Farmer v. Union County Board of Education

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:23-CV-00139-FDW-DCK

S.F. AND S.F. INDIVIDUALLY AND ON )

BEHALF OF S.F., THEIR MINOR CHILD, )

)

Plaintiffs, )

)

v. ) ORDER

)

UNION COUNTY BOARD OF EDUCATION, )

)

Defendant. )

)

THIS MATTER is before the Court on Defendant’s Motion to Dismiss, (Doc. No. 18),

and Plaintiffs’ Motion to File Evidence Not in the Administrative Record, (Doc. No. 33). These

motions have been fully briefed, (Doc. Nos. 19, 25, 28, 34, 35, 38), and are ripe for ruling. For

the reasons set forth below, Defendant’s Motion is GRANTED IN PART and DENIED IN PART,

and Plaintiffs’ Motion is GRANTED.

I. BACKGROUND

Plaintiff S.F. is a minor child who resides with his parents, who are also named Plaintiffs.

According to the Amended Complaint, S.F. is a student with disabilities who attended public

schools operated by Defendant Union County Board of Education from August 2015 to December

2021. (Doc. No. 10.) S.F. had a history of disability-related behavioral problems in the school

setting. Due to a behavioral incident on September 28, 2021, Defendant removed S.F. from the

educational environment for six days and recommended long-term-removal. The next day,

Defendant held a manifestation determination review, discussed the recommended disciplinary

change in placement, and determined S.F.’s behavior was a manifestation of his disability.

As part of his education, S.F. had an Individualized Education Plan (“IEP”) and a Behavior

Intervention Plan (“BIP”).1 On October 5, 2021, Defendant held an IEP meeting and placed S.F.

on homebound services, where he remotely attended Marvin Ridge High School. Defendant

conducted subsequent IEP meetings. On December 13, 2021, Plaintiffs unilaterally placed S.F. in

a private setting; however, his parents continued to attend IEP meetings with Defendant and the

parties continued to discuss S.F.’s IEP and school placement through at least December 16, 2021.

On March 28, 2022, Plaintiffs challenged the educational programming recommendations

made by Defendant by filing a Petition for a Contested Case Hearing in the North Carolina Office

of Administrative Hearings (“NCOAH”) and alleging violations of the Individuals with

Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”); N.C. Gen. Stat. §§ 115C-109.6

et seq.; Section 504 of the Rehabilitation Act of 1973 (“Section 504”); and Title II of the Americans

with Disabilities Act (“ADA”). In short, Plaintiffs asserted Defendant failed to provide S.F. with

his statutory right to receive a free and appropriate education (“FAPE”), and as a remedy, they

sought reimbursement for their unilateral placement of S.F. at a private school. On April 27, 2022,

the Administrative Law Judge issued an Order of Partial Dismissal dismissing Plaintiff’s

allegations, claims, and causes of action related to Section 504 and the ADA, as well as all claims

for monetary damages. The ALJ conducted an evidentiary hearing over the course of several days

1 For purposes of background, the Court finds it helpful to include an overview from the Fourth Circuit to explain

some of the Individuals with Disabilities Education Act (“IDEA”) terms relevant to the issues in this case:

The IDEA provides funds for states to educate children with disabilities, subject to conditions

imposing substantive requirements on the education that is provided. In return for the receipt of

federal education funding, states are required by the IDEA to provide each of their disabled children

with a FAPE. A FAPE comprises special education and related services—both instruction tailored

to meet a child's unique needs and sufficient supportive services to permit the child to benefit from

that instruction. The mechanism by which a state provides a FAPE is an IEP--a document that

describes the child's unique needs and the state's plan for meeting those needs.

Charlotte-Mecklenburg Cnty. Bd. of Educ. v. Brady, 66 F.4th 205, 208 (4th Cir. 2023)

and also received briefing from the parties. On December 5, 2022, the ALJ issued a Final Decision

concluding Plaintiffs were not entitled to any relief.

