
1983.
In opposition to this conclusion, plaintiffs argue that their section 1983 claims are not
"entirely related to the IDEA violations" and "stand on their own as specific violations of the
Fourteenth Amendment." [D.E. 22] 19. To state a claim under section 1983, plaintiffs must
plausibly allege that the school defendants deprived them of a right secured by the Constitution and
laws of the United States and that this depravation of a right was made under color of a state statute,
ordinance, regulation, custom, or usage. See West v. Atkins, 487 U.S. 42, 48 (1988); Philips v. Pitt
:
Czy. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Mentavlos v. Anderso!!,249 F.3d 301,310
(4th Cir. 2001); O.V., 2018 WL 2725467, at *26. Here, plaintiffs allege due process and equal
protection violations.
16
First, plaintiffs allege that defendants violated N.V.'~ Fourteenth Amendment right to due
process. See [D.E. 22] 19-21. A state may not "deprive any person of life, liberty, or property,
without due process oflaw." U.S. Const. amend. XIV,§ 1. Due process provides "a guarantee of
fair procedures- typically notice and an opportunity to be heard." Kendall v. Balcer~ 650 F .3d
515, 528-29 (4th Cir. 2011). To state a due process violation, plaintiffs must plausibly allege "(1)
a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state
action; and (3) that the procedures employed were constitutionally inadequate." Id. at 528.
North Carolina provides the right to a free public education ''to every person ofthe State less
than 21 years old, who has not completed a standard high school course of study." N.C. Gen. Stat.
§ 115C-1; see N.C. Const. art. I,§ 15; Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 254
(1997). Thus, N.V. has a legitimate claim of entitlement to a public education, which represents a
property interest under the Due Process Clause. See Goss v. Lopez, 419 U.S. 565, 573 (1975).
"With respect to public education, citizens possess a property interest not in the particulars of the
educational experience, but rather in participation in the educational process as a whole." O.V.,
2018 WL 2725467, at *27 (alteration omitted); see K.U. ex rei. Michael U. v. Alvin Indep. Sch.
Dist., 991 F. Supp. 599, 606 (S.D. Tex. 1998), affd, 166 F.3d 341 (5th Cir. 1998). Plaintiffs' due
process claim challenges the particular methods of alternate instruction provided to N.V., not
whether N.V. is receiving a public education at all. Accordingly, plaintiffs' due process challenge
"reprises [p]laintiffs' IDEA claims, which cannot form the basis of Section 1983 claims." O.V.,
2018 WL 2725467, at *27; Sellers ex rei. Sellers, 141 F.3d at 529. Thus, plaintiffs' due process
claim fails.
17
Second, plaintiffs allege that defendants violated the Equal Protection Clause. See [D.E. 22]
21-23. To state an equal protection violation, plaintiffs must plausibly allege facts sufficient to
identify actual, similarly situated students to N.V. who were treated differently. See,~' Harron
v. Town of Franklin 660 F.3d 531, 537 (1st Cir. 2011) ("At a minimum, in order to provide fair
notice to the defendants and state facially plausible legal claims, Harron had to identify his putative
comparators ...." (quotation, citation, and alterations omitted)); Kan. Penn Gaming. LLC v.
Collins, 656 F.3d 1210, 1219-20 (lOth Cir. 2011) (affirming dismissal of equal protection claims
for failure to set out specific examples of similarly situated individuals and differing treatment);
Ruston v. Town Bd. for Skaneateles. 610 F.3d 55, 59 (2d Cir. 2010) (affirming dismissal of equal
protection claim when plaintiff failed to "allege specific examples" of persons similarly situated but
treated differently); Veneyv. Wyche. 293 F.3d 726,730-31 (4thCir. 2002); J.W. v. JohnstonCty.
Bd. of Educ., No. 5:11-CV-707-D, 2012 WL 4425439, at *8-9 (E.D.N.C. Sept. 24, 2012)
(unpublished). The complaint fails to plausibly allege disparate treatment between N.V. and any
similarly situated students. Thus, plaintiffs' equal protection claim fails. Because plaintiffs have
not plausibly alleged a constitutional violation unrelated to their IDEA claims, plaintiffs have not
stated a claim under section 1983. Thus, the court grants the school defendants' motion to dismiss
plaintiffs' section 1983 claim.
Even if plaintiffs could state a claim under section 1983, the school defendants argue that the
court should dismiss plaintiffs' section 1983 claims against WCPSS because the complaint fails to
allege that WCPSS had any policy or custom responsible for the alleged injury. See, e.g., Bd. ofCty.
Comm'rs v. Bro:Ml, 520 U.S. 397, 410 (2010); City of St. Louis v. Prapro:tmk, 485 U.S. 112, 121
(1988); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Local governments cannot be
18
liable li.nder section 1983 based upon a theory of respondeat superior. Rather, liability attaches only
if conduct directly causing the alleged deprivation is undertaken to effectuate an official policy or
custom.
