M.T v. v. Sonny Perdue

                                                                   [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________               FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                               No. 04-16133                  April 18, 2006
                         ________________________         THOMAS K. KAHN
                                                               CLERK
                   D. C. Docket No. 03-00468-CV-CAP-1

M.T.V.,
C.T.V.,
C.E.V.,

                                                         Plaintiffs-Appellants,

                                  versus

DEKALB COUNTY SCHOOL DISTRICT,
SANDY FOXWORTH, individually, et al.,

                                                       Defendants-Appellees.


                         ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (April 18, 2006)


Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.

BLACK, Circuit Judge:
      This appeal arises from a long-standing dispute between the parents of

M.T.V., a child eligible for special education services under the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1400, and the DeKalb County

School District. Appellants, M.T.V. and his parents, C.T.V. and C.E.V., first

argue the district court erred in dismissing their retaliation claims brought

pursuant to the IDEA, the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101, Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794, the

First Amendment, and 42 U.S.C. § 1983 against the School District and various

individual defendants for failing to exhaust the IDEA’s administrative remedies.

They next argue the district court erred in affirming an Administrative Law

Judge’s (ALJ’s) order requiring them to consent to the School District’s request to

reevaluate M.T.V, or else forfeit his services under the IDEA. We affirm.

                                I. BACKGROUND

A.    Retaliation Claims

      Though cognitively gifted, M.T.V. has several neurological disabilities and

attention deficit disorder. His disabilities affect his speech, language skills, motor

coordination, and vision. M.T.V. has been eligible for special education services

under the IDEA since he enrolled in the School District in 1997. When the School

District first evaluated M.T.V., it found him eligible for services only under the

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IDEA’s “Speech and Language Impairment” category, even though his parents

also expressed concerns about possible motor impairments. In 1999, M.T.V.’s

parents continued to have these concerns and had him privately tested by an

independent evaluator. They learned he had significant motor deficits and, in

February 1999, asked the School District for an Individualized Education Program

(IEP) meeting to discuss adding services to improve his motor skills.

      M.T.V.’s parents contend the School District then began what has become

“a long history of ongoing retaliation, coercion, intimidation, [and] threats.” They

allege the School District no longer allowed them to attend IEP meetings before or

during school, forcing them to find child care, and began limiting the time allotted

for IEP meetings, requiring them to attend multiple meetings and miss work each

time. They further allege the School District brought school administrators and

lawyers into IEP meetings who would harass and scream at them. They also make

numerous related allegations, including that the School District disallowed

M.T.V.’s former school occupational therapist from continuing to work with him

because she advocated for him at an IEP meeting; placed M.T.V. in a storage

closet for occupational therapy; refused to afford them the same privileges as other

parents, such as helping in the classroom and attending school functions; and

wrote them numerous harassing and intimidating letters.

                                         3
      As their relationship deteriorated, M.T.V.’s parents began pursuing formal

complaints against the School District. In April 2000, they filed a federal lawsuit

unrelated to this case. They allege the judge orally directed the School District not

to treat M.T.V. differently from other children and not to test M.T.V. without

parental consent. M.T.V. was then diagnosed with a vision impairment, and his

parents asked the school to provide vision therapy as a related service under

M.T.V.’s IEP. The school refused, and M.T.V.’s parents began providing the

therapy themselves. After the School District denied their request for

reimbursement, M.T.V.’s parents requested a due process hearing on the matter.

They allege the retaliation only worsened at this point. In fact, they allege the

School District devised a scheme to subject M.T.V. to countless needless and

intrusive tests, which brings us to their next claim.

B.    Reevaluation Claim

      In May 2002, M.T.V.’s IEP Team convened to discuss his continued

eligibility under the IDEA. The Team first determined he was eligible to continue

receiving speech services based on a reevaluation conducted in February 2002.

However, over his parents’ objections, the Team questioned his continued

eligibility for services addressing his motor impairments, which he had been

receiving under the IDEA’s “Other Health Impaired” (OHI) category since August

                                           4
1999. Because he had made significant progress on his OHI goals, the School

District hired an expert to administer several different tests to M.T.V. The School

District sent a letter to his parents requesting consent to conduct the reevaluation,

explaining M.T.V. was due for his triennial evaluation under the IDEA and his

services might no longer be appropriate given his progress.

      M.T.V.’s parents refused to consent to the reevaluation, complaining

M.T.V. “has been tested and tested and that needless or repetitive testing must be

avoided.” They argued the evaluation would include several tests unrelated to the

OHI category, such as IQ tests and psychiatric evaluations, and asserted this

unnecessary testing constituted harassment. After a series of attempts to secure

consent from M.T.V.’s parents, the School District requested a due process

hearing to enforce its right to evaluate M.T.V. by an expert of its choice. The ALJ

ruled in favor of the School District and ordered M.T.V.’s parents to cooperate

with the reevaluation.