Plaintiffs subsequently filed this action appealing the ALJ’s final decision and also

asserting claims under IDEA, Section 504, the ADA, 42 U.S.C. § 1983, negligence, and negligent

infliction of emotional distress. Defendant seeks dismissal of Plaintiffs’ claims brought under

Section 504, the ADA, and Section 1983, as well as the state law tort claims, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. Defendant also seeks dismissal of Plaintiffs’

request for compensatory damages as not permitted under IDEA.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). When considering a Rule 12(b)(6) motion, the court must accept the plaintiff's factual

allegations as true and draw all reasonable inferences in the plaintiff's favor. See E.I. du Pont de

Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). The court is “not required to

accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal

terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in

the complaint cannot support” the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567,

577 (4th Cir. 2001). On a Rule 12(b)(6) motion, the Court “does not resolve contests surrounding

facts, the merits of a claim, or the applicability of defenses.” Ray v. Roane, 948 F.3d 222, 226 (4th

Cir. 2020) (quoting Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013)). Furthermore, in analyzing

a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.” Tellabs. Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

III. ANALYSIS

In order to survive the instant motion to dismiss, the Amended Complaint must plausibly

plead the requisite elements to establish claims under Section 504, the ADA, Section 1983,

negligence, and negligent infliction of emotional distress. Notably, Defendant has not moved to

dismiss Plaintiffs’ IDEA claim, but seeks dismissal of that part of the Amended Complaint seeking

compensatory damages under IDEA. The Court addresses these in turn.

A. Section 504 and ADA

Section 504 and Title II of the ADA both prohibit disability-based discrimination against

qualified individuals. See 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability

. . . 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 . . . .”); 42 U.S.C. § 12132 (“[N]o 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.”). Because the language and purpose of both Acts is substantially similar, the same analysis

applies to both the Section 504 and ADA claims:

Title II of the ADA and Section 504 are closely related, and both “prohibit

disability-based discrimination against qualified individuals.” O.V. v. Durham Pub.

Sch. Bd. of Educ., No. 1:17CV691, 2018 WL 2725467, at *23 (M.D.N.C. June 6,

2018), report and recommendation adopted, 2018 WL 3370644 (M.D.N.C. July 10,

2018). Since “the language and purpose of both Acts [are] substantially the same,

the same analysis applies to claims brought under both statutes.” Doe v. Univ. of

Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995). To bring a claim

under either statute, the plaintiff must establish: (1) that plaintiff has a disability;

(2) that plaintiff is otherwise qualified for the benefit or program in question; and

(3) that plaintiff was excluded from the benefit or program due to discrimination

solely on the basis of disability. Q.C. v. Winston-Salem/Forsyth Cnty. Schs. Bd. of

Educ., No 1:19-cv-1152, 2021 WL 1430697, at *6 (M.D.N.C. Apr. 15, 2021)

(citing Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016)). The

two statutes differ in their application of the third element. Under a Section 504

claim, the plaintiff must establish that he was excluded solely on the basis of the

disability, while the ADA allows a claim where the disability was a “motivating

cause” of the exclusion. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,

462 (4th Cir. 2012) (quoting Baird ex rel. Baird v. Rose, 192 F.3d 462, 468–69 (4th

Cir. 1999)). To establish discrimination under Section 504 in education cases,

“something more than a mere failure to provide the ‘free appropriate education’

required by [IDEA] must be shown.” Sellers by Sellers v. Sch. Bd. of Manassas,

141 F.3d 524, 528–29 (4th Cir. 1998) (quoting Monahan v. Nebraska, 687 F.2d

1164, 1170 (8th Cir. 1982)). The Fourth Circuit recognizes that “either bad faith or

gross misjudgment should be shown before a [Section] 504 violation can be made

out, at least in the context of education of [disabled] children.” Id. at 529 (quoting

Monahan, 687 F.2d at 1171).

C.G.A. by & Through R.A. v. Iredell-Statesville Sch. Dist. Bd. of Educ., 2023 WL 8461675, at *5

(W.D.N.C. Nov. 3, 2023), report and recommendation adopted sub nom. R.A. v. Iredell-Statesville

Sch. Dist. Bd. of Educ., 2023 WL 8461186 (W.D.N.C. Dec. 6, 2023); see also Baird ex rel. Baird

v. Rose, 192 F.3d 462, 469 (4th Cir. 1999); Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty.,

673 F.3d 333, 336 n.1 (4th Cir. 2012); Nat’l Fed'n of the Blind v. Lamone, 813 F.3d 494, 503 (4th

Cir. 2016).