SeeBro~
520 U.S. at410; Haferv. Melo, 502 U.S. 21,25 (1991); Kentuckyv. Graham,
473 U.S. 159, 166 (1985); Monell, 436 U.S. at690-94; Kingv. Rubenstein, 825 F.3d206, 223 (4th
Cir. 2016); Santos v. Frederick Cty. Bd. ofComm'rs, 725 F.3d 451,469--70 (4th Cir. 2013); Carter
v. M?rris, 164 F.3d215, 218-19 (4th Cir. 1999); Perryv. Pamlico Czy., 88 F. Supp. 3d 518,541-42
(E.D.N.C. 2015); Smith v. Atkins, 777 F. Supp. 2d 955, 966--67 (E.D.N.C. 2011).
-'
Plaintiffs have not plausibly alleged that WCPSS had a "policy or custom" that accounted
for N.V.'s alleged injury. Cf. Compl. ~~ 60-61 ("Between 2005 and 2014, Defendants only placed
three to six percent ofstudents with intellectual disabilities in the regular education setting); ~~ 81,
'
'
236 (noting that "none ofN.V.'s general education teachers had ever taught a student with Down
syndrome prior to N.V." (emphasis omitted)). Therefore, plaintiffs' section 1983 claim fails.·
D.
As for plaintiffs' claims against Hamilton and Bendel in their individual capacities under
section 1983, plaintiffs fail to state a claim against any ofthe school defendants under section 1983.
Even if plaintiffs did state a claim under section 1983, defendants Hamilton and Bendel respond that
they are entitled to qualified immunity.
Hamilton and Bendel are entitled to qualified immunity under section 1983 unless "(1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
clearly established at the time." District of Columbia v. Wesby, 138 S. Ct. 577,' 589 (2018)
(quotation omitted). "'Clearly established' means that, at the time ofthe [official's] conduct, the law
was sufficiently clear that every reasonable official would understand that what he is doing is
19
1
unlawful." Id. (quotation omitted); see Kisela v. Hughes, 138 S. Ct. 1148, 1152-53 (2018) (per
curiam); Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); Ziglar v. Abbasi, 137 S.
Ct. 1843, 1866-67 (2017); White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (per curiatil); Mullenix
v.
Lun~ 136
S. Ct. 305, 308--09 (2015) (per curiam); Taylor v. Barkes, 135 S. Ct. 2042, 2044--45
(2015) (per curiam); City & Cty. of S.F. v. Sheem 135 S. Ct. 1765, 1774 (2015); Carroll v.
Carm~
135 S. Ct. 348, 350 (2014) (per curiam); Reichle v. Howards. 566 U.S. 658, 664 (2012);
Pearson v. Callahan, 555 U.S. 223, 231 (2009); Adams v. Ferguso!l, 884 F.3d 219, 226 (4th Cir.
2018).
Although the Supreme Court "does not require a case directly on point for a right to
be clearly established, existing precedent must have placed the statutory or constitutional question
beyond debate. In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law."
Kisel~
138 S. Ct. at 1152 (quotation and citation omitted); see Wesby,
138 S. Ct. at 590; Abbasi, 137 S. Ct. at 1867; White,137 S. Ct. at 551; Ashcroftv. al-Kidd, 563 U.S.
731, 741 (2011). In the Fourth Circuit, "existing precedent" is precedent of the United States
Supreme Court, the Fourth Circuit, or the Supreme Court of North Carolina. See Doe ex rel.
Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010).2
I
Although the right to a FAPE and the right to be educated in the LRE are clearly established,
existing precedent of the United States Supreme Court and the Fourth Circuit did not clearly
2
The United States Supreme Court has held that its precedent qualifies as controlling for
purposes of qualified immunity. See Wesby, 138 S. Ct. at 591-93. The Supreme Court has reserved
judgment on whether decisions of a federal court of appeals are a source of clearly established law
for purposes of qualified immunity. See id.; Kisel~ 138 S. Ct. at 1152-54; Taylor, 135 S. Ct. at
2044--45; Sheehan, 135 S. Ct. at 1776; Carroll, 135 S. Ct. at 350.
20
establish that Hamilton's and Bendel's roles in preparing N.V.'s IEP violated those rights.
Accordingly, Hamilton and Bendel are entitled to qualified immunity, and the court dismisses the
)
section 1983 claims against Hamilton and Bendel.3
IV.
A.
As for plaintiffs' claims against the state defendants, the state defendants move to dismiss
the claims for failure to exhaust administrative remedies because plaintiffs failed to name the state
defendants as parties in the administrative action under the IDEA. See [D.E. 19] 9-12; cf. [D.E. 153]. Plaintiffs respond that administrative exhaustion is not required to sue a state educational agency
for violating the IDEA. See [D.E. 24] 13-14.
