O.V., ET AL. V. DURHAM COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION, et al
Filing
58
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 6/6/2018; that the State Dismissal Motion (Docket Entry 42 ) be granted. FURTHER that the Local Dismissal Motion (Docket Entry 47 ) be gr anted in part and denied in part as follows: (1) Plaintiffs' Section 1983 and NCPDPA claims against L'Homme and Local Defendants should be dismissed for failure to state a claim; (2) Plaintiffs' IDEA, Section 504, ADA, and NCSES claims arising prior to November 26, 2014, should be dismissed for failure to exhaust administrative remedies (and, as to such IDEA and NCSES claims, pursuant to the Settlement Agreement's release); (3) Plaintiffs' remaining NCSES claims should be dismissed as abandoned; and (4) Plaintiffs' breach of contract claim and remaining IDEA, Section 504, and ADA claims should proceed against the Board. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
O.V., et al.,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
DURHAM PUBLIC SCHOOLS BOARD OF
EDUCATION, et al.,
Defendants.
1:17cv691
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on the “Motion to Dismiss
Amended Complaint” (Docket Entry 42) (the “State Dismissal Motion”)
filed by Mark Johnson, William Hussey (collectively, the “State
Officials”) and the North Carolina State Board of Education (the
“SBE,”
and
collectively
with
State
Officials,
the
“State
Defendants”) and the “Motion to Dismiss Amended Complaint” (Docket
Entry 47) (the “Local Dismissal Motion,” and collectively with the
State Dismissal Motion, the “Dismissal Motions”) filed by Kristin
Bell,
Lessley
Mader,
Ashley
Bunn,
Sheri
Allen,
Julie
Haase
(collectively, the “Individual Local Defendants”), Bert L’Homme,
and Durham Public Schools Board of Education (the “Board,” and
collectively
with
Individual
Local
Defendants,
the
“Local
Defendants”).
For the reasons that follow, the Court should grant
the State Dismissal Motion and grant in part and deny in part the
Local Dismissal Motion.
FACTUAL AND PROCEDURAL HISTORY
Minh Pham (“M.P.”) and Peter Varlashkin (“P.V.”), individually
and on behalf of their minor child, O.V., (collectively, the
“Plaintiffs”),
initiated
this
action
against
L’Homme,
Local
Defendants, and the North Carolina Department of Public Instruction
(the “NCDPI”) for their alleged “failure to provide O.V. a free
appropriate
conduct
public
against
education”
Plaintiffs
(a
based
“FAPE”)
on
O.V.’s
education program receiving federal funds.”
“Complaint”) at 1-2.)
and
“discriminatory
disability
an
(Docket Entry 1 (the
In response to NCDPI’s motion to dismiss,
Plaintiffs sought leave to amend their Complaint.
Entry 30.)
in
(See Docket
After the Court (per the undersigned) granted their
amendment request (see Docket Entry 33 at 4), Plaintiffs filed an
amended “Complaint for Damages” (Docket Entry 36) (the “Amended
Complaint”),
which
replaced
NCDPI
with
State
Defendants
as
defendants in this action (see, e.g., id., ¶¶ 40-52 (identifying
parties)). Thereafter, all defendants moved to dismiss the Amended
Complaint.
(See Docket Entries 42, 47.)
As relevant to the Dismissal Motions, the Amended Complaint
alleges:
At all pertinent times, O.V., a child “with Down syndrome,
Mixed Receptive-Expressive Language Disorder, Lack of Coordination,
Apraxia of speech, and other Symbolic Dysfunction,” has resided
with his parents in Durham County.
2
(Docket Entry 36, ¶¶ 40, 41,
54.)
O.V. enrolled in the Durham Public School system (the “DPS”)
as a preschooler for the 2009-2010 school year, and continued
attending public school in Durham until November 9, 2015, when his
parents “withdrew [him] from the DPS and enrolled him in Pinewoods
Montessori, a private school in Hillsborough, North Carolina” (id.,
¶ 254).
(See id., ¶¶ 84-255.)
The Individuals with Disability Education Act (the “IDEA”), 20
U.S.C. § 1400 et seq., imposes a “Least Restrictive Environment”
(the “LRE”) requirement for the education of disabled children,
pursuant to which, “[t]o the maximum extent appropriate, children
with
disabilities
.
.
.
are
educated
with
children
who
are
non-disabled” (Docket Entry 36, ¶ 79 (alterations in original)).
(See also id., ¶ 16.)
Defendants
Parents’
published
Rights”
Throughout O.V.’s DPS enrollment, State
a
(the
“Procedural
“Handbook”)
Safeguards:
that
Handbook
“erroneously
on
and
misleadingly define[d]” the IDEA’s LRE requirement “as follows:
‘The IEP Team must consider educating a child with a disability in
an environment that is appropriate for that child.
Some children
are educated in a more restrictive environment than others due to
the significance of their needs.’”
(Id., ¶ 78.)
This “patently
wrong . . . definition is intentionally misleading to parents who
might seek an inclusive placement for their child.”
(Id., ¶ 80.)
Throughout O.V.’s DPS enrollment, “[L’Homme and Individual
Local] Defendants worked in concert to systematically institute and
3
carry out [the] Board’s unwritten and illegal policy of removing
disabled children from general education classrooms by the third
(3rd) grade if [the] Board believes the disabled child will be
unsuccessful on the state mandated end of grade tests or requires
a modified curriculum.”
(Id., ¶ 74.)1
As the Board’s Executive
Director of Exceptional Children, Bell bore responsibility “for
ensuring [the] Board is implementing and complying with the IDEA
and corresponding state law for all students in the DPS, including
O.V.”
(Id., ¶ 44.)
“The data reported by [the] Board and Bell to”
State Defendants “demonstrated [the Board and Bell’s] custom,
policy,
and
practice
of
placing
children
disabilities in the segregated setting.”
with
intellectual
(Id., ¶ 118.)
For instance, during the 2011-2012 school year, “of the 128
children in the entire district identified under the category of
Intellectual Disability — Moderate, [they] relegated 126 children
or ninety-nine percent (99%) to the segregated setting.” (Id.) In
the 2012-2013 school year, “of the 125 children identified under
the category of Intellectual Disability — Moderate, just two (2)
children
were
placed
in
the
Regular
education
setting
and
ninety-seven percent (97%) were segregated from their non-disabled
1 L’Homme served as DPS Superintendent from 2014 through the
initiation of this federal action. (See id., ¶ 49.)
4
(Id., ¶ 137.)2
peers.”
In the final three years of O.V.’s DPS
enrollment, none of the 115, 123, and 123 children, respectively,
“identified
under
the
category
of
Intellectual
Disability
—
Moderate that year . . . was placed in the Regular education
setting.”
(Id., ¶¶ 185, 192, 200.)
As “signatory to [the] Board’s applications for IDEA funds,
[L’Homme] had direct and full knowledge of the disproportionate
number
of
students
with
education placements.”
disabilities
(Id., ¶ 77.)
excluded
from
regular
As such, the Board, State
Defendants, and “L’Homme knew children like O.V. had a protected
federal right to be integrated into the general student population
yet
failed
to
act,
despite
having
actual
knowledge
of
the
segregation of children with low incidence disabilities in the
DPS.”
(Id., ¶ 82.)
As part of O.V.’s enrollment in DPS, the “Board conducted a
psychoeducational
evaluation
of
O.V.
on
May
7,
2009,”
which
revealed borderline development and deficient adaptive behavior
skills, but “no behavior problems.”
results,
the
“Board
determined
(Id., ¶ 91.)
[that]
O.V.
was
Based on these
eligible
for
services under the IDEA in the category of Developmentally Delayed
and . . . required occupational, physical, and speech therapies as
related services in order to benefit from special education.”
2 The numbers alleged by Plaintiffs — 126 of 128 and 123 of
125 — actually equate to a percentage of 98.44 and 98.4,
respectively.
5
(Id., ¶ 92.)
Having “predetermined” upon meeting him that “they
would place [O.V.] in the most restrictive environment,” namely,
“in the separate classroom, segregated from his non-disabled peers”
(id.,
¶
85),
Bell
and
the
Board
developed
O.V.’s
first
individualized education program (an “IEP”), pursuant to which,
“O.V. would not have any access to his non-disabled peers” (id.,
¶ 94 (emphasis in original)).
This IEP “provided for special
education for two (2) days per week for 270 minutes in the
Exceptional Children’s (EC) classroom and occupational, speech, and
physical therapies.”
(Id.)
During the two years that O.V. attended DPS preschool, M.P.
and P.V. “continuously requested [that] O.V. be permitted to be
educated with his non-disabled peers, but [the] Board and Bell
explained O.V.’s disabilities rendered him unfit to have full
access to children who did not have disabilities.”
(Id., ¶ 88.)
During this period, “[the Board and Bell] never considered a less
restrictive environment and never considered what supports and
services might allow O.V. to be successful in the regular preschool
classroom, even though O.V. could have been integrated into the
regular education setting with supplemental aids and services.”
(Id., ¶ 86.)
In addition, they “manipulated the IEP documents in
IEP meetings to support their plan for O.V. to be perpetually
assigned to the separate classroom.”
(Id., ¶ 95.)
For example,
the Board and Bell falsely documented that the IEP “‘Team discussed
6
all placement options and rejected serving [O.V.] in any placement
option other than a [special education] classroom’” even though
they never discussed “all placement options with O.V.’s parents,”
M.P. and P.V., and “no record of any discussion of any inclusive
preschool placement” exists.
(Id. (alterations in original).)
At an IEP meeting in July 2009, the Board and Bell “increased
O.V.’s time in the special education classroom from 270 minutes to
390 minutes — the entire school day” (id., ¶ 97 (emphasis omitted))
—
without
“discuss[ing]
providing
O.V.’s
specially
designed
instruction in any location other than the segregated special
education classroom” (id., ¶ 98).
At O.V.’s annual IEP meeting in
April 2010, M.P. and P.V. “expressed that they ‘would like to see
[O.V.] in a class with typical children’ and ‘would like to see him
talk more.’
In response, [the] Board and Bell decided that O.V.
would remain in a separate class, completely segregated from his
non-disabled
services.”
peers,
and
then
decreased
O.V.’s
speech
therapy
(Id., ¶ 99 (first set of brackets in original).)
On
the IEP forms for that meeting, the Board and Bell “omitted O.V.’s
parents’ request that O.V. be placed with typical children, and
[they] failed to provide any information about why they decreased
O.V.’s speech services.”
(Id., ¶ 100.)
Then, at an IEP meeting in
August 2010, the “Board and Bell increased O.V.’s time in the
separate setting from two (2) days to three (3) days per week for
390 minutes each day.”
(Id., ¶ 101.)
7
“[T]o provide O.V. access to his non-disabled peers, [M.P. and
P.V.] placed O.V. in a private preschool with his non-disabled
peers for two (2) days each week.”
(Id., ¶ 102.)
The “Board and
Bell refused to provide O.V.’s specially designed instruction in
the private preschool setting alongside his non-disabled peers”
(id.), but on IEP forms in November 2010 and March 2011, the “Board
and Bell misleadingly recorded O.V.’s placement to reflect his
attendance at the private school, for which his parents paid, to
give the impression that O.V. was receiving services in this
location” (id., ¶ 103).
In addition, although M.P. and P.V.
“expressed that they would like for O.V. ‘to talk, write and do
things as a more typical child,’” the Board and Bell “changed
O.V.’s educational placement to the Separate Class setting” on his
March 2011 IEP.
(Id., ¶ 104.)
At a May 2011 IEP meeting regarding “O.V.’s transition to
kindergarten” (id., ¶ 105), the Board and Bell failed to consider
whether O.V. could “be educated in a regular education classroom
like other students enrolling in kindergarten” before deciding that
“O.V. would receive specially designed instruction for 330 minutes
per day, as well as all of his related services (i.e., occupational
therapy, physical therapy, and speech/language therapy) in the most
restrictive setting:
(id., ¶ 106).
the special education (or EC) classroom”
“During O.V.’s kindergarten year, [the] Board and
Bell never considered a less restrictive environment and never
8
considered what supports and services could allow O.V. to be
successful in a regular education classroom.”
(Id., ¶ 109.)
M.P.
and P.V. “continued to request O.V. be permitted to be educated
with his non-disabled peers, but [the] Board and Bell acted as
though O.V.’s disabilities rendered him unfit to even sit in the
same room as other children who did not have disabilities.”
¶ 112.)
recent
(Id.,
In December 2011, O.V.’s IEP Team met to discuss O.V.’s
evaluations
and
formulate
a
new
IEP.
(Id.,
¶
115.)
Although M.P. and P.V. asked that O.V. “‘be exposed to a regular
class for routines and models at least twice a week’” (id.), the
Board and Bell
ignored Plaintiffs’ request and maintained O.V.’s
placement in the Separate setting five (5) days per week
for 330 minutes, provided all O.V.’s related services
away from his non-disabled peers, and removed O.V. from
participating in physical education with his non-disabled
peers,
limiting
his potential
contact
with his
non-disabled peers to library, music/art, and computer
(id., ¶ 116).
During the 2012-2013 school year, “O.V.’s first (1st) grade
year, [his] parents continued to request O.V. be permitted to be
educated with his non-disabled peers.” (Id., ¶ 120.) In September
2012, the IEP Team met to modify O.V.’s IEP.
(Id., ¶ 127.)
At
that meeting, the “Board and Bell determined O.V. would participate
in the general education class for literacy, because ‘the IEP Team
felt that O.V.[] would benefit from the socialization/communication
experiences gained by participating in a general education class.’”
9
(Id., ¶ 128 (brackets omitted).) However, “other than an assistant
to escort [O.V.] to and from the classroom,” they “refused to
provide O.V. with any supplemental aids and services to enable him
to access his education with non-disabled peers.”
(Id., ¶ 129.)
At O.V.’s annual IEP meeting in November 2012 (see id.,
¶ 130), the “Board and Bell refused to even consider placing O.V.
in the regular setting with his non-disabled peers” (id., ¶ 131).
Instead,
“despite
decided O.V.
reporting
could
education
classroom;
permitted
to
eat
no
O.V.
longer
however,
lunch
and
was
making
attend
as
play
a
literacy
progress,
in
consolation,
on
the
the
he
playground
[they]
general
was
now
with
his
non-disabled peers and join in morning circle time for fifteen (15)
minutes each
day.”
(Id.,
¶
132.)
In
response
to
the
LRE
Justification Statement’s requirement “to ‘explain why the services
cannot be
delivered
with
non-disabled
peers with the
use
of
supplemental aids and services,’” Bell and the Board stated only
“that ‘O.V. would be removed from non-disabled peers for direct
instruction[,]’” as “‘he needs the repetitions and the small group
setting for academic success.’”
(Id., ¶ 134 (brackets omitted).)
However, Bell and the Board did not “document the removal of O.V.
from literacy instruction with his non-disabled peers” on his IEP
forms.
(Id., ¶ 136.)
O.V. began second grade in the 2013-2014 school year.
id., ¶ 139.)
(See
At this time, Mader served as “a Director of
10
Exceptional Children for [the] Board” (id., ¶ 45), and Haase and
Allen served as DPS special education teachers (id., ¶¶ 47, 48).
For the 2013-2014 through 2015-2016 school years, Haase and Allen
served as O.V.’s special education teachers.
During
the
2013-2014
school
year,
(Id., ¶¶ 47, 48.)
M.P.
and
P.V.
“again
requested [that] O.V. be educated with his non-disabled peers”
(id., ¶ 139), but the “Board, Bell, and Mader continued to refuse
to consider placing O.V. in the regular education classroom or what
supports and services could allow O.V. to be successful in a
regular education classroom” (id., ¶ 140).
At O.V.’s annual IEP
review on November 15, 2013 (see id., ¶ 145), P.V. and M.P.
“requested
[that
the]
Board,
Bell,
and
Mader
change
O.V.’s
placement to a general education first (1st) grade classroom” (id.,
¶ 146).
“Without even considering whether any supplemental aids
and services
could
enable
O.V.
to
access his
education
with
non-disabled peers, [the] Board and Bell rejected O.V.’s parents’
proposal and, instead, increased the time O.V. would spend in the
separate
special
non-disabled peers.”
education
classroom,
isolated
from
his
(Id., ¶ 147 (emphasis in original).)
“Shortly after the November 15, 2013 IEP Meeting, O.V.’s
parents sought legal counsel.”
(Id., ¶ 149.)
“[A]fter legal
intervention, on December 6, 2013, [the] Board, Bell, and Mader
determined O.V. would be placed in a regular education second (2nd)
grade classroom and would receive pull out resource services.”
11
(Id., ¶ 150.)
