S. v. Sch Dist Pittsburgh, (3rd Cir. 2006)
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NOT PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
No. 05-1759
MELISSA S., by Her Natural
G u a rd ia n Karen S.,
Appellant
v. S C H O O L DISTRICT OF PITTSBURGH;
L IN D A CORDISCO; RUTHANN REGINELLA,
in their official and individual
c a p a c itie s
APPEAL FROM THE UNITED STATES DISTRICT COURT
F O R THE WESTERN DISTRICT OF PENNSYLVANIA
D .C . Civil No. 03-cv-01726
D is tric t Judge: The Honorable Gary L. Lancaster
Submitted Under Third Circuit LAR 34.1(a)
M a rc h 30, 2006
Before: McKEE, BARRY and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: June 8, 2006)
OPINION
B A R R Y , Circuit Judge K a re n S., on behalf of her daughter Melissa, appeals from an order entered by the U n i te d States District Court for the Western District of Pennsylvania granting appellees' m o tio n for summary judgment. For the reasons that follow, we will affirm.
I.
B e c au s e we write only for the parties, who are familiar with the facts, we will not re c ite them except as necessary to the discussion. Melissa, who has Downs Syndrome, w a s a 16-year-old ninth grade student in the fall of 2002 at the School District of P itts b u rg h 's ("PSD") Brashear High School ("Brashear"). On November 12, 2003, Karen S . filed suit against PSD; PSD's special education program officer, Linda Cordisco; and B ra s h e a r' s principal, Ruthann Reginella. The complaint asserted, pursuant to 42U.S.C. § 1 9 8 3 , violations of the Individuals with Disabilities Education Act ("IDEA"), 20U.S.C. § 1 4 0 1 et seq., and the Fourteenth Amendment's Due Process Clause. Violations of section 5 0 4 of the Rehabilitation Act of 1973, 29U.S.C. § 794, and Title IX of the Education A m e n d m e n ts of 1972, 20U.S.C. § 1681, were also asserted.
The District Court granted appellees' motion for summary judgment. The Court f o u n d that the record contained insufficient evidence from which a reasonable jury could f in d that appellees violated Melissa's rights. This timely appeal followed.1 1 The District Court had jurisdiction under 28U.S.C. § 1331. We have appellate ju ris d ic tio n pursuant to 28U.S.C. § 1291. We exercise plenary review over the District C o u rt's decision to grant summary judgment to appellees. See Martorana v. Bd. of Trs. of II.
A.
Karen S. alleges that appellees violated Melissa's right under the IDEA to a "free a p p ro p ria te public education" by failing to implement her individualized educational p ro g ra m ("IEP"), and by using physical restraints and isolation in order to control her b e h a v i o ra l outbreaks instead of developing a behavioral plan for her. Karen S. also c la im s that Melissa was frequently left without an aide, and that the learning environment a t Brashear caused her to regress educationally. She seeks compensatory and punitive d a m a g e s on her § 1983 claims.2 T h e IDEA conditions a state's receipt of federal funds for special education p ro g ra m s on its implementation of "policies and procedures to ensure that . . . [a] free a p p ro p ria te public education is available to all children with disabilities . . . ." 20U.S.C.
§ 1412(a)(1)(A). A free appropriate public education "`consists of educational instruction s p e c if ic a lly designed to meet the unique needs of the handicapped child, supported by s u c h services as are necessary to permit the child to `benefit' from the instruction.'" W.B. v . Matula, 67 F.3d 484, 491 (3d Cir. 1995) (quoting Board of Education v. Rowley, 458 U .S . 176, 188-89 (1982)). The "primary vehicle" for implementing a free appropriate p u b lic education is the IEP. "The IEP consists of a detailed written statement arrived at b y a multi-disciplinary team summarizing the child's abilities, outlining the goals for the c h ild 's education and specifying the services the child will receive." Polk v. Central S u s q u e h a n n a Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988) (citing 30 C.F.R. § 3 0 0 .3 4 7 ), cert. denied,
To prevail on a claim that a school district failed to implement an IEP, a plaintiff m u s t show that the school failed to implement substantial or significant provisions of the IE P , as opposed to a mere de minimis failure, such that the disabled child was denied a m e a n in g f u l educational benefit. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 3 4 9 (5th Cir. 2000). Flexibility to implement an IEP is maintained, yet the school district is accountable for "confer[ring] some educational benefit upon the handicapped child," as re q u ire d by the IDEA. T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 5 7 7 (3d Cir. 2000) (citing Rowley, 458 U.S. at 188-89).
