Case: 09-20551 Document: 00511334347 Page: 1 Date Filed: 12/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2010
No. 09-20551
Lyle W. Cayce
Clerk
D. A., by next friend and individually; LATASHA A.,
Plaintiffs - Appellants
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT; CELESTINA MARTINEZ;
SHARON COLVIN,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR, District
Judge.*
EDITH H. JONES, Chief Judge:
D.A., through his mother L.A., brought suit against the Houston
Independent School District (“HISD”) and two school officials, alleging that
D.A.’s rights under various federal laws were violated because two of its schools
failed to test him timely for special education. They sought declaratory relief,
compensatory and punitive damages, for violations of the Individuals with
Disabilities Education Act (20 U.S.C. § 1400 et seq.) (“IDEA”), § 504 of the
Rehabilitation Act (29 U.S.C. § 794) (“§ 504”), the Americans with Disabilities
*
District Judge, Northern District of Texas, sitting by designation.
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Act (42 U.S.C. § 12101 et seq.) (“ADA”), the Age Discrimination Act (42 U.S.C.
§ 6104(f)), the Texas and United States Constitutions, and 42 U.S.C. § 1983. The
district court granted summary judgment for the defendants. We affirm
principally because appellants have not furnished proof of intentional
discrimination as required by § 504 and the ADA, and § 1983 offers no additional
cause of action for D.A.
I.
BACKGROUND
D.A. attended HISD as a pre-kindergarten student from 2005 until he
withdrew from the district in January 2008. In pre-kindergarten, D.A.’s teacher
noticed that he had trouble completing work and following directions. He was
not tested for special education while in pre-kindergarten and was advanced to
kindergarten. In kindergarten, he was still unable to complete his work. L.A.,
D.A.’s mother, wanted him to have special education testing. A substitute
teacher for D.A.’s kindergarten class recommended special education testing, but
the school counselor agreed only to conduct a speech therapy evaluation. When
D.A.’s regular teacher returned, she had no trouble understanding D.A.’s speech.
The school officials decided not to test D.A., but they failed to inform his mother
of the decision.
Despite warning that D.A. might have to repeat kindergarten, his teacher
promoted him to the first grade. She believed there would be more testing and
special education opportunities for D.A. in the first grade. The school had a
practice of waiting until the first grade to test children for special education, in
order to give them a chance to develop.
In first grade, D.A. immediately misbehaved and performed below grade
level. His teacher referred him for special education testing. D.A. was removed
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from class to help him do his work. Eventually, L.A. had to sit with her son
during class. A private speech pathologist who had been treating D.A. since
kindergarten wrote to the school to express concern about D.A.’s psycho-
educational problems. In October 2007, two months into the school year, the
Intervention Assistance Team (“IAT”) first met to consider D.A.’s needs and
decided that a special education evaluation was premature because his teacher
had not sufficiently documented D.A.’s problems. The IAT reached the same
conclusion again on December 5. L.A. wrote several letters to the school
requesting that D.A. be tested. The school evaluation specialist collected
updated documentation from D.A.’s teacher and a psychologist and submitted
the documents to a Committee of Evaluation Specialists, which ultimately
determines whether a student’s behavior warrants a special education referral.
The IAT met before Christmas but delayed D.A.’s referral until after the
holidays. On January 31, 2008, before any testing had occurred, L.A. withdrew
D.A. from the HISD. D.A. entered the Conroe Independent School District
where he was immediately recommended for special education testing.
L.A. filed an IDEA claim with the Texas Education Agency, which held a
due process hearing in April 2008. A special hearing officer determined that
HISD violated IDEA by failing to refer D.A. to an eligibility screening in October
2007. During the proceeding, L.A. requested that HISD fully test D.A.’s
suspected disabilities, but the hearing officer ruled this claim moot because D.A.
had left HISD and was already being tested for special education in the other
district. The hearing officer rejected for insufficient proof the medical expenses
allegedly incurred on D.A.’s behalf and concluded that monetary damages were
unavailable under IDEA.
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D.A. appealed the administrative decision to the district court, requesting
declaratory relief, compensatory and punitive damages. D.A. asserted claims
under IDEA, § 504, ADA, the Age Discrimination Act, the Texas and United
States Constitutions, and 42 U.S.C. § 1983. In a comprehensive and thoughtful
opinion, the district court granted summary judgment in favor of the appellees.