However, “to support their plan for O.V. to be
perpetually assigned to the separate classroom . . . . despite
changing O.V.’s educational placement, [the Board, Bell, and Mader]
purposefully did not amend O.V.’s IEP, as required, to reflect his
change in placement to a less restrictive setting.”
(emphasis in original).)
(Id., ¶ 151
The Board’s refusal to “change O.V.’s
placement in his IEP” was designed “to prevent a less restrictive
setting from becoming O.V.’s ‘stay put’ placement in the future.”
(Id., ¶ 344.)3
The “Board, Bell, and Mader placed O.V. in Mr. Montgomery’s
second
(2nd)
grade
regular
education
classroom,”
but
neither
provided Mr. Montgomery with “specialized training in educating
children with
developmental
or
intellectual
disabilities”
nor
arranged for him to meet regularly with special education teachers
to plan O.V.’s instruction (id., ¶ 152), even though, according to
Mader, Mr. Montgomery “‘ha[d] to completely change the curriculum
for [O.V.]’” (id., ¶ 169).
Moreover:
Without any specialized knowledge as to how to
instruct O.V. or address O.V.’s unique challenges, and
without a valid IEP to implement, at the suggestion of an
untrained paraprofessional, Mr. Montgomery placed O.V.
behind a cardboard partition at the back of the classroom
3 Typically, unless the parents and educational authorities
agree otherwise, a “child shall remain in the then-current
educational placement of the child” during IDEA-authorized
proceedings to resolve disputes between the parents and educational
agency regarding the child’s FAPE. 20 U.S.C. § 1415(j).
12
for academic instruction, effectively enclosing O.V.
within the cardboard and the walls.
(Id., ¶ 153.)4
At
an
IEP
meeting
on
February
5,
2014,
reported O.V. was making academic progress.”
“Mr.
Montgomery
(Id., ¶ 154.)
At
that same meeting, the “Board, Mader, Bell, and Allen proposed
conducting a comprehensive reevaluation of O.V.” (id.) and “refused
to amend O.V.’s IEP to reflect his change in placement” (id.,
¶ 156).
“On May 9, 2014, the IEP Team convened to discuss the
recent evaluations.”
(Id., ¶ 157.)
At that meeting, the “Board,
Mader, Bell, Haase, and Allen changed O.V.’s eligibility category
from Developmental Delay to Intellectual Disability — Moderate”
(id., ¶ 159) and, without “notice to Plaintiffs, . . . reduced
O.V.’s occupational therapy and physical therapy services” (id.,
¶ 162).
Also at that meeting, “O.V.’s speech therapist . . .
reported [that] O.V. was making progress.”
(Id., ¶ 160.)
“On June 4, 2014, the IEP Team convened to develop O.V.’s
Annual Review IEP.
Both Plaintiffs’ and [the] Board’s counsel
attended the meeting.”
(Id., ¶ 163.)
“Plaintiffs continued to
advocate for O.V. to be placed in the regular education setting
with his non-disabled peers.”
(Id., ¶ 165.)
Because “O.V. would
be entering third grade in the fall, the IEP Team discussed whether
4 M.P. and P.V. did not learn that “O.V. sat in the back of
the classroom behind a cardboard partition over fifty percent (50%)
of the time” until May 2014. (Id., ¶ 161.)
13
O.V. would be assessed on the standard state wide assessment (‘End
of Grade’ or ‘EOG’) or the alternate assessment (‘EXTEND1’), and
whether O.V. would be taught on the Common Core curriculum or
Extended Content Standards.”
Plaintiffs
that
“‘the
(Id., ¶ 167.)
decision
of
the
Mader falsely told
test
influences
the
educational placement as they are based on 2 different curriculums
which are taught in 2 different classes.’”
(Id., ¶ 168.)
The
“Board’s counsel did not correct . . . Mader’s false assertion that
if O.V. was educated on the Extended Content Standards, he could
not receive services with his non-disabled peers.”
(Id.)
Further, “[c]ontinuing to ignore Plaintiffs’ request that O.V.
be provided supplemental aids and services in the general education
classroom, [the] Board, Mader, Bell, Haase, and Allen determined
O.V. would ‘get all of his support in Exceptional Children’s
classroom.’”
(Id., ¶ 170.)
In addition, “[the] Board, Mader,
Bell, Haase, and Allen discussed O.V.’s educational placement”
(id., ¶ 171), as follows:
“On the continuum he is still considered ‘separate’
because he needs extensive instruction due to his
foundational skill sets.” The [Prior Written Notice5]
5
Under the IDEA, a school board
must provide the parents with written notice (“Prior
Written Notice” or “PWN”) before the [school board]
proposes or refuses “to initiate or change the
identification, evaluation, or educational placement of
the child or provision of FAPE to the child.” 34 C.F.R.
§ 300.503(a); 20 U.S.C. § 1415(b)(3). The IDEA requires
that the PWN include certain information, including “a
14
failed to provide notice of the team’s decision that O.V.
would be placed in the Separate setting, and instead
stated “the team rejected determining [educational]
placement and service delivery.”
(Id. (alterations omitted).)
Due to some outstanding scheduling
issues, the IEP Team agreed to “reconvene shortly in order to
finalize O.V.’s IEP.”
(Id., ¶ 172.)
“On June 13, 2014, the IEP Team convened and finalized O.V.’s
IEP for the upcoming school year.
Prior to the meeting, the
principal of O.V.’s elementary school determined O.V. would be
retained for second (2nd) grade.”
(Id., ¶ 173.)
Haase, Allen, and Bunn attended this meeting.
Mader, Bell,
(Id., ¶ 174.)
At
that time, Bunn “did not yet know O.V., because she had only
recently accepted a transfer to O.V.’s elementary school to teach
the students assigned to the third through fifth (3rd – 5th) grade
segregated
class.”
(Id.,
¶
175.)
“Without
conducting
an
evaluation of or collecting any data on O.V.’s behavior, much less
discussing
strategies
to
address
it,
[Local
Defendants]
impermissibly used O.V.’s short attention span and distracting
behaviors”
to
justify
“completely
separating
O.V.
from
non-disabled peers in the regular education classroom.”
(Id.,
description of the action proposed or refused by the
agency” and “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.” 20 U.S.C. § 1415(c)(1).
(Docket Entry 36, ¶ 25.)
15
his
¶ 177.)
Without explaining “why O.V. could not receive any
specially designed instruction in the regular education classroom,
and despite O.V.’s significant, documented advances in the general
education
classroom, [Local
Defendants]
determined
O.V.
would
receive all academic instruction in the EC classroom.” (Id., ¶ 180
(emphasis in original).)
On July 22, 2014, the Board and Plaintiffs participated in
mediation and “reached a confidential settlement agreement” (the
“Mediation Agreement”).
(Id., ¶ 184.)
“On November 14, 2014,
uncertain whether [the Board] would continue to implement the
Mediation Agreement, Plaintiffs filed a Petition for a Contested
Case Hearing in the Office of Administrative Hearings Docket No.
14-EDC-09295 (‘2014 Petition’) to preserve their claims.”
¶ 261.)
(Id.,
“The 2014 Petition alleged that [the Board] violated the
procedural and substantive requirements of the IDEA, 20 U.S.C.
§§ 1400 et seq., and the North Carolina special education statutes,
N.C. Gen. Stat. §§ 115C-106 et seq., while providing educational
services to O.V.”
(Id., ¶ 262.)
Following assurances from the Board’s counsel to Plaintiffs’
counsel on November 14, 2014, “that the [Board] was in ‘full
compliance’ with the Mediation Agreement” (id., ¶ 263), “[t]he
parties entered into a Settlement Agreement and Release of Claims
(‘Settlement
Agreement’)
on
November
26,
2014,
which
incorporated the Mediation Agreement” (id., ¶ 264).
16
wholly
Given “the
ongoing
implementation
of
the
Settlement
Agreement
for
the
remainder of the 2014-[20]15 academic year, Plaintiffs refused to
dismiss the 2014 Petition with prejudice and only agreed to file a
Voluntary Dismissal Without Prejudice” (id., ¶ 266 (emphasis in
original)), which they did on November 26, 2014 (id., ¶ 267).
However, the Board “did not implement the compensatory services and
[M]ediation [A]greement as outlined in the Settlement Agreement,
thus breaching the terms of the [Settlement] Agreement.”
¶ 268.)
(Id.,
For instance, the Board “routinely postponed the monthly
parent-teacher conferences agreed to in the Settlement Agreement”
(id., ¶ 269 (emphasis in original)) and (as discussed below) failed
to instruct O.V. “with a co-teaching model as agreed to by the
parties” (id., ¶ 270).
After
Plaintiffs’
resort
to
mediation,
Local
Defendants
“created a hostile environment that discouraged and prevented
O.V.’s
parents
from
stepping
foot
onto
school
property
and
participating in O.V.’s day-to-day educational activities in which
any parent would be expected to participate.”
(Id., ¶ 190.)
To
begin with, although M.P. had previously “served as a frequent
volunteer in O.V.’s classroom and was permitted to visit O.V. daily
at school,” Local Defendants “began restricting [M.P.’s] access to
O.V.’s classroom.”
(Id., ¶ 188.)
For instance, Bunn told M.P.
“that she now must obtain permission via the principal’s office to
even visit O.V.’s special education classroom.
17
Nearly every time
[M.P.] attempted to visit the classroom, [Local] Defendants refused
to allow her to visit.
classroom,
original).)
O.V.
was
The only time she was able to visit the
not
even
present.”
(Id.
(emphasis
in
Additionally, M.P. “was no longer permitted to park
and walk O.V. to class in the morning; instead, she was required to
drop him at the curb, so he could be escorted by school personnel
to his classroom.”
(Id., ¶ 189.)
Yet, “parents of other children,
disabled and non-disabled, were permitted to walk their children
into school each day and visit their children’s classroom without
such restrictions.”
(Id., ¶ 191.)
Moreover, “[d]uring O.V.’s second second (2nd) grade year,
[Local
Defendants]
claimed
to
implement
the
[S]ettlement
[A]greement, yet purposefully acted to sabotage O.V.’s time and
progress in the general education setting.”
(Id., ¶ 187.)
In
August 2014, the IEP team met and agreed to follow the July 2014
Mediation Agreement.
(See id., ¶ 194.)
In accordance with the
Mediation Agreement, the IEP from that meeting “documented O.V.’s
lack of progress while he was in the special education classroom,
and his increased progress during the time Defendants Board [sic]
permitted O.V. to be present in the general education classroom”
during
the
previous
school
year.
(Id.,
¶
197.)
“[Local
Defendants] documented in the PWN from the meeting that O.V. would
spend 220 minutes per day in the general education classroom, with
45 minutes of this time in guided reading and math instruction with
18
a ‘co-teaching model.’”
(Id., ¶ 196.)6
“Despite changing O.V.’s
educational placement due to the [M]ediation [A]greement, [Local
Defendants]
maintained
O.V.
required
the
same
inadequate
supplemental aids, services, accommodations, and modifications:
consistent
redirection,
incremental rewards.”
supervision
for
redirection,
and
(Id., ¶ 198 (emphasis in original).)
The Board assigned O.V. to Ms. Turner’s second grade classroom
(id.,
¶
203),
but
failed
to
either
“provide
Ms.
Turner
any
specialized training in educating children with disabilities, let
alone O.V.’s particular disabilities” (id., ¶ 204 (emphasis in
original)), or arrange for her to regularly meet with special
education
teachers
“to
take
advantage
of
their
specialized
knowledge regarding educating children with disabilities” (id.,
¶ 206).
“Ms. Turner did not put forth any effort to attempt to
accommodate O.V.’s disabilities and allow O.V. to learn in her
classroom. Ms. Turner did not even understand what apraxia, one of
O.V.’s documented disabilities that affects his ability to speak,
was.”
(Id., ¶ 205.)
Ms. Turner further admitted that she “did not
modify O.V.’s work[] because ‘it takes an extensive amount of time
to work with [O.V.] and he’s not the only one in my class, sorry.’”
(Id., ¶ 207 (final set of brackets in original).)
This refusal to
6 Following the principal’s “decision to retain O.V. in the
second (2nd) grade, [Local] Defendants allowed O.V. to receive
academic instruction in the general education classroom because
O.V. would no longer be entering third (3rd) grade where students
take the EOG.” (Id. at n.2.)
19
modify the regular curriculum for O.V. occurred “even though a
modified
curriculum
existed,
was
designed exactly for that purpose.”
readily
available,
and
was
(Id., ¶ 68.)
The Board, Bell, and Mader assigned Allen and Haase to work
with O.V. in Ms. Turner’s classroom for 30 minutes and 15 minutes,
respectively, each day.
(Id., ¶ 208.)
Nevertheless, the Board,
Bell, and Mader failed to provide Allen and Haase “with any
training on O.V.’s documented disabilities or including children
with disabilities in the regular education classroom.”
(Id.)
Throughout the school year, O.V.’s special education
services were not delivered as agreed upon at the August
2014 IEP Meeting and documented in the PWN.
[Local
Defendants] claimed [that] Haase and Allen were
co-teaching O.V., pursuant to the Mediation Agreement,
for a total of forty-five (45) minutes per day.
Co-teaching is an evidence-based form of instruction
where a special education teacher and a regular education
teacher collaborate to provide both nondisabled and
disabled children instruction at the same time.
. . . Haase and Allen[] and Ms. Turner all testified that
they did not co-teach O.V. during their depositions.
Each was able to define co-teaching, and each admitted
that she was not co-teaching. . . . .
(Id., ¶¶ 209-10 (emphasis in original).)
Throughout this school
year, though, Local Defendants “falsely assured Plaintiffs that the
co-teaching was being implemented in O.V.’s classroom.”
¶ 211.)
(Id.,
“[Local] Defendants’ refusal to co-teach O.V. caused
educational harm to O.V. and resulted in a denial of FAPE to O.V.”
(Id., ¶ 212.) Moreover, although “M.P. offered to pay for training
on
modifying
the
curriculum
and
20
including
children
with
low
incidence disabilities in the regular education setting, [Local]
Defendants refused.”
Throughout
(Id., ¶ 213.)
this
school
year,
in
an
orchestrated
effort,
sanctioned by Bell and Mader (see id., ¶ 215), “to create a false
record of O.V.’s inability to function and make progress” in the
general education classroom, O.V.’s teachers, including Allen,
Bunn, and Haase, “took extensive amounts of ‘data’ on the number of
times
the
teacher
redirected
O.V.”
(Id.,
¶
214.)
This
analytically meaningless (see id., ¶ 216) “practice of redirecting
O.V. and collecting data of those redirections . . . demonstrated
the
poor
quality
of
instruction
delivered
to
O.V.,
caused
educational harm to O.V., and resulted in a denial of FAPE to O.V.”
(id., ¶ 215).
As part of this effort, Allen, Bunn, and Haase
“redirected O.V. to an extent that impeded his ability to respond,
especially as a child with verbal apraxia” (id., ¶ 217), causing
even the Administrative Law Judge (the “ALJ”), “who found in favor
of [the Board] on every single issue at the administrative level”
to find that “‘[t]he redirection data itself certainly raises
questions regarding the quality of educational instruction O.V.
received from Ms. Bunn, Ms. Allen, and Ms. Haase’” (id., ¶ 218
(emphasis in original)).
For instance, on one occasion, “Allen
redirected [O.V.] ninety-eight (98) times in just ten (10) minutes,
or one redirection every 6.1 seconds.”
21
(Id., ¶ 217.)
In addition, under Bell and Mader’s supervision, Bunn “failed
to provide O.V. with specially designed instruction to meet O.V.’s
unique needs” during the 170 minutes each day that O.V. spent with
“Bunn to receive specially designed instruction.”
(Id., ¶ 219.)
For instance, Bunn “failed to develop individualized lesson plans”
and instead utilized “prefabricated, generic, and identical [lesson
plans] for all students in each grade level.”
(Id., ¶ 222.)
Moreover, these lesson plans only applied to third through fifth
graders, meaning that “not a single lesson plan for the entire
school year was designed for O.V.,” a second grader.
(Id., ¶ 223.)
Additionally, “Bunn held extremely low expectations for O.V.,”
failing to adjust his goals as he mastered them (id., ¶ 220), and
“‘taught’ through showing multiple videos” (id., ¶ 221). According
to Local Defendants’ own data, O.V. “regress[ed] in multiple areas
in th[is] separate setting.”
(Id., ¶ 228.)
Despite Local Defendants’ “refusal to prepare O.V.’s teachers
to teach O.V., or implement O.V.’s IEP with regards to co-teaching,
the data collected by [Local] Defendants overwhelmingly supported
that O.V. made greater progress in an inclusive setting with his
non-disabled peers than in the segregated setting.”