Section 1415(f) states:
Whenever a complaint ,has been received under subsection (b)(6) or (k:), the parents
or the local educational agency involved in such complaint shall have an opportunity
for an impartial due process hearing, which shall be conducted by the State
educational agency or by the local educational agency, as determined by State law or
by the State educational agency.
20 U.S.C. § 1415(f)(1)(A). The statutory requirements for implementing an impartial due process
hearing allow such a hearing to be conducted either "by the State educational agency or by the local
educational agency." ld. Moreover, the hearing officer is not permitted to be "an employee of the
State educational agency or the local education agency involved in the education or care of the
child." ld. § 1415(f)(3)(A)(i)(I). The state agency is, however, required to provide an impartial
3
In light of the court's conclusions concerning exhaustion of administrative remedies and
qualified immunity, the court declines to address the parties' arguni.ents concerning the statute of
limitations for any claims under section 504, the ADA, or section 1983.
21
appellate review "if the [due process] hearing ... is conducted by a local educational agency." Id. §
1415(g)(1). The state agency's role as neutral arbiter is not final, and parties who
ar~
dissatisfied
1
with the decision of the state agency can bring a civil action in district court. See id.
§ 1415(i)(2).
As discussed, North Carolina has a two-tier review process for IDEA claims.. See E.L. ex
rel. Lorsson, 773 F.3d at 513. First, the North Carolina Office of Administrative Hearings appoints
anALJ to conduct the initial due process hearing. ld.; see N.C. Gen. Stat.§ 115C-109.6(a); (j). If
not satisfied with the result from the ALJ, a party can seek review with a State Hearing Review
Officer. See E.L. ex rel. Lorsso!l, 773 F.3d at 513; N.C. Gen. Stat.§ 115C-109.9(a).
If a party contends that the North Carolina State Board ofEducation has violated the IDEA,
nothing in the IDEA or North Carolina law exempts the North Carolina State Board of Education
from participating in the due-process hearing as a party. Accordingly, plaintiffs were required to
name the state defendants as parties in their due-process complaint. See E.L. ex rel. Lorsso!l, 773
F.3d at 513; McGraw, 952 F. Supp. at 254--55. They did not. See [D.E. 15-3]. Thus, the court
dismisses as unexhausted their claims against the state defendants.
B.
The state defendants also argue that plaintiffs fail to state a claim against Johnson and Hussey
under 42 U.S.C. § 1983. Plaintiffs base their claims on two factual allegations againstJohnson and
Hussey. First, plaintiffs allege that these defendants "encourage and allow LEAs to systematically
segregate students with intellectual disabilities from their nondisabled peers," that they had
knowledge of this segregation, and acted with deliberate indifference. See Compl.
~~
66, 70-71,
284--91. Second, plaintiffs allege that the "Procedural Safeguards: Handbook on Parents' Rights .
. : erroneously and misleadingly defme[s] 'least restrictive environment."' Id. ~~ 67-69.
22
As for the first claim, that Johnson and Hussey encourage and allow LEAs; to segregate
students and were deliberately indifferent to N. V.' s state claim, these claims expressly concern )
)
plaintiffs' arguments that N. V. has been denied a FAPE and are at the core of the IDEA claims. See
/
fu, 137 S. Ct. at 755-56; O.V., 2018 WL 2725467, at *26.
As for the second claim, plaintiffs cite
no law which entitles them to a particular definition in the "Handbook on Parents' Rights." The
specific allegations against Johnson and Hussey overlap with plaintiffs' IDEA claims; therefore,
plaintiffs have failed to state a claim under section 1983 against Johnson and ij:ussey~ See Sellers
ex rel. Sellers, 141 F.3d at 529; O.V., 2018 WL 2725467, at *26.
Alternatively, even if plaintiffs' IDEA claims do not overlap with the allegations against
Johnson and Hussey, plaintiffs have failed to show a constitutional violation by Johnson and Hussey
to state a claim under section 1983. And, even if plaintiffs could show an underlying constitutional
violation unrelated to the IDEA, Johnson and Hussey are entitled to qualified immunity. Thus,
plaintiffs have failed to state a claim against Johnson and Hussey, and the court dismiss:es plaintiffs'
claims under section 1983 against them.
v.
In sum, the court GRANTS the school defendants' partial motion to dismiss [D.E. 15].
Plaintiffs' IDEA claims against WCPSS survive. The court DISMISSES without prejudice all other
'l
claims against the school defendants. The court GRANTS the state defendants' motion to dismiss
[D.E. 18], and DISMISSES without prejudice the claims against the state defendants.
SO ORDERED. This _wday of September 2018.
Chief United States District Judge
23
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