Ellenberg v. New Mexico Military Institute

FILED
United States Court of Appeals
Tenth Circuit

July 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SARAH ELLENBERG,

Plaintiff-Appellant,
v. No. 08-2112
NEW MEXICO MILITARY
INSTITUTE, and the BOARD OF
REGENTS OF THE NEW MEXICO
MILITARY INSTITUTE,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-04-347-PJK/DJS)

Gail Stewart, Steven Granberg, P.A., Albuquerque, New Mexico, for Appellant.

John F. Kennedy, Cuddy & McCarthy, LLP, Santa Fe, New Mexico (Jacquelyn
Archuleta-Staehlin and Sarah Piltch, Cuddy, Kennedy, Ives, Archuleta-Staehlin,
Fairbanks & Vigil, Santa Fe, New Mexico, and Lee Rogers and Barbara M.
Smith-Duer, Atwood, Malone, Turner & Sabin, P.A., Roswell, New Mexico, with
him on the brief) for Appellees.

Before TACHA, MURPHY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.
 Sarah Ellenberg sued the New Mexico Military Institute and its Board of

Regents (NMMI) on the ground that in denying her admission, NMMI violated

three federal laws protecting persons with disabilities: (1) the Individuals with

Disabilities Education Act (IDEA), (2) Section 504 of the Rehabilitation Act

(Section 504), and (3) Title II of the Americans with Disabilities Act (ADA).

The district court held Ellenberg could not establish a prima facie

discrimination claim under Section 504 and the ADA because she had not offered

the required evidence of a disability that substantially limited a major life

activity. Ellenberg argues the district court erred, and that her eligiblity for an

individualized education program under the IDEA means she automatically

satisfies the disability requirements of Section 504 and the ADA.

We conclude the district court correctly found the statutes have different

requirements for establishing a disability, and that having an individualized

education program under the IDEA does not automatically establish a disability

under Section 504 and the ADA. Exercising jurisdiction under 28 U.S.C. § 1291,

we accordingly AFFIRM.

I. Background

We reviewed in detail the facts and procedural history in a prior appeal,

Ellenberg v. New Mexico Military Institute, 478 F.3d 1262, 1271–73 (10th Cir.

2007), and only briefly summarize them here.

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 NMMI is a state educational institution in Roswell, New Mexico, offering

college preparatory education in a military setting. In 2003, NMMI denied

Ellenberg admission, citing behavioral problems manifested in her presence at a

residential treatment facility, admitted past drug use, level of medication

requirements, and need for continued counseling. At the time NMMI denied

Ellenberg admission, she was eligible for special education services under the

IDEA and had an individualized education program. 1 Ellenberg sued, arguing

NMMI’s admissions decision violated the IDEA, Section 504, and the ADA. The

district court rejected the IDEA claim after finding NMMI had satisfied its IDEA

obligations. The court further held that NMMI’s compliance with the IDEA

meant the Section 504 and ADA claims necessarily failed as well.

On appeal, we found Ellenberg had failed to exhaust her administrative

remedies and the district court should not have addressed the merits of her IDEA

claim. Id. at 1267. We remanded the case with instructions to dismiss this claim

for lack of jurisdiction. Id. The Section 504 and ADA claims were not barred by

1
The IDEA provides state and local agencies with federal money to ensure
that children with disabilities have access to “free appropriate public education”
that “meet[s] their unique needs and prepares them for employment and
independent living.” 20 U.S.C. § 1400(d). To this end, states receiving federal
money must create an individualized education program for each disabled child,
which includes specially-designed instruction and services that will allow the
child to meet certain individualized objectives. § 1412(a)(4).

Ellenberg qualified under the IDEA on the basis of her Oppositional
Defiance Disorder, which is recognized by the American Psychiatric Association.
Ellenberg, 478 F.3d at 1272 n.8.

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Ellenberg’s failure to exhaust IDEA administrative remedies, though, so we

remanded for their reconsideration. Id.

