Opinion
CIV. NO. 05-0062 WPJ/WPL.
December 4, 2006
ORDER GRANTING SUMMARY JUDGMENT ON EQUAL PROTECTION CLAIM
THIS MATTER comes before the Court upon a Motion filed by Defendant Board of Education of Albuquerque Public Schools for Summary Judgment on Plaintiff's Equal Protection Claim, filed June 26, 2006 (Doc. 130). Defendant seeks summary judgment regarding Plaintiff's disability claim, alleged under the Equal Protection Clause of the Fourteenth Amendment. Having considered the parties' briefs and the applicable law, I find that Defendant's motion is well-taken and will be granted.
Background
In addition to seeking reversal of an administrative decision pursuant to the Individuals with Disabilities Education Act ("IDEA"), Plaintiff has alleged violations of other federal and statutory claims as well: Title VI of the Civil Rights Act of 1964; Title II of the Americans with Disabilities Act ("ADA") ( 42 U.S.C. § 12132); § 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 794), and Equal Protection under the Fourteenth Amendment.
I. Court's Previous Rulings on the Merits
On June 16, 2006, the Court dismissed Plaintiff's Title VI race discrimination claim on summary judgment, finding that no constitutional right exists to a particular reading program and that Plaintiff failed to present evidence of disparate impact or pretext by Defendants. See, Doc. 129.
On June 7, 2006, the Court held a hearing on pending motions ("hearing"), including the Individual Defendants' Motion for Summary Judgment on Qualified Immunity Grounds (Doc. 28) and Defendants' Motion for Summary Judgment on Disability Discrimination and IDEA claims (Doc. 88). At the hearing, the Court deferred ruling on the IDEA claims, leaving them to be decided on review of the administrative record. I granted summary judgment on Plaintiff's Equal Protection claims asserted against the individual Defendants, as well as those claims brought under the ADA and § 504 of the Rehabilitation Act ("§ 504 claims"). However, in response to counsel's inquiries at the end of the hearing, it became apparent that the Equal Protection issue had not been sufficiently raised or argued as to Defendant Board of Education of Albuquerque Public Schools ("APS," or "Defendant," for purposes of this motion) in the motions that were before the Court. The Court allowed supplemental briefing regarding Plaintiff's Equal Protection claim as alleged against Defendant APS. These briefs have been filed, and thus, the only remaining issue for the Court to decide on the merits (other than the record review for Plaintiff's IDEA claim) is Plaintiff's Equal Protection claim against APS.
Parties disagree about the form of Order to be used regarding the claims on which the Court ruled orally, and have requested a presentment hearing (Doc. 136). The Court has taken the need for such a hearing under advisement.
II. Undisputed Material Facts
The same facts which the Court found to be material and undisputed for the motions addressed at the hearing are hereby adopted for purposes of discussion on Plaintiff's Equal Protection claim asserted against APS. Defendants relied on those facts in seeking (and obtaining) summary judgment on Plaintiff's Title VI race discrimination claims. See, Deft's Ex. A (portion of hearing transcript, at 3). A more complete recitation of the facts are set forth in the Court's Memorandum Opinion and Order Granting Summary Judgment on Plaintiff's Race Discrimination Claims, Doc. 129 at 3-9. What follows is a brief synopsis of those facts, in order to put the Equal Protection claim against a factual backdrop.
A. Facts Concerning Reading Methods and Myisha's Academic Performance
A 1997 Congressional consultation with the U.S. Secretary of Education spawned a national report three years later which assessed the effectiveness of different types of reading approaches used to teach children to read (National Reading Panel, or, "NRP" Report). The NRP's 2000 Report has driven the delivery of reading instruction embodied in the No Child Left Behind Act ("NCLB") which requires teachers to use scientific research-based general education reading instruction to prevent reading failure through early intervention in grades K-3.
The school district uses several methods of reading instruction, such as Corrective Reading and the Wilson Reading System ("Wilson"). Wilson certification is a multi-step process, involving a 2-day overview and a one-year long practicum, leading to Level I certification. Some teachers also continue on with advanced training in Level II Certification. Both Wilson and Corrective Reading meet the requirement of the NCLB Act, as do numerous other reading programs.