(Id., ¶ 225.)
This data included periodic progress reports, report cards, and the
tracking of IEP goals on data sheets that Allen, Bunn, Haase, and
Ms. Turner prepared.
(Id., ¶ 226.)
“By all accounts, O.V. made
more progress in the general education classroom — despite [Local
22
Defendants’] failure to appropriately serve O.V. — than he did in
the special education classroom.”
(Id., ¶ 227.)
Further, on each
progress report, Ms. Turner indicated “that O.V. consistently works
without disturbing others — the highest level a child can achieve.”
(id., ¶ 231 (emphasis in original).)
Additionally,
[a]ligned with [Local Defendants’] concerted effort to
bar O.V. from the regular education classroom, and to
create a paper trail that supported the decision, on
every progress report, . . . Bunn falsely reported that
O.V. was making sufficient progress to meet his annual
reading, writing, and math goals, despite the fact that
none of the data collected by his teachers supported this
analysis — especially in the separate setting[, where
O.V.] was actually regressing . . . .
(Id., ¶ 228.)
On May 20, 2015, O.V.’s IEP Team met for his annual IEP
review. (Id., ¶ 233.)
At this meeting, the information that Local
Defendants reported on O.V.’s IEP (1) did not reflect the progress
monitoring data provided to P.V. and M.P. during the 2014-2015
school year (id., ¶ 235); (2) lacked appropriate IEP goals (id.,
¶ 237); (3) “excluded O.V.’s progress in the inclusive setting” and
“misleadingly . . . reported O.V.’s progress in the separate
setting,” such as by indicating that he “identified ‘12 out of 26
letter sounds which is 46% accuracy 1 out of 4 trials’” without
stating that he identified zero, zero, and three sounds on the
remaining three tests in the separate setting (id., ¶ 238); and
(4) differed from the draft IEP sent to M.P. and P.V. shortly
before the meeting in ways that “appear designed to support the
23
elimination of direct service in occupational therapy,” such as by
changing the “Present Level” assessment that “‘[O.V.] is making
good
progress
with
his
self-help
skills’”
to
“‘[O.V.]
is
independent with his self-help skills at school’” (id., ¶ 239
(alterations
in
original)).
In
addition,
“[d]espite
O.V.’s
documented progress in the speech sessions conducted in the general
education setting, now that the timeframe for implementing the
Mediation Agreement was ending, [Local Defendants] eliminated the
dedicated provision of speech services to O.V. in the general
education setting.” (Id., ¶ 236.) They also “summarily determined
that O.V. was not eligible for [extended school year] services”
despite his demonstrated need for ongoing support and repetition,
as well as his emerging skills in literacy, math, and occupational
therapy.
(Id., ¶ 240.)
At the beginning of the IEP meeting, M.P. expressed her desire
for O.V. to attend college and her belief that “he [was] capable”
of “going to college.”
(Id., ¶ 242 (internal quotation marks
omitted; alteration in original).)
Nevertheless, Local Defendants
provided only a cursory explanation of the differences between
regular EOG
and
EXTEND1
EOGs
(id.,
¶
241)
and
“deliberately
withheld . . . that O.V.’s trajectory, if taught on the Extended
Content Standards and if taking the Extend 1 test, would be to
receive a certificate rather than a high school diploma” (id.,
¶ 242), a necessary precursor for college (see id., ¶ 243).
24
Moreover, when “M.P. explained that O.V. does not have test anxiety
and may be able to take the regular EOG, [] Mader told [] M.P. that
‘[O.V.] would not be appropriate for the EOG and [Mader] could not
recommend he take that test,’” even though “the IEP Team is tasked
with determining which test is appropriate for the child — not
which child is appropriate for the test.” (Id., ¶ 241 (penultimate
set of brackets in original).)
“Contrary to the express purposes
of the IDEA, . . . [Local Defendants’] proposed course would
foreclose the option of a diploma, preclude college as an option
for O.V.[,
]and
likely
lead
to participation
in
a
sheltered
workshop and perpetual dependence on his family and the state.”
(Id., ¶ 243.)
Expressing
the
view
that,
notwithstanding
all
the
data
verifying his progress in the inclusive setting, “it was not
‘appropriate for [O.V.] to sit in the general education classroom’
as his skills were below that of his non-disabled peers” (id.,
¶ 245 (emphasis and alteration in original)), “Mader proposed that
the DPS cease providing O.V. any academic services in a co-teaching
model in the general education classroom” (id.).
In response to
M.P.’s objections to this proposal, “Mader reminded the IEP Team:
‘[W]e do not have to come to a consensus, as the [Board] can make
the final decision.’”
(Id., ¶ 246.)
Ultimately, even “[t]hough
[Local Defendants] agreed O.V. made academic, communication, social
progress, and functional growth during the 2014-[20]15 school year,
25
[Local] Defendants removed O.V. from the regular classroom for all
core academic instruction and, again, changed O.V.’s placement to
‘separate.’”
(Id., ¶ 244.)
On August 13, 2015, M.P. and P.V. “filed a Petition for a
Contested Case Hearing in the Office of Administrative Hearings
Docket No. 15-EDC-05966 (‘2015 Petition’),” which incorporated by
reference the 2014 Petition.
(Id., ¶ 272.)
They also “invoke[d]
O.V.’s stay put placement,” which prevented the Board, Allen, Bell,
Bunn, and Haase from “segregat[ing] O.V. from his non-disabled
peers as planned in the fall of 2015.”
(Id., ¶ 247.)
However, the
Board, Allen, Bell, Bunn, and Haase “continued to restrict O.V.’s
mother’s access to O.V.’s classroom because Plaintiffs asserted
their rights under the IDEA” (id., ¶ 250), and, “again, took no
actions to provide any training to O.V.’s new teachers[,] who
continued the same practices of recording data on the number of
redirections they decided to impose upon O.V., refusing to modify
his work, and failing to instruct O.V. in a recognized co-teaching
model” (id., ¶ 249).
Additionally, the “Board and Bell failed to
provide O.V. any compensatory services for the remainder of the
2015-[20]16 school year and failed to provide the compensatory
services owed for the summer of 2016.”
(Id., ¶ 252.)
In discovery regarding the 2015 Petition, the Board “provided
even more evidence that it had never complied with the material
portions
of
the
Settlement
Agreement.”
26
(Id.,
¶
273.)
For
instance, “during depositions, all of O.V.’s teachers stated that
they never used a co-teaching model with O.V. — a key covenant of
the Settlement Agreement.”
(Id., ¶ 274.)
“On November 9, 2015,
due to [the] Board, Bell, Haase, Allen, and Bunn’s retaliation and
creation of a hostile environment and ongoing refusal to provide
O.V. a FAPE in the LRE, Plaintiffs finally withdrew O.V. from the
DPS and enrolled him in Pinewoods Montessori” (id., ¶ 254), where
his “private program enabled O.V. to make meaningful progress,
which continue[d]” through the filing of the Amended Complaint
(id., ¶ 255).
“For example, where O.V.’s May 20, 2015, IEP aspired
for O.V. to learn to write 26 letter sounds over an entire year,
after just a few months at Pinewoods, O.V. was writing words that
he was independently spelling by looking at a picture or an
object.”
(Id., ¶ 256 (emphasis in original).)
In early November 2015, the Board filed a motion for partial
summary judgment in the administrative proceedings, “seeking to
limit Plaintiffs’ claims to those occurring after November 26,
2014.”
[the
(Id., ¶ 299.)
Board’s]
Motion
“On January 6, 2016, Judge Elkins granted
for
Partial
Summary
Judgment,
limiting
Plaintiffs’ claims to those arising after November 26, 2014,
because the Office of Administrative Hearings had no authority to
set aside a release in a private contract between parties.”
¶ 300.)
(Id.,
The parties proceeded to trial on Plaintiffs’ remaining
claims before ALJ Melissa Lassiter.
27
(See id., ¶¶ 303-14.)
On
February 2017, Judge “Lassiter issued the Final Decision in this
matter,” which “ordered that all of Plaintiffs’ claims be dismissed
with prejudice.”
(Id., ¶ 315.)
Plaintiffs appealed this decision to the SBE, which assigned
State Review Officer (the “SRO”) Lisa Lukasik to the appeal. (Id.,
¶¶ 316-17.)
On April 26, 2017, the SRO issued a decision in this
matter, which affirmed in part and reversed in part the ALJ’s
decision.
(See id., ¶¶ 318-23.)
In particular, “the SRO affirmed
the ALJ’s decision that Plaintiffs failed to meet their burden to
prove that [the Board] failed to provide O.V. a FAPE in the LRE
from November 27, 2014, through June 12, 2015, based on the
stipulation from both parties that O.V. made progress during that
time.”
(Id., ¶ 320.)
However, the SRO “reversed the ALJ’s
decision that Plaintiffs failed to meet their burden to prove that
O.V.’s May 20, 2015 IEP failed to offer O.V. a FAPE in the LRE.”
(Id., ¶ 321.)
The SRO remanded the question of appropriate relief
on that issue to the ALJ.
(See id., ¶ 324.)
The issue of
appropriate relief remained pending when Plaintiffs filed the
Amended Complaint.
Meanwhile,
(See id., ¶ 325.)
“[o]n
February
1,
2016,
Plaintiffs
filed
a
[c]omplaint in the Durham County Superior Court, regarding [the
Board’s] breach of the Settlement Agreement.”
(Id., ¶ 279.)
action alleged that the Board
breached the Settlement Agreement by failing to provide
O.V. with instruction using a co-teaching model during
28
This
the 2014-[20]15 school year[;] [the Board] fraudulently
induced Plaintiffs to enter into the Settlement Agreement
by falsely assuring Plaintiffs that O.V.’s teachers were
instructing him using a co-teaching model; and [the
Board] breached its duty to act in good faith and make
reasonable efforts to perform its obligations under the
Settlement Agreement by failing to meet with Plaintiffs
monthly as agreed upon in the Settlement Agreement.
(Id.)
The Board moved to dismiss that state action.
¶ 280.)
(See id.,
The state court granted the Board’s motion “as to
Plaintiffs’ tort claims for fraudulent inducement and breach of
good faith and fair dealing and Plaintiffs’ breach of contract
claim for any claims arising on or before November 26, 2014,” but
denied it “as to Plaintiffs’ claim for breach of contract for any
breach arising after November 26, 2014.”
(Id., ¶ 281.)
On October
21, 2016, Plaintiffs dismissed their state action without prejudice
pursuant to North Carolina Rule of Civil Procedure 41, which
authorizes a plaintiff to dismiss his lawsuit “‘any time before
. . . rest[ing] his case’” and commence “‘a new action based on the
same claim . . . within one year after such dismissal.’”
(Id.,
¶ 283.)
Plaintiffs initiated the instant federal action on July 25,
2017.
(See Docket Entry 1 at 87.)
The Amended Complaint asserts
seven counts against the Board, five counts against the SBE, and
one count against L’Homme, State Officials, and Individual Local
Defendants.
More specifically, Plaintiffs contend that the Board
and SBE (1) violated the IDEA (Docket Entry 36, ¶¶ 333-62);
(2) discriminated against O.V. and retaliated against M.P. in
29
violation of Section 504 of the Rehabilitation Act (“Section 504”)
(id., ¶¶ 363-76); (3) discriminated against O.V. and retaliated
against M.P. in violation of the Americans with Disabilities Act
(the “ADA”) (id., ¶¶ 377-86); (4) violated the North Carolina
Special Education Statutes (the “NCSES”) (id., ¶¶ 387-89); and
(5)
violated
the
North
Carolina
Persons
with
Disabilities
Protection Act (the “NCPDPA”) (id., ¶¶ 390-94).
The Amended
Complaint further alleges that the Board violated the Fourteenth
Amendment (id., ¶¶ 395-405) and breached the Settlement Agreement
(id., ¶¶ 406-24). Finally, Plaintiffs pursue claims pursuant to 42
U.S.C. § 1983 against L’Homme, State Officials, and Individual
Local Defendants for allegedly violating O.V.’s rights under the
Fourteenth Amendment.
(Id., ¶¶ 395-405.)
DISCUSSION
I.
Motion to Dismiss Standards
Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure (the “Rules”), State Defendants move to dismiss
Plaintiffs’ claims against them in their entirety.
Entries
42,
43.)
Under
the
same
Rules,
L’Homme
(See Docket
and
Local
Defendants move to dismiss (1) Plaintiffs’ Section 504, ADA,
Section 1983, breach of contract, NCSES, and NCPDPA claims in their
entirety and (2) Plaintiffs’ IDEA claims to the extent they arise
prior to November 26, 2014.
(See Docket Entry 47 at 1-2; see also
Docket Entry 36, ¶¶ 333-424 (detailing claims).)
30
In particular,
L’Homme and Local Defendants seek Rule 12(b)(1) dismissal of
Plaintiffs’ IDEA, Section 504, ADA, Section 1983, NCSES, and NCPDPA
“claims arising prior to November 26, 2014” (Docket Entry 48 at 8),
for failure to exhaust administrative remedies. (See id. at 8-12.)
L’Homme and Local Defendants also pursue Rule 12(b)(6) dismissal of
the remaining portions of Plaintiffs’ Section 504, ADA, Section
1983, NCSES, and NCPDPA claims.
(See id. at 12-15, 17-30.)
Finally, L’Homme and Local Defendants contend that “the Court
should
decline
supplemental
jurisdiction”
Plaintiffs’ breach of contract claim.
(id.
at
15)
over
(See id. at 15-17.)
Because the defendants do not contest the validity of the
Amended Complaint’s jurisdictional allegations (see id. at 8-12,
15-17; Docket Entry 43 at 9-13), they present a facial challenge to
the Court’s subject matter jurisdiction.
See Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (describing “two ways”
that “a defendant may challenge subject matter jurisdiction,”
namely by contending that (1) “a complaint simply fails to allege
facts upon which subject matter jurisdiction can be based” or
(2) “the jurisdictional allegations of the complaint are not true”
(internal
quotation
marks
and
alteration
omitted));
see
also Willner v. Dimon, 849 F.3d 93, 99 (4th Cir. 2017) (describing
administrative exhaustion contentions as a “facial challenge to
[the] complaint”). In such circumstances, a “plaintiff, in effect,
is afforded the same procedural protection as he would receive
31
under a Rule 12(b)(6) consideration.”
(internal quotation marks omitted).
Kerns, 585 F.3d at 192
In other words, “the facts
alleged in the complaint are taken as true, and the motion must be
denied if the complaint alleges sufficient facts to invoke subject
matter jurisdiction.”
Id.
In turn, to avoid Rule 12(b)(6) dismissal, a complaint must
contain sufficient factual allegations “to ‘state a claim to relief
that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
Id.
Nevertheless, the
complaint need not contain detailed factual recitations, as long as
it provides the defendant “fair notice of what the claim is and the
grounds upon which it rests.”
Twombly, 550 U.S. at 555 (internal
quotation marks and alteration omitted).
In reviewing a motion to dismiss, the Court must “accept the
facts alleged in the complaint as true and construe them in the
light most favorable to the plaintiff.”
Coleman v. Maryland Court
of Appeals, 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom.,
Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012).
must
also
plaintiff.”
“draw
all
reasonable
inferences
in
The Court
favor
of
the
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435,
440
(4th Cir. 2011)
32
(internal
quotation
marks
omitted). “At bottom, determining whether a complaint states . . .
a plausible claim for relief . . . will ‘be a context-specific task
that
requires
the
reviewing
court
experience and common sense.’”
to
draw
on
its
judicial
Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
In ruling on a Rule 12(b)(6) motion, “a court evaluates the
complaint
in its
entirety, as
well
incorporated into the complaint.”
as
documents
attached
or
E.I. du Pont, 637 F.3d at 448.
The Court may also consider documents “attached to the motion to
dismiss,
so
authentic.”
long
as
they
are
integral
to
the
complaint
and
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009).
Generally, a “court cannot go beyond these
documents” without “convert[ing] the motion into one for summary
judgment,” an action from which courts should refrain “where the
parties have not had an opportunity for reasonable discovery.”
E.I. du Pont, 637 F.3d at 448.
Notably, a Rule 12(b)(6) motion “tests the sufficiency of a
complaint,” but “does not resolve contests surrounding the facts,
the
merits
of
a
claim,
or
the
applicability
of
defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992).
Thus, “claims lacking merit may be dealt with through
summary judgment under Rule 56” rather than through a Rule 12(b)(6)
motion.
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).
Nonetheless, dismissal remains “appropriate when the face of the
33
complaint
clearly
reveals
affirmative defense.”
the
existence
of
a
meritorious
Brooks v. City of Winston-Salem, N.C., 85
F.3d 178, 181 (4th Cir. 1996).
