Opinion

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-08-401-CV

JERRY HOLLINGSWORTH AND APPELLANTS

KENNETH ANDERSON

V.

KIM HACKLER, INDIVIDUALLY

APPELLEES

AND AS NEXT FRIEND FOR

C.H., A MINOR, AND STEVE

HACKLER, INDIVIDUALLY

ANDAS NEXT FRIEND FOR

C.H.,

A

MINOR

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FROM THE 141ST

DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Appellants Jerry Hollingsworth and Kenneth

Anderson appeal the trial court = s denial

of their motion for summary judgment based on qualified immunity. We reverse and render.

I. Background

In October 2003, C.H., the child

of Kim and Steve Hackler, was a student at Dawson Middle School (Dawson) in the

Carroll Independent School District.

Appellant Jerry Hollingsworth was the principal and appellant Kenneth

Anderson was the assistant principal of Dawson.

On October 21, 2003, C.H. made an obscene gesture toward some of his

classmates in response to their making fun of him. Later that day, certain classmates of C.H.

accused him of making physical threats toward one or more students. At the time, C.H. was disabled for purposes

of the Individuals with Disabilities Education Act (IDEA) [1]

by virtue of being diagnosed with attention deficit disorder (ADD) in 2002.

On October 27, 2003, an admission, review, and

dismissal (ARD) A manifestation determination @

committee meeting was held. [2] The ARD committee included the Hacklers,

Hollingsworth, Anderson, other educators from the school district, a counselor,

and a psychologist. The purpose of the

ARD committee meeting was to determine if C.H. = s

behavior in making an obscene gesture on October 21 and allegedly threatening

students was a A manifestation @ of his

ADD, as that term is defined by the IDEA and implementing regulations. [3] The ARD committee determined that C.H. = s

behavior was not a manifestation of his ADD, and the Hacklers admit they

initially agreed with this determination.

Later that day, however, Anderson informed the

Hacklers that, based on the ARD committee = s

determination, C.H. would be disciplined by placement in the school district = s

Disciplinary Alternative Education Program (DAEP) for forty-five days. The Hacklers informed Anderson that they had

changed their minds and disagreed with the ARD committee = s

determination. By the end of the day,

they filed a request for a special education due process hearing with the Texas

Education Agency to review the DAEP decision.

The Hacklers = request allowed C.H. to remain

at Dawson pending the outcome of the hearing.

Ultimately, the Hacklers and the school district resolved their dispute

through mediation, and C.H. was allowed to transfer schools without spending

time in the DAEP.

Appellees sued Hollingsworth and Anderson for

libel, slander, malicious prosecution, gross neglect, gross negligence, malice,

and a claim under the Civil Rights Act of 1871, 42 U.S.C.A. ' 1983. Appellees = ' 1983

claim was based on the allegation that Hollingsworth and Anderson violated C.H. = s rights

under the IDEA by placing C.H. in the DAEP for forty-five days instead of

referring the disciplinary decision to the ARD committee.

Hollingsworth and Anderson filed traditional and

no-evidence summary judgment motions based, in part, on the qualified immunity

of public officials sued in their individual capacities under ' 1983. The trial court denied their motions as to

qualified immunity on the ' 1983

claim, but granted summary judgment on all remaining claims against them. On September 24, 2008, the trial court denied

a motion to reconsider, and this appeal followed.

II. Qualified Immunity

Appellants = sole

issue on appeal is whether the trial court erred in denying their traditional

and no-evidence motions for summary judgment based on the qualified immunity of

public school officials sued in their individual capacities under ' 1983

for violations of the IDEA.

A. Standard of Review

After an adequate time for

discovery, the party without the burden of proof may, without presenting

evidence, move for no-evidence summary judgment on the ground that there is no

evidence to support an essential element of the nonmovant = s claim

or defense. [4] The motion must specifically state the

elements for which there is no evidence. [5] The trial court must grant the motion unless

the nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. [6]

When reviewing a no-evidence summary judgment, we

examine the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the

motion. [7] We review a no‑evidence summary

judgment for evidence that would enable reasonable and fair‑minded jurors

to differ in their conclusions. [8] We credit evidence favorable to the nonmovant

if reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. [9] If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact,

then a no-evidence summary judgment is not proper. [10]

We review a traditional summary judgment de novo. [11] We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. [12] We indulge every reasonable inference and

resolve any doubts in the nonmovant = s favor. [13] A defendant is entitled to summary judgment

on an affirmative defense if the defendant conclusively proves all the elements

of the affirmative defense. [14] To accomplish this, the defendant-movant

generally must present summary judgment evidence that establishes each element

of the affirmative defense as a matter of law. [15]

B. Qualified Immunity from Appellants = ' 1983

Claims

Section 1983 creates a private

right of action for violations of an individual = s

federally guaranteed rights by those acting under color of state law. [16]