Plaintiff's core allegation relevant to her Equal Protection claim is that APS's implementation of the Wilson Reading System throughout the school district was irrational and arbitrary, and, as a result, deprived Myisha Garcia of access to that program for the school years 2002-03, and 2003-04. All of Plaintiff's claims indict the failure of APS, particularly West Mesa High School ("West Mesa"), to provide an educational program to meet Plaintiff's special education needs — particularly the failure to provide Wilson reading instruction — and that Plaintiff's failure to attend classes comes from frustration with her learning problems. Defendants have taken the position that Myisha and her mother's indifference to Myisha's education, and problems between them at home, undermined the effectiveness any services could have had for Myisha during 2002-03 and 2003-04.
Myisha began ninth grade at West Mesa in the fall of 2002. The school year was marked by poor attendance and poor grades, with Myisha spending spring of that school year in a juvenile detention center and residential treatment center. During that school year, Myisha was enrolled in Corrective Reading, a fact which Plaintiff disputed. However, Plaintiff did not dispute that she never attended one class in Corrective Reading. See, Doc. 129 at 4.
Myisha's lack of interest for her schooling continued in the fall of 2003. She skipped the majority of her classes, ran away from home twice for about a week at a time, and used drugs and alcohol during this period. In December 2003, Myisha became pregnant, and spent most of the spring semester of that school year in a day shelter, missing the rest of her 2003 fall classes, including finals.
When Myisha attended Del Norte High School for the 2004-2005 school year, she was enrolled in a Wilson class. By her own testimony, Myisha improved her performance and grades dramatically because she attended classes, focused on her school work, and sought help from teachers. Doc. 129 at 13. Myisha was enrolled in Wilson for the following 2005-06 school year as well, but Myisha's overall school performance was poor. Myisha started exhibiting her old behavior again, ditching classes, even those in which she was having no difficulty. Myisha ran away from home again in fall of 2005, returned home, then was kicked out by her mother three days before the second semester or 2005-06 began.
In ruling on Plaintiff's race discrimination claims, I found that:
. . . regardless of what curriculum choices APS made for Myisha (including whether to provide Wilson instruction), none would have had any impact, because these decisions would have been undermined by factors which were under Myisha's control, not APS' control. The absurdity of Plaintiff's position that APS' denial of Wilson instruction violates Myisha's Title VI rights can be demonstrated by the fact that Myisha is still enrolled in a Wilson Reading program, but has dropped out of school again for the school year 2005-06.
Doc. 129 at 24.
B. Plaintiff's Additional Facts
In addition to the thirty additional facts which Plaintiff offered in support of her response to the individual Defendants' motion for summary judgment (Doc. 41), Plaintiff asserts seven additional "material" facts in support of her response to APS' motion for summary judgment on the Equal Protection claim. The thirty additional facts are details about the Wilson Reading System concerning funding support and the process by which the Wilson Reading System came to be offered in the school district.See, Doc. 129 at 9-10. Plaintiff's contention, supported by these facts, is that Wilson training was offered to APS special education teachers on a voluntary basis. However, this contention is embraced by Defendant as well.
Plaintiff's additional facts offered for purposes of this motion also concern Wilson training. Defendant does not dispute additional facts 2, 3 and 6, which state that: (1) APS knew that students with learning disabilities attend every school in the district; (2) Wilson training involved an intensive training program; and, (3) no teacher at West Mesa provided Wilson Reading instruction during the 2002-2003 or 2003-2004 school years. Defendant maintains that the remaining four "additional" facts presented by Plaintiff are immaterial. These facts state the following: (1) Wilson training, as of January 2006, was offered to APS Special Education teachers on a voluntary basis; (2) Myisha did not receive direct reading instruction during the 2003-2004 school year; (3) APS "supports" only two specialized reading programs — Wilson Reading and Patterns for Success and (4) APS chose the Wilson method as its special education reading instruction training initiative, and not any other program or method reading instruction.
