Ellenberg v. New Mexico Military Institute

• Decision Date: 07 March 2007
• Docket Number: No. 05-2056.,05-2056.
• Citation: 478 F.3d 1262
• Parties: Bob and Karen ELLENBERG, as parents and next friends of S.E., a minor, Plaintiffs-Appellants, v. NEW MEXICO MILITARY INSTITUTE; Board of Regents of the New Mexico Military Institute, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

478 F.3d 1262

Bob and Karen ELLENBERG, as parents and next friends of S.E., a minor, Plaintiffs-Appellants, v. NEW MEXICO MILITARY INSTITUTE; Board of Regents of the New Mexico Military Institute, Defendants-Appellees.

No. 05-2056.

United States Court of Appeals, Tenth Circuit.

March 7, 2007.

Gail Stewart (Laurel Nesbitt with her on the briefs), Steven Granberg, P.A., Albuquerque, NM, for Plaintiffs-Appellants.

John F. Kennedy (Samantha J. Fenrow with him on the briefs), Cuddy, Kennedy, Albetta, & Ives, LLP, Santa Fe, NM, for Defendants-Appellees.

Before LUCERO, SILER,^* and O'BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

Bob and Karen Ellenberg, the parents of a disabled child residing in New Mexico, appeal the district court's grant of summary judgment in favor of the New Mexico Military Institute at Roswell and its Board of Regents (collectively referred to as "NMMI") on their claims under the Individuals with Disabilities Education Act ("IDEA"), the Americans with Disabilities Act ("ADA"), and § 504 of the Rehabilitation Act ("RA"). They argued that NMMI's denial of their child's application for admission violated all three statutes, and sought a declaration from the district court that NMMI is bound by the IDEA.

The IDEA requires states that accept federal special education funds to provide disabled children with a "free appropriate public education" ("FAPE") in the "least restrictive environment" ("LRE"). It guarantees that such an education is given by instructing states to create an Individualized Education Plan ("IEP") for each child within its care. As part of the bargain, however, Congress requires parents to exhaust IDEA's administrative procedures and remedies before filing suit in federal court. The district court questioned whether the Ellenbergs satisfied this mandate, but nonetheless addressed the merits of the IDEA claim. It was error to do so.

We hold today that before a party may seek relief in federal court alleging a violation of the IDEA's substantive provisions, a party must first request an IEP for the disabled child, or seek a change to a current IEP if one exists, from the agency designated to create that plan under the state's educational framework. Because it is undisputed that plaintiffs never attempted to amend their child's existing IEP or obtain a new IEP before pursuing the IDEA claim, they have failed to exhaust the IDEA's administrative procedures and remedies.

Under our precedent, parties are precluded from bringing claims under the ADA and the RA that are educational in nature if they have failed to exhaust IDEA's administrative procedures, and relief for their injuries is available under the IDEA. Although we hold that plaintiffs have failed to exhaust IDEA's administrative procedures, they are unable to obtain relief under the IDEA for their pure discrimination claims brought pursuant to the RA and ADA, and thus are not barred from bringing these claims in federal court at this time. The district court's sole basis for granting summary judgment to NMMI on these claims was that plaintiffs' IDEA claim failed. Because plaintiffs' claims under the RA and ADA are separate and distinct from the IDEA claim, the district court's ruling in favor of NMMI on this basis was in error.

Accordingly, we exercise jurisdiction pursuant to 28 U.S.C. § 1291, REVERSE the district court's grant of summary judgment in favor of NMMI on the IDEA claim, and REMAND with instructions to dismiss that claim for lack of jurisdiction. We REVERSE the district court's grant of summary judgment in favor of NMMI on the Ellenbergs' claims under Title II of the ADA and § 504 of the RA, and REMAND for reconsideration of the motion for summary judgment on the ADA and RA claims.