Upon remand, Ellenberg filed an amended complaint for damages and

declaratory relief, reasserting her claims under Section 504 and the ADA. The

parties filed cross-motions for summary judgment; the district court denied

Ellenberg’s motion but granted that of NMMI. The court did so after finding

Ellenberg had failed to make a prima facie showing she was disabled under

Section 504 and the ADA. R., Vol. I at 214–16 (Dist. Ct. Order); see also Jarvis

v. Potter, 500 F.3d 1113, 1121 (10th Cir. 2007) (to establish a prima facie Section

504 claim, a plaintiff must show he or she is “disabled under [Section 504]”);

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (to establish a

prima facie ADA claim, a plaintiff must show he or she is “disabled within the

meaning of the ADA”). Key to its holding was that Ellenberg’s eligibility for

special education services under the IDEA and her existing individualized

education program did not automatically establish a prima facie showing of

disability under Section 504 and the ADA.

Ellenberg now appeals the district court’s order granting summary

judgment to NMMI and its denial of her summary judgment cross-motion.

II. Analysis

We review a grant of summary judgment de novo to determine whether any

genuine issues of material fact are in dispute and, if not, whether the district court

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correctly applied the substantive law. Viernow v. Euripedes Dev. Corp., 157 F.3d

785, 792 (10th Cir. 1998).

Ellenberg makes three interrelated arguments: (1) her eligibility for receipt

of special education and having an individualized education program under the

IDEA make her, by definition, a disabled person protected under both Section 504

and the ADA; (2) her disability claims should be decided by a jury because

certain disputed issues of fact exist; and (3) NMMI’s facially discriminatory

admissions standards violate Section 504 and the ADA.

As we explain below, Ellenberg’s failure to offer evidence that her

disability substantially impairs a major life activity is fatal to her prima facie case

under Section 504 and the ADA. Because we can resolve the case on this first

issue as a matter of law, we need not address the latter two arguments.

A. Discrimination Claims Under Section 504

To establish a prima facie case under Section 504, a plaintiff must first

demonstrate he or she is an “otherwise qualified individual with a disability.” See

29 U.S.C. § 794(a); Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194

(10th Cir. 2008), cert. denied, 129 S. Ct. 114 (2008). The issue here is whether

Ellenberg’s IDEA eligibility by itself can satisfy this first element.

As an initial matter, NMMI argues we should not consider Ellenberg’s

argument on this point because she failed to present it below. We disagree.

Ellenberg sufficiently raised the argument in her brief to the district court, and the

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court addressed the argument in its order. We therefore proceed to our analysis

of the statute.

1. Section 504 and its Interpretive Regulations

Section 504 does not precisely define eligibility under the Act. That is

done by the regulations implementing Section 504, which describe eligible

disabled individuals as “qualified handicapped person[s].” 34 C.F.R.

§ 104.3(1)(2). Relevant to our analysis, a “qualified handicapped person” is “a

handicapped person” to whom “a state is required to provide a free appropriate

public education under [the IDEA].” § 104.3(1)(2)(iii). 2 In turn, a related

provision defines “handicapped person” as one who “has a physical or mental

impairment which substantially limits one or more major life activities.”

§ 104.3(j)(1). 3 “[M]ajor life activities” include “functions such as caring for

2
The regulation defines “qualified handicapped person” as:

[A] handicapped person (i) of an age during which nonhandicapped
persons are provided such services, (ii) of any age during which it is
mandatory under state law to provide such services to handicapped
persons, or (iii) to whom a state is required to provide a free appropriate
public education under [the IDEA].

34 C.F.R. § 104.3(1)(2).
3
The full text of § 104.3(j)(1) reads: “Handicapped persons means any
person who (i) has a physical or mental impairment which substantially limits one
or more major life activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment.”

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one’s self, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.” § 104.3(j)(2)(ii).

Interpreting this basic regulatory framework, Ellenberg contends she fits

within the definition of “qualified handicapped person.” In her view, IDEA

eligible individuals are listed among the “qualified handicapped persons” in

§ 104.3(1)(2); she is an IDEA eligible individual; therefore she is automatically a

qualified handicapped person covered by Section 504. For several reasons, we

disagree with this conclusion.

First and crucially, Ellenberg’s interpretation fails to read the term

“qualified handicapped person” from § 104.3(1)(2) in light of the nearby

definition of “handicapped person” in § 104.3(j)(1). By focusing on

§ 104.3(1)(2)’s application of “qualified handicapped person,” Ellenberg skips a

very important step—i.e., determining whether she is a “handicapped person” in

the first place.

