S.D. v. Haddon Heights Bd. of Educ.

• Decision Date: 18 August 2016
• Docket Number: No. 15-1804,15-1804
• Citation: 833 F.3d 389
• Parties: S.D., a minor, by his parents and natural guardians, A.D. and R.D.; A.D.; R.D., Appellants v. Haddon Heights Board of Education
• Court: U.S. Court of Appeals — Third Circuit

833 F.3d 389

S.D., a minor, by his parents and natural guardians, A.D. and R.D.; A.D.; R.D., Appellants

v.Haddon Heights Board of Education

No. 15-1804

United States Court of Appeals, Third Circuit.

Argued: January 20, 2016

Opinion Filed: August 18, 2016

Judith A. Gran, Esq., Sarah E. Zuba, Esq. [ARGUED], Catherine Merino Reisman, Esq., Reisman, Carolla & Gran, 19 Chestnut Street, Haddonfield, NJ 08033, Counsel for Appellants.

Joseph F. Betley, Esq., Capehart Scatchard, 8000 Midlantic Drive, Laurel Corporate Center, Suite 300, Mount Laurel, NJ 08054, William S. Donio, Esq. [ARGUED], Cooper Levenson, 1125 Atlantic Avenue, 3rd Floor, Atlantic City, NJ 08401, Counsel for Appellee.

Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

GREENAWAY, JR.

, Circuit Judge.

A.D. and R.D., individually and on behalf of their son S.D. (collectively, “Appellants”), filed suit against Haddon Heights Board of Education (“Appellee”), alleging violations of the Rehabilitation Act, 29 U.S.C. § 794(a)

(“Section 504”), the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 –12213, the First and

Fourteenth Amendments of the Constitution of the United States pursuant to 42 U.S.C. § 1983

, and New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5–1 et seq. The District Court dismissed Appellants' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Appellants failed to exhaust the administrative process provided for by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 –1482. In doing so, the District Court relied on our opinion in Batchelor v. Rose Tree Media School District , 759 F.3d 266 (3d Cir. 2014), in which we held that claims that a school district retaliated against a child and/or the child's parents for enforcing the child's rights under the IDEA, although brought pursuant to non-IDEA statutes, were subject to the IDEA exhaustion requirement.

The narrow question before us here is whether claims that a board of education discriminated against a student and/or the student's parents based on his disability, and retaliated against them for enforcing the child's rights under a non-IDEA statute, are subject to the IDEA exhaustion requirement. Because Appellants' alleged injuries are educational in nature and implicate services within the purview of the IDEA, we conclude that Appellants' claims must be exhausted under the IDEA.

I. BACKGROUND¹

A. The 2012–13 School Year

S.D. suffers from “multiple medical problems including chronic sinusitis

with frequent acute exacerbations, allergic rhinitis, and intermittent asthma.” Am. Compl., Ex. C at 2. Appellants allege that these medical “impairments [ ] substantially limit him in ... the life activity of learning.” Id. ¶ 12. S.D.'s doctor concluded that these medical problems “make it likely that he will have frequent school absence[s] due to acute [and] underlying chronic illness,” and suggested that S.D. “should qualify for [Section] 504 plan modifications for school.” Id. ¶¶ 25–26; Ex. C at 2.

During the 2012–13 school year, when S.D. was in ninth grade at Haddon Heights Junior/Senior High School in New Jersey, Appellee developed a student accommodation plan for S.D. pursuant to Section 504 (“Section 504 Plan”). Id. ¶ 29, Ex. A. This initial Section 504 Plan, dated October 25, 2012, provided S.D. with “extra time for assignments, tests, and quizzes” and required Appellants to “communicate” with S.D.'s teachers about “any missed work” and absences. Id. ¶¶ 29–30; Ex. A at 2. Appellants allege that the initial Section 504 Plan “was not properly implemented or effective” because it “did not impose any enforceable obligation on [Appellee] and its teachers” and “did not give S.D. any way to be instructed in and learn the material that he missed while absent.” Id. ¶¶ 31–32.

After S.D.'s parents met with Appellee and expressed their concerns, Appellee amended S.D.'s Section 504 Plan. The amended Section 504 Plan, dated April 19, 2013: required teachers to send weekly updates about S.D.'s missing assignments and to provide class notes; required S.D. to complete his assignments within two weeks of any absence; allowed teachers to reduce S.D.'s assignments at their discretion; and required S.D. to create a “to do” list, keep folders of complete and incomplete work, and communicate with teachers, the guidance counselor, and school nurse. Id. ¶ 39, Ex. B.Appellants allege that these Section 504 Plans failed to “provide a mechanism ... for S.D. to obtain homebound instruction or other supplemental instruction to enable him to keep up with the curriculum ... and otherwise enjoy the benefits of the educational program to the same extent as his non-disabled peers.” Id. ¶ 41. As a result, S.D. had “to teach himself the curriculum and try to identify and understand assignments that had been explained when he was absent.” Id. ¶ 45. Therefore, according to Appellants, S.D. fell “further and further behind.” Id.