Mere negligence does not suffice, and a plaintiff must plead “something more than an

incorrect evaluation, or a substantively faulty individualized education plan, in order for liability

to exist.” Sellers by Sellers v. Sch. Bd. of Manassas, 141 F.3d 524, 529 (4th Cir. 1998) (quotation

omitted). Furthermore, “Conclusory allegations of gross misjudgment or bad faith without further

factual development fall short of stating a claim under Title II or Section 504.” Q. C. v. Winston-

Salem/Forsyth Cnty. Sch. Bd. of Educ., No. 1:19CV1152, 2021 WL 1430697, at *6 (M.D.N.C.

Apr. 15, 2021) (citing Charlotte–Mecklenburg Bd. of Educ. v. B.H. ex rel. C.H. & W.H., No.

3:07CV189, 2008 WL 4394191, at *7 (W.D.N.C. Sept. 24, 2008) (explaining that “simply labeling

the conduct at issue as having been performed in bad faith is insufficient to allege[] that the actions

in question rise to that level”)). The ‘bad faith or gross misjudgment standard’ is extremely

difficult to meet, especially given the great deference to which local school officials’ educational

judgments are entitled.” Doe v. Arlington Cnty. Sch. Bd., 41 F. Supp. 2d 599, 609 (E.D. Va. 1999),

aff'd sub nom. Doe ex rel. Doe v. Arlington Cnty. Sch. Bd., 210 F.3d 361 (4th Cir. 2000).

“Ultimately, plaintiffs must allege that the school’s actions depart[ed] substantially from accepted

professional judgment, practice or standards as to demonstrate that the persons responsible did not

base the decision on such a judgment.” D.N. v. Louisa Cty. Pub. Sch., 156 F. Supp. 3d 767, 776

(W.D. Va. 2016) (quotation marks omitted).

Defendant seeks dismissal based on Plaintiff’s failure to allege any facts indicating

Defendant acted in bad faith or with gross misjudgment. Plaintiffs provide a brief response to this

argument and generally refer the Court—without discussion—to several paragraphs in the First

Amended Complaint. (See Doc. No. 25, p. 7 (citing Doc. No. 10, ¶¶ 45-47, 50, 59, 61, 106-08,

110-13, 118-20, 122)). These allegations, considered collectively and accepted as true, fail to rise

to the level of bad faith or gross misjudgment. Instead, these allegations referenced by Plaintiffs

simply state procedural steps taken with the NCOAH or concern Defendant’s failure to provide

Plaintiffs with FAPE, which is insufficient as a matter of law to set out a Section 504 or ADA

claim. Sellers v. School Board of City of Manassas, 141 F.3d 524, 529 (4th Cir.1998) (“To prove

discrimination in the education context, something more than a mere failure to provide the ‘free

appropriate education’ required by IDEA must be shown. We agree with those courts that hold

that either bad faith or gross misjudgment should be shown before a § 504 violation can be made

out, at least in the context of education of handicapped children.” (cleaned up)).

Despite Plaintiffs’ dissatisfaction with the actions taken concerning S.F., the complaint

does not plausibly allege that Defendant substantially departed from accepted professional

judgment or standards. Because Plaintiffs’ allegations reveal neither bad faith nor gross

misjudgment, Plaintiffs fail to meet the “high bar” demanded of them. Accordingly, the Court

dismisses Plaintiffs’ Section 504 and ADA claims.

B. Section 1983

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983—specifically asserting due process and

equal protection violations--also require distinct elements apart from an IDEA claim. “Because

IDEA provides a comprehensive remedial scheme for violations of its own requirements . . . parties

may not sue under section 1983 for an IDEA violation.” Sellers, 141 F.3d at 529. However,

“[S]ection 1415(f) does permit plaintiffs to resort to section 1983 for constitutional violations,

notwithstanding the similarity of such claims to those stated directly under IDEA.” Sellers, 141

F.3d at 530 (emphasis in original). “Under IDEA, the simple failure to provide a child with a free

appropriate public education constitutes a violation of the statute. 20 U.S.C. § 1412(1). By contrast,

plaintiffs must meet a higher standard of liability to prevail on a constitutional claim.” Sellers,

141 F.3d at 530. To state a constitutional violation under section 1983, Plaintiffs must plausibly

allege the school Defendants deprived them of a right secured by the Constitution and laws of the

United States and that this deprivation of a right was made under color of a state statute, ordinance,

regulation, custom, or usage. See West v. Atkins, 487 U.S. 42, 48 (1988); Philips v. Pitt Cty. Mem'l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir.