In our view, to meet the definition of a “qualified handicapped person”

under § 104.3(1)(2), one must first satisfy the definition of “handicapped person”

under § 104.3(j)(1). In other words, a claimant must demonstrate an impairment

that “substantially limits” a “major life activity.” Focusing solely on

§ 104.3(1)(2), as Ellenberg would have us do, would render § 104.3(j)(1)

superfluous. We cannot do this, and instead find that a “qualified handicapped

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person” must first demonstrate a physical or mental impairment that substantially

limits at least one major life activity. 4

But Ellenberg’s argument is not necessarily lost at this point. If IDEA

eligibility and an individualized education program always and necessarily means

a student has an impairment that “substantially limits” a “major life activity,”

Ellenberg would automatically satisfy § 104.3(j)(1)’s definition of “handicapped

person.” Here, Ellenberg could have pointed out (but did not) that

§ 104.3(j)(2)(ii) specifically identifies “learning” as a “major life activity.” Her

IDEA related disability, therefore, might satisfy the “major life activity”

requirement in § 104.3(j)(1)’s definition of a handicapped person.

Still, Ellenberg would need to demonstrate her disability substantially

limits the major life activity of learning. Doing so is important because “[n]ot

every impairment that affects an individual’s major life activities is a

substantially limiting impairment.” Reeves v. Johnson Controls World Servs.,

Inc., 140 F.3d 144, 151 (2d Cir. 1998) (quoting Knapp v. Nw. Univ., 101 F.3d

473, 481 (7th Cir. 1996)). Indeed, case law indicates claimants must advance

individualized evidence that a limitation is substantial in the context of the major

life activity as a whole. See, e.g., Lusk v. Ryder Integrated Logistics, 238 F.3d

1237, 1240 (10th Cir. 2001); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d

4
We note that the regulations implementing Section 504 could have listed
IDEA eligible individuals as automatically included in the definition of
“handicapped persons” in § 104.3(j)(1). They do not.

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974, 978 (10th Cir. 1998); see also Singh v. George Washington Univ. Sch. of

Med. & Health Scis., 508 F.3d 1097, 1100–04 (D.C. Cir. 2007); Waldrip v. Gen.

Elec. Co., 325 F.3d 652, 656 (5th Cir. 2003). 5

Here, as the district court noted, Ellenberg failed to put forward a specific

argument of substantial limitation. Her failure to do so means we cannot know

“whether the particular impairment constitutes a significant barrier for [this]

particular person,” Knapp, 101 F.3d at 481 (emphasis added), and thus whether

she meets Section 504’s disability requirements.

Nor does Ellenberg’s mere receipt of an individualized education program

under the IDEA by itself demonstrate a substantial limitation.6 Unlike a

“handicapped person” under § 104.3(j)(1), a disabled child under the IDEA need

not be “substantially limit[ed]” in the major life activity of learning. The IDEA

defines a disabled child as one “(i) with mental retardation, hearing . . . speech or

language impairments, visual impairments . . . serious emotional disturbance . . .

orthopedic impairments, autism, traumatic brain injury, other health impairments,

or specific learning disabilities; and (ii) who, by reason thereof, needs special

education and related services.” 20 U.S.C. § 1401(3)(A). As NMMI and the

5
The majority of cases cited in this paragraph arise in the ADA context.
As described below, however, the Section 504 and ADA standards in this regard
are the same.
6
At summary judgment Ellenberg could have used her particular
individualized education program to show specific evidence of substantial
impairment, but did not.

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district court point out, one may therefore qualify as “disabled” under the IDEA

for purposes of that statute without demonstrating a “substantially limit[ing]”

impairment.

The IDEA regulation listing the various eligible disabilities bolsters our

view. Under 34 C.F.R. § 300.8, disabilities that merit an IDEA individualized

education program range from the minimal to the serious. E.g., § 300.8(c)(12)

(traumatic brain injury); § 300.8(a)(1) (serious emotional disturbance);

§ 300.8(c)(3) (deafness); § 300.8(c)(10)(i) (imperfect ability to listen, dyslexia,

minimal brain dysfunction); § 300.8(c)(4)(i)(C) (“[i]nappropriate types of

behavior or feelings under normal circumstances”). Of course an IDEA disability

may—and in the majority of cases probably will—substantially limit a major life

activity. But the point here is that it need not, and thus a plaintiff must

individually show substantial limitation.