I agree with Defendant that these additional facts are immaterial to Plaintiff's Equal Protection claim. I also agree that Plaintiff offers no evidence to support the last two additional facts, which states that APS endorsed only Wilson and Patterns for Success as reading methods for special education students, and that APS intended Wilson to be used to the exclusion of other forms of non-traditional specialized reading instruction methods. I have already made findings on this issue, concluding that the teachers at West Mesa used and endorsed several reading programs, including Corrective Reading. Doc. 129 at 9 and at 14-15 ("There is no evidence that APS selected or implemented Wilson as the preferred reading program in the District . . ." and that APS' endorsement of the Wilson method did not mean that APS considered other reading methodologies to be inappropriate for APS students").
Discussion
Defendant claims that the Court's dispositive findings and conclusions regarding the disability claims have become the law of the case, and therefore mandate dismissal of Plaintiff's Equal Protection claim. Plaintiff maintains that her Equal Protection claim does not rest on the same legal elements as those which make up her § 504 and ADA claims. The Court will address Plaintiff's Equal Protection claim as a separate claim, but will refer to any previous legal findings where applicable.
I. Legal Standard
Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Argo v. Blue Cross and Blue Shield of Kansas, Inc. 452 F.3d 1193, 1199 (10th Cir. 2006).
II. Whether Plaintiff's § 1983 Claim is Precluded by the IDEA Claim
Defendant contends that Plaintiff should not be able to assert an Equal Protection claim against APS based on the same charge that forms the core of Plaintiff's ADA and § 504 claims, which have been dismissed — that APS withheld Wilson reading instruction from Myisha. However, a plaintiff may plead multiple legal theories based on similar factual allegations. See, Fed.R.Civ.Proc. Rule 8(e)(2). Therefore, Plaintiff's Equal Protection will not be dismissed on this basis.
APS also argues that Plaintiff's § 1983 claim should be dismissed because the IDEA was intended to provide a comprehensive remedial scheme for FAPE ("free, appropriate public education"). Defendant is correct in that § 1983 does not provide a mechanism for enforcing the IDEA. See, Padilla ex rel. Padilla v. School Dist. No. 1 in City and County of Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000) (Education for All Handicapped Children Act ["EHA"] provides a "comprehensive remedial framework that forecloses recourse to § 1983 as a remedy for strictly EHA violations"); Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (statutes that have "comprehensive remedial schemes," "foreclose resort to § 1983 for remedy of statutory violation").
The EHA is the predecessor to the IDEA.
However, there is a distinction between using § 1983 to enforce rights contained in the United States Constitution, as opposed to rights that are defined by federal statutes. Maine v. Thiboutot, 448 U.S. 1, 5 (1980) ("plaintiffs may bring a cause of action pursuant to section 1983 to remedy violations of both the federal constitution and federal statutes"). Case law does not support a wholesale preclusion of § 1983 claims for plaintiffs who also allege claims under the IDEA, as long as the IDEA does not provide the basis for the § 1983 claim. See, Sellers by Sellers v. School Bd. of City of Mannassas, Va., 141 F.3d 524, 529 (4th Cir. 1998) (parties may not sue under § 1983 for an IDEA violation, but may "resort to section 1983 for constitutional violations, notwithstanding the similarity of such claims to those stated directly under IDEA").
The cases cited by Defendant state only that a § 1983 claim cannot be based on an IDEA violation, and cannot be used to remedy an IDEA violation, where the claim is identical to one made under the IDEA — that is, a handicapped child asserting a right to a FAPE. The First Circuit has held that "if federal policy precludes money damages for IDEA claims, it would be odd for damages to be available under another vehicle, such as § 504 or Title II, where the underlying claim is one of violation of IDEA." Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125-26 (1st Cir. 2003). The court went on to state that "damages for the denial of FAPE should not be available under § 504 because they were not available under the EHA." Id. (emphasis added). Another First Circuit case cited by Defendant held that such punitive and general compensatory damages, which were unavailable under the IDEA, were also unavailable in a § 1983 claim where the § 1983 claim is premised on a right created by the IDEA. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006) (emphasis added). That court also noted that basing an IDEA-based claim brought under § 1983 cannot be used to circumvent the IDEA's administrative exhaustion requirement. 451 F.3d at 28. In an Eleventh Circuit case, also cited by APS, the court concluded that a "plaintiff may not maintain a section 1983 action in lieu of-or in addition to-a Rehabilitation Act or ADA cause of action if the only alleged deprivation is of the employee's rights created by the [statute]." Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir. 1997) (emphasis added).
