Garcia v. Board of Educ. of Albuquerque Pub. Scho., CIV. 05-0062WPJWPL.

• Decision Date: 16 June 2006
• Docket Number: No. CIV. 05-0062WPJWPL.,CIV. 05-0062WPJWPL.
• Citation: 436 F.Supp.2d 1181
• Parties: Jessica GARCIA, on behalf of her minor child, Myisha GARCIA, Plaintiff, v. BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS, Elizabeth Everitt, in her individual and official Capacity, Debi Hines, in her individual and official capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

436 F.Supp.2d 1181

Jessica GARCIA, on behalf of her minor child, Myisha GARCIA, Plaintiff, v. BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS, Elizabeth Everitt, in her individual and official Capacity, Debi Hines, in her individual and official capacity, Defendants.

No. CIV. 05-0062WPJWPL.

United States District Court, D. New Mexico.

June 16, 2006.

Gail S. Stewart, Steven Granberg Attorney at Law, Albuquerque, NM, for Plaintiff.

Michael L. Carrico, Modrall, Sperling, Roehl, Harris & Sis, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT ON RACE DISCRIMINATION CLAIMS

JOHNSON, District Judge.

THIS MATTER comes before the Court upon Defendants' Motion for Summary Judgment on Rate Discrimination Claims, filed March 29, 2006 (Doc. 85). This case concerns the provision of public education to a minor, student by the Albuquerque Public Schools.¹ Having considered the parties' briefs and the applicable law, I find that Defendants' motion is well-taken and will be granted.

BACKGROUND

This is a civil action brought by Plaintiff. Jessica Garcia on behalf of her daughter, Myisha, against the Board of Education of. Albuquerque Public Schools (hereinafter referred to as "APS" or "District") and two individual defendants following exhaustion of administrative due process proceedings pursuant to the Individuals with Disabilities Education Act ("IDEA"): Defendant Elizabeth Everitt, during the relevant time in this lawsuit, was the Superintendent of APS. Defendant Debi Hines was the director of special education.

Plaintiff seeks partial reversal of the administrative IDEA decision dated December 20, 2004.² Plaintiff also asserts that APS violated the rights of her daughter, Myisha, to equal protection under 42 U.S.C. § 1983, failed provide a public education free from disability under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973, and discriminated against Myisha on the basis of race under Title VI of the Civil Rights Act of 1964. The motion addressed by, the Court here concerns only Plaintiffs race discrimination claims.

I. Parties' Positions

Plaintiff's core allegation concerning APS' failure to provide Myisha with a free, appropriate public education is that APS violated Plaintiff's rights by denying her daughter access to, reading instruction in the Wilson Reading System, a multisensory language program. This is based on several specific allegations: the District failed to have any Wilson-trained teachers of reading at West Mesa High School ("West Mesa"); the District's policy allowed. teachers to volunteer to get Wilson training; and the District failed to assign teachers with the higher level of training to schools with a high-level of need. Plaintiff contends that Defendants Everitt and Hines ("Individual Defendants") knew the student body composition at West Mesa according to race and disability, and knew about the general lack' of appropriate training among APS's teachers for teaching reading as well as the graduation/drop Out rates it the school. Yet the Individual Defendants, according to Plaintiff, chose and implemented a policy which failed to provide students at West Mesa, including Myisha, access to reading instruction equally effective to that provided to students in other schools, based on race and disability discrimination against such students.

Defendants take the position that Myisha and her mother's indifference to Myisha's education undermined the effectiveness any services could have had for Myisha during 2002-03 and 2003-04. Defendants contend that Myisha herself bears responsibility for behaving in, ways which Crippled her academic progress, including truancy and escalating behavior problems.³

II. Undisputed Facts

Plaintiff states that Defendants' presentation of facts are taken out of context and are misleading, yet Plaintiff does not dispute these facts because she considers theme to be immaterial. The Court disagrees with Plaintiffs wholesale characterization of Defendants' facts, as immaterial. I find that they are material because they reflect on the issue of whether Myisha's failures in school are attributable to the District's, illegal motives of racial discrimination (in that the District denied her Wilson training), or to other factors outside of the District's control. However, because Plaintiff does not dispute these facts, the Court assumes them as true for purposes of this motion for summary judgment.