C.    Procedural History

      M.T.V. and his parents filed a complaint against the School Board and

several defendants in their official and individual capacities, seeking injunctive

relief and damages for retaliation in violation of the ADA, Section 504, the IDEA,




                                          5
the First Amendment, and § 1983.1 They also challenged the order entered by the

ALJ requiring M.T.V’s parents to consent to the School District’s reevaluation.

The district court first dismissed the plaintiffs’ retaliation claims because they

were subject to the IDEA’s exhaustion requirement, and the plaintiffs had neither

exhausted their administrative remedies nor shown such an effort would have been

futile. The court then affirmed the ALJ’s order, construing the School Board’s

motion for summary judgment as a motion for judgment on the record. M.T.V.

and his parents subsequently filed this appeal against the School District and three

individuals in their personal capacities, Stanley Hawkins and Wendy Jacobs,

lawyers who represent the School District, and Sandy Foxworth, a former special

education administrator for the School District.

                              II. STANDARD OF REVIEW

       “We review de novo the district court’s grant of a motion to dismiss under

12(b)(6) for failure to state a claim, accepting the allegations in the complaint as

true and construing them in the light most favorable to the plaintiff.” Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003). “[T]he usual F.R. Civ. P. 56


       1
         They also alleged several other claims based on procedural and substantive due process,
but have not raised those claims on appeal. Incidentally, we agree with the district court that
both Appellants’ initial and amended complaints are “example[s] of ‘shotgun pleading’ of the
sort frowned upon in this circuit” and commend the court for sorting through all of Appellants’
claims.

                                               6
summary judgment principles do not apply in an IDEA case.” Loren F. v. Atlanta

Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). Because nothing prevents

“district judges from factfinding under F.R. Civ. P. 52 in IDEA cases,” their

decisions are “better described as judgment[s] on the record.” Id. at 1313-14

(quotation omitted). We, in turn, review the district judge’s interpretations of law

de novo and “[w]here the district court does not receive any additional evidence or

testimony, this court stands in the same shoes as the district court in reviewing the

administrative record and may, therefore, accept the conclusions of the ALJ and

district court that are supported by the record and reject those that are not.” Id.

(quotation omitted).

                                      III. DISCUSSION

       The primary purpose of the IDEA is “to ensure that all children with

disabilities have available to them a free appropriate public education [FAPE] that

emphasizes special education and related services designed to meet their unique

needs and prepare them for employment and independent living.” 20 U.S.C.

§ 1400(d)(1)(A).2 To meet this end, the IDEA provides funding to assist state and


       2
         The IDEA was recently amended by the Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004). The amendment did not
take effect until July 1, 2005 and therefore has no impact on this case. All IDEA citations in this
opinion refer to the 1997 version of the statute, which was in effect when the disputes between
Appellants and the School District arose.

                                                 7
local agencies in educating children with disabilities. Id. § 1400(d). In turn, state

and local education agencies must identify children with disabilities and develop

annual IEPs for each child. Id. § 1414. The IEP is a comprehensive document

developed by a team of parents, teachers, and other school administrators outlining

the goals of the child, and the special education and related services needed to

meet those goals. Id. § 1414(d).

      The IDEA also provides an extensive framework under which parents can

“present complaints with respect to any matter relating to the identification,

evaluation, or educational placement of the child, or the provision of a [FAPE] to

such child.” Id. § 1415(b)(6). Parents can first request “an impartial due process

hearing, which shall be conducted by the State educational agency or by the local

educational agency, as determined by State law or by the State educational

agency.” Id. § 1415(f). In Georgia, such hearings are conducted by the Office of

State Administrative Hearings. O.C.G.A. § 50-13-41(a)(1). If parents are

dissatisfied with the ALJ’s decision, they can then bring a civil action in either

state or federal court. 20 U.S.C. § 1415(i)(2)(a).

A.    Retaliation Claims

      Appellants argue the School District and various individual defendants

retaliated against them for asserting M.T.V.’s rights under the IDEA, and bring

                                          8
claims based on § 1983, the ADA, Section 504, the IDEA, and the First

Amendment. The district court dismissed all claims because Appellants failed to

exhaust their administrative remedies as required by the IDEA. We agree their

retaliation claims are subject to the IDEA’s exhaustion requirement, and

Appellants neither exhausted their administrative remedies nor established they

were excused from doing so.3

       The IDEA allows plaintiffs to seek “remedies available under the

Constitution, [the ADA, Section 504], or other Federal laws protecting the rights

of children with disabilities.” 20 U.S.C. § 1415(l). Nonetheless, it also subjects

