Kristоpher SELLERS, by his parents Alan Sellers and Sherri Sellers and Sherri Sellers, Plaintiffs,
v.
SCHOOL BOARD OF THE CITY OF MANASSAS, VIRGINIA, et al., Defendants.
United States District Court, E.D. Virginia.
*1007 Paul S. Dalton, Dalton & Dalton, P.C., Annandale, for Plaintiffs.
Kathleen S. Mehfoud, Hazel & Thomas, P.C., Richmond, for Defendants.
MEMORANDUM OPINION
ELLIS, District Judge.
This is essentially an action for educational malpractice.
An 18-year-old plaintiff whose learning disabilities (LD) were only recently discovered, claims that defendants reasonably should have identified his condition in the fourth grade, not high school. As a result, plaintiff claims that for years defendants have denied him equal access to a "free appropriate public education" in violation of the Individuals with Disabilities Education Act (the "IDEA"), § 504 of the Rehabilitation Act of 1973 ("§ 504"), 42 U.S.C. § 1983 ("§ 1983"), 42 U.S.C. § 1985 ("§ 1985"), and the Fourteenth Amendment. For this, plaintiff *1008 claims that he is due compensatory and punitive damages.
For the reasons that follow, this claim is meritless and plaintiff's complaint must be dismissed as failing to state a claim upon which relief can be granted.
I[1]
Plaintiff, Kristopher Sellers, is an 18-year-old high school student enrolled in the Manassas City Public Schools, since at least the fourth grade. Recently, school officials discovered that he is LD and has a emotional disorder.[2] Following this discovery, Kristopher's parents initiated a so-called "due process" proceeding under the IDEA to contest the school district's management of Kristopher's education.[3] As a result of this proceеding, Kristopher and his parents resolved with school officials all educational issues pertaining to Kristopher's disabilities.[4]
Yet, this did not end the matter; Kristopher and his parents sought more. In particular, they requested that the due process hearing officer award them compensatory and punitive damages for the denial of special education and related services since the fourth grade, owing to defendants' negligent failure to detect Kristopher's LD. The hearing officer considered and rejected this request, concluding that he had no statutory authority to award compensatory or punitive damages in the circumstances. The parents promptly appealed this ruling to the state educational agency. On October 10, 1996, the state agency affirmed the adverse decision.
Thereafter, Kristopher filed this four count complaint, seeking compensatory and punitive damages on multiple theories,[5] against the School Board of the City of Manassas, School Superintendent James Upperman, and the Manassas City Public Schools for failing to identify his disabilities sincе at least the fourth grade. Specifically, Count I alleges that defendants' failure to provide Kristopher with a "free appropriate public education" violates the IDEA, § 504, and Virginia law. Count II claims that defendants' failure to test Kristopher for LD and to place him in special education violates the IDEA, § 504, and Virginia law. Count III asserts that the hearing officers erred in determining that they had no statutory authority to award compensatory and punitive damages. And Count IV alleges that defendants' failure to provide a free appropriаte public education constituted a governmental "custom or usage" with the force of law.
On December 10, 1996, defendants filed the instant motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Fed. R.Civ.P. Thereafter, on February 3, 1997, the Court heard oral argument, took defendants' motion under advisement, and ordered the parties to submit supplemental briefs. The *1009 parties have done so, and hence the matter is now ripe for disposition.
II
Plaintiff cites the U.S. Constitution, four federal statutes, and state common law in support of his compensatory and рunitive damages claim. Each of these legal grounds is separately addressed.
A
The centerpiece of special education law is the IDEA, on which plaintiff understandably places chief reliance. Thus, analysis properly focuses first on this statute.
