Brown v. Dist. 299—chicago Pub. Sch.

• Decision Date: 27 December 2010
• Docket Number: Civil Action No.: 09 C 4316.
• Citation: Brown v. Dist. 299—chicago Pub. Sch., 762 F.Supp.2d 1076 (N.D. Ill. 2010)
• Parties: Sirvante BROWN, Plaintiff,v.DISTRICT 299—CHICAGO PUBLIC SCHOOLS et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

762 F.Supp.2d 1076

Sirvante BROWN, Plaintiff,

v.DISTRICT 299—CHICAGO PUBLIC SCHOOLS et al., Defendants.

Civil Action No.: 09 C 4316.

United States District Court, N.D. Illinois, Eastern Division.

Dec. 27, 2010.

Anthony James Masciopinto, Mark A. Semisch, Kulwin, Masciopinto & Kulwin, LLP, Chicago, IL, for Plaintiff.

Sunil Kumar, Debra Ann Harvey, Patrick J. Rocks, Jr., Susan Margaret O'Keefe, Chicago Board of Education, Meghan Maine, Michael D. Arnold, Illinois Attorney General's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

SUZANNE B. CONLON, District Judge.

Sirvante Brown has a learning disability. Since fifth grade, his education has been guided by an individualized education program (“IEP”) that provides accommodations and services he is supposed to receive to account for his learning disability. In high school, Brown received mostly Ds and Fs in his classes. His mother requested a due process hearing in October of his junior year to review the adequacy and implementation of his IEP. The hearing officer found partially for Brown and partially for the school district and ordered tutoring as compensatory education, Unhappy with the result, Brown, through his mother, filed suit against the Illinois State Board of Education and District 299 of the Chicago Public Schools (identified in its filings as the Board of Education of the City of Chicago). He sought review of the hearing officer's findings under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and he alleged violations of 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.¹ The IDEA claim was dismissed as untimely because it was filed more than 120 days after the due process hearing. Brown voluntarily dismissed defendant Illinois State Board of Education. The Board of Education of the City of Chicago (“the school board”) moves for summary judgment on the § 1983 and ADA claims.

I. Section 1983 Claim

Before delving into the facts, the court first considers the school board's argument that Brown may not bring a § 1983 claim premised solely on an IDEA violation. The second amended complaint alleges the school board violated § 1983 by refusing to follow Brown's IEP, thus denying him a free appropriate public education.² 2d Am. Comp. ¶ 51. The school board contends this theory is invalid. The board asserts the IDEA remedial scheme precludes Brown from using § 1983 to remedy violations of the IDEA. According to the school board, § 1983 may be used to remedy constitutional but not statutory IDEA violations. The school board acknowledges that a Seventh Circuit case, Marie O. v. Edgar, 131 F.3d 610 (7th Cir.1997), is seemingly on point and would allow the § 1983 claim. But it argues Marie O. is distinguishable. It urges this court to follow instead the Third Circuit's approach in A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir.2007) ( en banc ). Brown argues Marie O. controls.

In 1970 Congress enacted the Education of the Handicapped Act ³ to assist the states in educating children with disabilities. 20 U.S.C. § 1400(d); Smith v. Robinson, 468 U.S. 992, 1009, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The IDEA provides federal funds to assist states in educating handicapped students and creates an enforceable substantive right to a “free appropriate public education” under the equal protection clause. Smith, 468 U.S. at 1010, 104 S.Ct. 3457. To protect disabled children's rights, the IDEA establishes a procedural mechanism beginning at the school level in developing an IEP and provides an administrative hearing to review a student's IEP and judicial review of that hearing. Id. at 1010–11, 104 S.Ct. 3457.

The Supreme Court considered the relationship between the IDEA and § 1983 in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The issue there was whether a plaintiff could bring an equal protection claim under § 1983 for the alleged denial of a free appropriate public education. The Court noted in a footnote that several courts of appeals, including the Seventh Circuit, held that a plaintiff could not use § 1983 for statutory violations of the IDEA. Smith, 468 U.S. at 1008 n. 11, 104 S.Ct. 3457 (citing Anderson v. Thompson, 658 F.2d 1205, 1214–17 (7th Cir.1981)). The Court concluded the IDEA implemented disabled children's educational rights under the equal protection clause, and therefore the comprehensive remedial scheme in the IDEA precluded an equal protection claim under § 1983 to enforce the same rights. Id. at 1011–13, 104 S.Ct. 3457.

