J.M. v. Wake Cnty. Bd. of Educ.
| Docket Number | 5:21-CV-344-FL,5:21-CV-409-FL |
| Decision Date | 26 August 2022 |
| Parties | J.M. and D.M., individually and on behalf of G.M., their minor child, Plaintiffs, v. WAKE COUNTY BOARD OF EDUCATION, Defendant. WAKE COUNTY BOARD OF EDUCATION, Plaintiff, v. J.M. and D.M., individually and on behalf of G.M., their minor child, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
These related cases are before the court upon motion to dismiss by defendant in Case No. 5:21-CV-344-FL (the “ ‘344 case”) (DE 24); and by defendants in Case No 5:21-CV-409-FL (the “ ‘409 case”) (DE 14). The issues raised have been briefed fully. For the following reasons, the motion in the ‘344 case is granted in part and denied in part, and the motion in the ‘409 case is granted.
J.M and D.M. filed a complaint in the ‘344 case August 26 2021, on behalf of themselves and their minor child G.M., (“G.M. and her parents”),[1] asserting that the Wake County Board of Education (“Board of Education”) discriminated against them on the basis of G.M.'s disability and retaliated against them both in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., (the “Rehabilitation Act”), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., (the “ADA”), and that it violated G.M.'s equal protection rights under the Fourteenth Amendment to United States Constitution, pursuant to 42 U.S.C. § 1983. They seek compensatory, injunctive, and declaratory relief, and attorneys' fees and costs, generally, in addition to legal fees specifically from the underlying state administrative matter pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., (the “IDEA”).
On October 6, 2021, the Board of Education commenced the ‘409 case against G.M. and her parents, under 20 U.S.C. § 1415(i), seeking to challenge an administrative law judge (“ALJ”) decision in an underlying state administrative proceeding and for respite from the decision of the North Carolina Department of Public Instruction (the “Department of Public Instruction”) not to review the ALJ's decision. The Board of Education requests relief in the form of remand to the Department of Public Instruction for review of the ALJ's decision on the merits or alternatively this court's review of the ALJ's decision.
In each case, the defending party/parties moved to dismiss complaint.[2] The Board of Education also filed answer in the ‘344 case. The Board of Education seeks dismissal of the complaint in the ‘344 case on the basis that it fails to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In turn, G.M. and her parents seek dismissal of the complaint in the ‘409 case on the grounds that the court lacks subject matter jurisdiction over the claims, the court lacks personal jurisdiction over G.M. and her parents due to insufficient process and insufficient service of that process, and the complaint's failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(1), (2), (4), (5), and (6).
G.M. and her parents attach to their complaint the ALJ's decision and three affidavits of their counsel in support of attorneys' fees and costs. The Board of Education attaches to its complaints the same ALJ decision and a July 8, 2021, letter from the Department of Public Instruction. Additionally, in opposition to the motion to dismiss its complaint, the Board of Education relies upon: 1) its notice of appeal of the ALJ's decision filed with the North Carolina Office of Administrative Hearings, 2) prior notices of appeal it has filed in previous cases, 3) affidavit of Sarah Richeda, paralegal employed by the Board of Education's counsel, 4) proof of service of its original complaint, and 5) certified mail receipts dated January 28, 2022.
The following facts common to both cases may be summarized as follows.[3] G.M. is a young girl (ten years old at the start of the ‘344 case) who attends Lacy Elementary School, part of the Wake County Public School System, and has been diagnosed with “Cortical Visual Impairment” (“CVI”), as well as “optic nerve anomaly and myopia.” (Answer (‘344 Case DE 26) ¶¶ 1, 56). CVI results from damage to “the visual pathways and processing centers in the brain,” disrupting “the function of the message being received by the brain.” (Id. ¶ 4). Thus, individuals with CVI “can ‘see' the world, but their brains cannot process and interpret what they see.” (Id.). Unlike children with ocular visual impairment, children with only CVI may improve their functional vision with intervention.