The district court held that the plaintiff’s IDEA claim for compensatory damages
was not moot, but it affirmed the hearing officer’s findings that the plaintiff
lacked any evidence to support claims for compensatory relief. The court
rejected liability under the ADA and § 504 because plaintiffs failed to demon-
strate that the school’s actions were motivated by bad faith or gross
misjudgment. The district court dismissed the plaintiff’s Age Discrimination Act
claim for failure to exhaust the proper administrative remedies. The district
court concluded that § 1983 cannot be used as an additional vehicle to redress
violations of the ADA, § 504 or the IDEA. The plaintiff’s constitutional claims
were also dismissed. D.A. has appealed, contending that genuine issues of
material fact exist concerning the district’s liability and that the district court
applied incorrect legal standards when interpreting the statutes.
II.
DISCUSSION 1
1
Although this case was filed to challenge the rejection of D.A.’s IDEA
claim by the administrative hearing officer, the appeal relies only on the other
statutory claims. The appellant’s argument concerning the district court’s
adverse decision on the IDEA claim raises two points, mentioned only in passing.
Because appellant neither briefs nor seeks relief under IDEA in this appeal, he
has abandoned any such claim. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.
1990). Waiving another point, appellant also chose not to brief the dismissal of
the individual defendants.
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The district court’s grant of summary judgment on the non-IDEA claims
is reviewed de novo. Summary judgment is appropriate when, viewing the
evidence and all justifiable inferences in the light most favorable to the non-
movant, there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Bridgmon v. Array Sys. Corp., 325 F.3d 572,
576 (5th Cir. 2003).
A. § 504 and ADA Claims
D.A. contends that the record reveals genuine material fact issues
concerning whether, paraphrasing § 504:
[he] was excluded from participation in, denied the benefits of, and
subject to discrimination at school included, but [not] limited to
being excluded from the classroom activities, learning, work
assignments and lunch, being denied the benefits of receiving
special education testing, speech testing, speech therapy, special
education and free appropriate public education, and being subject
to discrimination regarding his disability, race and age.
The district court, he asserts, erroneously heightened the standard for a
district’s liability under § 504. Because this court has equated liability
standards under § 504 and the ADA, we evaluate D.A.’s claims under the
statutes together. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Pace
v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en banc).
A student may assert claims under IDEA as well as § 504 and the ADA.
Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983). This
court and others have explained that while IDEA imposes an affirmative
obligation on states to assure disabled children a free appropriate public
education, see, e.g., 20 U.S.C. § 1412(l), § 504 and the ADA broadly prohibit
discrimination against disabled persons in federally assisted programs or
activities. See 29 U.S.C. § 794(a); 42 U.S.C. § 12132; see also Sellers v. Sch. Bd.
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of Manassas, Va., 141 F.3d 528-29 (4th Cir. 1998); Pace, 403 F.3d at 290-91. A
web of procedural regulations, including the “Child Find” mandate applicable
here,2 governs the school district’s identification, assessment and treatment
plans for disabled students. The regulations seek to maximize educational
professionals’ coordination and collaboration with the parents. Substantively,
IDEA aims to provide an adequate educational opportunity, not necessarily the
maximization of a disabled child’s abilities, and it leaves considerable discretion
in the hands of professionals. See Monahan v. Nebraska, 687 F.2d 1164, 1170
(8th Cir. 1982); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 102 S. Ct. 3034 (1982) (interpreting EAHCA, the statutory
predecessor to IDEA).
Exactly what remedies remain under § 504 and the ADA for children
whose parents are dissatisfied with the school’s determinations under IDEA are
unclear. This court applies issue preclusion where the legal standards
underlying such claims are not significantly different. See Pace, 403 F.3d at 290.
In reaching this conclusion, Pace cited favorably an Eighth Circuit decision that
applied claim and issue preclusion to “short-circuit redundant claims” when
IDEA’s administrative process “produces an administrative decision that is
upheld on judicial review.” Ind. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th
Cir. 1996). Thus, the resolution of an IDEA claim in the school district’s favor
will frequently preclude parents’ resort to redundant claims under § 504 and
ADA.
Further constraining the viability of claims under the disability non-
discrimination laws is this court’s long-established rule that:
2
See Child Find, 34 C.F.R. § 300.111(a) (2006).
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[A] cause of action is stated under § 504 when it is alleged that a
school district has refused to provide reasonable accommodations for
the handicapped plaintiff to receive the full benefits of the school
program.
