C.M. R.M., individually and on behalf of their minor child, B.M., Appellants, v. BOARD OF EDUCATION OF THE UNION COUNTY REGIONAL HIGH SCHOOL DISTRICT, Union County New Jersey; Donald Merachnik, Superintendent, in his official capacity; John Christiano, Director of Special Services, in his official capacity and individually; Carol Riegel, School Psychologist, in her official capacity and individually; Patricia Hanigan, School Learning Disabilities Teacher/Consultant, in her official capacity and individually; Frank Imbriaco, School Social Worker, in his official capacity and individually; Martin Mayer, in his official capacity and individually; Laurie Neurodevelopmental Institute, in its official capacity.
No. 04-1407.
United States Court of Appeals, Third Circuit.
Decided April 19, 2005.
Argued Nov. 2, 2004.
128 Fed. Appx. 876
Stephen J. Edelstein (Argued), (Bd of Ed of the Union Cty., et al.), Schwartz, Simon, Edelstein, Celso & Kessler, Florham Park, NJ, Mary J. Hammer (Argued), (Carol Riegel, etc.), Bucceri & Pincus, Clifton, NJ, Franz J. Skok (Argued), (Martin Mayer, etc.), Johnstone, Skok, Loughlin & Lane, Westfield, NJ, for Appellees.
Before ALITO, FUENTES, and STAPLETON, Circuit Judges.
STAPLETON, Circuit Judge, concurring and dissenting.
OPINION OF THE COURT
PER CURIAM.
The parties are familiar with the facts of this case, so we need not recite them. We affirm in part, vacate in part, and remand to the District Court so that it may decide whether Plaintiffs are entitled to injunctive, declaratory, or other appropriate relief with respect to the Individuals with Disabilities in Education Act (“IDEA“) claims that the District Court found moot.
I.
The District Court held that Plaintiffs’ claims under the IDEA,
A.
Nathan R. cannot control the outcome of this case for two reasons. First, unlike the Third Circuit, the Seventh Circuit forecloses the compensatory and punitive damages sought here. It limits money awards under the IDEA to reimbursements of the cost of obtaining educational services that the school districts should have provided under the IDEA. See Sch. Comm. v. Dep‘t of Educ., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (authorizing reimbursement and prospective injunctive relief under the IDEA‘s predecessor); Charlie F. v. Board of Educ., 98 F.3d 989 (7th Cir. 1996) (“we conclude that damages are not ‘relief that is available under’ the IDEA“); Weyrick v. New Albany-Floyd County Consol. Sch. Corp., 2004 WL 3059793 at *6-8 (S.D. Ind. 2004) (“To the extent plaintiffs seek ‘monetary damages’ ..., or ‘punitive damages’ ... as opposed to reimbursement or compensatory services, they seek relief that is not available under the IDEA.“).
In this Circuit, a broader array of remedies is available for
Second, beyond this legal difference between our Circuit and the Seventh, the specific remedies sought in each case differ as well. Nathan R.‘s case was moot because he requested only special education services, which were to be provided while he was in high school. See id. at 378. Once he graduated, his need for these services disappeared, and “no action [the Seventh Circuit] could take would affect his or the School‘s rights.” Id. at 381. In contrast, B.M. seeks a full panoply of remedies, including declaratory and injunctive relief and compensatory and punitive damages. Remedies of this sort do not expire upon graduation. For example, if B.M. could demonstrate that the Defendants caused him quantifiable harm through violations of the IDEA, he could recover compensatory damages. Plaintiffs may also merit further injunctive relief if they can prove (as they insisted at oral argument) that copies of B.M.‘s records remain outstanding. In short, unlike in Nathan R., the District Court can still take actions that will affect Plaintiffs’ and Defendants’ rights, so the case is not moot.3
Although we hold that Plaintiffs’ claims are not moot, we need not remand all of them. In particular, Plaintiffs’ allegations are insufficient to state a claim for damages under the IDEA because they fail to allege any identifiable injury.