We further note that while Section 504 and the IDEA both provide certain

forms of relief for individuals with disabilities, they have separate purposes.

Section 504 provides relief from discrimination, see Se. Cmty. Coll. v. Davis, 442

U.S. 397, 410 (1979), but the IDEA provides relief from inappropriate

educational placement decisions, regardless of discrimination, see Garcia v. Bd.

of Educ. of Albuquerque Pub. Schs., 520 F.3d 1116, 1129 (10th Cir. 2008) (citing

20 U.S.C. § 1400(d)(1)(A)). “Concomitant to these distinct purposes are separate

statutory definitions of what it means to be disabled or handicapped.” Bowers v.

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Nat’l Collegiate Athletic Ass’n, 563 F. Supp. 2d 508, 533 (D.N.J. 2008). These

definitions may substantially overlap, but we decline to conflate them entirely.

Thus, eligibility for special education and having an individualized

education program under the IDEA demonstrate a child’s disability, but that

disability is not necessarily one that “substantially limits” the major life activity

of learning. As a matter of law, therefore, Ellenberg cannot rely on the IDEA

alone to make her prima facie discrimination claim under Section 504. Instead,

she must offer evidence and arguments from that evidence showing her disability

is substantial in the context of the major life activity as a whole. She failed to do

so here and the district court correctly granted summary judgment.

2. Other Authority

Notwithstanding this regulatory framework, Ellenberg points to several

federal and state agency publications to support her contention that IDEA

eligibility can itself establish prima facie claims under Section 504. We do not

find these persuasive.

The first agency authority is a guidance manual provided by the United

States Department of Education on its Internet website. In particular, Ellenberg

cites to a portion of the manual reviewing “frequently asked questions” (FAQ)

about Section 504. The guidance states that “a ‘qualified student with a

disability’ [protected by Section 504] is a student with a disability . . . to whom a

state is required to provide a free appropriate public education under [the

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IDEA].” 7 According to Ellenberg, this guidance demonstrates that “students with

a disability under the IDEA are automatically protected from disability

discrimination under Section 504.” Opening Br. at 13.

But in context, the guidance manual confirms our reading of 34 C.F.R.

§ 104’s provisions. In addition to the commentary Ellenberg cites, the

Department of Education reiterates that Section 504 eligibility requires a

“disability” that “substantially limits a major life activity,” and that such

determination “must be made on the basis of an individual inquiry.” FAQ 12.

The commentary Ellenberg excerpts thus assumes an individual plaintiff already

meets the definitional requirements of a “handicapped person” under

§ 104.3(j)(1)—something Ellenberg has failed to do.

The second agency authority Ellenberg cites is an electronic document from

the New Mexico Public Education Department (NMPED). 8 Like the Department

of Education’s web page, the NMPED document correctly notes that “[a] student

is . . . entitled to a Section 504 Accommodation Plan if . . . the individual has a

mental or physical impairment that substantially limits one or more major life

7
United States Department of Education, Protecting Students With
Disabilities (2009), http://www.ed.gov/about/offices/list/ocr/504faq.html
(question 13) (last visited June 11, 2009).
8
New Mexico Public Education Department, Educators and Administrators
Implementing Section 504 of the Rehabilitation Act of 1973 (2007),
http://www.ped.state.nm.us/RtI/dl09/Section504GuideComplete.pdf#
pagemode=bookmarks (last visited June 11, 2009).

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activities and it impacts the student’s education.” NMPED Doc. at 3. Later in the

document, however, NMPED erroneously indicates that individuals qualifying

under the IDEA “are also already considered to be qualified individuals under

Section 504.” Id. at 6.

The NMPED guidelines, like Ellenberg, conflate the definition of a

“disabled” child under the IDEA with the definition of a “handicapped person”

under Section 504. Obviously, most IDEA eligible individuals are also

handicapped under Section 504, and Ellenberg may be as well. But again, we

cannot impose an interpretation of Section 504 at odds with its implementing

regulation requirement that a claimant first establish he or she is substantially

limited in a major life activity.