I

Before addressing the Ellenbergs' claims, we consider the education law framework under which they seek to be brought. When analyzed in concert, the IDEA, New Mexico's education laws, and NMMI's unique status provide a complex legal backdrop with numerous interconnections, cross-definitions, and a few seeming contradictions.

A

Congress passed the IDEA,¹ a federal spending statute, in response to concerns about the educational opportunities afforded disabled students. Considered an "ambitious federal effort to promote the education of handicapped children," the IDEA "provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State's compliance with [its] extensive goals and procedures." See Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

At base, it "ensure[s] that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d). To this end, in order to receive federal funding the state must create an individualized education plan for each disabled child. 20 U.S.C. § 1412(a)(4); See O'Toole ex rel. O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 698 (10th Cir.1998).

Prepared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.

Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (internal citations omitted); see 20 U.S.C. § 1414(d). Review of IEPs must occur at least annually, and are to be revised as appropriate. Id.

By passing the IDEA, Congress also sought to "mainstream" disabled children, i.e., states must have a goal of providing "full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal." § 1412(a)(2). Each child has a substantive right to receive his or her education in the "least restrictive environment." See § 1412(a)(5)(A). That is, students must be educated "[t]o the maximum extent appropriate . . . with children who are not disabled" in a "regular educational environment." Id. States are prohibited from segregating or otherwise removing disabled children from the regular classroom setting except "when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id.; see Honig, 484 U.S. at 311, 108 S.Ct. 592.

In conjunction with this right, "[e]ach public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services." 34 C.F.R. § 300.115(a). Placement decisions must be based on the child's IEP, and made by "a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options." § 300.116(a)(1). Unless a child's IEP requires some other arrangement, the child should be "educated in the school that he or she would attend if nondisabled." Id.

The IDEA also sought to maximize parental involvement in educational decisions affecting their disabled child by granting parents a number of procedural rights. For example, parents are entitled to: (1) examine all records relating to their child, 20 U.S.C. § 1415(b)(1); (2) participate in the IEP preparation process, id.; (3) obtain an independent evaluation of their child, id.; (4) receive notice before an amendment to an IEP is either proposed or refused, § 1415(b)(3); (5) take membership in any group that makes decisions about the educational placement of their child, § 1414(f); and (6) receive formal notice of their rights under the IDEA, § 1415(d)(1).

Responsibility for implementing the IDEA and policing IDEA compliance rests with the states, subject to the IDEA's limited but specific structural framework. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 531, 163 L.Ed.2d 387 (2005) (citing Rowley, 458 U.S. at 183, 102 S.Ct. 3034). Each "State Educational Agency" ("SEA") must enact procedures and policies to implement the IDEA, and ensure both state and local compliance with the Act. 20 U.S.C § 1412(a)(11). "Local Education Agencies"² ("LEAs") are given primary responsibility for overseeing the actual provision of special education services to disabled children. See § 1413(a)(1); Gadsby v. Grasmick, 109 F.3d 940, 942-43 (4th Cir. 1997). SEAs ensure LEA compliance through the power of the purse: Federal IDEA funds are distributed to the SEA, and those funds may not be forwarded to LEAs within the state unless they demonstrate compliance with the IDEA to the satisfaction of the SEA. § 1413(a), (d). In addition, the IDEA places an obligation to provide special education services on "public agencies" that are "responsible for providing education to children with disabilities," 34 C.F.R. § 300.53, as well as on "education services agencies" that have "administrative control and direction" over a public secondary school, § 300.12.

Should an LEA or state agency prove "unable to establish and maintain programs of free appropriate public education in compliance with IDEA," the SEA must provide special education and related services directly to disabled children. 20 U.S.C. § 1413(h)(1). In so doing, the SEA "may provide special education and related services . . . in such a manner and at such locations (including regional or state centers) as the State agency considers appropriate." § 1413(h)(2). However, the SEA is required to comply with IDEA requirements as if it were an LEA. 34 C.F.R. § 300.175.

When parents believe their child is not being provided a FAPE in the least restrictive environment, they...