Other circuits have established that only those procedural violations of the IDEA which result in loss of educational opportunity or seriously deprive parents of their participation rights are actionable. For example, in W.G. v. Board of Trustees, 960 F.2d 1479 (9th Cir. 1992), the Ninth Circuit rejected the notion that procedural flaws “automatically require a finding of a denial of a [free and appropriate public education under the IDEA].” Id. at 1484. Instead, the Court held that only “procedural inadequacies that result in the loss of educational opportunity or seriously infringe the parents’ opportunity to participate in the IEP formulation process clearly result in the denial of a [free and appropriate public education].” Id. (citations omitted). Similarly, the First Circuit observed that “procedural flaws do not necessarily render an [Individualized Education Plan (“IEP“)] legally defective” and held that “[b]efore an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil‘s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of education benefits.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990) (en banc) (citations omitted). Consistent with those holdings, the Sixth Circuit rejected an IDEA claim for technical noncompliance with procedural requirements where the alleged violations did not result in “substantive deprivation,” see Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990), and the Fourth Circuit refused to award compensatory educational services where procedural faults committed by Board did not cause the child to lose any educational opportunity, see Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990).
A plaintiff bears the burden of establishing the harm caused by the claimed procedural shortcomings, and Plaintiffs here clearly have not met that burden. Their primary contentions relating to harms are that B.M.: (1) was deprived of an “appropriate education” under the IDEA during his sophomore year and the first part of his senior year; (2) was subject to constant harassment at school; (3) was unable to transfer because any new school would require his tainted records; and (4) faced obstacles to his post-secondary education. But Plaintiffs’ bare allegations notwithstanding, the District Court found that they were “unable to produce any evidence to convince this Court that B.M. was excluded from participation in, denied the benefits of, or subject to discrimination at school.” A50. It follows that B.M. suffered no educational loss.
The record is also adequate to show—based on undisputed facts—that the parents actively participated in the development of B.M.‘s IEP at multiple stages. See Target Range, 960 F.2d at 1484 (identifying loss of opportunity for parental participation as an alternative type of educational injury under IDEA); Roland, 910 F.2d at 994. B.M.‘s parents’ claim that they were deprived of the opportunity to participate in particular isolat
Finally, though Plaintiffs did successfully remove certain reports from B.M.‘s records, and while other reports were prepared that should not have been, the damages arising from those reports and their brief and limited use are purely speculative. See Taylor Milk Co. v. Int‘l Bro. of Teamsters, 248 F.3d 239, 247 (3d Cir. 2001). Because there are no facts on record that suggest B.M.‘s educational interests were prejudiced by his school‘s various procedural errors, no damages are available to petitioners on their IDEA claims.
The absence of injury similarly precludes any damages award with respect to Plaintiffs’ § 1983 claims based on alleged IDEA violations. For the same reasons that Plaintiffs cannot show that B.M. suffered a loss of educational opportunity or that his parents suffered a loss of participation in developing B.M.‘s educational program, it cannot be said that petitioners suffered anything more than de minimis injury. Accordingly, no damages are available to petitioners based on their § 1983 claims. See Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (stating that to be actionable a Section 1983 tort requires more than de minimis injury).
II.
Plaintiffs appeal the District Court‘s rulings in favor of the Defendants on several additional claims. They include: 1) summary judgment for Defendant Riegel on Plaintiffs’ “brownie incident” claim; 2) summary judgment for the Defendants on Plaintiffs’ substantive Due Process claims;
A.
Plaintiffs contest the District Court‘s holding that Defendant Riegel did not violate their rights during the so-called “brownie incident.” They argue that Riegel‘s actions offended the First Amendment because they constituted retaliation against B.M. and his parents for filing a legal complaint in this case. We review the grant of summary judgment de novo, viewing the facts in the light most favorable to the Plaintiffs. Fogarty v. Boles, 121 F.3d 886, 887 (3d Cir. 1997).