2001). As noted above, Plaintiffs allege Defendant violated S.F’s Fourteenth Amendment’s right

to due process and the Equal Protection Clause.

1. Due Process

Plaintiffs’ Amended Complaint explicitly identifies a “substantive due process” claim,

although Plaintiffs’ briefing appears to argue they also assert a procedural due process violation.

(Compare Doc. No. 10 with Doc. No. 25.) Procedural and substantive due process claims require

different showings. Under procedural due process, “protection of property is a safeguard of the

security interests that a person has already acquired in specific benefits.” Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 576, (1972). “It is a guarantee of fair procedures, typically notice and

an opportunity to be heard.” Mora v. City Of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008)

(quotations omitted). To state a procedural due process claim, Plaintiffs must allege: “‘(1) a

cognizable liberty or property interest; (2) the deprivation of that interest by some form of state

action; and (3) that the procedures employed were constitutionally inadequate.’” Kendall v.

Balcerzak, 650 F.3d 515, 528 (4th Cir. 2011) (quoting Iota Xi Chapter of Sigma Chi Fraternity v.

Patterson, 566 F.3d 138, 145 (4th Cir. 2009)).

In contrast, substantive due process “is a far narrower concept than procedural; it is an

absolute check on certain government actions notwithstanding the fairness of the procedures used

to implement them.” Roth, 408 U.S. at 576, 92 S.Ct. 2701 (citing Love v. Pepersack, 47 F.3d 120,

122 (4th Cir. 1995)). The Fourth Circuit has explained:

Substantive due process protects individuals from “arbitrary” government action

that constitutes “egregious official conduct.” Cty. of Sacramento v. Lewis, 523 U.S.

833, 845–46(1998). Only executive conduct that “shocks the conscience” can

support a cognizable substantive due process claim. Id. at 846. Generally, the

challenged executive action “must have been ‘intended to injure in some way

unjustifiable by any government interest.’” Waybright v. Frederick Cty., 528 F.3d

199, 205 (4th Cir. 2008) (quoting Cty. of Sacramento, 523 U.S. at 849, 118 S.Ct.

1708).

Z.G. by & through C.G. v. Pamlico Cnty. Pub. Sch. Bd. of Educ., 744 F. App'x 769, 782 (4th Cir.

2018), abrogated in part by Luna Perez, 143 S. Ct. at 863-65; see also Rucker v. Harford Cnty.,

Md., 946 F.2d 278, 281 (4th Cir. 1991) (“[T]he residual protections of ‘substantive due process’ .

. . run only to state action so arbitrary and irrational, so unjustified by any circumstance or

governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural

protections or of adequate rectification by any post-deprivation state remedies.” (citing Daniels v.

Williams, 474 U.S. 327, 331 (1986)).

“Under either form of protection, however, a person must have a protected interest in either

life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, 2008 WL 5992271, at *6 (D.N.M.

Oct. 9, 2008). North Carolina provides a free public education “to every person of the State less

than 21 years old, who has not completed a standard high school course of study.” N.C. Gen. Stat.

§ 115C–1. The Supreme Court has ruled, “the State is constrained to recognize a student’s

legitimate entitlement to a public education as a property interest which is protected by the Due

Process Clause and which may not be taken away for misconduct without adherence to the

minimum procedures required by that Clause.,” Goss v. Lopez, 419 U.S. 565, 574 (1975). Courts

have recognized the limitations of this property interest: “With respect to public education, citizens

possess a property interest not in the particulars of the educational experience, but rather in

participation in the educational process as a whole.” O.V. v. Durham Pub. Sch. Bd. of Educ., No.

1:17CV691, 2018 WL 2725467, at *27 (M.D.N.C. June 6, 2018) (collecting cases), report and

recommendation adopted, No. 1:17-CV-691, 2018 WL 3370644 (M.D.N.C. July 10, 2018).