In 1975, Congress enacted the Education for All Handicapped Children Act, Pub.L. No. 94-142, 89 Stat, 773 (1975), now known as the IDEA.[6] The Act's purpose is "to assur[e] that all [] children (with disabilities) have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs."[7] "To accomplish this ambitious objective, the [IDEA] provides federal money to state and local educational agencies that undertake to implement the substantive and procedural requirements of the Act."[8] Among the IDEA's numerous requirements that a state must satisfy in order to receive federal funding are that it identify students with disabilities[9] and that it develop an individualized education program ("IEP") for each identified student.[10] The IDEA also imposes extensive procedural requirements that guarantee parents access to the pertinent records of their children,[11] written notice of proposed changes to the IEP,[12] and the right to contest decisions at an impartial due process hearing.[13]
Section 615(e) (2), 20 U.S.C. § 1415(e)(2), authorizes parents "aggrieved by the findings and decision" of a state administrative proceeding to bring a civil action in state or federal court and confers upon the courts reviewing those complaints the authority to "grant such relief as the court determines is appropriate."[14] This is the specific IDEA provision on which plaintiff relies in support of his compensаtory and punitive damages claim. Yet, this reliance is misplaced, for it is well-settled that such damages are not available under § 615(e)(2), which "permits a reimbursement remedy, but ... does not create a private cause of action for damages for educational malpractice." Hall v. Vance County Bd. of Educ.,
Accordingly, as a matter of law, the IDEA affords no basis for plaintiff's claim for compensatory and punitive damages. It follows, of course, that due process hearing officers have no statutory authority under the IDEA to award such relief.
B
Plaintiff's reliance on § 514 of the Rehabilitation Act of 1973 fares no better.
Unlike the IDEA, § 504 focuses not on creating rights and entitlements but on proscribing certain discriminatory acts.[17] As the Third Circuit put it, "[w]hile the IDEA is phrased in terms of a state's affirmative duty to provide a free appropriate public education, § 504 is worded as a negative prohibition against disability discrimination in federally funded programs."[18] To establish a violation of § 504 in this context, a plaintiff must demonstrate that: (1) he is a person with a disability as defined by the Act; (2) he is "otherwise qualified" to participate in school activities; (3) defendants receive federal financial assistance; and (4) he was subject to discrimination solely on the basis of his disability.[19] In sharp contrast to the IDEA, it is well-established that monetary damages are an available remedy under § 504.[20] Nevertheless, to recover such damages, a plaintiff must show intentional discrimination or bad faith in the denial of special education.[21]
Here, Kristopher alleges no facts that might support an inference that defendants acted in bad faith or with an intent to deprive him special education services. Instead, the gravamen of plaintiff's allegations is that defendants' *1011 negligent failure to identify his LD in a timely manner deprived him special education services, thereby discriminating against him on the basis of disability. These allegations, however, cannot support a § 504 claim for damages; more than mere negligence must bе alleged to rise to the level of a § 504 violation. To hold otherwise would distort and subvert the plain and intended meaning of "discrimination," ignore settled precedent, and invite a flood of unwarranted litigation in the special education context. The fact is, as the Eighth Circuit has noted, that the evaluation of LD is at best an inexact science on which few experts agree.[22] Were the § 504 standard expanded to include mere negligence, many LD cases would be converted to § 504 discrimination claims for damages based on contentions thаt the LD should reasonably have been identified and accommodated semesters or years earlier. This is a result Congress, in enacting § 504, neither intended nor allowed.
In sum, Kristopher has alleged no facts that would support a claim of bad faith or gross misjudgment on the part of defendants in failing to identify and provide for his LD sooner. Consequently, Kristopher's claim for compensatory and punitive damages under § 504 fails.
C
Plaintiff's § 1983 claim also fails to state a claim.
Section 1983 provides a civil remedy for acts taken under color of law that deprive "any citizen of the United States or person within the jurisdiction thereof" of "rights, privileges, or immunities secured by the Constitution and laws."[23] In other words, "[s]ection 1983 does not confer substantive rights, but merely redresses the deprivation of those rights elsewhere secured."[24] When the secured right at issue is based on a statute, the statute itself must not foreclose § 1983 enforcement. The IDEA does not restrict such actions because it contains a nonexclusive remedy provision, § 1415(f).[25]
Although violations of the IDEA and § 504 are independently enforceable under § 1983,[26] "that section is a derivative cause of action, creating a рrivate right of action only for deprivation of federal rights enunciated *1012 elsewhere."[27] In other words, to state a claim for compensatory and punitive damages under § 1983 for violations of the IDEA and § 504, a plaintiff must, at a minimum, state such a claim under the IDEA and § 504. This plaintiff has not done. Accordingly, the motion to dismiss Kristopher's claim for compensatory and punitive damages under § 1983 must be granted.