The attendance policy in effect during the 2012–13 school year prohibited a student from earning credit for a year-long course in which the student had accrued more than fifteen absences, unless the student provided certain documentation to excuse the excess absences, including, inter alia, a “[m]edical note from a physician.” Id. Ex. D. During the 2012–13 school year, S.D. accrued “over 33 absences[,] ... most of [which] related to S.D.'s disabilities.” Id. ¶¶ 48–49. Nevertheless, he passed his courses and earned the requisite number of credits for promotion to the tenth grade. Id. ¶ 50.

B. New Attendance Policy for the 2013–14 School Year

In the summer of 2013, Appellee enacted a new attendance policy for the 2013–14 school year that required students to be retained if they accrued more than 33 absences in a school year—regardless of whether the absences were “excused, approved, [or] unexcused.” Id. ¶ 53; Ex. E.² Students with more than fifteen unexcused absences were required to attend a “Saturday Credit Reinstatement Program” in order to obtain credit sufficient to pass their courses. Id. ¶ 60; Ex. E.

Appellants allege that Appellee “made a deliberate choice to enact the Policy,” despite Appellee's knowledge that it was “substantially likely” that the new attendance policy would harm S.D.'s ability to advance in school, in order to “target” students like S.D. who had frequent excused absences. Id. ¶¶ 54–55. Appellants assert that, because the new attendance policy allowed students with unexcused absences to make up credits and progress to the next grade through the Saturday Credit Reinstatement Program, but offered no such mechanism for students with absences excused by, for example, a disability, to make up credits, the policy had an impermissible discriminatory effect. Id. ¶¶ 61–62.

C. The 2013–14 School Year

Appellee readopted S.D.'s amended Section 504 Plan for the 2013–14 school year without reference to, or accommodation for, the new attendance policy. Id. ¶¶ 40, 70. By March 2014, S.D. had accumulated thirty-seven absences due to his disability, all of which were excused by medical notes. Id. ¶ 76.³ In a letter dated March 13, 2014, the principal of S.D.'s school informed S.D.'s parents that S.D. would be retained pursuant to the new attendance policy. Id. ¶¶ 73–75. After S.D.'s parents received the principal's letter, they filed a complaint with the Office of Civil Rights, but then decided to pursue litigation to try to prevent S.D. from being retained for the 2014–15 school year. Id. ¶ 83–84. Appellants commenced the instant federal action on March 25, 2014 by filing a two-count complaint alleging violations of Section 504 and the ADA.

On April 11, 2014, Appellants filed a motion for a preliminary injunction, seeking to enjoin Appellee from retaining S.D. based on his number of absences. On April 15, 2014, Appellee notified S.D.'s parents that it had revised S.D.'s Section 504 Plan to require him to make up absences excused by his disability by attending “Saturday school for credit reinstatement.” Id. ¶ 85. The new Section 504 Plan also provided for “make-up attendance with homebound instruction for absences related to” S.D.'s disability. Id.

Appellants allege that the April 2014 Section 504 Plan was insufficient because it required S.D. to “log[ ] time in the school building” and failed to “appropriately compensate for instruction S.D. missed for earlier absences.” Id. ¶¶ 91–92. Appellants assert that the requirement for S.D. to attend the Saturday credit reinstatement program was “punitive rather than educational” because S.D. had to “serve” Saturdays with students who had unexcused absences and the program did not “provide a means of obtaining instruction missed.” Id. ¶ 94.

In June 2014, the parties reached a settlement agreement that resolved Appellants' motion for a preliminary injunction. S.D.'s parents paid for him to complete a summer driver's education course in order to be promoted to eleventh grade. Id. ¶ 96. However, Appellants now allege that this requirement was “punitive and retaliatory” because it “serve[d] no educational purpose.” Id. ¶ 99.

D. Appellants' Amended Complaint and the District Court's Opinion

In August 2014, the District Court granted Appellants leave to file an amended complaint that alleged six counts of discrimination and retaliation by Appellee based on S.D.'s disability and assertion of his rights under Section 504. The Amended Complaint attached several exhibits, including two letters from S.D.'s doctor, S.D.'s four Section 504 Plans, and the Board's two attendance policies. Appellants sought thirteen forms of relief, including, inter alia, compensatory education and compensatory and punitive damages. Id. at 27–28.

Appellee subsequently filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

, respectively. The District Court concluded...