II.
Administrative Exhaustion Challenges
The SBE, L’Homme, and Local Defendants seek dismissal of
certain of Plaintiffs’ claims for failure to exhaust administrative
remedies.7
In particular, L’Homme and Local Defendants assert that
“Plaintiffs’ claims arising prior to November 26, 2014[,] must be
dismissed
because
Plaintiffs
have
failed
to
exhaust
their
7 The defendants maintain that Plaintiffs’ alleged failure to
exhaust administrative remedies deprives the Court of subject
matter jurisdiction over such claims. (See Docket Entry 48 at 8;
see also Docket Entry 43 at 2, 8, 10.) Although the United States
Court of Appeals for the Fourth Circuit “once indicated, without
analysis, that the exhaustion requirement was jurisdictional,” the
United States Supreme Court has subsequently “clarified the
difference between jurisdictional requirements and mere claims
processing
provisions,”
raising
questions
regarding
the
“jurisdictional” nature of the IDEA exhaustion requirement.
Southard v. Wicomico Cty. Bd. of Educ., 79 F. Supp. 3d 552, 556 (D.
Md. 2015); see also E.L. ex rel. G.L. v. Chapel Hill-Carrboro Bd.
of Educ., 975 F. Supp. 2d 528, 533 n.5 (M.D.N.C. 2013) (detailing
evolution and resulting questions about exhaustion under the IDEA),
aff’d sub nom. E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of
Educ., 773 F.3d 509 (4th Cir. 2014). In the context of this case,
however, whether failure to exhaust administrative remedies under
the IDEA constitutes a “jurisdictional” defect or a mere “claims
processing provision” makes no practical difference, for at least
two reasons. First, various defendants raised the administrative
exhaustion issue, obviating questions regarding the Court’s
obligation to sua sponte consider such issue.
See E.L., 975
F. Supp. 2d at 533 n.5. Second, the Dismissal Motions “invoke[]
both Rule 12(b)(1) and 12(b)(6) and, because [their] jurisdictional
challenge[s are] facial, the standard under the two rules is
identical.” Southard, 79 F. Supp. 3d at 557; see also id. at 556
(noting that, in such circumstances, questions regarding the
“potentially jurisdictional character of the IDEA’s exhaustion
requirement” qualify as “entirely academic”).
34
administrative remedies for those claims.” (Docket Entry 48 at 8.)
Conversely, the SBE seeks dismissal of Plaintiffs’ IDEA, Section
504, and ADA claims in their entirety for failure to exhaust. (See
Docket Entry 43 at 9-13.) The SBE further maintains that, “because
Plaintiffs failed to exhaust with respect to their federal claims
against the State Defendants, this Court should also dismiss
[Plaintiffs’ NCSES and NCPDPA claims,] which allege violations of
state law only.”
requests.
A.
(Id. at 13.)8
Plaintiffs oppose these dismissal
(See Docket Entries 50, 51, 54, 55.)
Administrative Exhaustion Requirements
“The IDEA provides for a system of administrative review
before any claims arising under it may be pursued in state or
federal court.”
E.L. ex rel. G.L. v. Chapel Hill-Carrboro Bd. of
Educ., 975 F. Supp. 2d 528, 531 (M.D.N.C. 2013), aff’d sub nom.
E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d
509 (4th Cir. 2014).
In North Carolina,
[a] person wishing to sue under the IDEA first files a
petition
with
[the
North
Carolina
Office
of
Administrative Hearings (the “OAH”)]. N.C. Gen. Stat.
§ 115C–109.6. OAH, a state agency, appoints an ALJ to
hear and decide the case.
Id.
After this initial
hearing and decision, any aggrieved party may appeal the
ALJ’s decision.
N.C. Gen. Stat. § 115C–109.9.
The
[SBE], through its Exceptional Children Division,
appoints an SRO to review the ALJ’s findings appealed and
8
As discussed below, both the NCPDPA and NCSES claims
against the SBE remain subject to dismissal (as statutorily barred
and for failure to exhaust administrative remedies, respectively).
Therefore, the Court need not resolve the SBE’s arguments regarding
supplemental jurisdiction over those claims.
35
issue an independent decision. Id. The SRO’s decision
is final unless an aggrieved party timely files a civil
action pursuant to 20 U.S.C. § 1415(i)(2)(A).
E.L., 975 F. Supp. 2d at 532.9
The United States Court of Appeals for the Fourth Circuit
“ha[s]
consistently
held
that
a
plaintiff
must
exhaust
administrative remedies before bringing such an action.”
773 F.3d at 513–14.
her
Lorsson,
Furthermore, “[w]hen parents of a disabled
child challenge multiple IEPs in court, they must have exhausted
their administrative remedies for each academic year in which an
IEP is challenged.”
MM ex rel. DM v. School Dist. of Greenville
Cty., 303 F.3d 523, 536 (4th Cir. 2002) (emphasis in original).
Courts
recognize
“only
three
narrow
exceptions
to
this
exhaustion requirement . . .: (1) when the administrative process
would have been futile; (2) when a school board failed to give
parents proper notification of their administrative rights; or
(3) when administrative exhaustion would have worked severe harm
upon a disabled child.”
Id.
The party asserting an exception to
the exhaustion requirement bears the burden of proving it applies.
Koster v. Frederick Cty. Bd. of Educ., 921 F. Supp. 1453, 1455 (D.
9
This exhaustion requirement applies equally to NCSES
claims. See N.C. Gen. Stat. §§ 115C-109.6, 115C-109.9; see also
id. § 115C-106.2(b) (“In addition to the purposes listed in
subsection (a) of this section, the purpose of th[e NCSES] is to
enable the [SBE] and local educational agencies to implement IDEA
in this State. If th[e NCSES] is silent or conflicts with IDEA,
and if IDEA has specific language that is mandatory, then IDEA
controls.”).
36
Md. 1996).
To meet this burden, the party “must demonstrate,”
inter alia, “that the underlying purposes of exhaustion would not
be furthered by enforcing the [exhaustion] requirement.”
Learning
Disabilities Ass’n of Md., Inc. v. Board of Educ. of Balt. Cty.,
837 F. Supp. 717, 724 (D. Md. 1993) (internal quotation marks
omitted).
“Whether
a
plaintiff
has
properly
exhausted
all
administrative remedies is a pure question of law . . . .”
Lorsson, 773 F.3d at 514.
Notably, the administrative exhaustion requirement extends
beyond a strictly IDEA claim.
Pursuant to 20 U.S.C. § 1415(l),
[n]othing in [the IDEA] shall be construed to
restrict or limit the rights, procedures, and remedies
available under the Constitution, the [ADA], title V of
the Rehabilitation Act of 1973, 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
[the IDEA], the [IDEA’s administrative procedures] shall
be exhausted to the same extent as would be required had
the action been brought under [the IDEA].
As the Supreme Court recently explained,
[t]he first half of § 1415(l) (up until “except
that”) “reaffirm[s] the viability” of federal statutes
like the ADA or Rehabilitation Act “as separate
vehicles,” no less integral than the IDEA, “for ensuring
the rights of handicapped children.”
H.R. Rep. No.
99–296, p. 4 (1985); see id., at 6. According to that
opening phrase, the IDEA does not prevent a plaintiff
from asserting claims under such laws even if . . . those
claims allege the denial of an appropriate public
education (much as an IDEA claim would). But the second
half of § 1415(l) (from “except that” onward) imposes a
limit on that “anything goes” regime, in the form of an
exhaustion provision. According to that closing phrase,
a
plaintiff
bringing
suit
under
the
ADA,
the
Rehabilitation Act, or similar laws must in certain
37
circumstances — that is, when “seeking relief that is
also available under” the IDEA — first exhaust the IDEA’s
administrative procedures.
Fry v. Napoleon Cmty. Sch., __ U.S. __, __, 137 S. Ct. 743, 750
(2017) (second set of brackets in original).
In
ascertaining
whether
claims
require
administrative
exhaustion, “a court should look to the substance, or gravamen, of
the plaintiff’s complaint” to determine whether it “seek[s] relief
for the denial of a FAPE.”
Id. at __, 137 S. Ct. at 752.
does, administrative exhaustion requirements apply.
If it
See id.; see
also id. at __, 137 S. Ct. at 754 (“[Section] 1415(l)’s exhaustion
rule hinges on whether a lawsuit seeks relief for the denial of a
free appropriate public education.
If a lawsuit charges such a
denial, the plaintiff cannot escape § 1415(l) merely by bringing
her suit under a statute other than the IDEA — as when, for
example, the plaintiffs in Smith [v. Robinson, 468 U.S. 992 (1984)]
claimed that a school’s failure to provide a FAPE also violated the
Rehabilitation Act.”). However, if “a complaint brought under [the
ADA] and [Section] 504 . . . instead seek[s] relief for simple
discrimination, irrespective of the IDEA’s FAPE obligation,” then
its ADA and Section 504 claims escape the IDEA’s administrative
exhaustion requirements.
Id. at __, 137 S. Ct. at 756.
To assist in identifying a complaint’s gravamen, the Supreme
Court offered
a pair of hypothetical questions.
First, could the
plaintiff have brought essentially the same claim if the
38
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 other 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.
Id. (emphasis in original).
A further clue “that the gravamen of
a suit is the denial of a FAPE” may lie in the history of the
proceedings,
particularly
whether
“a
plaintiff
has
previously
invoked the IDEA’s formal procedures to handle the dispute — thus
starting
to
midstream.”
exhaust
the
[IDEA’s]
Id.
__,
137
at
S.
remedies
Ct.
at
before
757.
switching
Although
not
dispositive, “prior pursuit of the IDEA’s administrative remedies
will
often
provide
strong
evidence
that
the
substance
of
a
plaintiff’s claim concerns the denial of a FAPE, even if the
complaint never explicitly uses that term.”
B.
Id.
Analysis
The complaint at issue in Fry did not explicitly mention the
child’s FAPE or IEP.
See id. at __, 137 S. Ct. at 758 (“The
complaint contains no allegation about the denial of a FAPE or
about any deficiency in [the child’s] IEP. . . .
And nothing in
the nature of the [plaintiffs’] suit suggests any implicit focus on
the adequacy of [the child’s] education.”).
39
As detailed above,
however, Plaintiffs’ Amended Complaint explicitly (and extensively)
asserts the denial of a FAPE to O.V.
36,
¶
1
(“M.P.
and
P.V.
file
(See also, e.g., Docket Entry
this
complaint
against
[the
d]efendants for their failure to provide O.V. a free appropriate
public
education,
in
violation
of
the
[IDEA]
.
.
.
.”).)10
Nevertheless, in opposing the Local Dismissal Motion, Plaintiffs
maintain that their “non-IDEA claims are premised on O.V.’s right
to equal access to the general education classroom and curriculum,
not the adequacy of O.V.’s special education services,” and thus do
not require exhaustion.
(Docket Entry 55 at 10 (emphasis in
original); see also Docket Entry 51 at 15-16 (asserting that
“Plaintiffs were not required to exhaust their ADA and Section 504
claims” against the SBE under Fry).)
That argument lacks merit.
As a preliminary matter, Local Defendants’ alleged failure to
educate O.V. amid his nondisabled contemporaries using the general
curriculum comprises a pivotal aspect of Plaintiffs’ IDEA claims.
(See,
e.g.,
Docket
Entry
36,
¶¶
55
(“Beginning
with
O.V.’s
enrollment in the DPS in 2009, [the d]efendants intentionally and
10 In fact, Plaintiffs’ Section 504 and Section 1983 claims
expressly allege violations of the IDEA and denial of a FAPE.
(See, e.g., id., ¶¶ 369 (alleging, regarding Section 504 claims,
that “[the Board] failed to provide O.V. with a FAPE and reasonable
accommodations due to his disability-related behaviors”), 401
(alleging, regarding Section 1983 claims, that “[the d]efendants
knew or should have known that their response to Plaintiffs’
request for O.V. to receive academic instruction in a general
education classroom was contrary to the [LRE] mandates of the IDEA
and other laws”).)
40
collectively participated in the systematic exclusion of O.V. from
the regular education environment, and the separation of O.V. from
his non-disabled peers.” (first factual allegation against any
defendant in the Amended Complaint’s “Summary of Facts” (emphasis
omitted)), 339 (“As a result of the segregation, O.V. did not
develop appropriate academic, social, and communication skills, and
has
experienced
stunted
academic,
communication,
and
social
growth.” (IDEA claims)), 342 (“From 2009 through 2015, O.V. could
have been educated satisfactorily in the regular education setting
with
supplemental
aids
and
services,
yet,
contrary
to
the
scientifically-based research on the education of students with
intellectual disabilities, [the Board] repeatedly predetermined
O.V.’s placement in the Separate setting, segregated from his
non-disabled peers.” (IDEA claims)).)11 Local Defendants’ handling
11 Indeed, O.V.’s placement animates Plaintiffs’ every claim,
whether or not brought under the IDEA. (See, e.g., id., ¶¶ 372
(“As a result of the segregation, O.V. did not develop appropriate
academic, social, and communication skills, and has experienced
stunted academic, communication, and social growth.” (Section 504
claims)), 382 (same (ADA claims)), 392 (same (NCPDPA claims)), 402
(same (Section 1983 claims)); see also ¶¶ 370-71 (“[The Board]
refused to allow O.V. to access his education in the general
education setting with his non-disabled peers and denied O.V. the
opportunity to participate in an education program that was not
separate or different; [The Board] refused to provide O.V. an
appropriate education that was designed to meet his individual
educational needs as adequately as the needs of nonhandicapped
persons are met.” (Section 504 claims) (internal quotation marks
omitted)); 388 (“As detailed in [the IDEA claims], [the Board]
failed to provide O.V. with a free appropriate public education in
violation of state law provisions . . . .” (NCSES claims)); 401
(“[The d]efendants knew or should have known that their response to
Plaintiffs’ request for O.V. to receive academic instruction in a
41
of O.V.’s placement, Plaintiffs allege, deprived O.V. of a FAPE.
(See, e.g., id., ¶¶ 334, 336-40.)
Given these allegations, it
seems self-evident that “[P]laintiff[s] must first submit [their]
case to an IDEA hearing officer, experienced in addressing exactly
the issues [they] raise[].”
Consideration
of
the
Fry, __ U.S. at __, 137 S. Ct. at 754.
Supreme
Court’s
“clue[s
regarding]
whether the gravamen of a complaint against a school concerns the
denial
of
a
FAPE,
or
instead
addresses
disability-based
discrimination,” id. at __, 137 S. Ct. at 756, reinforces this
conclusion. To begin with, given the relevant conduct — failure to
educate O.V. alongside his nondisabled contemporaries using the
general curriculum — O.V. could not bring essentially the same
claim against
library.
another
public facility,
such
as a
theater
or
See id.; see also id. at __, 137 S. Ct. at 757 (offering
example of lawsuit where alleged discriminatory conduct involved
“failing to provide remedial tutoring in mathematics,” and asking,
“can anyone imagine the student making the same claim against a
public theater or library?”).
Nor could an adult at the school
lodge “essentially the same grievance.”
Id. at __, 137 S. Ct. at
general education classroom was contrary to the [LRE] mandates of
the IDEA and other laws.” (Section 1983 claims)); 408-09 (“[T]he
Settlement Agreement included a provision whereby [the] Board would
place O.V. in the general education classroom for two hundred five
(205) minutes each day, with forty-five (45) minutes of this
instruction to be provided with a co-teaching model. [The] Board
breached the Settlement Agreement, because [the Board] failed to
provide O.V. with the forty-five (45) minutes of instruction
provided with a co-teaching model.” (breach of contract claim)).)
42
756; see also id. at __, 137 S. Ct. at 757 (asking whether anyone
can “imagine an adult visitor or employee suing the school to
obtain a math tutorial?”).
As such, in this case, the answer to
Fry’s two hypothetical questions “is no,” id. at __, 137 S. Ct. at
756.12
Furthermore, the history of these proceedings “provide[s]
strong
evidence
that
the
substance
concerns the denial of a FAPE.”
of
[Plaintiffs’]
claim[s]
Id. at __, 137 S. Ct. at 757.
Plaintiffs pursued administrative remedies on their claims and,
indeed, exhausted administrative remedies on certain of their
12 In arguing to the contrary, Plaintiffs rely on Abraham P.
v. Los Angeles Unified School District, No. CV 17-3105, 2017 WL
4839071 (C.D. Cal. Oct. 5, 2017), a case arising from alleged
physical abuse of a child at a fully segregated special education
school, prior to his transition to a school where, for the first
time in ten years, he “[wa]s now able to spend time in school with
non-disabled peers,” id. at *3. (See Docket Entry 51 at 11-12, 1516 (discussing Abraham P.); Docket Entry 55 at 7-8, 10-11 (same).)
