A.W. ex rel. Wilson v. Fairfax County School Bd.

• Decision Date: 13 March 2008
• Docket Number: Case No. 1:07cv1182 (GBL).
• Citation: 548 F.Supp.2d 219
• Court: U.S. District Court — Eastern District of Virginia
• Parties: A.W., a minor, by his parents and next friends, Debra WILSON and Christopher Wilson, et al., Plaintiffs, v. FAIRFAX COUNTY SCHOOL BOARD, and Jack D. Dale, in his official capacity as Superintendent of Fairfax County Public Schools, Defendants.

548 F.Supp.2d 219

A.W., a minor, by his parents and next friends, Debra WILSON and Christopher Wilson, et al., Plaintiffs, v. FAIRFAX COUNTY SCHOOL BOARD, and Jack D. Dale, in his official capacity as Superintendent of Fairfax County Public Schools, Defendants.

Case No. 1:07cv1182 (GBL).

United States District Court, E.D. Virginia, Alexandria Division.

March 13, 2008.

Charles Anthony Zdebski, William H. Hurd (on brief), Grady C. Frank, Jr. (on brief), Troutman Sanders LLP, Washington, DC, for Plaintiffs.

Arthur E. Schmalz, Thomas J. Cawley (on brief), Stacey L. Rose (on brief), Hunton & Williams LLP, McLean, VA, Andrea Gemignani, John F. Cafferky (on brief), Blankingship & Keith PC, Fairfax, VA, for Defendants.

MEMORANDUM OPINION

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Defendants Fairfax County School Board and Jack D. Dale's Motion to Dismiss for lack of subject matter or in the alternative for failure to state a claim for which relief may be granted. A.W., a student with disabilities, was suspended from high school because of an encounter he had with a female student. A.W. asserts that he is being singled out for harsh discipline because of his disability and that other disabled students in the Fairfax County Public School system are disparately disciplined as compared to their non-disabled peers. The question before the Court is two-fold. The first question is whether Plaintiffs are required to exhaust all administrative remedies available under the Individuals with Disabilities Education Act ("IDEA") despite the fact that their Complaint was not brought under the IDEA. The second question is whether, if the exhaustion requirement is applicable, whether it has been satisfied. The Court holds that Plaintiffs were required to exhaust the available administrative remedies, and that they have failed to meet the exhaustion requirement, because plaintiffs who bring their claims under the Americans with Disabilities Act and Title V of the Rehabilitation Act are required to exhaust the administrative remedies available under the IDEA when the relief sought is available under the IDEA. The Court holds that the relief sought by. Plaintiffs is available under the IDEA, and that Plaintiffs have not exhausted their administrative remedies because they have not received a final decision from a due process hearing with an independent hearing officer.

I. BACKGROUND

A.W. is an 18 year old high school senior at James Madison High School. A.W. was suspended from school following an incident where A.W. used his cell phone camera to take multiple pictures up a female classmate's skirt without the classmate's knowledge, and shared the photographs with other classmates. A.W. has been diagnosed with Asperger's Syndrome.

On November 1, 2007, the school, after conducting an initial investigation of the sexual harassment incident, suspended A.W. for 10 days and recommended his expulsion. A.W. has been subject to discipline before and he was on probation at the time of this incident.¹ On November 12, 2007, the members of A.W.'s Individualized Education Plan Team met to determine whether A.W.'s conduct was a product of his disabilities. The Individualized Education Plan Team concluded in its Manifest Determination Review that A.W.'s alleged misconduct was not a product of his disabilities. A.W. received a hearing at the school level, and was then provided with a formal hearing before the Superintendent's designated Hearing Officer on November 26, 2007. On November 30, 2007, the hearing officer issued a written decision to suspend A.W. for 18 days and reassign him to another public school. The School Board offered interim educational services for A.W. to take effect following the tenth day of suspension which his parents refused.

Plaintiffs appealed the decision to the School Board, who unanimously upheld the decision in a letter dated January 2, 2008. Plaintiffs filed their complaint in the Eastern District of Virginia on November 26. 2007, seeking a declaratory judgment, injunctive relief and monetary damages on the basis of alleged disparate discipline of disabled students by the School Board.

II. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when the Court lacks jurisdiction over the subject matter of the action. In considering a 12(b)(1) motion to dismiss, the burden is on the plaintiff to prove that federal subject matter jurisdiction is proper. See United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

A 12(b)(1) motion to dismiss may attack the existence of subject matter jurisdiction over the case apart from the pleadings. See e.g., White v. CMA Constr. Co., Inc., 947 F.Supp. 231, 233 (E.D.Va.1996); Mortevsvn v. First Fed. Sar. and Loan Ass'n, 549 F.2d S84, 891 (3d Cir.1977); see also Williams n. United States, 50 F.3d 299, 304 (4th Cir.1995) (citing Mortensen, 549 F.2d at 891). In such a case, the trial court's "very power to hear the case" is at issue. Mortensen, 549 F.2d at 891. The district court is then free to weigh the evidence to determine the existence of jurisdiction. Adams, 697 F.2d at 1219. "No presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891.

A motion to dismiss for lack of subject matter jurisdiction questions the Court's "power to act." Nelson r. United States Postal Sen:, 189 F.Supp.2d 450, 454 (W.D.Va.2002). Plaintiff bears the burden of establishing that the Court has subject matter jurisdiction, and when the Defendant challenges the Court's subject matter jurisdiction, as is the case here, then "`the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Id. (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States. 945 F.2d 765, 768 (4th Cir.1991)). A court should only grant a 12(b)(1) motion to dismiss "`if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Nelson, 189 F.Supp.2d at 454 (quoting Richmond. Fredericksburg & Potomac R. Co., 945 F.2d at 768).

B. Analysis

The Court grants the Defendant's Motion to Dismiss Plaintiffs' claims for lack of subject matter jurisdiction. Plaintiffs have requested relief from the school suspension decision under statutes other than the IDEA and the relief sought is also available under the IDEA, and therefore Plaintiffs' must exhaust their administrative remedies afforded by the IDEA, including a due process hearing before bringing a claim in federal court. Because the Plaintiffs have not sought or had a due process hearing, no final administrative due process decision has been issued, and therefore this court does not have subject matter jurisdiction. Parents of a disabled child may only file a suit in federal district court under the IDEA when the parents are aggrieved by a final administrative due process hearing decision. 20 U.S.C. § 1415(0(2). The administration of this procedure in Virginia is outlined in Title 8 of the Virginia Administrative Code. 8 VAC 20-80-76. Although the provisions of the IDEA do not prevent the parents of disabled children from seeking relief under statutes designed for their protection, such as the ADA or Title V of the Rehabilitation Act, the IDEA requires that where the relief sought is also available under the IDEA, even if suit is brought under another provision, plaintiff must first exhaust all administrative remedies available under the IDEA. 20 U.S.C. § 1415(1). Parents may not circumvent the exhaustion requirement of the IDEA simply by filing suit under another statute.

On October 30, 2007, A.W. was suspended from school for ten days with a recommendation of expulsion by the assistant principal of his high school as a result of the conduct at issue in this case. On November 12, 2007, a Manifestation Determination Review was held where it was determined that the behavior in question was not a manifestation of A.W.'s disability. On November 26, 2007, a formal hearing was held before the Superintendent's designated hearing officer, who upheld the action by the school in a written opinion issued on November 30, 2007, and ordered suspension for 18 days, along with A.W.'s reassignment to a different school. Also on November 26, 2007, Plaintiffs filed the instant action in the Eastern District of Virginia. A.W. and his parents appealed the school's decision to the Fairfax County School Board who issued a unanimous decision in a later dated January 2, 2008, upholding the school's decision. Neither party has indicated to the Court that Plaintiffs have received a due process hearing and a final administrative decision. Additionally, at the time that the complaint was filed, not only had Plaintiffs failed to participate in a due process hearing, but they had not yet received decisions from the Superintendent's hearing officer, nor the School Board. "It is well-settled that subject matter jurisdiction is assessed at the outset of the case." Lincoln Gen. Ins. Co. v. State Farm Mid. Auto. Ins. Co., 425 F.Supp.2d 738, 742 n. 3 (E.D.Va.2006). The "jurisdiction of the Court depends upon the state of things at the time of the action brought." Dole Food Co. v. Patrickson, 538 U.S. 468, 478, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003).

In 2004, A.W. and his parents filed suit against the Fairfax County School Board based on disciplinary action stemming from a death threat issued by A.W. to another student. A.W. v. Fairfax County Sch, Bd., 372 F.3d 674 (4th Cir.2004)....