Marvin H, 714 F.2d at 1356 (emphasis in original); see also Tatro v. Texas,
703 F.2d 823, 832 (5th Cir. 1983) (Tatro II); Helms v. McDaniel, 657 F.2d 800,
806 n.10 (5th Cir. 1981). Marvin H used the term “refusal” because the statute
requires intentional discrimination against a student on the basis of his
disability. See 714 F.2d at 1357; Sellers, 141 F.3d at 528. Marvin H. is
consistent with courts that have held that to establish a claim for disability
discrimination, in this educational context, “something more than a mere failure
to provide the ‘free appropriate education’ required by [IDEA] must be shown.”
Monahan, 687 F.2d at 1170; see also Sellers, 141 F.3d at 529; Lunceford v. D.C.
Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984). As Monahan reasoned,
experts often disagree on what the special needs of a handicapped child may be
and the proper placement of a child is often is an arguable matter.
That a court may, after hearing evidence and argument, come to the
conclusion that an incorrect evaluation has been made, and that a
different placement must be required . . . is not necessarily the same
thing as a holding that a handicapped child has been discriminated
against solely by reason of his or her handicap.
687 F.2d at 1170. The court did not read § 504 as creating “general tort liability
for educational malpractice” because the Supreme Court in interpreting the
IDEA3 has warned against a court’s substitution of its own judgment for
educational decisions made by state officials. Monahan concluded that bad faith
or gross misjudgment must be shown in order to state a cause of action under
3
See, e.g., Rowley, 458 U.S. at 181, 102 S. Ct. at 3038 (interpreting
EAHCA, the statutory predecessor to IDEA).
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§ 504. Id. at 1171. “So long as state officials involved have exercised
professional judgment, in such a way as not to depart grossly from accepted
standards among educational professionals, we cannot believe that Congress
intended to create liability under § 504.” Id. We concur that facts creating an
inference of professional bad faith or gross misjudgment are necessary to
substantiate a cause of action for intentional discrimination under § 504 or ADA
against a school district predicated on a disagreement over compliance with
IDEA.
The state hearing officer found that the school violated IDEA by failing to
test D.A. for special education needs in October 2007, two months before the
final testing decision was made. Because this was the only violation found, it
could be contended that D.A. may not seek to recharacterize the district’s other
pre-referral and pre-intervention actions, which the hearing officer did not
impugn, as discriminatory violations of § 504 or ADA. See Indep. Sch. Dist. No.
283, 88 F.3d at 562 (citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 796-99,
106 S. Ct. 3220, 3224-27 (1986)). Moreover, it could be argued that D.A. has no
cognizable claim under § 504 or the ADA because the gravamen of his disagree-
ment is the district’s failure to diagnose his disability at an appropriate age. He
cannot be discriminated against because of his disability until it has been
demonstrated to exist. Under these scenarios, the district court might have
found the § 504/ADA claims precluded or subject to dismissal. The school
district, however, does not make these arguments on appeal.
What is preserved for review is that even though the hearing officer’s
findings may suggest an untimely diagnosis of D.A.’s psycho-educational
problems, the error reflects no more than negligence. The district’s actions,
including its pre-referral attempts to use a disciplinary strategy with D.A., were
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found “well intended” by the hearing officer. The district court properly relied
on the hearing officer’s determination that the district delayed evaluating D.A.
because the professionals believed that behavioral interventions would be
successful and that the classroom teacher had not properly documented his
behavior. Further, construing the facts in the light most favorable to D.A., we,
like the district court, find no fact issue as to whether HISD officials “departed
grossly from accepted standards among educational professionals.” D.A.’s mere
disagreement with the correctness of the educational services rendered to him
does not state a claim for disability discrimination. Marvin H., 714 F.2d at 1356.
That HISD authorized an evaluation for special education within two months
after its initial denial further demonstrates at most misjudgment, not bad faith.
The district court correctly granted judgment as a matter of law on D.A.’s § 504
and ADA claims.4
B. Age Discrimination Act Claims
Strange as it may seem, D.A. could file a claim under the Age Discrimina-
tion Act, which provides that “no person . . . shall, on the basis of age, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under, any program or activity receiving Federal financial
assistance.” 42 U.S.C. § 6102.
Under the Age Act, however, a plaintiff must exhaust his administrative
remedies before filing an action in the district court. See 42 U.S.C. § 6104(f);
34 C.F.R. § 110.39 (Department of Education enforcement regulations).
Appellant did not fulfill any of the exhaustion requirements. Instead, L.A.
4
The court also correctly observed that D.A. has failed to offer proof of
monetary damages either before the hearing officer or in court.