In that case, the plaintiff resolved his IDEA claims through the
administrative process and “later filed another due process request
in relation to statutes other than the IDEA, including the statutes
he sue[d] under [in his federal lawsuit],” but the office of
administrative hearings “dismissed that complaint because it lacked
jurisdiction over those claims.” Abraham P., 2017 WL 4839071, at
*3.
Thereafter, seeking only monetary damages rather than any
educational relief, the plaintiff filed suit under the ADA, Section
504, and Section 1983 regarding the alleged physical abuse and
segregation.
See id. at *1, *5.
Under the circumstances
presented, the Abraham P. court concluded that the gravamen of the
plaintiff’s complaint “d[id] not seek redress that is available
under the IDEA” and, alternatively, that the “[p]laintiff
sufficiently exhausted the IDEA’s administrative procedures and
that any further exhaustion would be futile.” Id. at *5. Here, by
contrast, Plaintiffs explicitly seek relief for the denial of a
FAPE, the deprivation of which constitutes the gravamen of the
Amended Complaint.
As such, Abraham P. does not support
Plaintiffs’ position.
43
claims prior to initiating this federal suit.
Entry 36, ¶¶ 272, 284-85, 315-18.)
(See, e.g., Docket
This “prior pursuit of the
IDEA’s administrative remedies,” Fry, __ U.S. at __, 137 S. Ct. at
757, confirms that the denial of a FAPE constitutes the gravamen of
Plaintiffs’ Amended Complaint.
Under these circumstances, Plaintiffs’ ADA, Section 504, and
Section 1983 claims remain subject to the IDEA’s administrative
exhaustion requirement.
i.
Claims against the Board
Alternatively,
Plaintiffs
maintain
that
“[their]
claims
against [the] Board arising prior to November 26, 2014, should not
be dismissed, as Plaintiffs exhausted administrative remedies.”
(Docket Entry 54, ¶ 1.) As support for this contention, Plaintiffs
present two arguments.
First, Plaintiffs seek refuge in the futility exception. (See
Docket Entry 55 at 9.)
More particularly, they assert that they
“had no reason to specifically appeal the decision” of ALJ Elkins
“dismiss[ing] Plaintiffs’ claims arising prior to November 26,
2014, due to the release contained in the Settlement Agreement,” as
the SRO could not offer Plaintiffs the relief they sought, namely
“declar[ing] the Settlement Agreement voided due to [the Board’]s
breach.”
(Id.)
However, regardless of her power “to declare the
Settlement Agreement voided” (id.), the SRO possessed authority to
overrule ALJ Elkins’ dismissal of Plaintiffs’ claims as barred by
44
its release.
See N.C. Gen. Stat. § 115C-109.9(a) (“Any party
aggrieved by the findings and decision of a hearing officer . . .
may appeal the findings and decision within 30 days after receipt
of notice of the decision . . . .
The [SRO] shall conduct an
impartial review of the findings and decision appealed under this
section.
The
independent
[SRO]
conducting
decision
upon
this
review
completion
of
shall
the
make
an
review.”).
Accordingly, Plaintiffs cannot establish that futility excused
their exhaustion obligation.
See Koster, 921 F. Supp. at 1455
(“The burden of proving an exception to the exhaustion requirement
rests on the party asserting the exception.”).
Second,
Plaintiffs
maintain
that
they
satisfied
their
exhaustion requirement by appealing ALJ Lassiter’s final decision,
which
they
claims.”
argue
“included
the
Order
(Docket Entry 55 at 10.)
dismissing
Plaintiffs’
Although ALJ Lassiter’s
decision acknowledges ALJ Elkins’ dismissal order (see, e.g.,
Docket Entry 17-1 at 6 (noting that said order “limited claims in
this contested case to claims arising after November 26, 2014”)),
it does not address the merits of that order (see, e.g., id. at
29).
Rather, in light of that order, the decision limits the
relevant “Issue[] for Hearing” to “Whether [the Board] provided
O.V. a FAPE in the LRE from November 27, 2014, through June 12,
2015?”
(Id.)
Moreover, Plaintiffs concede that they “did not
submit written arguments concerning this specific aspect of the
45
ALJ’s decision” to the SRO.
(Docket Entry 55 at 10.)
Given that
the SRO “ha[s] jurisdiction to review only those findings and
decisions
appealed,”
Lorsson,
773
F.3d
at
516
(emphasis
in
original), Plaintiffs’ actions failed to bring the merits of ALJ
Elkins’ decision before the SRO.
Indeed, the SRO’s decision
explicitly notes as much:
The parties stipulated that . . . [ALJ] Elkins II, in an
Order granting [the Board’s] Motion for Partial Summary
Judgment on January 6, 2016, limited the issues to be
presented for hearing in the above-captioned matter to
those arising after November 26, 2014. Neither party
submitted an appeal of ALJ Elkins’s January 6, 2016,
Order. Thus, neither ALJ Elkins’s January 6, 2016 Order,
nor any issues arising prior to November 26, 2014, are
presented for review.
(Docket Entry 17-2 at 8.)
Under the circumstances, Plaintiffs
failed to exhaust administrative remedies on their claims arising
prior to November 26, 2014.
In sum, Plaintiffs’ IDEA, Section 504, ADA, Section 1983, and
NCSES claims require administrative exhaustion,13 which Plaintiffs
did not achieve for their claims arising prior to November 26,
13 The Board also maintains that Plaintiffs’ NCPDPA claims
require administrative exhaustion, as they “repeat[] the Section
504 claims.” (Docket Entry 48 at 11.) The Board does not offer
any authority in support of this argument (see id.), and Plaintiffs
fail to address this contention (see generally Docket Entry 55),
perhaps because Plaintiffs concede that the “NCPDPA[] does not
allow a plaintiff to file claims under the NCPDPA simultaneously
with Section 504 claims” (Docket Entry 54, ¶ 9). In light of this
acknowledged statutory bar, see N.C. Gen. Stat. § 168A-11(c), the
Court need not resolve whether Plaintiffs’ NCPDPA claims also fail
for lack of administrative exhaustion.
46
2014.
Accordingly, the Court should dismiss those claims for
failure to exhaust administrative remedies.14
ii. Claims against the SBE
Unlike
with
the
Board,
Plaintiffs
failed
to
administrative exhaustion of any claims against the SBE.
e.g.,
Docket
Entry
17-2
at
1
(identifying
respondent in the SRO decision).)
the
Board
as
the
(See,
In response, Plaintiffs first
contend that they need not exhaust under Fry.
at 10-12, 15-16.)
(See,
Accordingly, the SBE seeks
dismissal of the claims against it in their entirety.
e.g., Docket Entry 43 at 9-13.)
pursue
(See Docket Entry 51
For reasons previously discussed, that argument
lacks merit.
Plaintiffs further maintain that “[a]dministrative exhaustion
is
not
required
when
suing
a
state
educational
agency
for
violations of the IDEA” (id. at 12 (emphasis omitted)) and that
administrative exhaustion “would have been futile” (id. at 14
(emphasis omitted)).
(See id. at 12-15.)
More particularly,
Plaintiffs contend that, under “the structure of the IDEA, it is
14 Local Defendants and L’Homme alternatively contend that
Plaintiffs’ “claims related to the IDEA arising prior to August 13,
2014[,] are barred by the applicable statute of limitations”
(Docket Entry 48 at 13 (emphasis omitted)), as well as that the
statute of limitations bars Plaintiffs’ Section 1983 “claims that
arose prior to July 26, 2014” (id. at 28).
Plaintiffs dispute
these contentions.
(Docket Entry 54, ¶¶ 3, 7.)
In light of
Plaintiffs’ failure to exhaust administrative remedies, the Court
need not resolve whether the statute of limitations would
independently bar such claims.
47
clear state educational agencies (SEAs) were not intended to be
parties in due process hearings.”
contend
that
the
Amended
(Id. at 13.)
Complaint
Plaintiffs also
“challenge[s]
the
State
Defendants’ systemic practice of allowing the exclusion of children
with disabilities from the regular education classroom” and “[a]
claim challenging systemic practices does not require exhaustion.”
(Id. at 14.)
The SBE disputes these contentions.
(See Docket
Entry 57 at 4-7.)
Although the IDEA explicitly addresses the participation of
local educational agencies in due process hearings, it offers less
clarity regarding state educational agencies.
For instance, the
IDEA frequently details obligations of both the “state educational
agency” and the “local educational agency,” see, e.g., 20 U.S.C.
§
1415(e)(1)
(mandating
that
such
agencies
create
mediation
procedures), but also refers generically to the participating
“agency,” see, e.g., 20 U.S.C. § 1415(e)(2)(F)(ii) (providing that,
if “a resolution is reached to resolve the complaint through the
mediation process, the parties shall execute a legally binding
agreement
that
.
.
.
is
signed
by
both
the
parent
and
a
representative of the agency who has the authority to bind such
agency”).
Moreover, as regards the due process hearing, the IDEA
expressly recognizes “the right of a parent to file a complaint
with the State educational agency,” 20 U.S.C. § 1415(f)(3)(F), and
contemplates the participation of multiple parties in the hearing,
48
see 20 U.S.C. § 1415(f)(2)(A) (“Not less than 5 business days prior
to a hearing conducted pursuant to paragraph (1), each party shall
disclose to all other parties all evaluations completed by that
date,
and
recommendations
based
on
the
offering
party’s
evaluations, that the party intends to use at the hearing.”).
Finally, the IDEA authorizes an award of attorney’s fees “to a
prevailing
party
who
is
a
State
educational
agency
or local
educational agency,” 20 U.S.C. § 1415(i)(3)(B)(i)(III), in a “civil
action with respect to the complaint presented pursuant to this
section”
brought
by
a
“party
aggrieved
by
the
findings
and
decision” from a due process hearing, 20 U.S.C. § 1415(i)(2)(A).
Accordingly,
at
a
minimum,
the
IDEA
does
not
foreclose
participation of the SBE in the due process hearing.
Furthermore,
courts
diverge
on
whether
administrative
exhaustion requirements apply to suits against state educational
agencies.
(Compare Docket Entry 57 at 4-7 (discussing decisions
requiring exhaustion), with Docket Entry 51 at 12-15 (discussing
decisions excusing exhaustion).)
However, the three decisions on
which Plaintiffs rely — W.H. by & through his parents (M.H. & D.R.)
v. Tennessee Department of Education, Civ. Action No. 3:15-1014,
2016 WL 236996 (M.D. Tenn. Jan. 20, 2016), I.L. through Taylor v.
Knox County Board of Education, 257 F. Supp. 3d 946 (E.D. Tenn.
2017), and D.M. v. New Jersey Department of Education, 801 F.3d 205
49
(3d
Cir.
2015)
(see
Docket
Entry
51
at
12-15)
—
involved
circumstances very different from those presented here.
For example, one case involved a challenge to statewide
financial
allocations
and
explicitly
noted
that
no
child’s
educational needs were at issue in the parties’ dispute:
[T]he
express
purpose
behind
the
administrative
exhaustion
requirement
—
the
ability
to
review
educational placements at the local level — does not
apply to the issues in this action. The plaintiffs are
not asking the court to conduct a thorough review of all
aspects of the plaintiffs’ educational needs. Rather,
they are raising the very pointed question of whether —
in meeting those needs — particular systemic practices,
namely the promulgation and consideration of improper
financial incentives within the framework of allocating
state funding for the plaintiffs’ education, caused the
plaintiffs to be placed in more restrictive environments
than necessary, contrary to federally mandated LRE
requirements. . . . The court does not require a full
administrative
record
regarding
the
plaintiffs’
disabilities and recommended services — matters that do
not appear to be at issue in this action — in order to
answer this question.
W.H., 2016 WL 236996, at *5.
Here, however, O.V.’s educational
needs remain at the core of the parties’ dispute.
Moreover,
Plaintiffs present not a statewide systemic challenge, but rather
challenge the practice of one local educational agency, which the
SBE purportedly failed to correct.
(See, e.g., Docket Entry 36,
¶
Individual
74
(alleging
that
L’Homme
and
Local
Defendants
implemented the “Board’s unwritten and illegal policy of removing
disabled children from general education classrooms by the third
(3rd) grade if [the] Board believes the disabled child will be
unsuccessful on the state mandated end of grade tests or requires
50
a modified curriculum” and that, because the “Board annually
reported these decisions to [the SBE], [State Defendants] knew of
this policy
and
effectively
sanctioned
it
by
allowing
it
to
continue unabated”).)
Additionally, both W.H. and I.L. rest in part on concerns
that, under the particular administrative system in place in
Tennessee, the involvement of the state as a defendant might
compromise the neutrality of the administrative hearing officers.
See I.L., 257 F. Supp. 3d at 958 (“The state educational agency has
one
main
job:
to
due-process hearings.
act
as
a
neutral
third
party
who
holds
And the inability to appeal from state
hearings reveals that there is no risk of the state agency being
impartial, since it is not a party.”); W.H., 2016 WL 236996, at *5
(finding that “it would clearly be futile for the plaintiffs in
this action to attempt to exhaust their particular claims regarding
the defendants’ systemic practices through state administrative
procedures” in part because “the state is a defendant in this
action and has an interest in upholding, rather than changing, its
current practices”).
Here, by contrast, the hearing officers
involved in North Carolina’s administrative review process possess
independence from the SBE.
See N.C. Gen. Stat. § 115C-109.9(b)
(“No person may be appointed as a Review Officer if that person is
an employee of the [SBE], the [NCDPI], or the local educational
agency that has been involved in the education or care of the child
51
whose parents have filed the petition.”); Lorsson, 773 F.3d at 513,
515 (observing that, instead of the SBE, “another entity,” namely
the OAH, appoints the “ALJs [who] conduct the due process hearings
required by the IDEA”).
The final decision upon which Plaintiffs rely involved a
school
and
“arbitrary
parents’
and
joint
capricious”
challenge
to
regulation
of
a
state’s
the
allegedly
school,
which
prevented the school from continuing certain practices specified in
the child’s IEP.
See D.M., 801 F.3d at 208.
The D.M. court thus
considered whether the lawsuit qualified as an IDEA proceeding
pursuant to which the parents could invoke the IDEA’s “stay-put”
provision.
See id. at 211.
Unlike in D.M., this case does not
involve a dispute between a jointly aligned local educational
facility
and
arbitrarily
parents
and
against
a
capriciously
state
agency
interfered
in
that
allegedly
the
school’s
implementation of a child’s IEP.
In sum, the decisions on which Plaintiffs depend for their
exhaustion
argument
differ
in
material
respects
from
the
circumstances presented here, and, as such, fail to compel a like
result in this case.
Furthermore, federal courts — including other courts within
this Circuit — routinely require administrative exhaustion of IDEArelated lawsuits against state educational agencies.
C.P. v.
Tennessee
Dep’t
of
Educ.,
52
See, e.g.,
No. 3:16-cv-2938,
2018
WL
1566819, at *6 n.3 (M.D. Tenn. Mar. 30, 2018) (“find[ing] I.L.
distinguishable from this action”); B.I. v. Montgomery Cty. Bd. of
Educ., 750 F. Supp. 2d 1280, 1284-85 (M.D. Ala. 2010) (“[B]ecause
[the
state
department
of
education]
was
not
a
party
to
the
impartial due process hearing, [the p]laintiffs failed to exhaust
administrative remedies with respect to [it].”) (collecting cases);
McGraw v. Board of Educ. of Montgomery Cty., 952 F. Supp. 248,
254-55 (D. Md. 1997) (“[The p]laintiffs’ allegations under IDEA are
not properly before the [c]ourt, as [the p]laintiffs have failed to
exhaust administrative remedies against the [s]tate [d]efendants.
. . . [The state department of education] was not a party to the
administrative proceedings that are on appeal in this [c]ourt, no
claims
were
raised
against
the
[s]tate
defendants
in
those
proceedings, and thus no issues regarding the [s]tate [d]efendants’
conduct should be included in an appeal in this case.”).
This approach makes good sense, for as the United States Court
of Appeals for the Fifth Circuit has observed:
[The] IDEA allows [courts] to review the administrative
proceedings, including the evidentiary due process
hearing, but does not provide for [courts] to act as the
first hearing body. 20 U.S.C. § 1415(i)(2)(C). . . .
[T]he state education agency is best situated to hear and
resolve IDEA complaints.
By failing to exhaust the
IDEA’s administrative remedies, the [plaintiffs] did not
give the State an appropriate opportunity to resolve
their complaints prior to filing suit against the State.