G.M. is undisputedly “a ‘child with a disability,” specifically, visual impairment, and, thus, eligible for certain services under the IDEA. (Id. ¶ 55). G.M. started kindergarten in 2017 and from then up through second grade, when schools in North Carolina stopped in-person instruction due to the COVID-19 pandemic, received two hours of “specially designed instruction from a [teacher of the visually impaired] . . . using CVI strategies as well as CVI modifications and accommodations to access her classroom materials.” (Id. ¶¶ 66, 86). This specific teacher, Roxanne Wyss (“Wyss”), had a “CVI Range Endorsement,” which is issued by the Perkins School for the Blind “to professionals who have demonstrated their ability to properly conduct the CVI Range,”[4] a means of evaluating functional vision in students with CVI, “passed a test involving knowledge of CVI, and secured letters of recommendation.” (Id. ¶¶ 7, 66).
Throughout elementary school, G.M. has had issues with “reading fluency,” and her parents have periodically requested that the Board of Education include “a fluency goal” in her IDEA-mandated individualized education program and provide specified auditory reading accommodations. (Id. ¶¶ 69-70). See generally 20 U.S.C. §§ 1401(14), 1414(d) (defining individualized education program for the purposes of the IDEA). The Board of Education did not implement a specific fluency goal and offered accommodations other than that requested. At some point in 2019, the school staff working with G.M. began to discuss and explore the possibility of implementing braille instruction into G.M.'s individualized education program, a possibility that G.M.'s parents explicitly opposed. In February 2020, braille instruction was officially proposed due to concerns with G.M.'s reading fluency but only in addition to continued use of CVI strategies.
Before the braille instruction plan could be implemented, Wake County public schools switched to virtual instruction, which was not initially modified for G.M. and led to her being frustrated. When G.M.'s parents and G.M.'s teaching team met in June 2020, her parents again requested a fluency goal and pressed for “Extended School Year . . . services”[5] as an option. (Answer (‘344 Case DE 26) ¶¶ 82, 90). The Board of Education's determination was that G.M. did not qualify for such services. G.M.'s parents “filed a due process petition”[6] challenging G.M.'s individualized education program on the bases of perceived “absence of fluency goals” and the Board of Education's extended school year services determination. (Id. ¶ 91).
In September 2020, an annual review was conducted, and braille instruction was added to G.M.'s individualized education program, over the objection of her parents. A specific fluency goal also was added to her individualized education program. G.M.'s parents filed another due process petition, which was consolidated with the July 2020 petition. (See id. ¶ 102; see also ALJ Decision (‘344 Case DE 22-1) at 7). On May 28, 2021, the ALJ presiding over the hearing on the petitions issued a decision in G.M.'s parents' favor. (See Answer ¶ 113; see also ALJ Decision (‘344 Case DE 22-1) at 1). The Board “attempted [to] appeal” this decision, but, on July 8, 2021, the Department of Public Instruction deemed the appeal “not timely.” (Answer ¶ 53; see also July 8, 2021, Letter (‘409 Case DE 12-3) at 1).
The following facts derived from G.M. and her parents' complaint are unique to that pleading or in dispute.
G.M. and her parents allege that she performs at or above grade level in all core academic subjects, except reading fluency, and that her functional vision has improved because of her instruction using CVI strategies. Despite such, the Board of Education refused to enact specific fluency goals, abandoned CVI strategies, and never provided any targeted interventions to help with G.M.'s reading fluency as it does for children without CVI. It insisted that G.M. be educated in braille and that CVI strategies be removed from her individualized education program.
Particularly pertinent to G.M. and her parents' claims, they allege that the Board of Education, through its agents, told them that G.M.'s reading speed was not concerning, despite the fact that it acknowledged issues, and that the requested fluency goal and auditory reading program were not needed, although the latter would beneficial. The Board of Education rejected G.M.'s parents' offer to connect G.M.'s education team with an expert in the realm of CVI and to pay for such consultation.
The team is alleged to have predetermined in early 2020 to implement braille into G.M.'s education. Ultimately, the team sought to justify implementation of braille on the basis of G.M.'s slow reading speed, despite alleged prior representations regarding its importance and alleged refusal to consider prior alternative solutions. The individuals alleged to have made these decisions were not versed regarding...
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