On September 15, 1995, B.M.‘s Child Study Team (“CST“) held an open house. The CST members stayed in one room, called a “resource room,” and teachers stopped in during their free periods to discuss the CST‘s students and their Individualized Education Plans. The room had a table full of refreshments. As he usually did, B.M. entered the room that morning and dropped off his belongings. He asked a teacher in the room if he could take an item from the refreshment table. She said yes, but he did not take anything at that time. Around lunchtime, B.M. returned and took a brownie from the refreshment table. Carol Riegel jumped up and grabbed B.M.‘s arm with one hand, using the other to pry the brownie from B.M.‘s hand and set it back on the table. After the incident, B.M. cursed and left the room. He sustained no physical injuries, and did not visit the school nurse. A1303-04. He later explained that he was angry not because of the event itself, but because he could not retaliate without suffering severe consequences. A1306-07.
In a
Summary judgment was proper because Plaintiffs failed to raise a genuine issue as to whether there is a causal connection between B.M.‘s lawsuit and the brownie incident. See Robinson v. Pittsburgh, 120 F.3d 1286, 1302 n. 16 (1997). Riegel appears to have taken the brownie from B.M.‘s hand because she thought he was breaking the rules, not because “she was furious that this litigation had achieved what she had lobbied against when she conspired with Christiano and Simon to make sure that her report would continue to be available for use in planning B.M.‘s education.” Plaintiff‘s Brief at 54. The three-month gap between the filing of a complaint and the incident is not so close as to be unusually suggestive of retaliatory motive, especially since such an obvious and unimpeached non-retaliatory motive exists. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997) (internal quotations and citations omitted).
B.
Plaintiffs also claim that the District Court erred in granting summary judgment for the Defendants on their substantive Due Process claims. First, Plaintiffs allege a violation of their constitutional right to privacy when C.M.‘s and R.M.‘s addresses, ages, occupations, and educational histories were included on B.M.‘s school records, which were disseminated to various parties related to the ongoing litigation. Citing Nixon v. Adm‘r of GSA, they claim that “[i]f a plaintiff has a reasonable expectation of privacy, the Constitution protects against the disclosure of this information.” 433 U.S. 425, 458, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
All of the cases Plaintiffs cite are inapposite. Nixon, for example, held that the former President‘s right to privacy was not violated by a statute that required preservation of certain Presidential materials. To the extent that this case is relevant, it actually cuts against Plaintiffs, because it allowed archivists to screen the Presidential materials to separate and give back those materials that were entirely private. See id. at 455-65. Another case cited by Plaintiffs, Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), also militates against their position. Whalen sustained the constitutionality of a New York statute requiring a database containing the name, address, and age of every person who obtained prescription drugs for which there were both lawful and unlawful markets. Although the database could be accessed by certain health department and investigatory personnel, the Court found that it did not amount to “an invasion of any right or liberty protected by the Fourteenth Amendment.” Id. at 605. No case cited by the Plaintiffs even approaches the proposition that the Constitution is offended by disclosure of parents’ occupations or educational histories to court reporters, insurers, attorneys, and expert witnesses during the course of litigation.
Moreover, the IDEA, which Plaintiffs claim “provide[s] a basis for an expectation of privacy in school records,” does not require that this kind of parental information should be kept confidential in this context. Indeed, it specifically exempts from its confidentiality requirements “the
Plaintiffs also challenge disclosure of B.M.‘s school records, including his psychological reports, to the Department of Education Office for Civil Rights (“OCR“), defendants’ insurance carrier, prospective counsel, defendants’ expert, and the psychiatrist (Martin Mayer) engaged to evaluate B.M. For the following reasons, we believe these disclosures did not breach the confidentiality of B.M.‘s records and did not violate his right to privacy.