See Marvin H. v. Indep. Sch. Dist., 714 F.2d 1348, 1358
(5th Cir. 1983) (noting the procedural frameworks set out
in the IDEA’s predecessor, the EAHCA, allows parents and
educators an opportunity to make joint decisions
53
regarding a disabled child’s education and focuses on a
non-judicial resolution of conflicts).
Papania-Jones v. Dupree, 275 F. App’x 301, 303–04 (5th Cir. 2008).
Here, in addition to providing the SBE an opportunity to resolve
this
dispute
prior
to
the
initiation
of
a
federal
lawsuit,
exhaustion would have enabled development of a factual record
regarding
Plaintiffs’
allegation
that
the
SBE’s
publications
mislead parents regarding the LRE requirement, a fact about which
the parties disagree.
(Compare Docket Entry 36, ¶¶ 78-80, with
Docket Entry 43 at 14-15.)
As such, Plaintiffs have not satisfied their burden of showing
that they need not administratively exhaust their claims against
the SBE.
See Koster, 921 F. Supp. at 1455 (explaining that the
party seeking relief from the exhaustion requirement bears the
burden of establishing an exemption); Learning Disabilities, 837 F.
Supp. at 724 (observing that such party must show that exhaustion
would not fulfill the requirement’s underlying purposes).
The
Court should therefore dismiss Plaintiffs’ IDEA, ADA, Section 504,
and NCSES claims against the SBE for failure to exhaust.15
15
As discussed below, the Court should also dismiss
Plaintiffs’ NCPDPA claim against the SBE as statutorily barred.
54
III.
Release Contention
Local Defendants and L’Homme also assert that the Settlement
Agreement bars any claims arising prior to November 26, 2014.16
Plaintiffs dispute this contention.
12.)
(See Docket Entry 55 at 11-
“As a preliminary matter, [Plaintiffs contend that] it would
be inappropriate to dismiss claims based on the release contained
in the Settlement Agreement without first resolving the separate
claim of whether [the Board] breached the Settlement Agreement,
thus voiding the release.”
(Id. at 11.)
Contrary to Plaintiffs’
contention, mere breach of an agreement does not automatically void
such agreement; instead, if one party commits a material breach
that “go[es] to the heart of the agreement,” the other party may
seek to declare the agreement “null and void,” thereby rescinding
its own obligations under the agreement.
Jackson v. Mecklenburg
Cty., No. 3:07-cv-218, 2008 WL 2982468, at *4 (W.D.N.C. July 30,
2008) (internal quotation marks omitted).
However, if contractual
damages could adequately compensate the injured party, rescission
remains unavailable. See Morris v. Scenera Research, LLC, 368 N.C.
857, 867, 788 S.E.2d 154, 161 (2016) (“[R]escission cannot be the
16
Local Defendants and L’Homme submitted the Settlement
Agreement in support of their motion to dismiss. (See Docket Entry
17-4; see also Docket Entry 47 at 2-3.) The Court can consider the
Settlement Agreement in resolving the Local Dismissal Motion
because the Amended Complaint explicitly relies upon it (see, e.g.,
Docket Entry 36, ¶¶ 264-68, 278), and Plaintiffs do not contest the
authenticity of the submitted document (see, e.g., Docket Entry 55
at 11-12). See Philips, 572 F.3d at 180.
55
remedy for every material breach.
A party may pursue rescission
only when a material breach occurs and all legal remedies falls
short of compensating the injured party for its loss.” (emphasis in
original)).
Here, Plaintiffs neither seek rescission of the
Settlement Agreement nor contest the availability of contractual
damages.
(See, e.g., Docket Entry 36, ¶¶ 406-24 (detailing breach
of contract claim, for which Plaintiffs seek “damages in excess of
.
.
.
$10,000”
(id.,
¶
424)).)
Accordingly,
Plaintiffs’
“preliminary” argument fails.
Plaintiffs further contend that the Settlement Agreement bars
only Plaintiffs’ IDEA and NCSES claims.
11-12.)
(See Docket Entry 55 at
This argument possesses merit, at least in regard to
Plaintiffs’ Section 504, Section 1983, and ADA claims.17
to
the
Settlement
Agreement,
Plaintiffs
filed
a
According
petition
on
November 14, 2014, claiming that the Board “violated the procedural
and substantive requirements of the [IDEA] . . . and the [NCSES]
. . . while providing educational services to O.V.”
17-4 at 1.)
(Docket Entry
The Settlement Agreement’s “Voluntary Dismissal of
Petition and Release of Claims” subsection specifies:
[Plaintiffs] acknowledge that the petition filed at OAH
Docket No. 14-EDC-09295 was filed to preserve their
claims for alleged violations of the procedural and
17
The parties do not specifically address whether the
release applies to Plaintiffs’ NCPDPA claims. (See Docket Entry 48
at 12-13; Docket Entry 55 at 11-12.) As with the administrative
exhaustion issue, see supra note 13, the Court need not resolve
whether the release applies to those (statutorily barred) claims.
56
substantive requirements of the IDEA in the event
[Plaintiffs] and [the Board] were unable to reach an
agreement on the terms or implementation of the
compensatory services and mediation agreement in general.
The parties agree that this Agreement resolves and
releases the claims arising out of or on account of the
petition
filed
at
OAH
Docket No.
14-EDC-09295.
Contemporaneous with the full execution of this
Agreement, [Plaintiffs] agree to dismiss the petition
filed at OAH Docket No. 14-EDC-09295.
(Id. at 2.)
Plaintiffs concede that this release applies to their IDEA and
NCSES claims, but argue that it “does not bar [their] non-IDEA
claims” (Docket Entry 55 at 11).
(See id. at 11-12.)
For a
release to bar an ADA, Section 504, or Section 1983 claim, the
release must “contain[] a knowing and intelligent waiver of the
[p]laintiffs’ right to bring such a claim,” Shirey ex rel. Kyger v.
City of Alexandria Sch. Bd., No. 99-1127, 229 F.3d 1143, 2000 WL
1198054, at *3 (4th Cir. 2000) (unpublished) (addressing ADA and
Rehabilitation Act claims); see also Funderburk v. Coley, No.
1:15-cv-275, 2015 WL 8179542, at *4 (M.D.N.C. Dec. 7, 2015) (“A
release of claims under section 1983 is valid only if it results
from a decision that is voluntary, deliberate, and informed.”
(internal
quotation
marks
omitted)).
Given
the
Settlement
Agreement’s exclusive focus on IDEA and NCSES claims, without
“mention of a waiver or release of any rights or claims under
federal discrimination laws” or Section 1983, the release does not
“amount[] to a waiver of [Plaintiffs’ non-IDEA] federal claims.”
Shirey, 2000 WL 1198054, at *3-4.
57
Therefore, the Settlement
Agreement’s release bars Plaintiffs’ IDEA and NCSES claims arising
prior to November 26, 2014 (see Docket Entry 17-4 at 1 (identifying
November 26, 2014, as the Settlement Agreement’s effective date)),
but not their ADA, Section 1983, and Section 504 claims.
Thus, independently of the failure to exhaust, Plaintiffs’
IDEA and NCSES claims arising prior to November 26, 2014, remain
subject to dismissal as barred by the Settlement Agreement.
IV.
Breach of Contract Claim
The Board next seeks dismissal of Plaintiffs’ breach of
contract
(See
claim
Docket
for
Entry
lack
48
at
of
subject
15-17.)
matter
In
the
jurisdiction.
Board’s
view,
“[supplemental] jurisdiction should not be extended under the[]
circumstances” of this case. (Id. at 16.)18 More specifically, the
Board argues that, “[u]nder ordinary circumstances, the breach of
contract claim here could be considered closely related to the IDEA
claims
and
therefore
supplemental
jurisdiction
might
be
appropriate. Here, however, [P]laintiffs have twice abandoned this
18
The Board also argues that, “[t]o the extent that
Plaintiffs claim that there is federal question jurisdiction
regarding their breach of contract claims via the IDEA’s language
authorizing enforcement of mediation agreements, see 20 U.S.C.
§ 1415(e)(2)(F)(iii), their claims are barred by the IDEA’s
one-year statute of limitations.” (Docket Entry 48 at 15.) The
Amended Complaint asserts only supplemental jurisdiction regarding
Plaintiffs’ breach of contract claim (see Docket Entry 36, ¶ 422),
and Plaintiffs expressly disclaim reliance on federal question
jurisdiction for this claim in their opposition to the Local
Dismissal Motion (see Docket Entry 55 at 19). Accordingly, the
Board’s statute of limitations contention does not affect the
jurisdictional analysis.
58
claim in different fora and should not be permitted a third bite at
the apple.”
(Id.)
In support of this contention, the Board first emphasizes that
Plaintiffs “raise[d] a breach of contract claim . . . only as a
responsive effort to prevent the partial dismissal” of their preNovember
2014
IDEA
claims,
and
failed
dismissing those claims to the SRO.
to
appeal
(Id. at 16-17.)
the
order
The Board
also highlights that Plaintiffs voluntarily dismissed their state
court action after the state court dismissed their fraudulent
inducement claim, breach of good faith and fair dealings claim, and
any breach of contract claim arising before November 26, 2014.
(See id. at 17; see also Docket Entry 36, ¶ 281.)
The Board
contends that “this is a compelling reason to decline supplemental
jurisdiction under 28 U.S.C. § 1367(c)(4) in this particular case.”
(Docket Entry 48 at 17.)
The statute governing this Court’s supplemental jurisdiction
provides that the Court
may decline to exercise supplemental jurisdiction over a
claim . . . if —
(1) the claim raises a novel or complex issue of
State law,
(2) the claim substantially predominates over the
claim or claims over which the [Court] has original
jurisdiction,
(3) the [Court] has dismissed all claims over which
it has original jurisdiction, or
59
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c).
This case does not present the “exceptional
circumstances” required under Section 1367(c)(4).
To begin with, ALJ Elkins’ order expressly states that the
administrative “[t]ribunal is not the appropriate forum for a claim
of
breach
or
a
request
to void
(Docket Entry 17-3 at 3.)
the
Settlement
[Agreement].”
Thus, Plaintiffs’ decision to pursue
their “allegations about fraud and misrepresentation related to the
Settlement [Agreement]” and their breach of contract claim(s) in an
“appropriate forum” (id.), rather than through the administrative
proceeding, does not constitute an “exceptional circumstance[]” or
“compelling
§
reason[]
1367(c)(4).
for
Moreover,
declining
given
that
jurisdiction,”
(1)
North
28
U.S.C.
Carolina
law
authorized Plaintiffs to dismiss and refile their state claims and
(2) Plaintiffs raise only their (surviving) breach of contract
claim in this forum, their pursuit of their breach of contract
claim in the same proceeding as their related federal claims does
not
constitute
a
“compelling
reason[],”
id.,
or
“exceptional
circumstance[] that would warrant [declining jurisdiction] under
the § 1367(c)(4) catchall,” Regenicin, Inc. v. Lonza Walkersville,
Inc., 997 F. Supp. 2d 1304, 1312 (N.D. Ga. 2014) (rejecting request
to decline jurisdiction over state-law breach of contract claims).
As such, the Court should deny the Board’s request to dismiss the
breach of contract claim.
60
V.
NCPDPA Claims
The
SBE
and
the
Board
Plaintiffs’ NCPDPA claims.
at 18-19.)
also
(See
ask
the
Court
to
dismiss
Docket 43 at 13; Docket Entry 48
In particular, the Board contends that the NCPDPA bars
Plaintiffs from pursuing NCPDPA claims simultaneously with ADA and
Section 504 claims based on the same conduct.
at 18.)
(See Docket Entry 48
The NCPDPA provides that
[n]o court shall have jurisdiction over an action filed
under th[e NCPDPA] where the plaintiff has commenced
federal judicial or administrative proceedings under
. . . Section 504 . . . or under the [ADA] . . .
involving or arising out of the facts and circumstances
involved in the alleged discriminatory practice under
th[e NCPDPA].
N.C. Gen. Stat. § 168A-11(c). Plaintiffs’ NCPDPA claims arise from
the same facts and circumstances as their ADA and Section 504
claims. (Compare Docket Entry 36, ¶¶ 363-86, with id., ¶¶ 390-94.)
Thus, as Plaintiffs concede (see Docket Entry 54, ¶ 9), Section
168A-11(c) bars their NCPDPA claims.
The Court should therefore
dismiss these claims.
VI.
NCSES Claims
The Board additionally requests dismissal of Plaintiffs’ NCSES
claims as duplicative of their IDEA claims.
at 17-18.)
(See Docket Entry 48
In their response to the Local Dismissal Motion,
“Plaintiffs agree that North Carolina’s special education statutes
do not provide any relief beyond that available under the IDEA, and
therefore claims brought under these statutes are duplicative of
61
IDEA claims.”
(Docket Entry 54, ¶ 8.)
Furthermore, Plaintiffs
included no arguments against dismissal of their NCSES claims in
their opposition memorandum.
(See generally Docket Entry 55.)
Under the circumstances, the Court should deem Plaintiffs’ NCSES
claims abandoned and dismiss them accordingly. See, e.g., Southard
v. Wicomico Cty. Bd. of Educ., 79 F. Supp. 3d 552, 562 (D. Md.
2015) (dismissing claim as abandoned where the plaintiff failed to
object to the defendant’s dismissal argument, noting that “her
opposition to the [defendant’s] motion to dismiss does not mention
[the claim] at all”).
VII.
ADA and Section 504 Claims
The Board next asserts that the Amended Complaint fails to
state a claim under either the ADA or the Rehabilitation Act.
More
specifically, the Board maintains that the Amended Complaint fails
to allege that Local Defendants acted with “bad faith or gross
misjudgment.”
(Docket Entry 48 at 20.)
In the Board’s view,
“Plaintiffs’ conclusory allegations regarding efforts to ‘sabotage’
O.V.’s general education time” fail to “support an inference of
professional bad faith or gross misjudgment,” as the illustrative
“‘examples’ of ‘sabotage’ presented in the [Amended] Complaint are
all discretionary educational decisions that courts routinely leave
to
professional
educators.”
(Id.)
Plaintiffs
dispute
this
assessment, pointing to multiple allegations that, in their view,
establish bad faith and gross misjudgment. (Docket Entry 55 at 20-
62
23.)
They also emphasize that their Section 504 and ADA claims
“are not solely . . . based on [the Board’s] failure to provide
O.V. a FAPE under the IDEA.
Rather, Plaintiffs allege [that the
Board]
to
denied
O.V.
access
an
education
program
with
his
nondisabled peers solely on the basis of his disability . . . .”
(Id. at 23 (emphasis in original).)
In this regard,
Plaintiffs allege [that the Board] discriminated against
O.V. solely on the basis of his disability, Down
syndrome, which is evident from his physical appearance,
and [the Board’s] discriminatory misconceptions about
O.V.’s ability to learn from the time he enrolled in the
DPS. Though O.V.’s measured intelligence upon enrollment
was in the borderline range (i.e., below average, but not
in the range of an intellectual disability), and O.V.
demonstrated
no
behavior
problems,
[the
Board]
immediately segregated O.V., denied him access to the
general education program, and placed him on an
educational trajectory leading to certificate of
attendance, employment at a sheltered workshop, and no
skills for independent living. [The Board] continued to
discriminate against O.V. and deny him access to, or
provide barely de minimis access to, the general
education classroom and curriculum until O.V.’s parents
retained legal counsel.
(Id. (citations omitted).)19
Section 504 and Title II of the ADA both prohibit disabilitybased discrimination against qualified individuals.
See 29 U.S.C.
§ 794(a) (“No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
19 The Board did not counter Plaintiffs’ Section 504 and ADA
arguments.
(See Docket Entries dated Mar. 7, 2018, to present
(lacking reply from Local Defendants and L’Homme).)
63
subjected to discrimination under any program or activity receiving
Federal financial assistance . . . .”); 42 U.S.C. § 12132 (“[N]o
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”).
Moreover:
Because the language and purpose of both Acts is
substantially the same, the same analysis applies to
claims brought under both statutes.
To establish a
violation of either statute, a plaintiff must prove:
(1) that []he has a disability; (2) that []he is
otherwise qualified for the benefit or program in
question, and (3) that []he was excluded from the benefit
or program due to discrimination solely on the basis of
the disability.
Shirey, 2000 WL 1198054, at *4 (citation omitted).20
20 Similarly, “retaliation claims under § 504 are subject to
the same standard as ADA retaliation claims.” S.B. ex rel. A.L. v.
Board of Educ. of Harford Cty., 819 F.3d 69, 78 n.6 (4th Cir.
2016). For such claims:
Absent direct evidence of retaliation, [a plaintiff] may
proceed under the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), making a prima facie case of retaliation by
showing (1) that [s]he engaged in protected activity,
(2) that the [defendant] took an adverse action against
h[er], and (3) that the adverse action was causally
connected to h[er] protected activity.
