Richardson v. Omaha School District

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE..

         Now pending before the Court are Defendant Omaha School District's ("the District") Motion for Summary Judgment (Doc. 36), Statement of Facts (Doc. 37), and Brief in Support (Doc. 38); Plaintiffs Chad and Tonya Richardson's Response in Opposition (Doc. 41) and Statement of Facts (Doc. 42); and the District's Reply (Doc. 47). For the reasons explained below, the Motion is GRANTED.

         I. BACKGROUND

         The Richardsons, individually and on behalf of their child, L, filed a due process complaint on November 29, 2016, before the Arkansas Department of Education, concerning claims brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. The Richardsons alleged in their due process complaint that L, while attending school in the District, was denied the right to a free, appropriate public education ("FAPE"). The parties participated in a due process hearing before a hearing officer appointed by the Arkansas Department of Education, and the hearing officer issued his final decision on April 14, 2017.

         On July 13, 2017, the Richardsons appealed the hearing officer's decision to this Court in No. 3:17-CV-3053. The hearing officer had found in their favor on some of their claims, but in favor of the District on other claims. In particular, the hearing officer concluded that the "District denied [L] FAPE between November 29, 2014 and November 29, 2016 by failing to comprehensively reevaluate [L], as well as failing to provide IEPs ["Individualized Education Program"] reasonably calculated to enable [L] to make progress appropriate in light of his specific circumstances." (Doc. 1-2 at 51). The District was ordered to evaluate L. within the next 30 days "for [the] purpose of obtaining a comprehensive understanding of [L's] academic, social and behavioral deficits" and then "reconvene [L's] IPE team to develop and update [L's] IEP based on the information received from the updated evaluations (regardless of whether [L] is able to return to school or whether he needs homebound services)." Id. at 51-52.

         The Richardsons lost before the hearing officer on their claims that peer-bullying and teacher-bullying of L. denied him FAPE under the IDEA. See Id. at 43. Of the four incidents of bullying raised during the hearing, the hearing officer determined that only one of the incidents actually qualified as bullying. He concluded that, "[r]egardless, all incidents were promptly and thoroughly investigated." Id. at 47. The hearing officer then made a finding that the incidents described as "bullying"-and the District's response to those incidents-did not violate the IDEA and "d[id] not constitute a violation of FAPE." Id. at 48.

         This Court ultimately dismissed No. 3:17-CV-3053 without prejudice because the Richardsons never served the Complaint. See Doc. 7, No. 3:17-CV-3053. Then, on December 4, 2017, the Richardsons filed the instant lawsuit and served it. Eventually, the District and the other defendants who had been named in the Complaint filed a motion for partial dismissal of some of the Richardsons' claims. The Court granted the motion in a Memorandum Opinion and Order issued on March 22, 2018 (Doc. 23).

         Count I of the Complaint was dismissed with prejudice, due to the running of the statute of limitations.^[1] Counts IV-IX were dismissed without prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. This left for later resolution Counts II and III-which are now the subject of the District's Motion for Summary Judgment.

         Count II asserts that the District discriminated against L. in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 701, etseq. ("§ 504"). The Richardsons contend that the District was aware that L. was being bullied by other children and by at least one of his teachers due to his disabilities, but was deliberately indifferent to the bullying and took no steps to protect L. Count III is similar to Count II in that it alleges that the District discriminated against L. in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131-12165. The Richardsons maintain that L. did not receive the same services, programs, and activities that children in the District without disabilities received, due to the fact that L. was subjected to a hostile and bullying environment at school.

         Section 504 and the ADA contain exceedingly similar prohibitions on disability discrimination. Section 504 states that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance," 29 U.S.C. § 794. The ADA'S corresponding language states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity," 42 U.S.C. § 12132.

         On summary judgment, the District argues that the Richardsons have produced no evidence from which a jury could reasonably conclude that the District and its staff are liable for violations of the Rehabilitation Act or the ADA by deviating from accepted professional practices or standards in their response to allegations of bullying. The District further contends that there is no evidence to suggest the District acted in bad faith with respect to complaints of bullying or that it engaged in intentional wrongdoing in handling the bullying claims. In making these arguments, the District relies primarily on the administrative hearing officer's decision, which considered and rejected the Richardsons' claims that L. was denied FAPE due to bullying and/or the District's lack of an appropriate response to bullying.