Defendant argues Plaintiffs’ due process claims mirrors the IDEA claim, which is

insufficient to state a Section 1983 claim under applicable law. The Court agrees, in part,

particularly where Plaintiffs—again—cite generally and without discussion to several paragraphs

in the First Amended Complaint to support this claim. (See Doc. No. 25, p. 7 (citing Doc. No. 10,

¶¶ 92, 100, 103-04, 110, 118(b), 134(g), 247, 257.) These allegations relate to Defendant’s failure

to implement S.F.’s IEPs, predetermination of his placement, failure to comply with IDEA, and

failure to provide a FAPE, as well as Plaintiffs’ Section 504, ADA, and negligence claims. These

allegations, rife with reference to IDEA and Defendant’s alleged failure to provide a FAPE, are

insufficient as a matter of law to state a Section 1983 claim for either procedural or substantive

due process violations.

In an effort to distinguish their due process claims from their IDEA claim, Plaintiffs

contend Defendant violated S.F.’s due process rights when it deprived him of an education in

whole, not merely special education services, by removing him from the school setting and placing

him on homebound instruction with “minimal access to education services and instruction” from

around October 1, 2022, to December 16, 2022. (Doc. No. 25, p. 10.) This argument, however,

explicitly acknowledges Defendant provided S.F. with access to education albeit in an alternate

education setting and therefore fails to sufficiently allege the property right recognized under

applicable law for due process violations. Although Plaintiffs’ challenges to the specifics of S.F.’s

alternative education experience can form the basis of their IDEA claim, those facts as to the

particulars of that educational experience cannot simultaneously support their due process claims

as a matter of law. Because Plaintiffs acknowledge Defendant provided some form of public

education to S.F., nothing in the Amended Complaint indicates Defendant deprived S.F. from

participating in the educational process as a whole. See O.V. v. Durham Pub. Sch. Bd. of Educ.,

2018 WL 2725467 at *27 (rejecting similar argument because it “merely reprises Plaintiffs’ IDEA

claims, which cannot form the basis of Section 1983 claims”). In sum, the Amended Complaint

fails to articulate the high standard of pleading necessary to state a substantive or procedural due

process claim. Accordingly, the Court dismisses the Section 1983 claims for due process

violations.

2. Equal Protection

Turning to Defendant’s motion to dismiss Plaintiffs’ Section 1983 claim under the Equal

Protection Clause, the Fourth Circuit has explained, “To succeed on an equal protection claim, [a

plaintiff] must first demonstrate that he has been treated differently from others with whom he is

similarly situated and that the unequal treatment was the result of intentional or purposeful

discrimination.” Veney v. Wyche, 293 F.3d 726, 730–31 (4th Cir. 2002) (internal quotations and

citations omitted). In so doing, Plaintiffs must “plausibly allege facts sufficient to identify actual,

similarly situated students to [S.F.] who were treated differently.” Vlasaty v. Wake Cnty. Pub.

Sch. Sys. Bd. of Educ., No. 5:17-CV-578-D, 2018 WL 4515877, at *8 (E.D.N.C. Sept. 20, 2018)

(collecting cases and dismissing Section 1983 claim). If a plaintiff makes this showing, “the court

proceeds to determine whether the disparity in treatment can be justified under the requisite level

of scrutiny.” Veney, 293 F.3d at 731; see also Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.

2001). In an educational context, this means a plaintiff must plausibly allege that “a school board

intended to treat children differently because of their disabilities,” and that such a decision “was

without any rational basis.” Sellers, 141 F.3d at 530–31. “To survive a motion to dismiss for

failure to state a claim [under the rational basis test], a plaintiff must allege facts sufficient to

overcome the presumption of rationality that applies to government classifications.” Giarratano

v. Johnson, 521 F.3d 298, 303-04 (4th Cir. 2008) (quoting Wroblewski v. City of Washburn, 965

F.2d 452, 460 (7th Cir. 1992)). In the context of a Rule 12(b)(6) motion, the Fourth Circuit has

explained the high bar a plaintiff must meet to allege that a government actors’ conduct lacks

justification:

[T]his test represents a powerful presumption of validity. The showing required to

overturn that presumption is steep. A challenger must show there is no rational

relationship between the disparity of treatment and some legitimate governmental

purpose. The state need not make any showing; no evidence of any kind is required;

reasonable speculation is enough. As for the justification, any conceivable reason

will do. It does not matter what motivated the classification. . . . . All that is needed

is an imperfect fit between a plausible reason and some legitimate end. In total, this

test requires an extraordinary showing by a plaintiff like Doe: He must negate every

conceivable basis which might support the [governmental action].