If [the
plaintiff] can meet this burden, then the [defendant]
must articulate a “legitimate nonretaliatory reason for
its actions,” at which point the burden shifts back to
[the plaintiff] to “demonstrate that the proffered reason
is a pretext for forbidden retaliation.”
Id. at 78 (citation omitted). Although arguing that Plaintiffs’
ADA and Section 504 claims “should be dismissed in [their]
64
However, “[t]o prove discrimination in the education context,
‘something
more
than
a
mere
failure
to
provide
the
“free
appropriate education” required by [IDEA] must be shown.’” Sellers
by Sellers v. School Bd. of City of Mannassas, 141 F.3d 524, 529
(4th
Cir.
1998)
specifically,
children,”
a
in
(final
“the
plaintiff
set
of
context
must
brackets
of
show
in
original).
education
“either bad
of
More
handicapped
faith
or gross
misjudgment” to establish a Section 504 (or ADA) violation.
Id.
(internal quotation marks omitted). “What constitutes bad faith or
gross misjudgment in this context has not been well defined.” K.D.
ex rel. J.D. v. Starr, 55 F. Supp. 3d 782, 790 (D. Md. 2014); see
also id. at 790-91 (collecting and analyzing cases).
Mere negligence does not suffice, nor, standing alone, does
“an incorrect evaluation[] or a substantively faulty individualized
education plan.”
Sellers, 141 F.3d at 529 (internal quotation
marks omitted). Conclusory allegations of gross misjudgment or bad
faith without further factual development also fall short.
See
Charlotte-Mecklenburg Bd. of Educ. v. B.H. ex rel. C.H. & W.H., No.
3:07cv189,
2008
WL
4394191,
at
*7
(W.D.N.C. Sept.
24,
2008)
(explaining that “simply labeling the conduct at issue as having
been performed in bad faith is insufficient to allege[] that the
actions in question rise to that level”).
However, courts have
entirety” (Docket Entry 48 at 21), the Board does not address
M.P.’s ADA and Section 504 retaliation claims (see id. at 19-21).
65
declined
to
dismiss
under
Rule
contains allegations
that,
inter
12(b)(6)
alia,
where
the
“teachers
complaint
consistently
failed to honor the agreed-upon accommodations,” K.D., 55 F. Supp.
2d at 792, the school board engaged in a “pattern of . . . making
unilateral decisions outside of the IEP process,” A.B. v. Baltimore
City Bd. of Sch. Comm’rs, Civ. Action No. 14-3851, 2015 WL 4875998,
at *5 (D. Md. Aug. 13, 2015), and school officials “abrupt[ly]
deci[ded]
to
discontinue
significant
parts
of
[the
child’s]
educational program, without proper assessments and evaluations,”
N.T. v. Baltimore City Bd. of Sch. Comm’rs, No. CIV. 11-356, 2011
WL 3747751, at *8 (D. Md. Aug. 23, 2011), and/or lied to parents in
IEP meetings and relied on such falsehoods in formulating the
child’s IEP, see D.N. v. Louisa Cty. Pub. Sch., 156 F. Supp. 3d
767, 776-77 (W.D. Va. 2016).
Here, the Amended Complaint alleges that the Board follows a
policy of segregating children it deems unlikely to succeed on EOGs
from the regular educational environment.
¶ 74.)
(See Docket Entry 36,
As support for that proposition, the Amended Complaint
details the near-universal exclusion of children classified as
Intellectual Disability — Moderate from the regular educational
environment
in
DPS
and
the
erroneous
definition
of
requirement provided to DPS parents in the Handbook.
¶¶ 78-81, 118, 137, 185, 192, 200.)
the
LRE
(See id.,
It further asserts that, upon
meeting O.V., a child with obvious disabilities, DPS personnel
66
refused to permit him to attend an inclusive preschool setting and
instead relegated him to a separate classroom.
85-88, 94, 95, 97-101.)
(See id., ¶¶ 54,
Then, they allegedly falsely represented
on his IEP forms that they provided services at the private,
inclusive preschool his parents paid for him to attend.
¶¶ 102, 103.)
(See id.,
The Amended Complaint further maintains that,
throughout O.V.’s preschool, kindergarten, and first grade school
years, DPS officials consistently refused to entertain the prospect
of him participating in the regular educational environment, and
only relented once his parents involved legal counsel in the matter
during O.V.’s first year in second grade.
(See, e.g., id., ¶¶ 99,
106, 109, 116, 120-23, 131, 132, 134, 149, 150.)
However, purportedly to prevent this setting from becoming
O.V.’s “stay put” option as he transitioned into third grade, Local
Defendants refused to correct his IEP form to reflect his new,
more-inclusive educational setting.
(See id., ¶¶ 151, 344.)
Further, Local Defendants reportedly failed to train O.V.’s second
grade
teachers
regarding
either
O.V.’s
disabilities
or
the
inclusion of children with disabilities in the regular education
classroom (and even rejected Plaintiffs’ offer to pay for such
training)
(see
id.,
¶¶
152,
204,
206,
208,
213,
249),
notwithstanding that school officials relied on such teachers “‘to
completely
change
the
curriculum
for
[O.V.]’”
(id.,
¶
169).
Moreover, O.V.’s initial second grade teacher allegedly segregated
67
him behind a cardboard partition at the back of the classroom (id.,
¶ 153), and his subsequent second grade teacher purportedly refused
to “modify O.V.’s work, because ‘it takes an extensive amount of
time to work with [O.V.]’” (id., ¶ 207 (alteration in original)).
Additionally, in an asserted effort to justify excluding O.V.
from the inclusive setting, O.V.’s teachers began a campaign of
extensively “redirecting” him, a practice so prevalent that it
hindered his ability to respond, particularly in light of his
verbal apraxia.
(See id., ¶¶ 214-18.)
For instance, on one
occasion, a special education teacher tasked with co-teaching O.V.
allegedly redirected him nearly 100 times in ten minutes, or
approximately once every six seconds. (See id., ¶¶ 208, 209, 217.)
Finally,
on
multiple
occasions,
Local
Defendants
purportedly
represented to M.P. and P.V. that they engaged in co-teaching
during O.V.’s repeat year in second grade, but his teachers later
admitted that they did not, in fact, co-teach him that year.
(See
id., ¶¶ 209-11.)
At the IEP meeting to determine O.V.’s third grade placement,
M.P. allegedly expressed her desire for O.V. to attend college and
her belief that he possessed the capability to do so, but Local
Defendants failed to disclose that their proposed plan for O.V. to
take the EXTEND1 curriculum (rather than the regular curriculum and
EOGs) would place him on an educational trajectory that precluded
a high school diploma and college attendance.
68
(See id., ¶¶ 241-
43.)
Moreover, notwithstanding data “overwhelmingly” indicating
that O.V. made more progress in the inclusive setting than the
segregated one, Local Defendants insisted that O.V. return to the
segregated setting.
(See id., ¶¶ 225, 244, 245.)
Significantly,
the same school official who proposed that Local Defendants cease
co-teaching O.V. in the inclusive setting also stated that “‘[O.V.]
would not be appropriate for the EOG and [she] could not recommend
he
take
that
test’”
(id.,
¶
241
(first
set
of
brackets
in
original)).
Taken collectively, these allegations describe more than mere
negligence or differing professional judgments regarding O.V.’s
appropriate education.
Rather, accepting the Amended Complaint’s
allegations as true and drawing all reasonable inferences in
Plaintiffs’ favor, as required at this stage of proceedings, a
reasonable factfinder could find that Local Defendants acted with
bad faith and/or gross misjudgment.
See, e.g., N.T., 2011 WL
3747751, at *8 (“[A] jury could reasonably infer that the abrupt
decisions
to
discontinue
significant
parts
of
[the
child’s]
educational program, without proper assessments and evaluations,
were made in bad faith or were gross misjudgments.”); K.D., 55 F.
Supp. 3d at 791-92 (finding bad faith or gross misjudgment where,
inter
alia,
(1)
the
school
rescinded
a
previously
provided
accommodation “without reason, over the [p]arents’ protests” and
despite knowing that evaluators “continu[ed] to find additional
69
areas of weakness” and (2) teachers consistently failed to provide
the child’s accommodations and/or required the child to ask for her
accommodations despite being aware that her language and selfadvocacy
difficulties
made
such
requests
“particularly
problematic,” noting that, “[t]aken together, these facts could
reasonably support the conclusion that [the school system] was no
longer acting in good faith in seeking to address [the child’s]
needs fully”).
The Court should therefore deny Local Defendants’ motion to
dismiss Plaintiffs’ ADA and Section 504 claims that arise after
November 26, 2014.
See J.S., III by and through J.S. Jr. v.
Houston Cty. Bd. of Educ., 877 F.3d 979, 986-87 (11th Cir. 2017)
(concluding
that
allegations
of
a
special
education
paraprofessional removing a child from the regular classroom to
work in the weight room sufficiently showed that the child “was,
with some frequency, excluded and isolated from his classroom and
peers on the basis of his disability,” and thus “state[d] a claim
of intentional discrimination” under the ADA and Section 504 rather
than “merely a FAPE violation under the IDEA”); Bess v. Kanawha
Cty. Bd. of Educ., No. 2:08cv1020, 2009 WL 3062974, at *10 (S.D. W.
Va. Sept. 17, 2009) (“Here, the plaintiffs allege more than the
defendants’
poor
educational
decisions
such
as
a
failure
diagnose disability or a failure to implement the IEP.
to
The
plaintiffs allege that [the child] was excluded from school and
70
from other educational activities because of his disability. These
allegations, if proven, would support a claim for disability
discrimination under the ADA or § 504.” (citations omitted)).
VIII.
Section 1983 Claims
Finally, State Officials, L’Homme, and Local Defendants seek
dismissal of Plaintiffs’ Section 1983 claims for failure to state
a claim.
(See, e.g., Docket Entry 43 at 13 (“[State Officials] are
referenced in approximately sixteen paragraphs of the factual
allegations section of the 426-paragraph [Amended] Complaint. None
provides sufficient grounds for sustaining an actionable claim.”);
Docket Entry
48
at
21-26
(contending
that
Plaintiffs
do
not
adequately plead a violation of O.V.’s rights under the Fourteenth
Amendment).)
Plaintiffs dispute these contentions.
(See Docket
Entry 50, ¶ 1; Docket Entry 54, ¶ 5.)
To establish a Section 1983 claim, Plaintiffs must prove
(1) that the relevant defendant(s) “deprived [them] of a right
secured by the Constitution and laws of the United States[] and
(2) that [such defendant(s)] deprived [them] of this constitutional
right
under
color
custom, or usage.”
of
[State]
statute,
ordinance,
regulation,
Mentavlos v. Anderson, 249 F.3d 301, 310 (4th
Cir. 2001) (internal quotation marks omitted; final set of brackets
in
original).21
However,
“[b]ecause
[the]
IDEA
provides
a
21 To satisfy the second element, “the deprivation must be
caused by the exercise of some right or privilege created by the
State . . . or by a person for whom the State is responsible, and
71
comprehensive
remedial
scheme
for
violations
of
its
own
requirements, . . . parties may not sue under section 1983 for an
IDEA violation.”
Sellers, 141 F.3d at 529.
Instead, Plaintiffs
may only pursue Section 1983 claims for alleged “constitutional
failures,” id. at 531, regarding O.V.
As a preliminary matter, Plaintiffs’ Section 1983 claims
expressly rely on IDEA violations.
(See, e.g., Docket Entry 36,
¶ 401 (“[The d]efendants knew or should have known that their
response to Plaintiffs’ request for O.V. to receive academic
instruction in a general education classroom was contrary to the
[LRE] mandates of the IDEA and other laws.”).)
Accordingly,
Sellers precludes Plaintiffs’ Section 1983 claims to the extent
those claims replicate their IDEA claims.
See id., 141 F.3d at
529; see also, e.g., McNulty v. Board of Educ. of Calvert Cty., No.
CIV.A. 2003-2520, 2004 WL 1554401, at *8 (D. Md. July 8, 2004)
(granting motion to dismiss, explaining that “[the plaintiff] may
not base a § 1983 claim, as he has attempted to do, on an IDEA
violation” (internal quotation marks omitted)).
Nevertheless, Plaintiffs maintain that their Section 1983
claims “are not entirely related to the IDEA violations, and
instead,
stand
on
their
own
as
specific
violations
of
the
the party charged with the deprivation must be a person who may
fairly be said to be a state actor.
[S]tate employment is
generally sufficient to render the defendant a state actor.” West
v. Atkins, 487 U.S. 42, 49 (1988) (internal quotation marks and
citation omitted; ellipses and brackets in original).
72
Fourteenth Amendment for which Plaintiffs seek non-IDEA remedies.”
(Docket Entry 55 at 24; see also Docket Entry 51 at 16 (“Plaintiffs
stated actionable
omitted).)
claims
against
[State
Officials]”
(emphasis
In particular, Plaintiffs assert that State Officials,
L’Homme, and Local Defendants violated (1) O.V.’s due process
rights by depriving him of “a property interest in educational
benefits
and
a
liberty
interest
in
the
freedom
to
gain
the
requisite skills for independent living” (Docket Entry 55 at 24;
Docket Entry 51 at 20) and (2) his equal protection rights by
denying him “equal access to an education” (Docket Entry 55 at 27;
see also Docket Entry 51 at 20 (alleging “intentional unequal
treatment of O.V. as compared to all students entitled to an
education in the DPS”)).
A.
Due Process Claims
Under the Due Process Clause of the Fourteenth Amendment,
States may not “deprive any person of life, liberty, or property,
without due process of law.”
U.S. Const. Amend. XIV, § 1.
Procedural due process provides “a guarantee of fair procedures —
typically notice and an opportunity to be heard.”
Kendall v.
Balcerzak, 650 F.3d 515, 528-29 (4th Cir. 2011) (internal quotation
marks omitted).
Thus, to succeed on their procedural due process
claims, Plaintiffs must establish “(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
73
constitutionally inadequate.” Id. at 528 (internal quotation marks
omitted).
North Carolina provides a free public education “to every
person of the State less than 21 years old, who has not completed
a standard high school course of study.”
Therefore,
“on
the
basis
of
state
N.C. Gen. Stat. § 115C-1.
law,
[O.V.]
plainly
had
legitimate claims of entitlement to a public education,” Goss v.
Lopez, 419 U.S. 565, 573 (1975), and this “legitimate entitlement
to a public education [constitutes] a property interest which is
protected by the Due Process Clause,” id. at 574. Notably, though,
“[t]he property interest in education created by the [S]tate is
participation in the entire process.
The myriad activities which
combine to form that educational process cannot be dissected to
create hundreds of separate property rights, each cognizable under
the Constitution.”
Pegram v. Nelson, 469 F. Supp. 1134, 1139
(M.D.N.C. 1979) (internal quotation marks and emphasis omitted).
In other words, “[w]ith respect to public education, citizens
possess
a
educational
property
interest
experience,
but
not
in
rather
educational process as a whole.”
the
in
particulars
of
the
participation
in
the
K.U. By & Through Michael U. v.
Alvin Indep. Sch. Dist., 991 F. Supp. 599, 606 (S.D. Tex.), aff’d
sub nom. K.U. v. Alvin Indep. Sch. Dist., 166 F.3d 341 (5th Cir.
1998); see also Pegram, 469 F. Supp. at 1140 (explaining that
74
“there is not a property interest in each separate component of the
‘educational process’”).
Here, “Plaintiffs claim [that] O.V. was denied access to the
regular classroom and curriculum on the basis of his disability,
depriving him of ‘participation in the educational process as a
whole.’”
(Docket Entry 55 at 24.)
This argument merely reprises
Plaintiffs’ IDEA claims, which cannot form the basis of Section
1983 claims.
Complaint
See Sellers, 141 F.3d at 529.
reveals
that
State
Moreover, the Amended
Officials,
L’Homme,
and
Local
Defendants did not suspend or otherwise prevent O.V. from attending
DPS schools, where he obtained a free public education until his
parents withdrew
him
from
DPS
and
enrolled him
in
Pinewoods
Montessori. (See generally Docket Entry 36.) Accordingly, because
the
Amended
Complaint
does
not
plausibly
allege
that
State
Officials, L’Homme, and/or Local Defendants deprived O.V. of a
protected property interest, Plaintiffs’ Section 1983 propertyrelated due process claims fail as a matter of law.
See Kendall,
650 F.3d at 528.
Nor have Plaintiffs provided authority for the existence of
any purported liberty interest.
(See Docket Entry 55 at 25.)
Instead, Plaintiffs contend that
[L’Homme and Local D]efendants would hardly contest the
education of a typically-developing student is designed
to provide the foundation for future opportunities: the
prospect
of
further
schooling,
a
job, economic
independence, daily living skills, etc.