Thus, a plaintiff is not precluded from bringing both an IDEA claim and a § 1983 claim, subject to two conditions: plaintiff can not assert § 1983 to remedy a statutory violation under the IDEA, and exhaustion is required before any action can be brought in federal court. In other words, the § 1983 claim does not provide a way around the IDEA's exhaustion requirement. In Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 812 (10th Cir. 1989), the Tenth Circuit stated that the EHA was not the exclusive remedy available to handicapped students seeking public educational benefit, but noted that exhaustion was necessary before any action was brought in federal court, if relief could be sought under that statute. This is consistent with the express language of one of the IDEA's provisions, which does not preclude a plaintiff from suing for other statutory remedies, such as the ADA or the Rehabilitation Act:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [ 42 U.S.C.A. § 12101 et seq.], Title V of the Rehabilitation Act of 1973 [ 29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.20 U.S.C. § 1415(1).
Therefore, Plaintiff may proceed with her claim brought under § 1983, although that claim ultimately fails.
III. APS' Liability Under § 1983
For a governmental entity to be responsible for a constitutional violation, a plaintiff must prove that (1) a government official committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. See, Monell, 436 U.S. at 694, cited in Myers v. Okla County Bd. of County Commissioners et al., 151 F.3d 1313, 1320 (10th Cir. 1998). A decision to adopt a particular course of action, made by a government's authorized decisionmakers, represents an act of official government "policy." Pembauer v. City of Cincinnati, 475 U.S. 469, 480-81 (1986) (plurality opinion). While such a policy may be established by a single decision taken by an official with final authority, the action taken must be official in character. Id. at 480.
The Equal Protection claim at issue here concerns only APS, which is a quasi-municipal entity. See, Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978)). On the individual Defendants' motion for summary judgment on the Equal Protection claim, I previously concluded both that Myisha did not have a constitutional right to a certain curriculum (i.e., the Wilson reading program), and that even if a constitutional right had been established, the law on that issue was not clearly established. Ex. A at 4-5. These findings do not preclude Plaintiff's "class of one" claim, which does not necessarily implicate a fundamental right. See, discussion, below. Also, a lawsuit against a city may proceed if a finding of qualified immunity is predicated upon a determination that the law was not clearly established. See, Hinton v. City of Elwood, 997 F.2d 774, 782-83 (10th Cir. 1993).
There is evidence that at some point, APS made a decision to offer the Wilson Reading System on a voluntary basis, at least initially. On January 6, 2006 (one year after the complaint was filed), APS Superintendent Elizabeth Everitt, one of the individual Defendants in this case, sent a memo to APS principals outlining a plan to implement Wilson training in the schools, starting with voluntary participation. Pltff's Ex. 3. Without deciding here whether Ms. Everitt had final decisionmaking authority with which to characterize her plan as a "policy," I assume for purposes of this discussion that APS' decision to offer Wilson training on a voluntary basis was a "policy" under § 1983.
IV. Plaintiff's Theories of Equal Protection
The Equal Protection clause is triggered when the government treats someone differently than another who is similarly situated. Buckley Const., Inc. v. Shawnee Civic Cultural Development Authority, 933 F.2d 853, 859 (10th Cir. 1991) (citingCity of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). In general, to establish an Equal Protection claim under § 1983, a plaintiff must show that she is a member of a protected class and that she was intentionally and purposefully discriminated against because of her membership in that protected class. Jones v. Union County, TN., 296 F.3d 417, 426 (10th Cir. 2002); see Washington v. Davis, 476 U.S. 229, 239-245 (1976) (government actor cannot violate a plaintiff's Equal Protection rights unless the defendant has the intent to discriminate).
