Opinion
Civil Action No. 3:01-CV-2627-N.
August 11, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Dallas Independent School District ("DISD") and the Texas Education Agency's ("TEA") (together, "Defendants") motions for summary judgment, filed June 15, 2004. Defendants allege that (1) the Court lacks subject matter jurisdiction over this matter due to Plaintiff Kortney Oliver's ("Oliver") failure to exhaust administrative remedies under the Individuals with Disabilities Education Act ("IDEA") and 42 U.S.C. § 1983 ("Section 1983"); (2) Defendant DISD did not act unreasonably when it failed to refer Oliver for a special education assessment; (3) Even had there been a reason to believe that Oliver had a learning disability, there was no need for special education services; (4) The remedies requested by Oliver are not available under Section 1983; (5) Oliver's IDEA claims against Defendant TEA for the years 1996-1997 and 1997-1998 are barred by the Eleventh Amendment; and (6) Compensatory damages are not permitted under the IDEA.
Upon review of the summary judgment evidence, the Court holds that there is no genuine issue of material fact that Oliver failed to exhaust the administrative remedies required for claims under IDEA and Section 1983; accordingly, the Court lacks subject matter jurisdiction over Oliver's claims, and Defendants' motions are granted.
Because of the Court's ruling on this ground, it is unnecessary to address Defendants' alternative bases for summary judgment.
I. BACKGROUND
Plaintiff Kortney Oliver was a student at the Yvonne A. Ewell School of Health Professions in the DISD from 1996 to 2000. She alleges that she suffers from a mathematical learning disability referred to as "dyscalculia," which was not identified or addressed by Defendants during her high school career. According to the complaint, Oliver's mother, Lynette Oliver, repeatedly expressed general concerns about Oliver's performance in mathematics classes to teachers and administrators, but DISD has never referred Oliver for a learning disability assessment or an IDEA individualized education plan. Oliver failed one mathematics course in high school, which she subsequently passed in summer school. From March 1998 to May 2000, Oliver failed the mathematical section of the Texas Assessment of Academic Skills ("TAAS") seven times.In late April 2000, just weeks before graduation, Lynette Oliver brought her daughter for diagnostic testing that concluded that she had a specific learning disability. Based on this diagnosis, Oliver was granted a modification to the mathematical section of the TAAS and was able to pass the test when administered on May 3, 2000. However, after the testing, a DISD official discovered that an accommodation committee had not officially approved the testing procedures that were employed, and the committee was reconvened on May 11, 2000. At that time, the committee approved the accommodations that had been employed. Oliver graduated from high school on May 26, 2000. Separate investigations by the DISD and TEA conducted during the summer of 2000 declined to invalidate the test results. Plaintiffs allege that at no time before or after the accommodation hearings were they informed of their rights under IDEA.
Oliver seeks relief for violation of the IDEA pursuant to Section 1983, alleging that Defendants' failure to identify and address her disability denied her the education to which she was entitled, and hampered her ability to complete her college degree in a timely manner. By Memorandum Opinion and Order dated September 29, 2003, the Court partially granted Defendants' motions to dismiss, holding in part that Oliver's allegations of futility were facially sufficient to survive a Rule 12(b)(1) motion to dismiss for failure to exhaust the administrative remedies of IDEA and Section 1983.
II. OLIVER FAILED TO EXHAUST ADMINISTRATIVE REMEDIES
Defendants argue that summary judgment is required because Oliver failed to exhaust administrative remedies under the IDEA and Section 1983, depriving the Court of subject matter jurisdiction. Because the summary judgment evidence leaves no genuine issue of material fact as to exhaustion, Defendants' motion is granted.Section 1415(1) of the IDEA provides in relevant part that:
[B]efore 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). "Courts interpreting this statute have uniformly held that parents are precluded from seeking relief in state or federal court under the IDEA or section 1983 until they have exhausted their administrative remedies." Stauffer v. William Penn Sch. Dist., 829 F. Supp. 742, 748 (E.D. Pa. 1993); see also Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir. 1989) ("[e]very court that has considered the question has read [IDEA's] statutory scheme as a requirement for the exhaustion of administrative remedies").