The liberty
afforded to every student permitted access to the regular
75
classroom — to learn and be prepared to function in the
world that exists after school — was denied to O.V.
(Id.)
As with Plaintiffs’ property claims, this assertion merely
reformulates their IDEA claims.
(See, e.g., Docket Entry 36,
¶¶ 336-40 (alleging that the failure to educate O.V. “in the
regular education setting” caused O.V. to “experience[] stunted
academic, communication, and social growth,” had “a negative impact
on
his
employability,
earnings,
and
earning
capacity,”
and
“deprived [him] of the ability to become an independent adult”).)
Thus, particularly in the absence of any legal authority supporting
the existence of the alleged liberty interest, the Court should
dismiss this aspect of Plaintiffs’ Section 1983 claims as well.
See Kendall, 650 F.3d at 528.
B.
Equal Protection Claims
Plaintiffs also assert that L’Homme, Local Defendants, and
State Officials violated O.V.’s rights under the Equal Protection
Clause by denying him “equal access to an education, . . . [a]
right [to which] all students are entitled.”
28
(emphasis
(asserting
in
that
original);
State
see
Officials
also
(Docket Entry 55 at
Docket
“effectively
Entry
51
at
sanctioned”
17
the
“Board’s known discriminatory practice of segregating children with
intellectual disabilities”).) As the Fourth Circuit has explained,
[t]he equal protection requirement “does not take from
the States all power of classification,” but “keeps
governmental decisionmakers from treating differently
persons who are in all relevant respects alike.”
To
succeed on an equal protection claim, [a plaintiff] “must
76
first demonstrate that he has been treated differently
from others with whom he is similarly situated and that
the unequal treatment was the result of intentional or
purposeful discrimination.” If he makes this showing,
“the court proceeds to determine whether the disparity in
treatment can be justified under the requisite level of
scrutiny.”
To state an equal protection claim, [a
plaintiff] must plead sufficient facts to satisfy each
requirement . . . .
Veney v. Wyche, 293 F.3d 726, 730–31 (4th Cir. 2002) (citations
omitted; emphasis added).
In the educational context, this standard obliges a plaintiff
to “prove [both that] a school board intended to treat children
differently because of their disabilities,” Sellers, 141 F.3d at
530, and that such “decision was without any rational basis,” id.
at 531. See also id. at 530-31 (explaining that “the Supreme Court
has yet to classify disabled persons as a suspect class” and “also
has not identified education as a fundamental right”).22
22
Notably,
In this regard, the Fourth Circuit noted:
[D]ifferent
standards
of
liability
appl[y]
to
constitutional equal protection claims and to statutory
IDEA claims . . . . Under IDEA, the simple failure to
provide a child with a free appropriate public education
constitutes a violation of the statute.
20 U.S.C.
§ 1412(1). By contrast, plaintiffs must meet a higher
standard of liability to prevail on a constitutional
claim.
The Supreme Court’s decision in Washington v.
Davis, 426 U.S. 229, 239 (1976), requires that an equal
protection claim be supported by evidence of purposeful
discrimination. In the context of education of disabled
children, Washington’s purpose requirement is similar to
that recognized under [S]ection 504 . . . . And even if
a plaintiff can prove a school board intended to treat
children differently because of their disabilities,
another hurdle would remain. Because the Supreme Court
has yet to classify disabled persons as a suspect class,
77
“[t]he deference afforded to the government under the rational
basis test is so deferential that even if the government’s actual
purpose in creating classifications is not rational, a court can
uphold the [governmental action] if the court can envision some
rational basis for the classification.”
Guerra v. Scruggs, 942
F.2d 270, 279 (4th Cir. 1991) (emphasis omitted); see also United
States
v.
Carpio-Leon,
701
F.3d
974,
982
(4th
Cir.
2012)
(describing “rational-basis level of scrutiny” as “a low hurdle”).
Here,
the
Amended
Complaint
alleges
that,
as
DPS
Superintendent since 2014 (see Docket Entry 36, ¶ 49), L’Homme “was
signatory to [the] Board’s applications for IDEA funds, and had
direct
and
students
full
with
knowledge
disabilities
of
the
disproportionate
excluded
from
regular
number
of
education
placements” (id., ¶ 77), “yet failed to act” to correct this
situation (id., ¶ 82).
The Amended Complaint similarly alleges
that, because the Board annually reported statistics regarding the
see City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 445–46 (1985), and because the Court also has
not identified education as a fundamental right, San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33–37
(1973), a plaintiff in this context would have to prove
that a school board’s decision was without any rational
basis.
Naturally school boards will be subject to
liability for statutory IDEA violations much more
frequently than for similarly pled constitutional claims.
It is easy therefore to understand why Congress intended
to subject school boards to the more expansive remedies
available under section 1983 for their more culpable
constitutional failures, yet not for breaches of IDEA.
Sellers, 141 F.3d at 530–31.
78
number of students in the segregated educational setting (see,
e.g., id., ¶ 118), State Officials “knew of” the “Board’s unwritten
and illegal policy of removing disabled children from general
education classrooms by the third (3rd) grade if [the] Board
believes the disabled child will be unsuccessful on the state
mandated end of grade tests or requires a modified curriculum.
. . . and effectively sanctioned [this policy] by allowing it to
continue unabated.”
(Id., ¶ 74.)
Lastly, the Amended Complaint
asserts that State Defendants “are responsible for publishing and
issuing the [Handbook]” (id., ¶ 78), which contains a “patently
wrong”
and
“intentionally
misleading”
definition
of
the
LRE
requirement (id., ¶ 80).
Even construed in the light most favorable to Plaintiffs and
taking all reasonable inferences in their favor, these factual
assertions simply do not suggest, let alone plausibly allege, that
L’Homme and State Officials “intended to treat [O.V.] differently
because of [his] disabilities,” Sellers, 141 F.3d at 530, much less
that they took action regarding O.V. “without any rational basis,”
id. at 531.
See RM by & through MM v. Charlotte-Mecklenburg Cty.
Bd. of Educ., No. 3:16-cv-528, 2017 WL 2115108, at *7 (W.D.N.C. May
15,
2017)
(dismissing
§
1983
claims
as
“unsupported
by
any
allegation of fact describing alleged . . . disability-based
discrimination by the individual defendants,” and noting that
“there are no facts put forth to show that one of the individual
79
defendants, [a school system superintendent], ever interacted with
[the plaintiff-child] at the time of the alleged violations”); see
also Giacomelli, 588 F.3d at 193 (“[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged — but it has not shown — that
the
pleader
is
entitled
to
relief,
as
required
by
(alterations and internal quotation marks omitted)).
Rule
8.”
As such,
Plaintiffs have failed to assert an equal protection claim against
L’Homme and State Officials.
See Ekweani v. Board of Educ. of
Howard Cty., No. CIV. 07-3432, 2008 WL 5525606, at *3 (D. Md. Dec.
31, 2008) (“[T]he plaintiffs’ complaint is devoid of any factual
allegations
that
[the
board-chairman
defendant]
individually
engaged in conduct that deprived [the plaintiff-child] of a federal
right.
As plaintiffs have failed to put forth factual allegations
that raise a right to relief above the speculative level, their
§ 1983 claim . . . will be dismissed.” (citation and internal
quotation marks omitted)); see also Marks v. Dann, 600 F. App’x 81,
84–85 (4th Cir. 2015) (“[T]he pleaded facts must state a claim to
relief that is plausible on its face and allow the court to draw
the reasonable inference that [the defendant] is personally liable
. . . for the misconduct alleged.” (alteration, internal quotation
marks, and citation omitted)).
As to Local Defendants, the Amended Complaint contains some
further allegations pertinent to an equal protection claim.
80
In
Plaintiffs’ view, these allegations (discussed below) establish
that the Board “discriminated against O.V. solely on the basis of
his disability, Down syndrome, which is evident from his physical
appearance, and [the Board’s] discriminatory misconceptions about
O.V.’s ability to learn from the time he enrolled in the DPS.”
(Docket Entry 55 at 23.)
Amended
Complaint
do
Plaintiffs’ claims.
However, the factual allegations in the
not
support
such
characterization
of
Rather, the Amended Complaint mentions O.V.’s
Down syndrome in only one of its more than four hundred paragraphs,
and then only as one of O.V.’s multiple disabilities.
(See Docket
Entry 36, ¶ 54 (“O.V. is an eleven (11) year old boy who . . . has
been diagnosed
with
Down
syndrome,
Mixed
Receptive-Expressive
Language Disorder, Lack of Coordination, Apraxia of speech, and
other Symbolic Dysfunction.”).)
Indeed, to the extent that the
Amended
a
Complaint
focuses
on
particular
disabilities, it emphasizes his verbal apraxia.
one
of
O.V.’s
(See id., ¶¶ 205
(“Ms. Turner did not even understand what apraxia, one of O.V.’s
documented disabilities that affects his ability to speak, was.”),
217 (“Haase, Allen, and Bunn redirected O.V. to an extent that
impeded his ability to respond, especially as a child with verbal
apraxia, shamefully causing educational harm to O.V., as the
[redirection] ‘data’ were collected for the sole purpose of exiting
O.V. from the regular education classroom.”).)
81
Nor does the Amended Complaint set forth factual allegations
showing that Local Defendants targeted children with Down syndrome
for segregation in the exceptional children’s room and instruction
on an educational track that precludes graduation with a high
school diploma.
(See generally Docket Entry 36.)
Instead, the
Amended Complaint alternately identifies the relevant pupils as,
inter alia, “disabled children” (id., ¶ 74), “children with certain
disabilities”
(id.,
¶
76),
“children
with
intellectual
disabilities” (id., ¶ 118), and “children with low incidence
disabilities” (id., ¶ 119).
Furthermore, although the Amended
Complaint asserts that a “disproportionate number of students with
disabilities [were] excluded from regular education placements”
(id., ¶ 77), it limits its statistical support for that proposition
to
children
“identified
under
the
category
of
Intellectual
Disability — Moderate” (id., ¶¶ 118, 137, 185, 192, 200).
In this
regard, it bears noting that O.V. did not reach the Intellectual
Disability — Moderate classification until May 2014, five years
after an initial psychoeducational evaluation resulted in the
determination that “O.V. was eligible for services under the IDEA
in the category of Developmentally Delayed” (id., ¶ 92). (See id.,
¶¶ 91, 157, 159.)
As such, the Amended Complaint appears to
present either a “class of one” claim, Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (internal quotation marks omitted),
or, alternatively, a claim regarding the treatment of children
82
identified
under
the
Intellectual
Disability
—
Moderate
IDEA
eligibility category.23
Regardless,
when
viewed
in
the
light
most
favorable
to
Plaintiffs, the Amended Complaint alleges that Local Defendants
follow a policy of segregating from the general education classroom
some
subset
intellectual
tests.
of
children
challenges
(including,
signify
likely
at
least,
difficulty
O.V.)
whose
passing
(See, e.g., Docket Entry 36, ¶¶ 59, 74, 118, 119.)
EOG
The
Amended Complaint further alleges that, pursuant to this policy,
Local Defendants strove to ensure O.V.’s placement in the separate
educational setting.
(See, e.g., id., ¶¶ 55, 59, 71, 75, 76, 85-
101, 214-18, 241, 244-46, 345.) Local Defendants appear to tacitly
concede that these allegations satisfy the first component of an
equal protection claim, namely that they “intended to treat [O.V.]
differently because of [his] disabilities,” Sellers, 141 F.3d at
530. (See Docket Entry 48 at 25-26 (containing no argument on this
point).)
However, Local Defendants maintain that Plaintiffs cannot
satisfy the second component of such claim, namely that Local
Defendants’
decisions
regarding
O.V.’s
educational
placement
23
Accordingly, the fact that, as discussed below, the
Amended Complaint does not contain appropriate factual content to
make out a claim that Local Defendants’ treatment of O.V. lacked a
rational basis would not preclude, in suitable circumstances, a
viable equal protection claim by children with Down syndrome for
educational segregation arising from “discriminatory misconceptions
about [their] ability to learn” (Docket Entry 55 at 23).
83
“w[ere] without any rational basis,” Sellers, 141 F.3d at 531.
(See Docket Entry 48 at 25-26.)
In response, Plaintiffs did not
develop any argument challenging the notion that the Amended
Complaint
reveals
rational
grounds
for
educating
O.V.
segregated educational setting using a different curriculum.
Docket Entry 55 at 26-28.)
in
a
(See
Nor does it appear they could, as, for
instance, the Amended Complaint acknowledges that O.V. suffers from
a “short attention span and distracting behaviors” (Docket Entry
36, ¶ 177) and possessed “skills . . . below that of his nondisabled peers” (id., ¶ 245).
The Amended Complaint further
concedes that O.V.’s intelligence measured “in the borderline
range” and his “adaptive behavior skills” qualified as “deficient.”
(Id., ¶ 91.)
As a final example, the Amended Complaint documents
that Local Defendants perceived O.V. as needing “‘repetitions and
[a] small group setting for academic success’” (id., ¶ 134), as
well as “‘extensive instruction due to his foundational skill
sets’” (id., ¶ 171).
Those considerations — even if grossly misapplied in violation
of the IDEA, the ADA, and/or Section 504 — all qualify as rational
bases (in the context of the Equal Protection Clause) for educating
O.V. via a separate curriculum in the exceptional children’s room
rather than with some version of the standard curriculum in the
regular classroom.
See Bess, 2009 WL 3062974, at *8 (explaining,
in dismissing equal protection claim, that “there was clearly a
84
rational basis . . . for excluding [the plaintiff] from certain
classes at school,” as he “is a special-needs child who requires
more attention from the teachers than other children who do not
have special needs”).
Accordingly, Plaintiffs failed to plausibly
allege an equal protection claim against Local Defendants.
See
Sellers, 141 F.3d at 530–31; see also Bess, 2009 WL 3062974, at *8
(“Although such conduct may contravene [the plaintiff’s] IEP, it
does not violate the Constitution.
basis
for
their
sufficiently
actions,
allege
that
and
The defendants had a rational
the
[the
plaintiffs
child]
was
have
failed
denied
to
equal
protection.”).24
In sum, like their due process claims, Plaintiffs’ Section
1983 claims predicated on the Equal Protection Clause cannot
withstand Rule 12(b)(6) dismissal.25
CONCLUSION
Plaintiffs failed to exhaust their IDEA, Section 504, ADA,
Section 1983, and NCSES claims against the SBE.
They also failed
24 As such, any purported supervisory liability claim against
State Officials and/or L’Homme (see Docket Entry 51 at 19-21), also
fails.
25
Because Plaintiffs fail to plausibly allege that
Individual Local Defendants, L’Homme, and/or State Officials
violated Plaintiffs’ constitutional rights, qualified immunity also
shields such defendants from Plaintiffs’ Section 1983 claims. See
Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015) (observing that
the qualified immunity analysis inquires, inter alia, “whether the
plaintiff has established the violation of a constitutional
right”).
85
to exhaust such claims arising prior to November 26, 2014, against
the Board.
In addition, the Settlement Agreement’s release bars
Plaintiffs’ IDEA and NCSES claims arising prior to November 26,
2014.
Further, Plaintiffs abandoned any remaining NCSES claims
against the Board.
Moreover, given their ADA and Section 504
claims, Plaintiffs cannot pursue NCPDPA claims in this litigation.
Nor does the Amended Complaint plausibly allege Section 1983 claims
against
Local
Defendants,
L’Homme,
and/or
State
Officials.
However, it sufficiently states ADA and Section 504 claims against
the Board.
Finally, this case does not present “extraordinary
circumstances” warranting declination of supplemental jurisdiction
over Plaintiffs’ breach of contract claim.
IT IS THEREFORE RECOMMENDED that the State Dismissal Motion
(Docket Entry 42) be granted.
IT IS FURTHER RECOMMENDED that the Local Dismissal Motion
(Docket Entry 47) be granted in part and denied in part as follows:
(1) Plaintiffs’ Section 1983 and NCPDPA claims against L’Homme and
Local Defendants should be dismissed for failure to state a claim;
(2) Plaintiffs’ IDEA, Section 504, ADA, and NCSES claims arising
prior to November 26, 2014, should be dismissed for failure to
exhaust administrative remedies (and, as to such IDEA and NCSES
claims,
pursuant
to
the
Settlement
Agreement’s
release);
(3) Plaintiffs’ remaining NCSES claims should be dismissed as
86
abandoned;
and
(4)
Plaintiffs’
breach
of
contract
claim
and
remaining IDEA, Section 504, and ADA claims should proceed against
the Board.
This 6th day of June, 2018.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
87
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