However, Plaintiff clarifies that she is not alleging discrimination based on membership in a protected class, but on two other theories: a denial of access to public education (rather on Defendant's irrational denial of access to public education, as well as a "class of one" claim. Resp. at 2-3. Defendant objects to Plaintiff's raising this as a new theory so late in the case. Plaintiff points to specific assertions in the complaint which could support a "class of one" claim, although I agree with Defendant that the elements of a class one claim were "lurking" in the complaint, rather than plainly alleged. Mem. at 8, n. 1. Plaintiff, on the other hand, is not pleased that the Court's order for supplemental briefing on the Equal Protection claim allows APS a second opportunity to brief an issue on which APS never filed a motion. These cross-objections level the playing field, and I will assume that Plaintiff has alleged a "class of one" claim.
V. Equal Protection Claim — Denial of Access to Public Education
Plaintiff asserts that her Equal Protection rights have been violated because she has been denied access public education under Plyler v. Doe, 457 U.S. 202, 230 (1982). Plyler does not apply to this case. In Plyler, the United States Supreme Court applied a heightened scrutiny standard of review in striking down a Texas statute state which denied funding for education of illegal-alien children and allowed school districts to deny free public education to such children. This case does not involve a plaintiff who is a child of an alien, or a denial of access to education. Plaintiff alleges denial of a particular reading program, as a result of the way school district decided to implement the training for that program.
I see no reason to revisit the basis for my previous ruling that Plaintiff does not have a constitutional right to the curriculum of her choice. See, Deft's Ex. at 4. With regard to Plaintiff's Equal Protection claim against the individual Defendants, I have already determined that Plaintiff's claim based on APS' choice of reading program offered to Myisha is precluded by the United States Supreme Court's holding in Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 200 (1982) (state is not required to "maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children"). See also, Doc. 129 at 12-13, 15.
This finding does not affect the viability of Plaintiff's claim of an IDEA violation concerning the appropriateness of Plaintiff's educational plan under the IDEA. This matter is pending for review of the administrative decision.
Unless a suspect class or fundamental right is implicated — neither of which is involved in this case — "a government's classification need only be rationally related to a legitimate government interest." Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996). Thus, the Court must apply only a "rational basis" standard of review to Plaintiff's Equal Protection claim.Plyler v. Doe, 457 U.S. 202, 221 (1982); see also Florida Association for Disabled Americans, Inc. v. Florida Intern. University, 405 F.3d 954, 957-58 (11th Cir. 2005) (". . . classifications relating to education only involve rational basis review under the Equal Protection Clause") (citing Plyler, 457 U.S. at 221). It is Plaintiff's burden to show that APS' decision to offer Wilson training to special education teachers on a voluntary basis was arbitrary or irrational. See, Riddle, 83 F.3d at 1207 (burden on plaintiff to establish that the state action is irrational or arbitrary and that it cannot conceivably further a legitimate governmental interest).
A "suspect class" is one defined by race, alienage or national origin, or invades a fundamental right such as speech or religious freedom. Jaami v. Compton, 182 F.3d 917 (table) (6th Cir. Tenn. 1999).
Plaintiff also alleges a "class of one" Equal Protection claim. In a "class of one" claim, a plaintiff does not need to allege either that she is a member of a protected class, or that any of her fundamental rights have been violated. Since Plaintiff's burden under a "rational basis" test is the same under both her "denial of access to public education" and "class of one" theories, the Court will conduct the analysis under the "class of one" claim next.
VI. Equal Protection Claim — "Class of One" Theory
The Supreme Court of the United States has recognized that the Equal Protection clause of the Fourteenth Amendment applies to claims brought by a class of one where the plaintiff alleges that the state has intentionally treated her differently from others similarly situated and where there is no rational basis for the difference in treatment. See, Village of Willowbrook v. Olech, 528 U. S. 562, 564 (2000) (per curiam); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985)
Because Plaintiff's "class of one" claim was not previously before the Court, the Court's rulings on Plaintiff's ADA and § 504 claims do not apply to this claim.
A. Similarly Situated
Plaintiff proposes that the "similarly situated" group for purposes of analysis of her "class of one" claim is not, as Defendant contends, Myisha's non-disabled counterparts, but rather other students with a reading disability. Plaintiff contends that her Equal Protections rights were violated because she did not receive reading instruction from a Wilson trained teacher during the 2003-03 and 2003-04 school years, even though some other APS students with reading disabilities did receive such instruction. Plaintiff alleges that the voluntary nature of the Wilson training program denies Wilson instruction to students with disabilities who should be enrolled in that program.
