The opinion of the court was delivered by: James M. Moody United States District Judge
Pending is the Defendants' Motion for Summary Judgment. The Plaintiffs have filed a response in opposition to the Motion regarding exhaustion issues. The Defendants have replied. Plaintiffs have filed a response in opposition to the entire Motion for Summary Judgment to which the Defendants have also replied.*fn1 The Court has reviewed all of these pleadings including the attached exhibits, transcripts from the preliminary injunction hearing held on August 15, 23, and 24, 2006, and the relevant law. For the reasons set forth below, the Defendant's Motion for Summary Judgment is GRANTED.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be invoked carefully so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied, 444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to demonstrate, i.e., '[to] point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.
Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248.
Plaintiff Wonder Doe is a tenth grade student at Central High School ("Central") of the Little Rock School District ("LRSD"). Prior to the sixth grade, Wonder attended four different schools. For the first part of sixth grade Wonder attended Henderson Middle School in Little Rock. The Doe family relocated to Atlanta, Georgia during the second half of Wonder's sixth grade year where she attended Inman Middle School. Her family moved back to Little Rock and Wonder attended Henderson Middle School during the eighth grade. Wonder has attended Central High School since the ninth grade during the 2005-2006 school year.
According to Wonder's mother, Sherry Doe, Wonder was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") when she was five years old. Wonder's ADHD manifests itself in Wonder's behavior. Although every school Wonder attended was aware of her diagnosis, the first time she was provided with a written 504 accommodation plan was when she was a student at Henderson Middle School in the Little Rock School District. The plan was not primarily intended for implementation at Henderson. The Does sought placement of the 504 accommodation plan in April, 2004 primarily for implementation at Central Hugh School the following year.
Prior to the 2005-2006 school year, Wonder competed for a spot on the Central High School cheerleader team. She did not request an accommodation for her ADHD for the 2005-2006 tryouts. Wonder won a spot on the squad. Wonder competed again for a spot on the 2006-2007 cheerleading squad. This time she was not selected for the squad.
Plaintiffs filed this suit on August 2, 2006 under 20 U.S.C. §§ 1400-1477, Individuals with Disabilities in Education Act ("IDEA"); the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq.; 42 U.S.C. §§ 1983 and 1985, and the due process and equal protection clauses of the 14th Amendment of the United States Constitution seeking to have Wonder placed on the cheerleading squad. Plaintiffs' allege that Defendants failed to implement several of the accommodations in Wonder's 504 plan. Plaintiffs also complain that a more formal behavior modification plan should have been made a part of Wonder's Section 504 accommodation plan.
Plaintiffs filed a motion for preliminary injunction asking the Court to place Wonder on the Central cheerleading squad. A hearing was held on August 15, 23, and 24, 2006. At the conclusion of the hearing, the Court denied the motion for temporary injunction stating, in part, that the likelihood of success on the merits of the case was low.
The IDEA requires states to provide a disabled student with a free appropriate public education. Gill v. Columbia 93 School Dist., 217 F.3d 1027, 1035 (8th Cir. 2000)(citing Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1373 (8th Cir. 1996)). Section 504 of the Rehabilitation Act ("Section 504" or "504") requires the same. 29 U.S.C. § 794(a), 34 C.F.R. § 104.33. While the IDEA and Rehabilitation Act are complementary regarding educational obligations to children with disabilities, they address different injuries and, thus, require different proof. Specifically, the Rehabilitation Act offers relief from discrimination, whereas the IDEA offers relief from inappropriate educational placement, regardless of discrimination. Gabel ex rel. L.G. v. Board of Educ. of Hyde Park Central School Dist., 368 F.Supp.2d 313 (S.D.N.Y. 2005). One of the Congressional policies behind the IDEA is to allow disabled children to be educated alongside their non-disabled peers. Under the Act, disabled students are to be educated in a mainstream classroom whenever possible. Gill, 217 F.3d at 1035 (citing Board of Educ. v. Rowley, 458 U.S. 176, 202, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997)). In order to accomplish these goals, a specialized plan must be ...