Ellenberg also cites several cases to support her argument that IDEA

eligibility automatically establishes the disability element of a prima facie claim

under Section 504. But most of these cases only stand for the proposition—with

which we agree—that Section 504 has a broader scope than the IDEA: while the

IDEA focuses on the provision of appropriate public education to disabled

children, Section 504 addresses the provision of state services to disabled

individuals generally. E.g., Mark H. v. Lemanhieu, 513 F.3d 922, 929 (9th Cir.

2008); Weber v. Cranston Pub. Sch. Comm., 245 F. Supp. 2d 401, 405–07 (D.R.I.

2003); but see M.H. v. Mont. High Sch. Ass’n, 929 P.2d 239, 241 (Mont. 1996)

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(finding that IDEA qualified students are automatically disabled under Section

504).

These cases do not persuade us that Section 504 necessarily means those

with an individualized education program are disabled as a matter of law under

Section 504. The unremarkable fact that Section 504 (insofar as it encompasses

more types of claims) is broader than the IDEA does not change the fact that

disability under Section 504 requires something IDEA claims do not—namely,

evidence of a “substantial[] limit[ation on] one or more major life activities.” 34

C.F.R. § 104.3(j)(1).

In contrast, our view accords with certain federal cases that have declined

to find that IDEA eligibility automatically qualifies a person as handicapped

under Section 504. As one court notes, the “separate statutory treatments of the

terms ‘disability’ [in the IDEA] and ‘handicapped’ [in Section 504] make clear

. . . [that] a special education student is not necessarily a ‘qualified individual

with a disability’ under [Section 504].” Bowers, 563 F. Supp. 2d at 533 (citation

omitted); see also Dohmen ex rel. Dohmen v. Twin Rivers Pub. Sch., 207 F. Supp.

2d 972, 975 n.2 (D. Neb. 2002) (“A special education student is not necessarily a

‘qualified individual with a disability’” under Section 504.).

These cases recognize the large practical overlap between IDEA eligible

students and those handicapped students who may bring a claim under Section

504. “But the likelihood of overlap does not . . . mean that a student receiving

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special education services under the IDEA is per se handicapped under [Section

504],” Bowers, 563 F. Supp. 2d at 533 (emphasis added), and does not relieve a

plaintiff such as Ellenberg of the burden of proving a physical or mental

impairment which substantially limits one or more major life activities. Cf.

Andrew M. v. Del. County Office of Mental Health & Mental Retardation, 490

F.3d 337, 349 (3d Cir. 2007) (legislative history of Section 504 “does not indicate

that a violation of the IDEA is a per se violation of [Section 504] . . . . [A]

plaintiff must still prove that there was a violation of [Section 504]”).

* * *

In sum, Ellenberg has not demonstrated she falls within the meaning of a

“handicapped person” for purposes of Section 504, and the district court correctly

granted summary judgment in favor of NMMI.

B. Discrimination Claims Under the ADA

Ellenberg also contends that eligibility for special education under the

IDEA is sufficient to establish a prima facie discrimination case under the ADA

as well.

To establish a prima facie case under the ADA, a plaintiff must first prove

he or she “is a qualified individual with a disability.” Gohier v. Enright, 186 F.3d

1216, 1219 (10th Cir. 1999). As with the Section 504 claim, the issue here is

whether Ellenberg’s IDEA eligibility is sufficient to establish this prima facie

element.

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 To satisfy the ADA’s definition of disability, a plaintiff must “(1) have a

recognized impairment, (2) identify one or more appropriate major life activities,

and (3) show the impairment substantially limits one or more of those activities.”

Berry v. T-Mobile, 490 F.3d 1211, 1216 (10th Cir. 2007) (emphases added)

(citation omitted). Because the language of disability here mirrors that of Section

504, our analysis of Ellenberg’s ADA claim is the same as it was for Section 504.

See Miller v. Bd. of Ed. of Albuquerque Pub. Schs., 565 F.3d 1232, 1245 (10th

Cir. 2009) (Section 504 and the ADA involve the same substantive standards);

Cummings v. Norton, 393 F.3d 1186, 1190 n.2 (10th Cir. 2005) (same).

Because Ellenberg failed to offer evidence showing how her disability

substantially limited a major life activity, her attempt to establish a prima facie

ADA claim fails as well.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment for NMMI. Because the district court correctly resolved this

issue as a matter of law, we need not reach Ellenberg’s other arguments.

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