I agree with Defendant that Plaintiff's description of the "similarly situated" group is somewhat "bizarre." In the usual Equal Protection context, the groups' characteristics would be based on the presence or absence of disability. Describing the "similarly situated" group as one in which the other students also have disabilities eliminates the very basis for the alleged disparity and unequal treatment. See, e.g., Thompson v. Colorado, 278 F.3d 1020, 1030 (10th Cir. 2001), overruled on other grds.,Lane and Georgia. Guttman v. Khalsa, 446 F.3d 1027, 1034 (10th Cir. 2006) (a state violates the Equal Protection Clause if it makes distinctions between the disabled and nondisabled without a rational justification).
However, in a "class of one" context, Plaintiff's theory is viable, if not ultimately successful. The Equal Protection clause does not specifically mention classes, or protected groups. Moreover, "[a] class . . . can consist of a single member, . . . and it can be defined by reference to the discrimination itself."Nixon v. Administrator of General Services, 433 U.S. 425, 472 (1977), cited in Indiana State Teachers Ass'n v. Board of School Com'rs of the City of Indianapolis, 101 F.3d 1179, 1181 (7th Cir. 1996). Also, in a "class of one" context, a plaintiff need not allege either that they are members of a constitutionally protected class or that any of their fundamental rights have been violated. Instead, the allegation would be that the plaintiff has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U. S. 562, 564 (2000) (per curiam) (citations omitted); see also, Buckley Constr., Inc. v. Shawnee Civic Cultural Dev. Auth., 933 F. 2d 853, 859 (10th Cir. 1991) (citing Snowden v. Hughes, 321 U. S. 1, 8 (1944)) (Equal Protection clause may be invoked by individual not claiming to be member of any class of people, where plaintiff alleges an element of intentional or purposeful discrimination).
Thus, "[w]hile the principal target of the Equal Protection clause is discrimination against members of vulnerable groups, the Equal Protection clause protects class-of-one plaintiffs" who are victimized by a wholly arbitrary act. City of New Orleans v. Dukes, 427 U.S. 297, 304 (1976) (per curiam), cited in Indiana State Teachers Ass'n, 101 F.3d at 1181. While Plaintiff does not allege that she belongs in a protected group, she alleges that she was targeted for discrimination by an arbitrary and irrational act of APS when the school district offered Wilson training to teachers on a voluntary basis.
B. Rational Basis Analysis
To show a constitutional violation under a "class of one" theory, Plaintiff must establish two elements: (1) that APS acted with discriminatory intent; and (2) that APS treated Myisha differently from others who were similarly situated (according to Plaintiff, other students with reading disabilities) without a rational basis for doing so. See, Bartell v. Aurora Public Schools, 263 F. 3d 1143, 1149 (10th Cir. 2001). To establish discriminatory intent, Myisha must show that APS' actions in setting up the Wilson training to be voluntary, was done to single her out, or "get her" out of spite, for reasons wholly unrelated to any legitimate objective. Id.
1. Whether voluntary training was arbitrary or irrational
APS invested over $300,000 to have teachers receive Wilson Reading training. Phase One of APS' program to implement the Wilson Reading System (Ex. 3) called for voluntary participation in the Level One Certification Program, and spanned the years 2002-2006. By the end of Phase Two (2006-2008), each district school would have a minimum of one Wilson certified teacher. The goal of having two Wilson certified teachers in each of the district schools would be reached by the end of Phase Three, in 2010. Wilson training is time intensive for teachers who go through the process. Level I certification is a multi-step process, involving a 2-day overview and a one-year long practicum consisting of six steps leading to Level I certification. Part of the training for each teacher also involves the development of a lesson plan for a selected student who falls in the 30th percentile or below in reading and spelling skills, and reviewable documentation of that student's progress throughout the training period. Ex. 4 at 15-17.
See, Pltff's Additional Material Facts, Resp. to Defts' Mot. for Sum. J. on Qual. Imm. Grounds, Doc. 41 at 8.