D
Kristopher's § 1985 claim merits the same fate.
It is well-settled that 42 U.S.C. § 1985(3)[28] protects persons only from conspiracies motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge,
E
Kristopher's constitutional Fourteenth Amendment due process and equal protection claims are also fundamentally flawed.
It is well-settled that education is not a fundamental right secured by the Constitution and, thus, defendants' purported failure to provide Kristopher with the most appropriate еducation is not a constitutional deprivation. San Antonio Independent School District v. Rodriguez,
F
Although Kristopher's complaint refers to violations of Virginia law, he cites no pertinent Virginia statute and appears instead to rely on a Virginia common law tort of educational malpractice. Yet, the Supreme Court of Virginia has never recоgnized such a cause of action and it would be inappropriate for this Court to do so in the first instance, for "this Court must await the [] decision [of the Virginia General Assembly and the Virginia Supreme Court] before it may" recognize a new cause of action. White v. Federal Exp. Corp.,
Nor is there any good rеason to expect that the Supreme Court of Virginia would conclude otherwise in this case. While there is abundant academic commentary in support of educational malpractice suits,[30] there is *1013 overwhelming judicial authority in opposition to such tort claims. And this is understandable given the weighty policy considerations militating against such suits. Thus, educational malpractice cases typically fit into one of three general categories. In the first, and most prevalent type of educational malpractice action, a studеnt alleges that his or her school negligently failed to provide adequate or sufficient academic instruction in basic skills, such as reading or writing.[31] In the second category, a student claims that he or she was erroneously diagnosed as having a mental disability and, then, detrimentally placed by school officials in an inappropriate special education program.[32] In the third class of cases, a student asserts that school officials negligently failed to diagnosis and treat his or her disability.[33]
*1014 But for the lone exception of the Supreme Court of Montana,[34] the federal and state courts that have considеred all three types of educational malpractice claims have unanimously declined to recognize them as valid causes of action. These decisions have identified numerous public policy considerations for not entertaining such claims. The first consideration is "the lack of a satisfactory standard of care by which to measure an educator's conduct."[35] The second is the inherent difficulty concerning the cause and nature of damages.[36] The third is reluctance to monitor the internal affairs and day-to-day operations of educational institutions.[37] And the fourth is fear of excessive litigation.[38] It is for the Virginia General Assembly and the Supreme Court of Virginia, not this Court, to weigh and evaluate these policy considerations and decide whether to recognize an action for educational malpractice. In the circumstances, then, Kristopher's claim, insofar as it relies on state common law, must be dismissed.
For the foregoing reasons, defendants' motion to dismiss should be granted and plaintiffs' complaint dismissed in its entirety.
NOTES
Notes
[1] For the purpose of resolving defendants' Rule 12(b)(6) motion to dismiss the complaint, the fаcts alleged must be accepted as true. See Estate Const. Co. v. Miller & Smith Holding Co., Inc.,
[2] The complaint does not disclose precisely when this discovery occurred, nor does it reveal the nature of Kristopher's LD and emotional disorder. Neither of these details is necessary to the resolution of the motion at bar.
[3] When parents and school officials disagree about a student's eligibility, evaluation, programming, or placement, the IDEA entitles parents to an impartial due process hearing. 20 U.S.C. § 1415(b)(2). A hearing officer presides over this proceeding and, in the course of it, allows limited discovery, attempts to facilitate a settlement and ultimately, if necessary, issues a written decision resolving the disputed issues. 20 U.S.C. 1415(c). See Lewis v. School Bd. of Loudoun County,
[4] Presumably, this means that the parties managed to design a mutually-agreeable "individualized education program" ("IEP") for Kristopher pursuant to the IDEA. An IEP outlines the student's special educational needs and the instruction and related services necessary to meet those needs. 20 U.S.C. § 1401(19). School officials must review and, if necessary, rеvise each qualified student's IEP at least annually. 20 U.S.C. § 1414(a)(5).