these claims to an exhaustion requirement: “[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.” Id. Thus, whether claims asserting the rights of disabled children are

brought pursuant to the IDEA, the ADA, Section 504, or the Constitution, they


       3
         “[T]he Court finds dismissal is appropriate for [Appellants’] failure to exhaust necessary
administrative remedies as a prerequisite to filing this action.” N.B. v. Alachua County Sch. Bd.,
84 F.3d 1376, 1378 (11th Cir. 1996). Because Appellants failure to exhaust their claims
precludes judicial review, we have no occasion to decide (1) whether the IDEA’s comprehensive
enforcement scheme precludes § 1983 actions based on IDEA violations; or (2) whether
individuals can be held liable in their personal capacities for retaliation in violation of Section
504 or the IDEA.

                                                9
must first be exhausted in state administrative proceedings. As we have explained,

“[t]he philosophy of the IDEA is that plaintiffs are required to utilize the elaborate

administrative scheme established by the IDEA before resorting to the courts to

challenge the actions of the local school authorities.” N.B., 84 F.3d at 1378

(quotation omitted).

      This Court has held “any student who wants ‘relief that is available under’

the IDEA must use the IDEA’s administrative system, even if he invokes a

different statute.” Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 1422

n.10 (11th Cir. 1998) (citing Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98

F.3d 989, 991 (7th Cir. 1996)). In Babicz, two sisters with chronic asthma filed a

complaint seeking compensatory damages and injunctive relief, alleging their

school had failed to implement their Section 504 plans, and had retaliated against

them and their mother for hiring an attorney. Id. at 1421. In affirming the district

court’s dismissal of their claims, we held “claims asserted under Section 504

and/or the ADA are subject to Section 1415(f)’s requirement that litigants exhaust

the IDEA’s administrative procedures to obtain relief that is available under the

IDEA before bringing suit under Section 504 and/or the ADA.” Id. at 1422; see

also N.B., 84 F.3d at 1379 (holding litigants cannot “avoid the exhaustion




                                          10
requirement simply by asking for relief that administrative authorities [cannot]

grant,” such as money damages).

      Appellants argue that because “the IDEA does not give parents a right to

file actions for retaliation against them,” the relief they seek is not “relief

available” under the IDEA and, therefore, their retaliation claims are not subject to

the IDEA’s exhaustion requirement. This position, however, is inconsistent with

both Babicz and the plain language of the IDEA. In Babicz, the complaint alleged

the students’ parent “was forced out of her position as PTA president; was

restricted from moving freely within the school, followed sometimes by school

personnel; and was denied a visitor’s pass on two occasions.” Babicz, 135 F.3d at

1421 n.7. In holding the plaintiffs failed to exhaust their remedies, we did not

differentiate between the parent’s retaliation claims and the claims based on the

students’ educational plans. Id. at 1422.

      Furthermore, the IDEA’s broad complaint provision affords the

“opportunity to present complaints with respect to any matter relating to the

identification, evaluation, or educational placement of the child, or the provision

of a [FAPE] to such child.” 20 U.S.C. § 1415(b)(6) (emphasis added). M.T.V.’s

parents contend the School District retaliated against them for “advocat[ing] for

their son’s legal rights to receive an appropriate education and be free from

                                            11
discrimination based solely upon his disabilities.” Among other injuries, they

allege the School District harassed them at IEP meetings, wrote them intimidating

letters in response to their educational demands, and subjected M.T.V. to needless

and intrusive testing. Their retaliation claims clearly relate to M.T.V.’s evaluation

and education, and, therefore, are subject to the exhaustion requirement. See

Weber v. Cranston Sch. Comm., 212 F.3d 41, 51 (1st Cir. 2000) (“Weber’s claim

of retaliation is literally ‘related’ to the identification, evaluation, or educational

placement of [her] ‘child.’”); Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)

(holding all the plaintiff’s claims, including that the school “retaliated against [the

student] in response to the [parents’] efforts to enforce his educational rights,”

were subject to the IDEA’s exhaustion requirement because they “relate

unmistakably to the evaluation and educational placement of [the student]”).

      Because we hold Appellants’ retaliation claims are subject to the IDEA’s

exhaustion requirement, the question becomes whether Appellants exhausted their

administrative remedies or were excused from doing so. M.T.V.’s parents do not

allege they ever requested a due process hearing with respect to their retaliation

claims, but instead argue they raised the retaliation issue at other due process

hearings brought by themselves and the School District. This is insufficient to

establish exhaustion. Section 1415(i)(2)(A) of the IDEA, which allows parties to

                                           12
file an action challenging an ALJ’s final decision, provides “any party aggrieved

by the findings and decision under this subsection shall have the right to bring a

civil action with respect to the complaint presented pursuant to this section.”