However, courts interpreting IDEA and its predecessor, the Education for All Handicapped Children Act of 1975 ("EHCA") have stated that, "although judicial review is not normally available until the administrative proceedings have been exhausted, `parents may by-pass the administrative process where exhaustion would be futile or inadequate.'" Gardner v. Sch. Bd. of Caddo Parish, 958 F.2d 108, 111-12 (5th Cir. 1992) (quoting Honig v. Doe, 484 U.S. 305, 327 (1988)). In some instances, "wooden application of the exhaustion doctrine . . . would accord neither with the salutary interests the doctrine is intended to serve . . . nor with the basic purposes underlying the EHCA." Ruth Anne M. v. Alvin Indep. Sch. Dist., 532 F. Supp. 460, 463 (S.D. Tex. 1982) (citations omitted). Courts have recognized two principal exceptions to the exhaustion requirement in IDEA cases: (1) lack of notice of rights, and (2) futility or inadequacy of administrative remedies. Stauffer, 829 F. Supp. at 748; 121 CONG. REC. 37,416 (1975) (remarks of Sen. Williams) ("exhaustion of the administrative procedures established under this part should not be required for any individual complainant filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter"); Ruth Anne M., 532 F. Supp. at 463 (plaintiffs not required to exhaust administrative remedies because district did not notify plaintiffs of their administrative rights under the EHCA).
Oliver bears the ultimate burden of proving that exhaustion would be futile or inadequate, or that she was not notified of her administrative rights under the IDEA as contemplated by 20 U.S.C. § 1415 (b). Gardner, 958 F.2d at 112; Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000) ("[t]he burden of demonstrating an exception from the exhaustion requirement falls on the party seeking to avoid the requirement"). Here, Oliver alleges that subject matter jurisdiction exists despite her admitted failure to exhaust administrative remedies, citing futility and Defendants' failure to inform her of the procedural rights available under IDEA. Namely, Oliver claims that exhaustion was excused because she was not given full notice of her procedural rights under the IDEA, and such exhaustion would be futile because she has already graduated from high school.
A. Oliver's Failure to Exhaust Administrative Remedies is Not Excused Due to Lack of Notice
Under the IDEA, a school must give notice of procedural safeguards to the parents of a student who qualifies as a student with a disability in only four instances: (1) upon initial referral for evaluation; (2) upon each notification of an IEP meeting; (3) upon reevaluation of the child; or (4) upon receipt of a request for a due process hearing. 34 C.F.R. § 300.504(a); 20 U.S.C. § 1415 (d)(1). Assuming arguendo that Oliver's learning disability would qualify her as a student with a disability, no summary judgment evidence suggests that the notice requirement was triggered. Oliver appears to allege that her mother's expressions of concern to school officials effectively constituted a request for a referral for evaluation or hearing. In sum, Oliver argues that her mother (1) pointed out to school administrators that many teachers assigned to Oliver were not certified in mathematics; (2) shared resources on how to respond to mathematical disabilities with Oliver's teacher; and (3) expressed concern on multiple occasions to teachers and administrators.
Lynette Oliver's expressions of concern do not constitute a request for referral for evaluation under IDEA or any of the other enumerated triggers to the notice requirement. In a similar context, courts have concluded that oral requests for school assistance and expressions of concern about academic performance do not alone trigger the IDEA's "child find" duty. Reid v. Dist. of Columbia, 310 F. Supp. 2d 137, 147 (D.D.C. 2004) (specific requests for help from school officials do not fulfill the statutory requirements of 20 U.S.C. § 1415(k)(8)(B)); Alex K. v. Wissahickon Sch. Dist., No. Civ. A. 03-854, 2004 WL 286871, at *8 (E.D. Pa. Feb. 12, 2004) (conversations between parents and school officials about child's learning problems do not implicate "child find" duty); see also Evans v. Dist. No. 17 of Douglas County, Neb., 841 F.2d 824, 828 (8th Cir. 1988) (parent's expression of concern about child's placement did not trigger the procedural requirements of the IDEA, which require written notice to initiate a change of placement). In the instant matter, too, Lynette Oliver's expressions of concern regarding Oliver's academic difficulty did not alone place Defendants on notice of Oliver's alleged disability, nor act as a trigger to require notice of IDEA.
The IDEA's "child find" duty refers to the affirmative duty on states to identify, locate, and evaluate all children with disabilities residing within their boundaries. 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.125 (2000).