In light of these requirements for certification, it is obvious that Wilson reading instruction could not be offered to all students overnight, and that all teachers throughout the district could not become certified overnight. Plaintiff's contention that students with reading disability receive Wilson only by "chance" ignores the reality that, regardless of how Wilson was implemented throughout the school district, some students would not receive the program. Whether APS decided to offer training initially to the lower grades, or to the upper grades, or to schools with the highest numbers of low reading scores, some students with reading disabilities would not receive Wilson. I do not find this simply a result of "chance" in the sense that Plaintiff proposes. Rather, I find that APS' method of implementing the Wilson method in stages is consistent with a local school district's responsibility of choosing and designing educational methodologies, pursuant to Rowley, 458 U.S. at 200.
Plaintiff's contentions on her Equal Protection claim are at odds with a school's obligation to provide individualized education plans ("IEP") which are tailored to meet individual student's needs. Thus, making one particular type of reading method voluntary (particularly for the first phase of implementation) does not seem irrational, nor does it target Plaintiff or any other student or group of students unfairly. It has been established that Wilson is not necessarily the reading method of choice for all students with reading disabilities. It is one of many methods of reading instruction which are recommended by the 2000 NRP Report, mentioned earlier in the discussion. See, Ex. 1 (APS Suppl. Ans. to Interrogatory). The preferences of Plaintiff's counsel are not a substitute for Myisha's IEP team.
It has also been established that Wilson did not displace other reading methods used by special education teachers at APS, or at West Mesa. Thus, offering training to teachers in a supplemental method of reading instruction on a voluntary basis was a rational and legitimate course to take, one which granted schools the flexibility to choose among the methodologies that suited their students' needs. I find that no reasonable juror would find APS' decision to offer Wilson training on a voluntary basis to be arbitrary and irrational.
West Mesa did not have a Wilson trained teacher on staff for the school years 2003-03, or 2003-04. West Mesa had two Level I certified Wilson instructors on staff during the 2004-05 school year. See, Doc. 129 at 21. If students at other schools were "treated differently" from Myisha because they received Wilson instruction for the school years 2002-03 and 2003-04, APS has shown that such treatment was not the result of an irrational or arbitrary decision to offer Wilson training on a voluntary basis. In order to prevail on her "class of one" claim, Plaintiff must show both that she was treated differently from other special education students without a rational basis and an intent by APS to discriminate against her. Thus, Plaintiff's "class of one" claim fails on this first factor alone. See, Henshaw v. Wayne County School, 97 Fed.Appx. 882 (10th Cir. 2004) (citing United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998) ("Under the rational basis test, if there is a plausible reason for the state action, our inquiry is at an end").
2. Whether APS acted with discriminatory intent
Plaintiff's claim would also fail because there is no evidence that, in deciding to make Wilson training voluntary, APS was trying to single Myisha out, or act with any kind of discriminatory intent. Plaintiff's theory on this factor defies logic. The very nature of a voluntary program would preclude a finding that Plaintiff was somehow singled out so as not to receive Wilson instruction. APS could not know for sure whether any teachers at West Mesa would participate in the initial training, or if any teachers at that school did participate, whether Myisha's IEP team would recommend that reading method for her.
Plaintiff's allegation that APS "withheld chosen methodology" from Myisha is not supported by any evidence. First, there is no evidence that Wilson was a "chosen" methodology for reading instruction. The opposite is true and undisputed by any material facts: Wilson is one of several reading methods used and endorsed by APS. Second, Wilson was not intentionally "withheld" from Myisha in the school years 2003-03 or 2003-04: APS was just starting to implement Wilson in the school district by offering training on a voluntary basis during those school years. Thus, I find that no reasonable juror could infer discriminatory intent toward Myisha from APS' decision to offer Wilson training initially on a voluntary basis.
Conclusion
Plaintiff's Equal Protection claim fails under either theory alleged: denial of access to public education, or a "class of one" theory. Plaintiff has not shown that APS acted irrationally or arbitrarily, or acted with discriminatory intent against Myisha Garcia.
THEREFORE,
IT IS ORDERED that Defendant APS' Motion for Summary Judgment on Plaintiff's Equal Protection Claim (Doc. 130) is hereby GRANTED for reasons set forth in this opinion.