H e re , the District Court determined that a reasonable jury could not conclude that a p p e lle e s failed to implement Melissa's IEP because there was no evidence of nonim p le m e n ta tio n . We agree. An IEP for Melissa was approved after an IEP meeting b e tw e e n Karen S. and several PSD officials on September 20, 2002.3 The IEP set various e d u c a tio n a l goals for Melissa and placed her in a learning support classroom for most s u b je c ts . Additionally, the IEP called for a full-time aide to assist Melissa during the sc h o o l day. Moreover, several other Brashear and PSD officials were involved in o b serv ing Melissa, overseeing her progress, and holding frequent meetings 4 to compare th a t progress to her IEP's goals and to discuss her behavior. Karen S. attended these IEP m e e tin g s and raised her own concerns and objections. When Melissa's behavior in class w a s increasingly becoming a problem--an issue addressed in more detail below--further IE P meetings were held with Karen S., and an outside agency was hired to perform a f u n c tio n a l behavior assessment of Melissa in order to develop a behavioral plan for her.
That behavioral assessment was ongoing when Karen S. chose to remove Melissa from B ra s h e a r.
Karen S. alleges that PSD failed to implement the IEP because it failed to provide M e lis s a with an aide every day. Even granting Karen S. the benefit of every factual in f e re n c e, as we must, there is simply no evidence that Melissa was ever left unattended w h ile at Brashear.5 On days when an aide could not be provided, Karen S. was notified b y the school and told to keep Melissa home for the day. Even assuming that Karen S.'s a lle g a tio n that this occurred "several" times is correct, this is not the kind of substantial or s ig n if ic a n t failure to implement an IEP that constitutes a violation of the IDEA.
Beyond Karen S.'s claim that Melissa did not consistently have an aide, it is d i f f ic u l t to discern exactly how she believes appellees failed to implement the IEP. Ms.
C o rd is c o testified that Karen S. accused her of not implementing the IEP during a phone c a ll on the first day of school in September 2002 because Melissa's math instruction was a b o v e her skill level. Additionally, an October 11, 2002 letter from Karen S.'s lawyer to P S D claimed that the IEP was not being implemented because Melissa was not given h o m e w o rk . Even assuming these allegations are true, such de minimis failures to im p le m e n t an IEP do not constitute violations of the IDEA. Houston Indep. Sch. Dist., 2 0 0 F.3d at 349.6 W e also agree with the District Court that a reasonable juror could not conclude th a t appellees mishandled Melissa's frequent behavioral outbursts such that they violated th e IDEA. In Honig v. Doe, 484 U.S. 305, 325-26 (1988), the Supreme Court held that w h ile a school district cannot unilaterally change the placement of a student it deems to b e dangerous, it can use "its normal procedures for dealing with children who are e n d a n g erin g themselves or others," such as "timeouts, detention, or the restriction of p riv ile g e s ," or suspension.
Melissa had serious problems controlling her behavior at Brashear. At times she s a t on the floor kicking and screaming, struck other students, spit at and grabbed the b re a st of a teacher, refused to go to class, and once had to be chased by her aide after ru n n in g out of the school building. On a few occasions, when Melissa refused to get off th e floor or left the building, security guards were called to escort her from the immediate are a, sometimes having to hold her arms in order to control her. As the District Court c o rre c tly found, nothing in the record suggests that the guards abused her or treated her a n y differently than other students with behavioral outbursts.
One of the tactics used by PSD to calm Melissa down was to bring her to a "timeo u t area" in an unused office, where her aide, Constance Herring, and others would e n c o u ra g e her to return to class and give her work to do. This tactic comes within the class of non-placement changing "normal procedures for dealing with children who are e n d a n g erin g themselves or others" the Supreme Court spoke of in Honig, and did not v io la te the IDEA.7 F u r th e rm o re , a reasonable juror could not conclude, based on the record evidence, th a t appellees failed to implement a behavioral plan for Melissa in a timely manner.