[5] Specifically, in the first sentence of his five page complaint, Kristopher bases his claim for coppensatory and punitive damages on the following statutory and constitutional grounds: the IDEA, § 504; § 1983, § 1985, and the Fourteenth Amendment of the U.S. Constitution.
[6] In 1990, the Education for All Handicapped Children Act ("EAHCA") was renamed the IDEA. Education Of the Handicapped Act, Amendments of 1990, Pub.L. No. 101-476, 901(a), 104 Stat. 1103 (1990) (codified as amended at 20 U.S.C. § 1400(a)). Throughout the former EAHCA, the words "handicaps" and "handicapped children disabilities." at § 901(b) (codified аs amended at 20 U.S.C. § 1400).
[7] 20 U.S.C. § 1400(c).
[8] Burlington School Committee v. Department of Educ. of the Commonwealth of Mass.,
[9] 20 U.S.C. § 1412(C).
[10] 20 U.S.C. § 1401(18).
[11] 20 U.S.C. § 1415(b)(1)(A).
[12] 20 U.S.C. 1415(b)(1)(C).
[13] 20 U.S.C. § 1415(b)(1)(E).
[14] The provision provides that:
Any party aggrieved by the findings and decision made [during the state administrative review] shall have the right to bring a civil action . . . which action may be brought . . . in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall ... grant such relief as the court determines is appropriate.
[15] See also Crocker v. Tennessee Secondary Sch. Athletic Ass'n,
[16] See Burlington School Committee,
[17] Specifically, § 504 provides, in pertinent part, that:
No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C. § 794(a).
[18] W.B. v. Matula,
[19] See Johnson v. Thompson,
[20] See, e.g., Pandazides v. Virginia Bd. of Educ.,
[21] See Pandazides,
[22] According to the Eighth Circuit:
The reference in the Rehabilitation Act to "discrimination" must require, we think, something more than an incorrect evaluation, or a substantively faulty individualized education plan, in order for liability to exist. Experts often disagree on what the special needs of a [] child [with a disability] are and the educational placement of such children is often necessarily 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 under [IDEA] is not necessаrily holding that a[] child [with a disability] has been discriminated against solely by reason of his or her [disability]. An evaluation, in other words, is not discriminatory merely because the court wanted the child evaluated differently.... We think, rather, that either bad faith or gross misjudgment should be shown before a § 504 violation can be made out, at least in the context of the education of [] children [with disabilities].
Monahan v. State of Neb.,
[23] 42 U.S.C. § 1983; Maine v. Thiboutot,
[24] W.B.,
[25] 20 U.S.C. § 1415(f) provides that:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsection (b)(2) and © of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
[26] See, e.g., Hoekstra v. Independent Sch. Dist, No. 283,
[27] Barnett,
[28] This provision prohibits a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws...."
[29] See Perry v. McVey,
[30] See e.g., Sharan E. Brown & Kim Cannon, Educational Malpractice Actions: A Remedy For What Ails Our Schools?, 78 ED. L. REP. 643 (1993); John Culhane, Reinvigorating Educational Malpractice Claims: A Representational Focus, 67 WASH. L. REV. 349 (1992); Johnny C. Parker, Educational Malpractice: A Tort is Born, 39 CLEV. ST. L. REV. 301 (1991); J. Elson, A Common Law Remedy for the Educational Harms Caused by Incompetent or Careless Teaching, 73 Nw. U.L. REV. 641 (1978).
[31] See e.g., Ross v. Creighton University,
[32] See e.g., Smith v. Alameda County Social Servs. Agency,
[33] See, e.g., D.S.W. v. Fairbanks North Star Borough Sch. Dist.,
[34] Only Montana has recognized the tort of educational malpractice. See B.M. v. State,
[35] Moore,
[36] See, e.g., Donohue,
[37] See, e.g., Suriano,
[38] See, e.g., Ross v. Creighton University,