R.K. v. Bd. of Educ. of Scott County

• Decision Date: 15 December 2010
• Docket Number: Civil Action No. 5:09–344–JMH.
• Parties: R.K., by next friends, J.K. and R.K., Plaintiff,v.BOARD OF EDUCATION OF SCOTT COUNTY, KENTUCKY, and Patricia Putty, Superintendent, Individually and Officially, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

755 F.Supp.2d 800

R.K., by next friends, J.K. and R.K., Plaintiff,

v.BOARD OF EDUCATION OF SCOTT COUNTY, KENTUCKY, and Patricia Putty, Superintendent, Individually and Officially, Defendants.

Civil Action No. 5:09–344–JMH.

United States District Court,E.D. Kentucky,Central Division,at Lexington.

Dec. 15, 2010.

Edward E. Dove, Lexington, KY, for Plaintiff.Grant R. Chenoweth, Robert L. Chenoweth, Chenoweth Law Office, Frankfort, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH M. HOOD, Senior District Judge.

This matter is before the Court on the Motion for Summary Judgment of Defendants Board of Education of Scott County, Kentucky, and Patricia Putty, individually and in her official capacity as Superintendent of the Scott County Schools (collectively “Defendants”) [Record No. 26]. Plaintiff R.K., by next friends, J.K. and R.K., has filed a Response in opposition to the motion [Record No. 32], and Defendants have replied [Record No. 33]. This matter is now ripe for review.

I. FACTUAL BACKGROUND

Minor Plaintiff R.K. (“Child”) was diagnosed with Type 1 diabetes on or around June 23, 2008. He was enrolled in Kindergarten at his neighborhood school, Eastern Elementary School (“EES”), on or around March, 2009, for the 2009–2010 school year. The Child's parents advised Defendants of his diagnosis, and that the Child would require insulin injections during the day to control his glucose levels. Shortly after the Child's enrollment, the Director of Child and Family Services for the Defendant informed the Child's parents that he would not be able to attend EES because EES did not have an on-site nurse. Defendants advised that the Child could attend either Western Elementary School or Anne Mason Elementary School (“AMES”), the only two schools in the school system with on-site nurses available. Defendants offered transportation to either school. The Child attended kindergarten at AMES during the 2009–2010 school year, and continues to attend AMES for First Grade in the 2010–2011 school year ¹.

In December, 2009, the parents advised Defendants that the Child had an insulin pump ², which obviated the need for daily insulin injections. Over time the Child has become more comfortable with the use of his insulin pump, although the pump must be monitored and the Child requires some assistance counting carbohydrates. Plaintiff argues that Defendants should allow the Child to attend EES, and that someone other than a nurse could be trained to assist the Child as an accommodation. However, Defendants continue to deny the parents' requests to transfer the Child from AMES to their neighborhood school, EES, on the basis that relevant Kentucky statutes and regulations require that a nurse, or other qualified medical personnel, monitor the Child's insulin pump and assist with carbohydrate calculations. See KRS § 156.501; KRS § 156.502. Kentucky law requires that the Defendants delegate nursing functions consistently with the Kentucky Board of Nursing, and the Kentucky Board of Nursing has issued an advisory opinion that nurses should maintain responsibility for monitoring insulin pumps and counting carbohydrates in a school setting. Thus, Defendants argue that the Child must attend a school with a nurse on staff.

Plaintiff alleges that the Defendants refusal to allow Plaintiff to attend his neighborhood school and to provide sufficient accommodations at his neighborhood school constitutes a violation of 42 U.S.C. § 12132, the Americans with Disabilities Act (the “ADA”), 29 U.S.C. § 794, which is commonly referred to as § 504 of the Rehabilitation Act, the Fourteenth Amendment and KRS Chapter 344 (the “Kentucky Civil Rights Act”).

The facts underlying this claim are not disputed by the parties. Both parties agree that the Child is not able to use the insulin pump without some assistance. Defendants believe that this requires the Child to attend a school with a nurse on site. Plaintiff argues that he should be allowed to attend his neighborhood school, despite the lack of qualified medical staff. Plaintiff alleges that the Child has been denied his rights because the Defendants required him to attend a school other than his neighborhood school. However, Plaintiff fails to assert that Defendants' accommodations for the Child have prevented him from receiving an adequate and beneficial education, participating in extra-curricular activities, field trips, or advancing to the next grade. The only distinction between the two schools, based upon Plaintiff's arguments, is that EES is his neighborhood school and AMES is not.