Upon observing her outbursts early in the school year, PSD officials almost immediately b e g a n assessing her behavior. When it became apparent that her behavioral issues went b e yo n d mere problems adjusting to a new school, PSD hired a specialist to examine her b e h a v io r, determine its causes, and determine "how we could make some adjustments th ro u g h behavioral shaping." (PSD App. 9, 12.) The specialist finished his evaluation in e a rly January 2003, and a meeting with Karen S. was held on January 15, 2003 to im p le m e n t his recommended behavior support plan into Melissa's IEP.
Karen S. does not point to any record evidence contradicting these efforts by a p p e lle e s, but only claims that she was not made aware of certain of Melissa's behavioral in c id e n ts until the due process hearing, which began on January 6, 2003. Even assuming th is to be true, this is not evidence from which a reasonable juror could conclude that a p p e lle e s denied Melissa a behavioral plan in violation of the IDEA.
In sum, we agree with the District Court that a reasonable juror could not conclude th a t appellees violated Melissa's rights under the IDEA.
7 Karen S. alleges that PSD's behavior controlling techniques violated Pennsylvania law im p le m e n tin g the IDEA's requirements, specifically, 22 Pa. Code §§ 14.133(c). That p rov isio n , however, lists requirements for an IEP that includes a "behavior support p ro g ra m " -- th e very type of program that Brashear was working on implementing when K a re n S. removed Melissa from Brashear in December 2002.
B.
W h ile the IDEA grants a positive right to a "free appropriate public education," s e c tio n 504 of the Rehabilitation Act of 1973 essentially prohibits federally funded e n titie s from denying a free appropriate public education on the basis of disability. See J e re m y H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 278 (3d Cir. 1996). The Act p ro v id e s that "[n]o otherwise qualified individual with a disability . . . shall, solely by re a so n of her or his disability, be excluded from the participation in, be denied the b e n e fits of, or be subjected to discrimination under any program or activity receiving F e d e ra l financial assistance . . . ." 29U.S.C. § 794(a). We said in Matula, 67 F.3d at 4 9 2 -9 3 , that "there appear to be few differences, if any, between IDEA's affirmative duty a n d § 504's negative prohibition." Because the allegations underlying the Rehabilitation A c t claim do not differ substantively from those underlying the IDEA claim, we will also a f f irm the District Court's grant of summary judgment on this claim.
C.
K a re n S. alleges that a reasonable juror could conclude that Melissa's substantive d u e process rights under the Fourteenth Amendment were violated because appellees f a ile d to "regularize the hiring and scheduling of aides" and failed to remedy her b e h a v io ra l problems until after a due process hearing was held. We disagree.
The substantive component of the Due Process Clause "protects individual liberty a g a in st certain government actions regardless of the fairness of the procedures used to im p le m e n t them." Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2 0 0 1 ) (quotations omitted). Only state conduct that is "arbitrary, or conscience shocking, in a constitutional sense" rises to this level. County of Sacramento v. Lewis, 523 U.S.
8 3 3 , 847 (1998). The exact degree of culpability necessary for government action to be c o n s id e re d conscience shocking varies from case to case. Miller v. City of Philadelphia, 1 7
D.
F in a lly, Karen S. believes that a male teacher sexually assaulted Melissa while she w a s at Brashear, and thus that appellees violated Title IX of the Education Amendments o f 1972, which bars federally funded educational programs from discriminating on the b a sis of sex. 20U.S.C. § 1681(a). An action for implied damages under Title IX, such as th is one, is expressly "predicated upon notice to an `appropriate person'"--such as "an o f f ic ia l of the recipient entity"--of the discrimination so that the entity can be given an o p p o rtu n ity to rectify the situation. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 2 9 0 (1998).
We agree with the District Court that no such notice was given to PSD. Karen S. c la im s that notice was provided to PSD via her counsel's October 11, 2002 letter to an a tto rn e y in PSD's law department. The letter complains that Melissa had no work to do, th a t her IEP was not being implemented, that her "emotional condition is worsening," and re q u e ste d a due process hearing. (MS App. 96.) Nowhere does it allege that Melissa was th e victim of sexual abuse by a teacher at Brashear. Summary judgment for appellees on th e Title IX claim was appropriate.