The doctrine of qualified immunity shields an official performing discretionary

functions from individual liability for civil damages under ' 1983

if the official = s A conduct

does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known. @ [17]

After a government official asserts the

affirmative defense of qualified immunity, the summary judgment burden shifts

to the plaintiff to show that the defendant = s

conduct violated a clearly established statutory or constitutional right. [18] A right is A clearly

established @ when its contours are A sufficiently

clear that a reasonable official would understand that what he is doing

violates that right. @ [19] Whether an official = s

conduct was objectively reasonable is a question of law for the court, not a

matter for the jury. [20] If the plaintiff fails to show that the

official = s

conduct violated a clearly established statutory or constitutional right, the

official is entitled to have the claims dismissed. [21]

In this case, appellants contend that they are

entitled to qualified immunity because appellees failed to meet their burden of

showing that appellants violated C.H. = s rights

under the IDEA by failing to have the ARD committee decide whether to place

C.H. in the DAEP for forty-five days. [22]

The purpose of the IDEA is A to

ensure that all children with disabilities have available to them a free

appropriate public education . . . designed to meet their unique

needs. @ [23] When a school seeks to discipline a child

with a disability, the IDEA requires that the child = s A individualized

education program team @ (IEP Team), [24]

including the child = s parents and educators, conduct

a A manifestation

determination review. @ [25] An IEP Team is also referred to as an A admission,

review, and dismissal @ (ARD) committee. [26] The purpose of the ARD committee = s

manifestation determination review is to determine whether the child = s behavior

was a manifestation of the child = s

disability. [27]

If the ARD committee determines that the child = s

behavior was not a manifestation of the child = s

disability, then the IDEA provides that A the

relevant disciplinary procedures applicable to children without disabilities

may be applied to the child in the same manner in which they would be applied

to children without disabilities, @ so long

as the child is given a free appropriate public education. [28] The IDEA specifically states that, under

these circumstances, A [s]chool

personnel . . . may order a change in the placement of a

child with a disability . . . to an appropriate interim

alternative educational setting for the same amount of time that a child

without a disability would be subject to discipline. @ [29] The IDEA also provides parents procedural

safeguards, including the right to participate as a member of the ARD committee

conducting the manifestation determination review and the right to appeal to a

hearing officer if they disagree with the manifestation determination or A any

decision regarding placement. @ [30] Importantly, however, the IDEA grants no

authority to the ARD committee to decide what, if any, disciplinary procedures

are applicable to the child upon determining that the child = s

behavior is not a manifestation of the child = s

disability. [31]

Pursuant to the IDEA, the Hacklers were members

of the ARD committee that conducted the A manifestation

determination review @ of C.H. = s

behavior. [32] They do not dispute that the ARD committee

determined that C.H. = s behavior was not a

manifestation of his disability. The

Hacklers contend, however, that they should have been afforded the opportunity

to participate in the decision regarding their child = s

discipline after it was determined that his behavior was not a manifestation of

his disability and that Hollingsworth and Anderson violated IDEA regulations

that allow parents to participate in decisions regarding their child = s A educational

placement @ by unilaterally deciding to

place C.H. in the DAEP for forty-five days. [33]

The Hacklers rely on 34 C.F.R. '

300.501(c), which states as follows:

(c) Parent involvement in

placement decisions.

(1) Each public agency shall ensure that

the parents of each child with a disability are members of any group that

makes decisions on the educational placement of their child .

(2) In implementing the

requirements of paragraph (c)(1) of this section, the public agency shall use

procedures consistent with the procedures described in ' 300.345(a) through

(b)(1). [34]

This regulation requires school districts and other public agencies to

involve parents in decisions regarding the educational placement of their child

by following the procedures described in 34 C.F.R. '

300.345(a), which, in turn, requires that the parents of a child with a

disability be A present at each IEP

[individualized education program] meeting or are afforded the opportunity to

participate. @ [35] The Hacklers also rely on IDEA regulation 34

C.F.R. ' 300.552,

which similarly requires public schools to ensure that parents be included in A a group @ that

determines A the educational placement of a

child with a disability. @ [36]

Both federal regulations on which the Hacklers

rely expressly govern educational placement decisions. [37] There is no language in either regulation,

however, evidencing a congressional intent to include parents in disciplinary

decisions involving children whose behavior is not a manifestation of a

disability. Those decisions are

specifically governed by 20 U.S.C.A. ' 1415(k)(5)(A),

which provides in pertinent part:

If the result of the

[manifestation determination] review described in paragraph (4) is a

determination, consistent with paragraph (4)(C), that the behavior of the child

with a disability was not a manifestation of the child's disability, the

relevant disciplinary procedures applicable to children without disabilities

may be applied to the child in the same manner in which they would be applied

to children without disabilities , except as provided in section 1412(a)(1)

of this title [requiring that each child with a disability receive a free

appropriate public education]. [38]

Under the express language of '

1415(k), when an ARD committee determines that the behavior of a child with a

disability is not a manifestation of the disability, the child may be

disciplined A in the same manner @ as A children

without disabilities. @

The Hacklers conceded in the trial court that if

the ARD committee determined that C.H. = s

behavior was not a manifestation of his disability, A then

consequences applicable to all students under the Dawson Student Code of

Conduct would apply to [C.H.]. @ The Hacklers did not allege nor did they

present any evidence showing that the disciplinary procedures applicable to

Dawson children without disabilities require parental involvement in the school = s

disciplinary decisions. [39] Accordingly, we hold that there is no

evidence that Hollingsworth and Anderson violated C.H. = s rights

under the IDEA by placing him in the DAEP for forty-five days without referring

the disciplinary decision to the ARD committee and, therefore, that

Hollingsworth and Anderson are immune from individual liability to the Hacklers

for civil damages under ' 1983 as a matter of

law. Consequently, the trial court erred

by denying appellants = motions for summary judgment as

a matter of law. [40]

III. Conclusion

Because appellants are shielded against the

Hacklers = claims

based on the doctrine of qualified immunity as a matter of law, we reverse the

trial court = s denial of appellants = motions

for summary judgment and render

judgment that appellees take nothing on their IDEA claims brought

under 42 U.S.C.A. ' 1983.

JOHN CAYCE

CHIEF JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

WALKER, J. concurs

without opinion.

DELIVERED:

December 31, 2009

[1] 20 U.S.C.A. ' ' 1400 B 1487 (West 2004). The IDEA was amended by the Individuals with

Disabilities Education Improvement Act of 2004, which took effect on July 1,

2005. Pub. L. No. 108 B 446, Title I, ' 101, 118 Stat. 2647

(2004); see id. Title III, ' 302, 118 Stat. 2647 , 2803 (establishing

general effective date of July 1, 2005).

All citations to the IDEA and Code of Federal Regulations are to

versions in effect during the period of time relevant to this appeal.

[2] See 34 C.F.R. ' 300.523. By statute, the ARD committee is comprised of

members of the child = s A IEP Team A (individual education

program team) and A other qualified

personnel. @ 20 U.S.C.A. ' 1415(k)(4)(B); see

also 34 C.F.R. ' 300.523(b) (stating

the same requirement in IDEA implementing regulation). The child = s IEP Team includes the child = s parents, at least one

regular and one special education teacher of the child, and other school

officials. See 20 U.S.C.A. ' 1414(d)(1)(B).

[3] See id. ' 1415(k)(4); 34

C.F.R. ' 300.523.

[4] Tex. R. Civ. P. 166a(i).

[5] Id. ; Timpte Indus., Inc.

v. Gish , 286 S.W.3d 306, 310 (Tex. 2009).

[6] See Tex. R. Civ. P. 166a(i)

& cmt.; Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008).

[7] Sudan v. Sudan , 199 S.W.3d 291, 292

(Tex. 2006).

[8] Hamilton , 249 S.W.3d at 426

(citing City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005)).

[9] Timpte Indus., Inc. , 286 S.W.3d at 310

(quoting Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006)).

[10] Smith v. O = Donnell , 288 S.W.3d 417, 424

(Tex. 2009).

[11] Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009).

[12] Id.

[13] 20801, Inc. v. Parker , 249 S.W.3d 392, 399

(Tex. 2008).

[14] Chau v. Riddle , 254 S.W.3d 453, 455

(Tex. 2008); see Tex. R. Civ. P. 166a(b), (c).

[15] Ryland Group, Inc. v.

Hood ,

924 S.W.2d 120, 121 (Tex. 1996).

[16] See Richardson v.

McKnight ,

521 U.S. 399, 403 , 117 S. Ct. 2100, 2103 (1997).

[17] Harlow v. Fitzgerald , 457 U.S. 800, 818 , 102

S. Ct. 2727, 2738 (1982); Leachman v. Dretke , 261 S.W.3d 297, 312 (Tex.

App. C Fort Worth 2008, no pet.)

(op. on reh = g).

[18] Newman v. Kock , 274 S.W.3d 697, 705

(Tex. App. C San Antonio 2008, no

pet.) (following Fifth Circuit burden-shifting framework for qualified immunity

claims); Leachman , 261 S.W.3d at 312 (same); see Pearson v. Callahan ,

129 S. Ct. 808 , 815 B 16 (2009) (describing

test for qualified immunity).

[19] Newman , 274 S.W.3d at 705

(citing Wooley v. City of Baton Rouge , 211 F.3d 913, 919 (5th Cir.