In addition, Oliver's single failing grade in a mathematics course and clear difficulty passing the TAAS mathematics section do not constitute any of the enumerated factors requiring notice under the IDEA. Indeed, failing grades alone do not necessarily imply that school action is required under the IDEA. Courts considering a child's need for special education under the IDEA have concluded that "failing grades are not dispositive" of denial of educational benefit. Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003). "Failing grades must be viewed in light of the evidence as a whole." Id. at 94. Here, Oliver failed a single mathematics course during her middle school and high school years, and was able to pass that course during summer school. In fact, Oliver's mathematics grades, as a whole, were not discernibly different from her grades in other courses. Like approximately three out of ten DISD students, Oliver failed the math section of the TAAS test; however, she was allowed several non-IDEA accommodations and subsequently achieved a passing score. Oliver graduated, on time, from a magnet school with a regular high school diploma. In sum, Oliver's academic performance does not raise any issue of material fact suggesting that procedural notice of IDEA rights was required.
Even had Oliver's situation required notice of procedural safeguards under the IDEA, there is no question that Lynette Oliver had actual notice of her rights through her extensive training in IDEA procedures. The summary judgment evidence shows that Lynette Oliver is a thirty year veteran of special education teaching who has participated in the formulation of numerous individualized education plans and has personally reviewed the IDEA procedural safeguards with parents at every team meeting in which she has participated. In similar situations, courts have consistently excused defendants' failures to provide notice of procedural rights. Salley v. St. Tammany Parish Sch. Bd. of Manassas, Va., 57 F.3d 458, 466 (5th Cir. 1995) (affirming district court's holding that failure to notify plaintiffs of procedural rights of which they were already well aware did not affect parents' educational decisions and did not harm plaintiff student); Larson v. Indep. Sch. Dist. No. 361, Nos. Civ. 02-3611, Civ. 02-4095, 2004 WL 432218, at *10 (D. Minn. Mar. 2, 2004) (parents were knowledgeable enough to request a due process hearing, so any failure to include brochure could have only limited effect on child's education); Doyle v. Arlington County Sch. Bd., 806 F. Supp. 1253, 1260 (E.D. Va. 1992) (citing Brookline Sch. Comm. v. Golden, 628 F. Supp. 113, 115 n. 1 (D. Mass. 1986)) ("the fact of actual knowledge casts a shadow over the parents' motives for pressing the issue of [the district's] compliance with the statutory notice requirements"). Accordingly, Oliver has failed to sustain the burden of showing that any lack of notice excuses exhaustion of administrative remedies.
B. Oliver Has Not Established Futility
Oliver further contests Defendants' exhaustion argument on the basis of futility. Oliver contends that the unavailability of money damages in the administrative process and her high school graduation effectively eliminates the possibility of administratively-determined relief. Oliver is correct that most courts considering the issue have determined that monetary damages are not available under the IDEA. E.g., Polera, 288 F.3d at 486 ("The purpose of the IDEA is to provide educational services, not compensation for personal injury, and a damages remedy — as contrasted with reimbursement of expenses — is fundamentally inconsistent with this goal."); Sellers v. Sch. Bd. of the City of Manassas, Va., 141 F.3d 524, 527 (4th Cir. 1998) ("Tort-like damages are simply inconsistent with IDEA's statutory scheme"); cf. Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 466 (5th Cir. 1995) (affirming a nominal damages award for violation of the IDEA, but not addressing availability of damages under IDEA). However, a majority of courts have also concluded that the simple lack of a damages remedy does not render meaningless the IDEA's exhaustion requirements. See Polera, 288 F.3d at 488 ("The fact that Polera seeks damages, in addition to relief that is available under the IDEA, does not enable her to sidestep the exhaustion requirements of the IDEA."); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996) ("The statute speaks of available relief, and what relief is `available' does not necessarily depend on what the aggrieved party wants."). Like the majority of circuit and district courts to consider the issue, the Court concludes that the lack of availability of money damages does not render meaningless the IDEA's exhaustion requirement.