In response to Smith, Congress enacted 20 U.S.C. § 1415(f) ⁴ to clarify that actions to protect the rights of children with disabilities may be maintained under the Constitution or federal laws, even if the IDEA protects the same rights. Section 1415( l ) reads:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, ....

Several courts of appeals have considered how § 1415( l ) affects the availability of remedies under § 1983. The Third Circuit, sitting en banc, held Congress intended § 1415( l ) to overrule the part of Smith that precluded constitutional claims but did not intend § 1415( l ) to allow a more expansive remedy under § 1983 for statutory violation of the IDEA. A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 803 (3d Cir.2007) ( en banc ). The Third Circuit relied on City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005), in reinterpreting when a federal statute provides a remedy under § 1983. A.W., 486 F.3d at 799–802. Under Rancho Palos Verdes, a key factor in deciding whether a § 1983 action may be based on private enforceable rights found in a federal statute is whether the underlying statute itself includes a private remedy. 544 U.S. at 121–22, 125 S.Ct. 1453. If so, that remedy is presumed exclusive absent a “textual indication, express or implicit, that the remedy is to complement, rather than supplant, § 1983.” Id. at 122, 125 S.Ct. 1453. The Third Circuit held § 1415( l ) did not provide a textual showing but was limited to allowing substantive claims derived from an independent source of law, even if those independent claims overlap with IDEA claims. A.W., 486 F.3d at 803; see Blanchard v. Morton Sch. Dist., 509 F.3d 934, 936–38 (9th Cir.2007) (§ 1983 action cannot be premised on IDEA violation); Padilla ex rel. Padilla v. Sch. Dist. No. 1, 233 F.3d 1268 (10th Cir.2000) (same); Sellers ex rel. Sellers v. Sch. Bd. of Manassas, 141 F.3d 524 (4th Cir.1998) (same). But see Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.1987) (allowing § 1983 action premised on IDEA violation).

The Seventh Circuit considered the relationship between § 1983 and the IDEA only once since the passage of § 1415( l ). Marie O. v. Edgar, 131 F.3d 610 (7th Cir.1997). Marie O. allowed class-action plaintiffs to use § 1983 to force the state to comply with Subchapter III (then Part H) of the IDEA, a later-added provision requiring states accepting federal funding to provide services to disabled children ages 0 to 2 years old. Marie O. concluded the § 1983 suit was not inconsistent with the remedial scheme in Subchapter III. Id. at 621–22.

Marie O. analyzed a different part of the IDEA and a different type of requested relief, and therefore is not controlling. It is undisputed that the IDEA creates private enforceable rights under either Subchapter II (at issue here) or Subchapter III (at issue in Marie O.), Subchapters II and III are not subject to the same analysis for determining the availability of § 1983. Cf. Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (criticizing court of appeals for concluding “in sweeping terms that Title IV–D [of Social Security Act] creates enforceable rights” without distinguishing among “the numerous rights that might have been created” by the program (internal quotation marks omitted)). Each subchapter contains separate procedural safeguards. Compare 20 U.S.C. § 1415 (procedural safeguards for Subchapter II), with 20 U.S.C. § 1439 (procedural safeguards for Subchapter III). Therefore, the procedural safeguards in each subchapter should be analyzed separately to determine whether each remedial scheme precludes a § 1983 remedy.

Additionally, plaintiffs in Marie O. were seeking statewide relief. No individual plaintiff sought an adjudication of his or her specific right to a particular service under the IDEA. IDEA procedural safeguards are geared towards ensuring a particular child receives appropriate services; it is unclear whether an Individual could use those procedures to challenge the statewide implementation of Subchapter III. Cf. Weyrick v. New Albany–Floyd County Consol. Sch. Corp., No. 4:03–CV–0095–DFH–WGH, 2004 WL 3059793, at *17 (S.D.Ind.2004) (Hamilton, J.) (“Courts have recognized that allegations of systemic flaws and patterns of illegality might support a finding of administrative futility or inadequacy and thus excuse administrative exhaustion under the IDEA”) (citing Beth v. Carroll, 87 F.3d 80, 89 (3d Cir.1996); Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303–04 (9th Cir.1992)). Thus, the statutory procedures may not have afforded the Marie O. plaintiffs the relief they sought, leaving § 1983 as the only available vehicle to vindicate their rights.

Accordingly, the court declines to apply Marie O. to this case. The holding of Anderson v. Thompson, 658 F.2d 1205, 1214–17 (7th Cir.1981), that § 1983 may not be used to remedy a statutory violation of an individual child's right to appropriate services under the IDEA, is unchanged by later law and is consistent with decisions by the Fourth, Ninth, and Tenth Circuits. This conclusion...