2000)).

[20] Williams v. Bramer , 180 F.3d 699, 703 (5th

Cir. 1999).

[21] Pearson , 129 S. Ct. at 815 B 16; Harlow , 457

U.S. 800 , 818 B 19, 102 S. Ct. 2727 , 2738 B 39; Leachman , 261

S.W.3d at 312 B 13 (citing Baker v.

McCollan , 443 U.S. 137, 140 , 99 S. Ct. 2689, 2692 (1979) ( A The first inquiry in any ' 1983

suit . . . is whether the plaintiff has been deprived of a

right > secured by the

Constitution and laws. = @ )).

[22] See Leachman , 261 S.W.3d at 312 B 13.

[23] 20 U.S.C.A. ' 1400(d); see Leticia

H. v. Ysleta Indep. Sch. Dist. , 502 F. Supp. 2d 512, 515 (W.D.

Tex. 2006) (quoting same).

[24] 20 U.S.C.A. ' 1414(d)(1)(B).

[25] See id. ' 1415(k)(4); 34 C.F.R. ' 300.523 (a), (b). A [I]f a disciplinary action involving a change of

placement for more than 10 days is contemplated for a child with a disability

who has engaged in other behavior that violated any rule or code of

conduct . . . that applies to all

children[,] . . . in no case later than 10 school days

after the date on which the decision to take that action is made, a review

shall be conducted of the relationship between the child's disability and the

behavior subject to the disciplinary action. @ 20

U.S.C.A. ' 1415(k)(4). By statute, this committee includes the child = s parents and other

members of the child = s IEP Team. Id . ' 1414(d)(1)(B) (defining

IEP Team to include a child = s parents), ' 1415(k)(4)(B) (requiring manifestation

determination review to be conducted by IEP Team and A other qualified personnel @ ).

[26] See, e.g. , Adam J. ex rel.

Robert J. v. Keller Indep. Sch. Dist. , 328 F.3d 804, 807 (5th Cir. 2003).

[27] See 20 U.S.C.A. ' 1415(k)(5)(A); 34 C.F.R.

' 300.523.

[28] 20 U.S.C.A. ' 1415(k)(5)(A); see

id. ' 1412(a)(1) (requiring

that A [a] free appropriate

public education is available to all children with

disabilities . . . including

children . . . who have been suspended or expelled

from school @ ).

[29] Id. ' 1415(k)(1)(A)(ii).

[30] Id. ' 1415(k)(6)(A)(i)

(establishing parental right to appeal manifestation determination or any

decision regarding placement); see id. ' 1415(k)(4)(B) (requiring

that child = s IEP Team be included on

ARD committee), ' 1414(d)(1)(B)(i)

(requiring parents to be members of their child = s IEP Team).

[31] See id. ' 1415(k)(4) (limiting ARD

committee role regarding manifestation determination review), ' 1415(k)(1) (defining

authority of school personnel to take disciplinary action, including ordering

the change in placement of a child with a disability).

[32] See id. ' 1415(k)(4), (k)(5)(A);

34 C.F.R. ' 300.523.

[33] 34 C.F.R. ' ' 300.501(c)(1), 300.552.

[34] Id . ' 300.501(c) (emphasis

added).

[35] Id . ' 300.345(a).

[36] Id. ' 300.552.

[37] See id. ' 300.501(c)

(requiring A that the parents of each

child with a disability are members of any group that makes decisions on the

educational placement of their child @ ), ' 300.552 (requiring that parents be included

in A a group @ that determines A the educational placement

of a child with a disability @ ).

[38] 20 U.S.C.A. ' 1415(k)(5)(A)

(emphasis added); see id. ' 1412(a)(1) (requiring that A [a] free appropriate

public education is available to all children with disabilities residing in the

State between the ages of 3 and 21, inclusive, including children with

disabilities who have been suspended or expelled from school @ ); Colvin ex rel. Colvin

v. Lowndes County , Miss. Sch. Dist. , 114 F. Supp. 2d 504, 509 (N.D.

Miss. 1999) ( A Congress expressed no

intent, either expressly or impliedly, to shield special education students

from the normal consequences of their misconduct if that misconduct has nothing

to do with their disability. @ ) (citing Doe v. Bd. of Educ. of Oak Park

& River Forest High Sch. Dist. 200 , 115 F.3d 1273 , 1280 (7th Cir.), cert.

denied , 522 U.S. 998 (1997)).

[39] See 20 U.S.C.A. ' 1415(k)(5)(A).

[40] See Leachman , 261 S.W.3d at 312 B 15 (affirming dismissal

of ' 1983 claims against

public official based on qualified immunity when plaintiff failed to allege

facts stating constitutional claims).