C.M. filed a complaint with the OCR in 1993 alleging that the school district discriminates on the basis of disability. Defendant Merachnik disclosed B.M.‘s records to the OCR only after it requested them in a letter citing federal regulations requiring that the OCR be provided with all pertinent documents. See Defendants’ Supplemental Appendix (“DA“) at 88-90; see also
Second, Petitioners challenge disclosures to Livingston‘s insurer. But the insurance carrier was entitled to legal documents, including attachments, pursuant to the terms of its insurance agreement with Livingston. See DA3. And it is well-established that insured parties stand in a special relationship with their insurers, who as real parties of interest, are entitled to access documents on which their liability may turn. See Gray v. Comm. Union Ins. Co., 191 N.J.Super. 590, 468 A.2d 721, 725 (1983).
Third, Petitioners claim that defendant John Christiano improperly provided confidential documents to an attorney from whom he sought possible legal representation. But Christiano did not have to wait until he formally engaged an attorney before he shared documents critical to his case; otherwise, neither he nor the lawyer could make an informed decision regarding representation. See In re Bevill, Bresler & Schulman Asset Manag. Corp., 805 F.2d 120, 124 n. 1 (3d Cir. 1986).
Fourth, Petitioners challenge Livingston‘s disclosure of B.M.‘s records to its expert. However, because experts function as agents of counsel and are themselves bound by a duty not to disseminate confidential documents they receive in that capacity, disclosure to experts does not constitute a breach of confidentiality or privacy. See State v. Davis, 116 N.J. 341, 561 A.2d 1082, 1092 (1989).
Finally, disclosures to Dr. Mayer were permissible because IDEA specifically provides that “individuals who have knowledge or special expertise” and certain “qualified professionals” may participate in the evaluation of disabled children.
In sum, though his parents have defended the confidentiality of B.M.‘s records with the avowed purpose of protecting his post-secondary educational opportunities, no confidential records were released to any individual or entity that could jeopardize B.M.‘s educational or other interests. All those given access were entitled to it.
Plaintiffs’ second substantive Due Process claim—that they lost the right to educate their child as they saw fit—merits little discussion. Contrary to Plaintiffs’ assertions, the violations alleged in this case do not implicate the right to send one‘s child to a competent nonpublic school, see Pierce v. Soc‘y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the right to study a foreign language, see Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), or a patient‘s right to refuse unwanted medical treatment. See White v. Napoleon, 897 F.2d 103, 114 (3d Cir. 1990). Because Plaintiffs have not offered a single precedent in support of their argument, the District Court properly found that they did not raise an issue of material fact as to whether they were denied the right to educate their child as they see fit.
C.
Plaintiffs next argue that the District Court‘s Order aimed at preserving the confidentiality of B.M.‘s records constituted an abuse of discretion. The Court ordered that Stephen Edelstein, counsel for defendants,
collect all of B.M.‘s school records ... [and] hold these records in his office in a locked and secure location which is accessible only to him, until the termination of this matter or the further Order of this Court, at which time the records and any copies thereof shall be disposed of in accordance with this Court‘s Order.
A36. It further required Edelstein to obtain any of B.M.‘s records that were in the possession of insurance carriers. Id.
Plaintiffs argue that this ruling was an abuse of discretion because it was both too broad and too narrow. First, they fault the District Court for requiring Edelstein to “destroy all of B.M.‘s pupil records at the end of this case.” Plaintiffs’ Brief at 59. But the Order does not mandate destruction. It merely states that B.M.‘s records should be collected in one location until the end of litigation, pending further direction from the Court. Second, Plaintiffs argue that “[t]he Court should only have ordered the challenged records to be expunged and the remainder of his records returned to his school district.” Id. This request is puzzling, since B.M.‘s school district was dissolved in 1997. Even if the records could be returned to the defunct district, Plaintiffs have not demonstrated why they should be able to redact records merely because they have challenged them, before any court has determined that they are legally flawed.5 The District Court‘s Order was not an abuse of discretion.
D.
In an October 4, 1999 Order, a Magistrate Judge in this case refused to allow
III.