Defendants' statement of undisputed facts are supported, by the testimony of Plaintiff-Student ("Myisha Garcia" or "Myisha") in the course of the Administrative hearing or by deposition; deposition testimony of Jessica Garcia, Myisha's mother; testimony by affidavit and deposition by APS employees who are involved in the special education reading programs; and APS' exhibits admitted at the administrative hearing; administrative findings of fact.⁴ Citations to this evidence are provided by Defendants in that portion of their brief which sets out the undisputed facts.

Myisha Garcia is African-American and Hispanic. She is 17 years old, and until she recently dropped out of school altogether, Ale was a sophomore at Del Norte High. School ("Del Norte"). Myisha qualified for receipt of special education services for "specific learning disability" for deficits in the area of reading in her fifth grade year (1989-1999) at APS. Myisha's reading disability was diagnosed in fifth grade. Her school attendance was fine until the second semester of eighth grade when she stopped coming to school. According to Myisha's mother Jessica, and one of Myisha's special education teachers (Lorraine Luna), Myisha's attendance dropped when `her rebellious attitude, her exposure to negative peer influences, her drug use, and her conflicts with her family began to manifest themselves in her life.

A. 2002-2003 School Year

Myisha began ninth grade at West Mesa in the fall of 2002. During the fall of 2002, Myisha was enrolled in Corrective Reading, which is an intensive phonics-based program, identified as 4 supplemental reading intervention program for students in special, education classes, Myisha's teachers did not have the opportunity to implement the Corrective Reading method with Myisha because Myisha never once attended the class. Plaintiff states that there is a fact issue as to whether specialized reading instruction was ever made available to Myisha, but Plaintiff's own evidence does not support such a dispute:

Q. Did Myisha get the program [Corrective Reading]?

A. Not where it was on her schedule. But I do know that her freshman year... her English I class that she had with Deb Hernandez, they had that reading program as part of the curriculum. "

Pltff's Ex. 6 at 156:3-9. Defendants also present evidence showing that Myisha did receive reading instruction:

"In the 2002-03 school year, Myisha Garcia was on Deb Hernandez' class list for Corrective Reading, but she never came to class and, accordingly, was dropped from the class."

Defts' Ex. "Kisner Aff." ¶ 13; see also, Due Process Hearing Transcript ("DPH Tr.") at 196-97 (guided reading on variety of levels offered in Myisha's 10th grade English class, with help offered on individual basis).

According to her own testimony, " Myisha did not put any effort into schoolwork during the fall 2002 at West Mesa because she thought she would be able pass her classes without trying. Myisha did not attend West Mesa in the spring of the 2002-03 school year because she was arrested and charged with aggravated battery and aggravated assault against a household member for attacking her mother and brother with a deadly weapon. Myisha resided at the Bernalillo County Juvenile Detention Center from January 17, 2003 to March 7, 2003 and again from July 24, 2003 to August 13, 2003. During part of that time, Myisha was placed at the Mesilla Valley Residential Treatment Center.

B. 2003-2004 School Year.

Myisha's lack of interest for her schooling continued in the fall of 2003. The efforts of her teachers, her Student Success Advocate, and her mother to address the issue were met with defiance from Myisha. The first semester of the 2003-04 school year, Myisha received numerous disciplinary referrals for truancy. Of 89 school days in the 2003 fall semester, Myisha had 65 days showing unexcused absences most for a full day of classes.

Myisha intentionally began to act "bad" during the time period relevant to this dispute because she wanted to provoke her mother's then-boyfriend to move out of their home. She acted "bad" by skipping school, although she controlled such problem behavior when she wanted.

Plaintiff has argued that Myisha skipped English classes because she was allegedly frustrated by an inability to read and because of the allegedly inadequate instruction she received in those classes. Myisha admitted, however, that she would go to her English classes when she "felt like going" regardless of whether she was keeping up with the class. Myisha's motivations for skipping were highly variable. She usually attended first period because it was "too cold to ditch." Sometimes her decision to skip depended upon whether she "was in the mood to sit there." Myisha used drugs and alcohol during this period, sometimes during the school day. She would skip chemistry because "it was better just to go to sleep" than attend chemistry class. Myisha ran away from home twice, for about a week each time, missing school as a result.

In December 2003, Myisha became pregnant. Her mother was so upset that Myisha's parole officer feared for Myisha's safety and moved her to a day shelter. Myisha missed the rest of her 2003 fall classes, including finals. On both levels of the administrative process (Due Process Hearing, and the Administrative Appeal), the hearing officers, concluded that Myisha's own attitudes toward school mitigated the effectiveness that any instruction would have had.

C. 2004-2005 School...