Likewise, Oliver's graduation does not excuse exhaustion of administrative remedies. According to Oliver's allegations, the failures of DISD and TEA giving rise to this litigation began at least as early as Oliver's sophomore year in high school, when Lynette Oliver allegedly provided resources on how to deal with a mathematical learning disability to her daughter's geometry instructor. As of May 2000, when Lynette Oliver presented documentation of Oliver's learning disability assessment, IDEA would have provided administrative relief. Indeed, "even after graduation, compensatory education is an available remedy." Frazier, 276 F.3d at 63; see also Oliver v. Dallas Indep. Sch. Dist., No. 3:01-CV-2627-N, 2003 WL 22272304, at *5 (N.D. Tex. Sept. 29, 2003) (denying motion to dismiss in the instant case in part due to availability of post-graduation relief). Oliver's argument — that exhaustion is no longer required because she waited until after graduation to file the instant case — is unpersuasive, and has been rejected by a number of courts. See Polera, 288 F.3d at 490; Frazier, 276 F.3d at 63.
In Polera, the Second Circuit considered an IDEA suit filed by a visually impaired high school graduate requesting money damages for the Newburgh school district's failure to provide proper study materials and tutoring. Rejecting the plaintiff's argument that exhaustion was futile after Polera's high school graduation, the Second Circuit explained:
[D]isabled-student plaintiffs, like Polera, should not be permitted to "sit on" live claims and spurn the administrative process that could provide the educational services they seek, then later sue for damages. Were we to condone such conduct, we would frustrate the IDEA's carefully crafted process for the prompt resolution of grievances through interaction between parents of disabled children and the agencies responsible for educating those children. The fact that the administrative process could not provide damages does not render Polera's claim futile; she could have obtained complete relief at the time, through changes to her IEPs, additional educational services, and, if necessary, remedial education. See Charlie F., 98 F.3d at 992 ("relief available" means "relief for the events, condition, or consequences of which the person complains," not necessarily "the kind of relief the complaint demands").Polera, 288 F.3d at 490.
Similarly, the First Circuit in Frazier considered the IDEA claims of a learning disabled student who argued that administrative exhaustion would be futile following her high school graduation. Frazier, 276 F.3d at 61. There, the circuit court affirmed the district court's dismissal, holding that the plaintiffs failed to carry their burden of proving that administrative exhaustion would be futile. Id. at 64. In so holding, the Frazier court noted:
[T]he entire matter of timing is largely within a plaintiff's control. The IDEA provides a comprehensive remedial scheme, and the plaintiffs could have invoked it at any of several different points during Kate's high school years. It would be a hollow gesture to say that exhaustion is required — and then to say that plaintiffs, by holding back until the affected child graduates, can evade the requirement. As the district court aptly observed, permitting a plaintiff to proceed with an IDEA-based claim for money damages under another federal statute without first exhausting administrative remedies might simply encourage plaintiffs to wait to dispute the adequacy of their educational programs until after graduation precisely in the hope of recovering money damages. This would mean that plaintiffs would not actually address educational issues when they occur — a situation directly at odds with the IDEA's primary goal of ensuring the education of children with disabilities.Id. at 63 (citing Frazier, 122 F. Supp. 2d at 111). Like Polera and Frazier, the Court concludes that Oliver's graduation is insufficient to establish futility. Oliver's claims are largely based on her belief that Defendants failed to take action following repeated appeals for assistance with her learning disability. Had Oliver followed the IDEA's administrative procedures at that time, rather than waiting to file suit until after she had graduated from high school, the deprivations alleged might well have been addressed, and her alleged difficulties in college mathematics could have been avoided. In any case, "the burden of demonstrating that administrative procedures would be futile falls on the party seeking to avoid them." Crocker, 873 F.2d at 937 (citing Honig, 485 U.S. at 327). Oliver has not done so. Accordingly, administrative exhaustion is not excused.
Like Polera court, the Court concludes that Covington is inapposite, because "[a]lthough the Sixth Circuit focused on the fact that the plaintiff student had graduated, damages would have been the only adequate remedy even had he sought immediate relief at the time of the wrongdoing. Nothing could `undo' the harm that he had suffered." Polera, 288 F.3d at 490. For Oliver, "unlike the plaintiff in Covington, a fully effective remedy was available at the time; she simply chose not to pursue it." Id.
CONCLUSION
Because Oliver failed to exhaust the administrative remedies required under the IDEA and Section 1983, and because Oliver has raised no genuine issue of material fact that the administrative procedures are excused by futility or lack of notice, Defendants' motions are granted.