For the foregoing reasons, we affirm the ruling of the District Court with respect to all claims except Plaintiffs’ pleas for declaratory and injunctive relief under the IDEA. The District Court‘s holding with respect to those claims is vacated, and the matter is remanded for further consideration. The District Court should also review the need for additional discovery in light of this opinion.
STAPLETON, Circuit Judge.
I am able to join most,6 but not all, of the Court‘s opinion. I would remand with instructions that the District Court should promptly try plaintiffs’ First Cause of Action and determine whether they are entitled to declaratory, injunctive, or damage relief, together with attorneys’ fees and costs, on that claim.
This controversy originated over twelve years ago, and this suit will soon have its tenth anniversary. It appears to me that in part because of the adversarial stance of the parties over all of those years and the efforts of the plaintiffs to convert a relatively straightforward claim into a cause celebre, the parties and the District Court have lost sight of plaintiffs’ original and primary claim. Because that claim may have merit, may entitle plaintiffs to important relief, and, yet, has never been adjudicated, I would remand and direct that expedited attention be given to it.
In this case, B.M.‘s parents filed a complaint with the school about invalid and unreliable testing and lack of proper parental notice that, along with other procedural violations of IDEA, allegedly produced an evaluation of B.M. which was inaccurate, misleading and damaging to him. They sought expungement of that evaluation, which was denied by the defendants. They proceeded through the administrative process and were ultimately denied relief. The parents then filed this suit in the District Court asking it, inter alia, expunge the harmful record.
The plaintiffs’ “First Cause of Action” asks the District Court to review the administrative proceedings and grant the appropriate relief there denied. It spells out the various procedural violations of the IDEA that had produced the allegedly misleading evaluation of B.M. and then alleges as follows:
84. B.M. is expected to enter college under admission procedures developed for special education students. The procedures typically require submission of a school psychologist‘s report, as indicated in written material provided to the student by his guidance counselor at GL, Mrs. Menk, and as corroborated in other sources.
85. If the Board is not enjoined from disclosing the challenged records in B.M.‘s file to potential post-secondary education programs in which B.M. seeks to enroll, he will be effectively foreclosed from applying to those programs. B.M. will be irreparably damaged by his inability to pursue post-secondary education and the concomitant emotional distress.
86. As a result of the district‘s failure to follow state and federal regulations regarding evaluations, C.M. and R.M. cannot agree to any further evaluations by the district and are forced to incur expenses in having the psychological and educational evaluations required for college admissions to programs for the learning disabled done privately. 87. B.M.‘s educational records must be maintained after graduation so that he can document his need for accommodations in post-secondary education and the work place under § 504. Because the records sought to be expunged provide harmful and inaccurate information, B.M. will be irreparably harmed by their disclosure to post-secondary programs and employees if the Board is not enjoined from disclosing the challenged records to said programs and employees.
88. The evaluations written by Ms. Riegel and Dr. Mayer which were relied upon by the CST caused the CST to provide an improper program for B.M. As a result of this improper program the parents were forced to challenge the IEP developed by the CST resulting in legal and expert fees. Plaintiffs have been harmed, because they have not received reimbursement of attorney‘s fees and related costs for over a year since these costs have been expended. Plaintiffs seek unreimbursed fees and costs, including pre- and post-judgment interest if accrued.
A.985-86.
This Count asks the District Court to declare that “if the defendant Board is not enjoined from disclosing the challenged records to post-secondary programs in which B.M. intends to enroll or [to] potential employers, B.M. will suffer irreparable harm.” A.988. In addition to compensatory and punitive damages, Count One asks the District Court to enter an injunction (a) “[d]irecting the ... Board to expunge the [challenged] records,” (b) “[d]irecting that no party communicate information relating to the challenged material including the release of any document which references the challenged reports,” and (c) “[d]irecting that any document which incorporates any portion of the expunged record be retrieved....“. A.988.
