Simpson-Vlach v. Mich. Dep't of Educ.

• Docket Number: 21-cv-11532
• Decision Date: 22 July 2022
• Parties: Rita C. Simpson-Vlach, et al., Plaintiffs, v. Michigan Department of Education, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

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Rita C. Simpson-Vlach, et al., Plaintiffs, v. Michigan Department of Education, et al., Defendants.

No. 21-cv-11532

United States District Court, E.D. Michigan, Southern Division

July 22, 2022

Anthony P. Patti Mag. Judge

OPINION AND ORDER DISMISSING THIS CASE WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION AND DENYING AS MOOT DEFENDANTS' MOTIONS TO DISMISS [20, 34, 38] AND PLAINTIFFS' MOTION FOR AN AUTOMATIC AND PRELIMINARY INJUNCTION [42]

JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

Before the Court are three motions to dismiss filed by the Defendants in this case. (ECF Nos. 20, 34, 38.) The Defendants include a state educational agency, local educational agencies (“LEA”), and individuals affiliated with these agencies who are being sued in their official capacities. The Plaintiffs are parents of children with disabilities, who bring this action “individually and on behalf of their . . . children.” (ECF No. 1 PageID.1.) The Defendants' motions are fully briefed. On January 27, 2022, the Court held a hearing by video conference and heard oral argument.

For the reasons set forth below, the Court finds that the Plaintiffs fail to establish that they have Article III standing as to the remaining counts in this case: Counts 1, 2, 4, 5, and 7. The Plaintiffs' allegations are insufficient to demonstrate that they have standing to pursue the relief they seek in Counts 1, 2, 4, and 5, and to pursue their claim in Count 7. Because the Plaintiffs do not show that they have standing to proceed, the case is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Accordingly, the Defendants' motions to dismiss (ECF Nos. 20, 34, 38) are DENIED AS MOOT. The Plaintiffs' motion for an automatic and preliminary injunction (ECF No. 42)- which was “held in abeyance pending disposition of [the] Defendants' motions to dismiss” (ECF No. 43 PageID.1013)-is also DENIED AS MOOT.

I. Background

A. The Complaint Filed on June 30, 2021

On June 30, 2021, the complaint in this case was filed by Plaintiffs Rita C. Simpson-Vlach, Alan Simpson-Vlach, Kathy Bishop, and Christopher Place. (ECF No. 1.) Plaintiffs are parents and residents of Ann Arbor, Michigan, who bring this putative statewide class action on behalf of themselves and their children with disabilities: A.S., M.S., C.P., and H.P.^[1] (See id. at PageID.1, 3-5.)

Defendants are the Michigan Department of Education (“MDE”), the Ann Arbor Public Schools (“AAPS” or “District”), the Washtenaw Intermediate School District (“WISD”), Jeanice Swift (the Superintendent of the AAPS), Marianne Fidishin (the Executive Director of Student Intervention and Support Services for the AAPS), Scott Menzel (the former Interim Superintendent of the WISD), Naomi Norman (the current Interim Superintendent of the WISD), and Michael F. Rice (the State Superintendent for the MDE). (See id. at PageID.1, 5.) Defendants divide themselves into three groups: (1) the State Defendants, which consist of the MDE and Rice; (2) the AAPS Defendants, which consist of the AAPS, Swift, and Fidishin; and (3) the WISD Defendants, which consist of the WISD, Menzel, and Norman. Each group of Defendants filed a motion to dismiss.

In their complaint, Plaintiffs allege that Defendants violated their rights when the AAPS closed in March 2020^[2] due to the COVID-19 public health crisis and improperly switched from providing in-person instruction and services to providing virtual instruction and services. Plaintiffs allege violations of various state and federal laws, including the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.

Plaintiffs state that under the IDEA, the student Plaintiffs are “children with disabilities”^[3] who “are entitled to receive a free and appropriate public education (‘FAPE') and related services from the MDE, the WISD and AAPS.”^[4] (ECF No. 1, PageID.4.) Each student Plaintiff has an Individualized Education Plan (“IEP”), which is the “primary mechanism” for ensuring that students with disabilities receive a FAPE.^[5] (Id. at PageID.5; see Id. at PageID.8, 10, 12, 14.) The student Plaintiffs' IEPs from 2019 or 2020 “state[ ] that ‘the primary mode of service is directly working with the student'” but “do[ ] not state whether this mode will be in-person or virtual.”^[6] (Id. at PageID.8, 10, 12, 14.)

With respect to the four student Plaintiffs, the complaint alleges:

61. On March 16, 2020, AAPS ceased all in-person education due to the COVID-19 pandemic.

62. As a result of the March 16, 2020 closure of AAPS schools, AAPS altered A.S.'s[, M.S.'s, C.P.'s, and H.P.'s] IEP[s] for the 2019-2020 school year to complete virtual instruction and services without any prior written notice and/or the proper participation of parents.