III.
It is clear that Karen S. was unhappy with Melissa's time at Brashear. That u n h a p p in e ss , however, cannot support the constitutional and statutory violations she has a lleg e d . We conclude that the record contains insufficient evidence to allow a reasonable ju ro r to find that appellees violated the IDEA, the Rehabilitation Act, the Fourteenth A m e n d m e n t, or Title IX. We will affirm the judgment of the District Court.
Steamfitters Local Union 420, 404 F.3d 797, 801 (3d Cir. 2005). Summary judgment is a p p ro p ria te where "there is no genuine issue as to any material fact and . . . the moving p a rty is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "We review the f a cts in the light most favorable to the party against whom summary judgment was e n te re d ." Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 146 (3d C ir. 1993).
2 On September 30, 2003, the parties entered into a settlement agreement after a due p ro c e ss hearing, pursuant to 20U.S.C. § 1415(b)(2). In the agreement, the parties d e ter m in e d Melissa's placement for the 2003-04 school year, and Karen S. "agree[d] to s e ttle , discontinue and withdraw all issues as" to "[w]hether Melissa received [a] free and ap p rop riate public education for the 2002-03 school year; and . . . [w]hether Melissa's p l a c e m e n t was appropriate." (MS App. 116-17.) The District Court rejected appellees' a rg u m e n t that this agreement barred the § 1983 IDEA claim for damages, citing our d e c is io n in W.B. v. Matula, 67 F.3d 484, 497-98 (3d Cir. 1995.), but nevertheless sua sp o n te granted summary judgment to appellees on the IDEA claim. (Op. at 9-10.) None o f the parties challenges the Court's actions, and we express no opinion on them here.
3 An initial IEP meeting was scheduled for August 29, 2002, prior to the start of classes. K a re n S. failed to attend the meeting.
4 IEP meetings were held on September 20, October 9, November 6, and November 25,
2002.
5 Kim Paeys was Melissa's aide from the first day of class, September 3, 2002, until a p p ro x im a te ly September 11 or 12, 2002 when she left that position. A full time re p la c e m e n t, Constance Herring, was hired on September 23, 2002. In the interim, a s u b s titu te teacher, Ms. Muskat, acted as Melissa's aide.
6 We note that Melissa improved both behaviorally and educationally while at Brashear, a n d thus we also reject her contention that she was subject to a learning environment th e re that caused her to regress. Melissa's behavioral problems were present from the sta rt of her time at Brashear. Nevertheless, Herring testified that Melissa's behavior did im p ro v e during the school year. Additionally, Cheryl Kennedy, the special education s p e c ia lis t for PSD high schools, observed Melissa progress educationally.
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This document cites
- U.S. Court of Appeals for the Third Circuit - Jeremy H v. Mt Lebanon Schl Dist, 95 F.3d 272 (3rd Cir. 1996)
- U.S. Court of Appeals for the Third Circuit - W.B., Parent of the Minor, E.J., on Her Own Behalf and on Behalf of Her Son, E.J., Appellants, v. Joan Matula; Mary Angela Engelhardt; Judy Beach; Catherine Brennan; Patricia Cericola; Dr. Gary Danielson; Ann Pearce; Kathleen Mahony; Carol Burns; Florence Noctor; Dr. Jeffrey Osowski; New Jersey State Board of Education; Warren County Department of Education; Mary Lou Varley; Mansfield Board of Education; State of New Jersey; Department of Education Division of Special Education; Employees of the Mansfield Township Board of Education., 67 F.3d 484 (3rd Cir. 1995)
- U.S. Court of Appeals for the Third Circuit - T.R.; E.M.R., on Behalf of Their Minor Child, N.R., Appellants v. Kingwood Township Board of Education, Hunterdon Co., New Jersey, 205 F.3d 572 (3rd Cir. 2000)
- U.S. Court of Appeals for the Fifth Circuit - Houston Independent School District, Plaintiff-Counter Defendant-Appellee, V Bobby R.; Joyce R.; and Caius R., Defendants-Counter Claimants-Appellants., 200 F.3d 341 (5th Cir. 2000)
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1331 - Sec. 1331. Federal question
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