In an opinion dated December 19, 2002, the District Court, while acknowledging that the IDEA “clearly grants parents specific procedural rights which they may enforce in administrative proceedings as well as in federal court,” A.47, dismissed plaintiffs’ First Cause of Action as moot, explaining:
There is no live case or controversy before the Court. B.M. has graduated from high school. B.M. did not suffer any harm as a result of any of Defendants’ alleged violations, and is not seeking compensatory education or other ongoing relief. The Court recognizes that Plaintiffs are concerned about the dissemination of an allegedly flawed evaluation, but the Court remedied this issue at oral argument with an order that all copies of B.M.‘s evaluation that had been disseminated were to be collected and retained in one central location and no further dissemination should occur. There is no potential harm to Plaintiffs from the dissemination of the evaluation as all copies have been contained.
A.48.
The order referred to by the District Court, entered on December 17, 2002, directed that efforts be made to trace and retrieve any of B.M.‘s records no longer held by the school and ordered that B.M.‘s records be held by defense counsel “in his office in a locked and secure location which is accessible only to him, until the termination of this matter or the further Order of this Court, at which time the records and any copies thereof shall be disposed of in accordance with this Court‘s Order ...” A.36.7 The District Court terminated this case by dismissing the last of the plaintiffs’ claims on January 13, 2004. It gave no instructions with respect to the expungement or disposition of the challenged documents. Nor does anyone claim that it has done so since.
In addition to dismissing plaintiffs’ First Cause of Action as moot, the District Court‘s December 19, 2002, opinion disposed of all of plaintiffs’ claims with the exception of the claims included in its “Fourth Cause of Action.”8 These claims were based on
ORDERED that the remaining claims against Defendants are as follows: (1)
U.S.C. § 1983 claims against Defendant Union County School District and Defendants Merachnik, Christiano, Hanigan, Imbriaco, Mayer and Riegel in their official capacities, but not as to punitive damages; (2) a42 U.S.C. § 1983 claim against Defendant Riegel in her individual capacity; (3) Defendant Laurie Neurodevelopmental remains in the case to the extent that LNI might be liable to Plaintiffs for attorneys’ fees if the Court were to find that attorneys’ fees should be awarded.
A. 63-64. Given the text of the December 19, 2002, opinion, this order can only be read as preserving only Count Four
The Court today expressly and correctly holds that plaintiffs’ First Cause of Action is not moot and that plaintiffs may be entitled to declaratory and injunctive relief on that claim. Moreover, I am confident that my colleagues would find the plaintiffs entitled to attorneys’ fees and costs should they be successful in obtaining such relief.
I would not rule out the possibility that when the facts are fully developed one or more of the individual defendants will be entitled to qualified immunity. However, plaintiffs allege violations of statutory and regulatory procedural requirements that are mandatory, “clear and specific.” P.N. v. Greco, 282 F.Supp.2d. 221, 240 (D.N.J. 2003) (finding immunity unavailable where “clear and specific” mandates of IDEA were alleged). Accordingly, a disposition at this time of plaintiffs’ First Cause of Action against the individual defendants in their individual capacity on qualified immunity grounds would be premature.
I would remand for a prompt trial of plaintiffs’ First Cause of Action, asking the District Court to reevaluate the need for further discovery in light of this Court‘s opinion.
Notes
Specifically, plaintiffs allege that defendants violated IDEA by (1) failing to inform them of their statutory rights; (2) failing to refer E.J. for evaluation from September 1991 until February 1992; (3) failing to advise W.B. in writing of its refusal to evaluate E.J. prior to February 1992; (4) conducting only a limited evaluation of E.J. in April 1992; (5) refusing to develop an IEP until April 1993, in the wrongful belief that E.J.‘s academic performance disqualified him for IDEA services; (6) withholding from W.B. evaluation results indicating E.J. may be neurologically impaired; and (7) conditioning the commencement if occupational therapy for E.J. on settlement of W.B.‘s due process petitions and refusing to provide those services until January 1993.Matula, 67 F.3d at 500.