Doe v. Settle, 24 F.4th 932, 943 (4th Cir.) (cleaned up), cert. denied, 142 S. Ct. 2874, 213 L. Ed.

2d 1093 (2022). “The deference afforded to the government under the rational basis test is so

deferential that even if the government’s actual purpose in creating classifications is not rational,

a court can uphold the [governmental action] if the court can envision some rational basis for the

classification.” Guerra v. Scruggs, 942 F.2d 270, 279 (4th Cir. 1991) (emphasis omitted); see also

United States v. Carpio–Leon, 701 F.3d 974, 982 (4th Cir. 2012) (describing “rational-basis level

of scrutiny” as “a low hurdle”).

Plaintiffs’ Amended Complaint here fails to plausibly allege disparate treatment between

S.F. and any similarly situated students. In response to the instant motion to dismiss, Plaintiffs

concede they “have no examples of Defendant excluding disabled students from school for actions

found to be manifestations of their disabilities as Defendant did with S.F.” (Doc. No. 25, pp. 12-

13.) Plaintiffs’ equal protection claim therefore fails. See C.A. by C.A. v. Bd. of Directors of

Corvian Cmty. Sch., No. 3:22-CV-00035, 2023 WL 5747149, at *10 (W.D.N.C. Sept. 6, 2023)

(dismissing Section 1983 Equal Protection Claim where the complaint was “devoid of allegations

identifying students who are similarly situated to Plaintiff or allegations of any disparate

treatment”); see also Bouabid v. Charlotte Mecklenburg Sch. Bd. of Educ., No. 3:19-CV-30, 2020

WL 1082491, at *5 (W.D.N.C. Mar. 6, 2020) (same); Vlasaty, 2018 WL 4515877 at *8 (same).

As alternative grounds for dismissal, Plaintiffs’ Equal Protection claim also fails because

it relies on IDEA and Defendant’s failure to provide S.F. with a FAPE. In opposing the instant

motion, Plaintiffs argue they have sufficiently plead a claim because “the custom was keeping S.F.

out of school when there is no such law that supports doing so. The law in North Carolina is for

school districts to provide children with a free public education, and under the IDEA to provide

children with a FAPE.” (Doc. No. 25, p. 11.) Plaintiffs’ argument explicitly conflates their Equal

Protection claim with their IDEA claim, and in doing so, makes clear their failure to state a claim

for relief under applicable law governing Section 1983. See Sellers, 141 F.3d at 529; Vlasaty,

2018 WL 4515877 at *7 (“To the extent that plaintiffs allege IDEA violations, they cannot state a

claim under section 1983.”).

Finally, as a third basis for dismissal of the Equal Protection claim, Plaintiffs fail to address

or otherwise argue the lack of a rational basis for their Section 1983 claim. Other than one

conclusory sentence alleging “no rational basis for treating S.F. in a disparate manner,” (Doc. No.

10, ¶ 220), Plaintiffs’ Amended Complaint is devoid of any factual allegation in Plaintiffs’

Amended Complaint sufficient to overcome the presumption of rationality. Notably, Plaintiffs’

fail to make any argument regarding Defendant’s a rational basis—or lack thereof—in their brief

opposing the motion at bar. Dismissal of Plaintiffs’ Equal Protection claim under Section 1983 is

therefore appropriate.

C. Municipal Liability

Finally, even if Plaintiffs pled a claim under Section 1983, Plaintiffs have failed to allege

a sufficient basis for imposing municipal liability on the Board. See, e.g., Bd. of Cty. Comm’rs v.

Brown, 520 U.S. 397, 410 (2010); City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988);

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

A school board’s failure to train can result in liability under § 1983 only when such failure

reflects deliberate indifference to a plaintiff’s constitutional rights. Doe v. Broderick, 225 F.3d

440, 456 (4th Cir. 2000) (“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice

. . . can a [governmental actor] be liable for such failure under § 1983.” (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)); see also Jordan by Jordan v. Jackson, 15 F.3d 333, 341 (4th

Cir. 1994); Mathis v. Caswell Cnty. Sch. Bd. of Educ., No. 1:20CV92, 2021 WL 1109466, at *12