(emphasis added). To pursue claims for retaliation, the plain language of the

IDEA required Appellants to file a separate administrative complaint to raise that

issue and exhaust all administrative remedies regarding that complaint before

filing a judicial action. They failed to do so.

       Appellants also fail to show their non-compliance with the IDEA’s

exhaustion requirement should be excused. As we have held, “[t]he exhaustion of

. . . administrative remedies is not required where resort to administrative remedies

would be 1) futile or 2) inadequate.” N.B., 83 F.3d at 1379. The burden of

demonstrating futility is on the party seeking exemption from the exhaustion

requirement. See Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 606 (1988).

M.T.V.’s parents’ speculative allegations of futility and inadequacy simply fail to

sustain this burden.4 Accordingly, we conclude Appellants failed to exhaust the

IDEA’s administrative remedies with respect to their retaliation claims and affirm

the district court’s dismissal of these claims.


       4
         For example, M.T.V.’s parents allege past administrative proceedings in which they
participated suffered from procedural deficiencies. Even if true, we refuse to construe past
deficiencies as a reason for excusing Appellants from exhausting future IDEA complaints.

                                               13
B.     School District’s Right to Reevaluate M.T.V.

       Appellants also argue the district court erred in affirming the ALJ’s order

requiring them to consent to the School District’s request to reevaluate M.T.V by

an expert of its choice, or else forfeit his OHI services.5 In light of the IDEA’s

strict reevaluation requirements, we conclude the district court committed no error

in granting the School District a judgment on the record.

       Before a child with a disability may begin receiving services under the

IDEA, “[a] State educational agency, other State agency, or local educational

agency shall conduct a full and individual initial evaluation.” 20 U.S.C.

§ 1414(a)(1)(A). Subsequent evaluations must be conducted “if conditions

warrant a reevaluation or if the child’s parent or teacher requests a reevaluation,

but at least once every 3 years.” Id. § 1414(a)(2)(A).

       Every court to consider the IDEA’s reevaluation requirements has

concluded “[i]f a student’s parents want him to receive special education under

IDEA, they must allow the school itself to reevaluate the student and they cannot

force the school to rely solely on an independent evaluation.” Andress v.



       5
          Appellants further argue the School District failed to review existing OHI evaluation
data, as required by § 1414(c)(1). We reject this argument. The May 2002 IEP Team meeting
minutes reveal the Team “reviewed progress on objectives related to [OHI] eligibility” and
reviewed the “eligibility report of August 19, 1999 for OHI.”

                                               14
Cleveland Indep. Sch. Dist., 64 F.3d 176, 178-79 (5th Cir. 1995); see also Johnson

by Johnson v. Duneland Sch. Corp., 92 F.3d 554, 558 (7th Cir. 1996) (“[B]ecause

the school is required to provide the child with an education, it ought to have the

right to conduct its own evaluation.”); Gregory K. v. Longview Sch. Dist., 811

F.2d 1307, 1315 (9th Cir. 1987) (holding parents must permit mandatory

reassessments under the Education of the Handicapped Act, the IDEA’s

predecessor, if they want their child to receive special education services); DuBois

v. Conn. State Bd. of Ed., 727 F.2d 44, 48 (2d Cir 1984) (same).

      We agree with these courts and hold the School District was entitled to

reevaluate M.T.V. by an expert of its choice. M.T.V. was initially deemed eligible

for OHI services in August 1999, making his triennial evaluation for continued

OHI eligibility due in 2002. Conditions also warranted a reevaluation because

M.T.V. had made significant progress on his OHI goals. Finally, the School

District had a right to condition M.T.V.’s continued OHI services on a

reevaluation by an expert of its choice because M.T.V.’s initial OHI-eligibility

was based primarily on evaluations provided by his parents. We agree “the school

cannot be forced to rely solely on an independent evaluation conducted at the




                                         15
parents’ behest.” Johnson, 92 F.3d at 558.6 Accordingly, the district court did not

err in affirming the ALJ’s order requiring M.T.V. to submit to the School

District’s reevaluation in order to remain eligible for OHI services.

                                     IV. CONCLUSION

       The district court did not err in dismissing Appellants’ retaliation claims

because Appellants failed to exhaust their administrative remedies, which is a

prerequisite to filing this action. The district court also did not err in affirming the

ALJ’s order because the IDEA plainly gives the School District the right to

reevaluate M.T.V. by an expert of its choice.

       AFFIRMED.




       6
         We also reject Appellants’ argument that the School District’s proposed reevaluation
would harm M.T.V. because he had already undergone so much testing. The administrative
record does not support this conclusory allegation but, instead, reveals M.T.V.’s parents initiated
much of the testing, an action inconsistent with their claim of alleged harm.

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