63. The alterations and concomitant placement of A.S.[, M.S., C.P., and H.P.] at home receiving virtual instruction and services was procedurally defective because AAPS:

a. Altered A.S.'s[, M.S.'s, C.P.'s, and H.P.'s] IEP[s] to complete virtual instruction without prior written notice or any written notice;

b. Altered A.S.'s[, M.S.'s, C.P.'s, and H.P.'s] IEP[s] without the meaningful participation of [their] parents;

c. Failed to reconvene an IEP meeting at a time that was mutually agreeable with parents prior to, or even soon after, changing A.S.'s[, M.S.'s, C.P.'s, and H.P.'s] placement from in-person instruction and services to home placement with virtual instruction and services;

d. Failed to ensure that A.S.[, M.S., C.P., and H.P.] could access a free and appropriate public education on the same level as [their] non-disabled peers.

64. During the 2019-2020 school year, from March 16, 2020 through June 12, 2020, A.S.[, M.S., C.P., and H.P.] attended school at home with virtual instruction and services.

65. During the 2020-2021 school year, A.S.[, M.S., and C.P.] attended school at home with virtual instruction [and/or services] until May of 2021 when AAPS offered a hybrid option.

107. During the 2020-2021 school year, H.P. attended school at home receiving virtual instruction and services until January of 2021 when her mother placed her in a private school.

(Id. at PageID.8-9, 15; see id. at PageID.10-14.)

In other words, Plaintiffs allege that the AAPS unilaterally changed the location and mechanism of the delivery of instruction and related services from at school/in person to at home/virtual during the 2019-2020 and 2020-2021 school years. Plaintiffs believe this change altered the student Plaintiffs' IEPs and educational placements and affected the student Plaintiffs' access to a FAPE.

Plaintiffs' complaint contains eight counts.^[7] In Count 1, Plaintiffs allege that the WISD, AAPS, and MDE committed four “systemic violations” of the IDEA. (Id. at PageID.19-22.) In Count 2, Plaintiffs allege that “Defendants” violated Rules 300.324 and 300.518 of the Michigan Administrative Rules for Special Education (“MARSE”). (Id. at PageID.22-23.) In Count 3, Plaintiffs allege that the AAPS (and possibly the MDE) violated § 504 of the Rehabilitation Act. (See Id. at PageID.23-25.) In Count 4, Plaintiffs allege that the AAPS (and possibly the MDE) violated Title II of the Americans with Disabilities Act (“ADA”). (See Id. at PageID.25-27.) In Count 5, Plaintiffs allege that the AAPS (and possibly the MDE) violated the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”). (See Id. at PageID.27.) In Count 6, Plaintiffs assert a claim under 42 U.S.C. § 1983 against “Defendants,” alleging a Fourteenth Amendment equal protection violation. (Id. at PageID.28-29.) In Count 7, Plaintiffs allege that the individual Defendants (Swift, Fidishin, Menzel, Norman, and Rice) violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (See Id. at PageID.29-40.) In Count 8, Plaintiffs assert a RICO conspiracy claim against the individual Defendants. (See Id. at PageID.40-41.) Plaintiffs allege that Defendants' actions caused them to suffer “damages, including regressions in skills and loss of competencies regarding the goals and objectives outlined in their IEPs.” (Id. at PageID.22; see Id. at PageID.29, 40.)

Plaintiffs seek declaratory and injunctive relief. (See Id. at PageID.2, 5, 41-43.) Plaintiffs also seek fees, costs, and expenses (including attorney fees). (See Id. at PageID.42.) In the complaint's “Prayer for Relief,” Plaintiffs ask that the Court:

1. Assert jurisdiction over this matter;

2. Certify this action as a class action pursuant to Fed.R.Civ.P. 23(a) and (b)(2)[;]

3. Issue a declaratory judgment that the class members' pendency placement is in-person instruction and services;

4. Issue a declaratory judgment that AAPS and other similarly situated LEAs' unilateral change of placement of plaintiffs from in-person instruction and services to virtual instruction and services violated the procedural safeguards of IDEA and discriminated against plaintiffs under IDEA MARSE, § 504, the ADA, the [PWDCRA] and § 1983;

5. Issue a declaratory judgment that the MDE failed to monitor and provide proper oversight and resources to AAPS and other similarly situated LEAs during the COVID-19 pandemic as required under IDEA and MARSE;

6. Order the MDE, WISD, AAPS and other similarly situated LEAs to comply with the procedural safeguards guaranteed by IDEA for the 2021-2022 school year for the class members unless the U.S. DOE [Department of Education] issues IDEA waivers;

7. Assign a Special Monitor to: a) oversee the completion of Independent Education Evaluations (“IEE”) for all the class members to determine regressions and loss of competencies due to the unilateral changes to their IEPs and placements, and reconvene IEP Team meetings within thirty days of the completion of the IEEs; b) make expert recommendations

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