(M.D.N.C. Mar. 23, 2021). “Mere negligence is insufficient to impose section 1983 liability on a

municipality for alleged failure to train.” Jordan, 15 F.3d at 341. “Moreover, neither a policy or

custom of deficient training nor the required causal connection can be shown by proof of a single

incident of unconstitutional activity alone.” Id.; see also Wellington v. Daniels, 717 F.2d 932, 936

(4th Cir. 1983) (“Generally, a failure to supervise gives rise to § 1983 liability . . . only in those

situations in which there is a history of widespread abuse.”); Doe, 225 F.3d at 456 (recognizing

lack of anything in the record to suggest the defendant’s conduct was the result of a “persistent

and widespread” practice such that the governmental actor could be held liable (quoting Monell,

436 U.S. at 691)). “A pattern of similar constitutional violations by untrained employees is

ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.”

Connick v. Thompson, 563 U.S. 51, 62 (2011) (cleaned up).

“Local governments cannot be liable under section 1983 based upon a theory of respondeat

superior. Rather, liability attaches only if conduct directly causing the alleged deprivation is

undertaken to effectuate an official policy or custom.” Vlasaty, 2018 WL 4515877 at *8

(collecting cases; dismissing Section 1983 claim against school board based on the plaintiffs’

failure to allege a policy or custom that accounted for the student’s injury). The Fourth Circuit has

explained:

A policy or custom for which a municipality may be held liable can arise in four

ways: (1) through an express policy, such as a written ordinance or regulation; (2)

through the decisions of a person with final policymaking authority; (3) through an

omission, such as a failure to properly train officers, that manifests deliberate

indifference to the rights of citizens; or (4) through a practice that is so persistent

and widespread as to constitute a custom or usage with the force of law.

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (cleaned up). These principles also apply to

school boards. See Riddick v. Sch. Bd. of Portsmouth, 238 F.3d 518, 522 n. 3 (4th Cir. 2000)

(applying Monell to Section 1983 claim brought against school board and noting that “[i]n Monell,

the Court recognized that school boards and municipalities are indistinguishable for purposes of

§ 1983”).

Plaintiffs’ Amended Complaint contains generalizations and legal conclusions regarding

Defendant’s “custom, policy, and practice,” and the Amended Complaint as a whole fails to

sufficiently allege deliberate indifference. (See Doc. No. 10, pp. 26-32.) At best, Plaintiffs make

one broad and sweeping allegation that Defendant “established a custom, policy, and practice of

failing to enforce federal and state law requirements as well as Board Policy by keeping S.F. from

attending in-person learning during the 2021-22 school year and denying him equal access to an

education.” (Doc. No. 10, p. 29.) Nothing in the Amended Complaint identifies with any

particularity the policy or custom to support this generalization, and Plaintiffs’ argument again

demonstrates Plaintiffs’ improper attempt to rely on their IDEA claim as a basis for relief under

Section 1983. Furthermore, while Plaintiffs contend “Defendant Board failed to supervise and

train its subordinates[,]” Plaintiffs fail to assert any allegation regarding a history, pattern, or

persistent and widespread practice to sufficiently support a failure to train and supervise claim

under Section 1983. See Wellington, 717 F.2d at 936 (“A single act or isolated incidents are

normally insufficient to establish supervisory inaction upon which to predicate § 1983 liability.”).

For these reasons, dismissal is proper.

C. Negligence and Negligent Infliction of Emotional Distress

Defendants argue Plaintiffs’ negligence claims fail as a matter of law because they are

premised on allegations of intentional—rather than negligent—conduct. To establish a claim of

negligence, Plaintiffs must sufficiently allege: (1) Defendant owed Plaintiffs a duty of care; (2)

Defendant’s conduct breached that duty; (3) the breach was the actual and proximate cause of

Plaintiffs’ injury; and (4) damages resulted from the injury. Camalier v. Jeffries, 460 S.E.2d 133,

136 (N.C. 1995); see also Matthieu v. Piedmont Nat. Gas Co., 152 S.E.2d 336, 341 (N.C. 1967);

Kiser v. Snyder, 205 S.E.2d 619, 621 (N.C. Ct. App. 1974) (“A teacher must abide by that standard

of care which a person of ordinary prudence, charged with his duties, would exercise under the

same circumstances.”). In order to state a claim for negligent infliction of emotional distress,

Plaintiffs must allege: (1) Defendant negligently engaged in conduct, (2) it was reasonably

foreseeable that such conduct would cause Plaintiffs severe emotional distress, and (3) the conduct

did in fact cause Plaintiffs severe emotional distress. Ennett v. Cumberland Cty. Bd. of Educ., 698

F.Supp.2d 557, 560 (E.D.N.C. 2010) (internal quotations omitted); see also Andersen v. Baccus,

439 S.E.2d 136, 139 (N.C. 1994); Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395

S.E.2d 85, 97 (N.C. 1990).