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contends that she only became aware of the Age Act claim at the IDEA
administrative hearing and that fulfilling both the IDEA and Age Act filing
deadlines would have been impossible. Her sworn testimony, to the contrary,
was that D.A.’s pre-kindergarten teacher told her that HISD probably would not
test D.A. because of his young age. L.A. thus knew of the alleged age
discrimination two years before the IDEA hearing. Despite this, appellant
argues that L.A. did not know that age was a motivating factor in HISD’s
decision to delay testing because the pre-kindergarten teacher gave her a
“pretexual reason” [sic]—that young children need time to develop before special
education testing occurs. Whether right or wrong, the policy behind HISD’s
alleged discrimination does not excuse D.A. from the exhaustion requirement.
C. § 1983 Claims
Section 1983 provides a cause of action when a person has been deprived
of federal rights under color of state law. Doe v. Dall. Indep. Sch. Dist., 153 F.3d
211, 215 (5th Cir. 1998). To state a § 1983 cause of action, a plaintiff must allege
a violation of rights secured by the Constitution or by federal laws. Id.
However, where a statutory regime already provides a comprehensive set of
remedies for its enforcement, there is a presumption against the availability of
the more general remedial measures of § 1983. See Lollar v. Baker, 196 F.3d
603, 609 (5th Cir. 1999). This principle renders further discussion of the
intricacies of § 1983 unnecessary.
1. Based on alleged IDEA violations
In Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457 (1984), the Supreme
Court held that the EAHCA [IDEA] contained a comprehensive enforcement
scheme through which disabled children could assert violations of their rights
and that EAHCA claims cannot be pursued through § 1983. Id. at 1004-05,
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1013, 104 S. Ct. 3464-65, 3469. Congress amended the statute to state:
“[N]othing in this title shall be construed to restrict or limit the rights,
procedures, and remedies available under . . . other Federal statutes protecting
the rights of handicapped children and youth.” 20 U.S.C. § 1415(l).5 Since the
addition of § 1415(l), this circuit has not addressed whether recovery may be had
through § 1983 for IDEA violations.6 Other circuits have held that this
amendment did not abrogate Smith’s holding that EAHCA/IDEA violations may
not support § 1983 claims. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 795-
96 (3d Cir. 2007); Sellers, 141 F.3d at 529; Padilla v. Sch. Dist. No. 1, 233 F.3d
1268, 1273 (10th Cir. 2000). We agree with the reasoning of these circuits. The
comprehensive enforcement scheme established for IDEA violations justifies the
presumption that it is meant to be exclusive absent congressional intent to
create additional remedies. See Lollar, 196 F.3d at 609. Nothing in § 1415(l)
indicates an intent to facilitate the expansive remedies under § 1983 in addition
to IDEA’s carefully calibrated mechanism to prevent or remedy violations. See
Jersey City Pub. Sch., 486 F.3d at 802. D.A. cannot assert an IDEA claim
through § 1983.
2. Based on alleged § 504 and ADA violations
D.A.’s argument that he can use § 1983 as a method to enforce alleged
violations of rights under the ADA and § 504 is foreclosed by this court’s decision
in Lollar v. Baker, 196 F.3d at 603. Lollar held that because Congress created
5
This provision was originally codified at 20 U.S.C. § 1415(f), but is now at
§ 1415(l).
6
Before the addition of § 1415(l), we held that violation of EAHCA may not
be enforced through § 1983 because the EAHCA provided the exclusive remedy.
Marvin H., 714 F.2d at 1357-58.
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a specific and comprehensive enforcement mechanism under § 504 to ensure the
rights of the disabled persons, the presumption controls against invoking a more
general remedial scheme to vindicate those rights. Id. Appellant cannot pursue
his ADA and § 504 claims through § 1983.
3. Based on alleged constitutional violations
Appellants argue that HISD violated D.A.’s constitutional rights by
requiring him to show greater evidence of special needs than it required of non-
black children. Appellants believe that because HISD has a history of over-
identifying black children as requiring special-needs education, the district is
now over-correcting by holding black children to a higher showing.
There is no actual evidence of the asserted over-correction. The only
“evidence” D.A. points to is a statement by HISD’s counsel during the closing
argument before the hearing officer that HISD was concerned about
over-identifying black children. This is not sufficient, not only because
arguments by counsel are not evidence, but also because it establishes only that
HISD was concerned about over-identification, not that HISD actually treated
black children differently.
III.
For these reasons, the judgment of the district court is AFFIRMED.
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