         On summary judgment, the Richardsons focus not on bullying, but on the hearing officer's conclusion that the District failed to conduct proper educational assessments and provide IEPs that were suited to L.'s needs. The Richardsons' briefing makes clear that they believe Counts II and III do not have much, if anything, to do with bullying. In fact, no facts or legal argument about bullying are contained in their brief and statement of undisputed facts.^[2]

         Though the Richardsons agree that the District has referred in its opening brief to the facts surrounding the bullying allegations that were developed in the administrative hearing, they think that mere references to the hearing officer's opinion are not enough to meet the District's initial burden under Rule 56. Instead, they argue that the District was obligated on summary judgment to cite to specific "actions taken by the school and its employees, as well as an explanation for the alleged reasonableness of those actions," (Doc. 41 at 5), in order to trigger a fulsome response. To summarize, then, the Richardsons maintain they are not obligated to provide any facts to support their claims on Counts II and III, but if they are wrong and a response is required, the only facts that truly matter are those that show the District's failure to evaluate L. for services and provide him with an appropriate IEP. The Court will take up the parties' arguments on summary judgment below.

         II. LEGAL STANDARD

         A. Summary Judgment

         The legal standard for summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment 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." The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that can be drawn from those facts. Canada v. Union Bee. Co., 135F.3d 1211, 1212-13 (8th Cir. 1997).The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Bee. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).

         The movant's initial burden on summary judgment is "far from stringent, for it is sufficient if the movant points out that the record does not contain a genuine issue of material fact and identifies that part of the record which bears out his assertion." Handeen v. Lemaire, 112 F.3d 1339, 1346 (8th Cir. 1997) (internal quotation marks and alterations omitted). But "[e]ven when the non-movant bears the burden of proof at trial, simply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case." Id. (internal quotation marks omitted).

         B. Elements of § 504 and ADA Claims

          "To prevail on a claim under § 504, a plaintiff must demonstrate that: (1) he is a qualified individual with a disability; (2) he was denied the benefits of a program or activity of a public entity which receives federal funds; and (3) he was discriminated against based on his disability." Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) (footnote omitted) (citing 29 U.S.C. § 794(a)). Section 504 requires that "'a person's disability serve as the sole impetus for a defendant's adverse action against the plaintiff, '" Wojewski v. Rapid City Reg'l Hosp., Inc., 450 F.3d 338, 344 (8th Cir. 2006) (emphasis in original). "Although the ADA has no federal funding requirement, it is otherwise similar in substance to the Rehabilitation Act, and cases interpreting either are applicable and interchangeable." Wojewski, 450 F.3d at 344 (internal quotation marks omitted); see also Hoekstra by & through Hoekstra v. Indep. Sch. Dist. No. 283, 103 F.3d 624, 626 (8th Cir. 1996) ("[Enforcement remedies, procedures and rights under Title II of the ADA are the same as under § 504[.]").

         When both § 504 and ADA claims are asserted against a defendant based on a failure to provide educational services for a disabled child, "the plaintiff must prove that school officials acted in bad faith or with gross misjudgment." Birmingham v. Omaha Sch. Dist, 220 F.3d 850, 856 (8th Cir. 2000). In order to establish bad faith or gross misjudgment, a plaintiff must show that the defendant's conduct "depart[ed] substantially from 'accepted professional judgment, practice or standards [so] as to demonstrate that the person[s] responsible actually did not base the decision on such a judgment.'" B.M. ex rel. Miller v. S. Callaway R-ll Sch. Dist, 732 F.3d 882, 887 (8th Cir. 2013) (internal citations omitted; alterations in original). As the Eighth Circuit has explained:

Because the ADA and § 504 do not create general tort liability for educational malpractice, bad faith or gross misjudgment requires something more than mere non-compliance with the applicable federal statutes. The defendant's statutory non-compliance must deviate so substantially from accepted professional judgment, ...