Here, the parties’ arguments on this issue are sparse, and the few authorities cited by both

parties do not provide helpful guidance at this stage in the proceedings. The Court notes Plaintiffs

continue to rely on allegations that primarily concern their IDEA claims to support their negligence

claims; and Defendant fails to direct the Court to sufficient authority supporting its position on

dismissal. While the Court has found only a handful of cases to govern the Court’s analysis of

negligence claims asserted by a student against a school board related to the provision of education

in this context, the Court concludes that dismissal of these claims at this time and under this record

is not appropriate. This portion of Defendant’s motion is therefore denied. Consequently, the

Court also denies that portion of Defendant’s motion seeking dismissal of Plaintiffs’ claims for

compensatory damages. Denial here is without prejudice to the parties’ ability to reassert any

applicable arguments—supplemented with sufficient authority—to support their positions at

summary judgment.

D. Motion to File Evidence Not in the Administrative Record

Plaintiffs seek to supplement the administrative record before this Court pursuant to 20

U.S.C. § 1415(i)(2)(C)(ii) and ask the Court to consider evidence in the instant case that the ALJ

excluded at the NCOAH. “District courts conduct a modified de novo review, giving due weight

to the underlying administrative proceedings, but are empowered to receive and consider evidence

outside the administrative record.” Charlotte-Mecklenburg Cnty. Bd. of Educ. v. Brady, 66 F.4th

205, 211 (4th Cir. 2023) (cleaned up); see also 20 U.S.C. § 1415(i)(2)(C)(ii). The Fourth Circuit

has explained:

The IDEA provides that the district court “shall hear additional evidence at the

request of a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). The determination of whether to

allow additional evidence “must be left to the discretion of the trial court which

must be careful not to allow such evidence to change the character of the hearing

from one of review to a trial de novo.” Town of Burlington v. Dep't of Educ., 736

F.2d 773, 791 (1st Cir. 1984). Rejecting a “lenient” standard, we have held that

“additional” evidence will not include “testimony from all who did, or could have,

testified before the administrative hearing.” Springer v. Fairfax Cnty. Sch. Bd., 134

F.3d 659, 667 (4th Cir. 1998).

A.B. by L.K. v. Smith, No. 22-1686, 2023 WL 3533595, at *4 (4th Cir. May 18, 2023). “To avoid

undermining the administrative proceeding, the United States Court of Appeals for the Fourth

Circuit has construed the term ‘additional evidence’ narrowly.” Soltes v. Bd. of Directors of

Woods Charter Sch. Co., No. 1:16CV119, 2017 WL 354270, at *4 (M.D.N.C. Jan. 24, 2017)

(quoting Springer, 134 F.3d at 667). Courts have allowed supplementation where a party argues

the improper exclusion of evidence by the administrative agency. Soltes, 2017 WL 354270, at *4

(quoting Brandon H. ex rel. Richard H. v. Kennewick Sch. Dist. No. 17, 82 F. Supp. 2d 1174, 1179

(E.D. Wash. 2000)).

In this case, Plaintiffs challenge the NCOAH’s ruling in Defendant’s favor to exclude

certain evidence, and the Court will allow that excluded evidence to be added to the instant record

in order to evaluate the merits of Plaintiffs’ arguments at the appropriate time. Accordingly, the

Court GRANTS Plaintiffs’ motion to supplement the administrative record, and in so ruling

expressly declines to address any arguments as to the merits of the admissibility of that evidence

and the NCOAH’s decision to exclude such evidence. Although the evidence is attached to the

instant motion, the Court directs Plaintiffs to file the supplemental evidence in a separate filing

that is indexed accordingly and accompanied by a motion to seal, if appropriate.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s Partial Motion to Dismiss, (Doc. No.

18), is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File, (Doc. No. 33), is

GRANTED.

IT IS SO ORDERED.

Signed: March 27, 2024

Frank D. Whitney ; <

United States District Judge □□□

18