II. STANDARD OF REVIEW

Under Fed.R.Civ.P. 56(a) ³, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In considering a motion for summary judgment the court must construe the facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSIONA. PLAINTIFF'S CLAIMS UNDER ADA, REHABILITATION ACT OF 1973, AND 42 U.S.C. § 1983 ARE NOT SUBJECT TO ADMINISTRATIVE EXHAUSTION REQUIREMENTS OF IDEA, 20 U.S.C. § 1415

Defendants argue that this Court lacks subject matter jurisdiction over Plaintiff's claims under the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1983 because Plaintiff has failed to meet the administrative exhaustion requirements of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415. Plaintiff does not make a specific claim under the IDEA, but generally alleges in his Complaint that the Child is being denied a “free appropriate and discriminatory [ sic ] free education,” based on his disability. [Compl., at ¶ 3, 11, 18, 19, 22, 23]. Plaintiff argues that he is not required to exhaust administrative remedies in this instance because, by their nature, his claims lie outside of the purview of the IDEA. For the reasons that follow, the Court agrees.

The IDEA seeks:

... to ensure 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 further education, employment and independent living; [and]

to ensure that the rights of children with disabilities and parents of such children are protected ...

20 U.S.C. § 1400(d)(1)(A) & (B).

In order to achieve these goals, the IDEA prescribes certain procedural safeguards, including administrative hearings as provided for under state law. 20 U.S.C. § 1415(f). Only upon exhausting the available administrative process may a party who is dissatisfied with the outcome of those administrative proceedings bring suit in state or federal court. 20 U.S.C. § 1415(i)(2); see Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir.1989). The IDEA clarifies that:

Nothing in [the IDEA] 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, except that before the filing of a civil action under such laws seeking relief that is also available under [subchapter II of the IDEA], the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415( l ).

Section 1415 requires the exhaustion of administrative remedies prescribed under the IDEA, even when plaintiffs do not rely on the IDEA as the source of their claims, if their claim is sufficiently related to providing “free appropriate public education” to a disabled child under the IDEA. Covington v. Knox County Sch. Sys., 205 F.3d 912, 916 (6th Cir.2000) ( citing N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996); Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2nd Cir.1987); Hayes Through Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 813–14 (10th Cir.1989); Franklin v. Frid, 7 F.Supp.2d 920, 922, 925–26 (W.D.Mich.1998); W.L.G. v. Houston County Bd. of Educ., 975 F.Supp. 1317, 1328 (M.D.Ala.1997); Waterman v. Marquette–Alger Intermediate Sch. Dist., 739 F.Supp. 361, 364–65 (W.D.Mich.1990)). As explained by the Seventh Circuit Court of Appeals:

[U]nder the IDEA, education professionals are supposed to have at least the first crack at formulating a plan to overcome the consequences of educational shortfalls. That the educational problem has consequences outside school ... can't be enough to avoid the statutory system.

Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98 F.3d 989, 992 (7th Cir.1996). That said, it is common sense that “a disabled child who asserts a constitutional claim having some relationship to education but no nexus to the IDEA is not required to pursue administrative remedies under the IDEA before filing suit under § 1983 ...” or other applicable law. Franklin, 7 F.Supp.2d at 925.

In determining whether relief is available under the IDEA (and exhaustion required) where claims are brought pursuant to other statutes, courts have looked to the nature of the wrongs alleged. See A.P. ex rel. Peterson v. Anoka–Hennepin Indep. Sch. Dist. No. 11, 538 F.Supp.2d 1125 (D.Minn.2008) (no requirement of exhaustion where § 504 claims for failure to accommodate diabetic student's need for administration of insulin and testing of blood sugar were not IDEA-type claims and related only tangentially to his education); Sullivan ex rel. Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947 (E.D.Cal.1990) (no requirement of exhaustion under IDEA'S predecessor prior to suit for relief under Rehabilitation Act where disabled student sought to be accompanied by service dog at school but did not dispute the adequacy of educational program or aver that service dog was...