Horen v. Bd. of Educ. of City of Toledo
| Decision Date | 08 September 2009 |
| Docket Number | Case No. 3:08CV2119. |
| Citation | 655 F.Supp.2d 794 |
| Parties | Glenn S. HOREN, et al., Plaintiff, v. BOARD OF EDUCATION OF CITY OF TOLEDO PUBLIC SCHOOL DISTRICT, et al., Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Glenn S. Horen, Toledo, OH, pro se.
Joanne E. Horen, Toledo, OH, pro se.
James P. Silk, Jr., Lisa E. Pizza, Randy L. Meyer, Spengler Nathanson, Toledo, OH, for Defendant.
This is one of a set of lawsuits between parents of a severely disabled child and the Board of Education of the City of Toledo Public Schools [TPS].1 In this suit, the plaintiffs claim, inter alia, that the defendants have failed to provide rights guaranteed to their child under the Individuals With Disabilities Education Act [IDEA], 20 U.S.C. § 1400 et seq. The gravamen of plaintiffs' federal claims is that TPS has failed to develop an Individual Education Plan [IEP] for their child. TPS has not done so because the plaintiffs have insisted that they have the right to tape record those sessions; a right which TPS denies they have. In addition, plaintiffs object to TPS's insistence that its counsel attend all IEP sessions.
As a result of this impasse, no IEP has been prepared for the child. The parents have withdrawn her from TPS. Plaintiffs claim, in essence, that TPS has denied their child the Free Appropriate Public Education [FAPE] which federal law entitles her to receive.
TPS filed an administrative complaint asserting, inter alia, the right to have its attorney attend IEP sessions, and challenging the plaintiffs' demand to record those sessions. The State Level Review Officer [SLRO] ruled in favor of TPS. In addition to their claims under IDEA, plaintiffs seek review and reversal of the administrative decision.
Pending are motions by the parties for summary judgment. Plaintiffs seek summary judgment on the basis that the Ohio Department of Education failed to file the administrative record in a timely manner. [Doc. 38]. Defendants seek summary judgment as to plaintiffs' claims. [Doc. 41]
For the reasons that follow, the plaintiffs' motion shall be overruled, and the defendants' motion shall be granted.
There is no dispute that the child on whose behalf plaintiffs file this suit is severely learning disabled. At issue in this case is the fact that no IEP has been in place for the child for more than two years. This is so, despite the fact that TPS, beginning on January 30, 2007, convened, or sought to convene IEP meetings. Plaintiffs demanded to be able to record those meetings. TPS, which, over the parents' objections, had counsel present, refused to proceed unless plaintiffs would agree not to record the meetings. In response, plaintiffs insisted that they had the right to record the meetings.
As a result of this impasse, and its consequence—namely, that the parties did not prepare an IEP for the child—TPS filed an administrative due process complaint. In that complaint, TPS sought an order: 1) directing the parents to participate in IEP meetings without making audio or video recordings absent prior agreement of TPS staff participants; 2) authorizing attendance of TPS's attorney at the IEP meetings; and 3) directing the parents to send the child to school, or, alternatively, to inform TPS that she is being home-schooled or otherwise educated.
The Impartial Hearing Officer [IHO] issued a decision in favor of TPS. The SLRO affirmed.
Parents brought this suit.2 Their amended complaint names, in addition to TPS, TPS Superintendent John Foley and TPS Director of Student Services Thom Billau ["Individual defendants"].
Plaintiffs' complaint asserts claims under: 1) 42 U.S.C. § 1983 and the IDEA; 2) Due Process and Equal Protection clauses of the United States Constitution; and 3) Ohio law.
Plaintiffs seek recovery under the IDEA via § 1983. That provision, does not, however, provide the means by which an aggrieved party can sue for alleged violations of either statute. Chuhran v. Walled Lake Consol. Schools, 1995 WL 138882, *2 (6th Cir.1995) (); Sellers by Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524, 529 (4th Cir.1998) (). Indeed, I have already so ruled in my earlier decision in this case. Horen, supra, 594 F.Supp.2d at 845 ().
In any event, as defendants point out, IDEA imposes duties exclusively on institutional entities, not individuals. As there is no duty being imposed on the individual defendants, they could not be held liable under IDEA.
In their § 1983 claim, plaintiffs demand compensatory and punitive damages for defendants' alleged violations of IDEA. Damages are not, however, available under the statute.
With regard to compensatory damages, the court stated in Sellers, supra:
Compensatory or punitive damages would transform IDEA into a remedy for pain and suffering, emotional distress, and other consequential damages caused by the lack of a free appropriate public education. Such a result would be inconsistent with the structure of the statute, which so strongly favors the provision of and, where appropriate, the restoration of educational rights.
To the extent damages are available under IDEA, they are limited. Gean v. Hattaway, 330 F.3d 758, 774 (6th Cir.2003) ().
The Supreme Court likewise held in Barnes v. Gorman, 536 U.S. 181, 184-89, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), that punitive damages are not available for a violation of IDEA.3
Thus, even though plaintiffs have tried to cloak their IDEA claims in the guise of § 1983, prevailing law requires unmasking such claims and granting summary judgment in defendants' favor.
Plaintiffs also seek recovery via § 1983 under the Equal Protection Clause of the Fourteenth Amendment. Though plaintiffs do not specify the equal protection standard on which they are proceeding, it appears that they seek to assert that their child is a "class of one," rather than a member of a favored class, and defendants treated her differently from similarly situated children vis-a-vis the benefits of IDEA. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) ().
Defendants are entitled to summary judgment on this claim because plaintiffs have not shown that defendants treated plaintiffs' daughter any differently than children like her. Absent such proof, plaintiffs' claim must fail.
The parents claim that TPS and defendant Billau acted under color of state law to deprive their child of her substantive and procedural due process rights. They do not, however, specify the putative substantive or procedural rights the defendants denied them.4
With regard to the merits of plaintiffs' due process claims, I conclude that defendants are entitled to summary judgment on multiple grounds.
First, the amended complaint contains conclusory allegations that defendants have deprived them of due process. The complaint contains insufficient factual allegations in support of its conclusory obligations. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ().
Even if plaintiffs had adequately pleaded a substantive or procedural due process claim, defendants would be entitled to judgment because plaintiffs have not established that they had a cognizable liberty or property interest.
To prevail on a procedural due process claim, plaintiffs must establish that: 1) they have a life, liberty, or property interest protected by the Due Process Clause; 2) a state actor deprived them of such interest; and 3) the state did not provide adequate procedural rights before the deprivation. E.g., Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).
The gravamen of plaintiffs' due process claim appears to be the contention that the IHO proceeded with the hearing, despite plaintiffs having informed him that Mr. Horen would be unavailable. Thus, in effect, they requested a continuance, which the IHO denied.
This action by the IHO cannot be attributed to the defendants, and the defendants cannot be held accountable for any abuse of discretion on his part. Plaintiffs fail, accordingly, to show that the defendants deprived them of their right to be heard.5
Defendants likewise caused no violation of substantive due process. To establish such a claim, the plaintiffs must show that the defendants' exercise of authority was so wrongful that it "shocks the conscience." See Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir.2008) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). This is a difficult standard to meet, as noted in Lewis: "only the most egregious official conduct can be said to be `arbitrary in the constitutional sense.'" 523 U.S. at 846, 118 S.Ct. 1708 (citation omitted).
I agree with the defendants that plaintiffs plead no facts rising to an abuse of power by defendants.
Moreover, as the defendants also point out, the Supreme Court has not identified...
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