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)

“manifestation determination” committee meeting was held.2 The ARD

1

… 20 U.S.C.A. §§ 1400–1487 (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. 108–446, 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 “IEP Team“ (individual education program

team) and “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).

2

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

“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.

3

… See id. § 1415(k)(4); 34 C.F.R. § 300.523.

3

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

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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

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)).

5

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

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).

6

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 “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 “clearly established” when its contours are “sufficiently clear

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

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.—Fort Worth

2008, no pet.) (op. on reh’g).

18

… Newman v. Kock, 274 S.W.3d 697, 705 (Tex. App.—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, 815–16 (2009) (describing test for qualified

immunity).

7

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 “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 “individualized education program

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 815–16; Harlow, 457 U.S. 800, 818–19, 102

S. Ct. 2727, 2738–39; Leachman, 261 S.W.3d at 312–13 (citing Baker v.

McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979) (“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 312–13.

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).

8

team” (IEP Team),24 including the child’s parents and educators, conduct a

“manifestation determination review.” 25 An IEP Team is also referred to as an

“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 “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

24

… 20 U.S.C.A. § 1414(d)(1)(B).

25

… See id. § 1415(k)(4); 34 C.F.R. § 300.523 (a), (b). “[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 “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.

9

education.28 The IDEA specifically states that, under these circumstances,

“[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 “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

28

… 20 U.S.C.A. § 1415(k)(5)(A); see id. § 1412(a)(1) (requiring that “[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).

10

Pursuant to the IDEA, the Hacklers were members of the ARD committee

that conducted the “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 “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

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).

11

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 “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

group” that determines “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:

35

… Id. § 300.345(a).

36

… Id. § 300.552.

37

… See id. § 300.501(c) (requiring “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

group” that determines “the educational placement of a child with a disability”).

12

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 “in the same manner” as “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, “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

38

… 20 U.S.C.A. § 1415(k)(5)(A) (emphasis added); see id. § 1412(a)(1)

(requiring that “[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) (“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)).

13

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

39

… See 20 U.S.C.A. § 1415(k)(5)(A).

40

… See Leachman, 261 S.W.3d at 312–15 (affirming dismissal of

§ 1983 claims against public official based on qualified immunity when plaintiff

failed to allege facts stating constitutional claims).

14

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

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