A.W. v. Jersey City Public Schools

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

5-24-2007

A.W. v. Jersey Cty Pub Sch

Precedential or Non-Precedential: Precedential

Docket No. 05-2553

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2553

A.W.

v.

THE JERSEY CITY PUBLIC SCHOOLS;

NEW JERSEY DEPARTMENT OF EDUCATION;

JEFFREY V. OSOWSKI, former Director,

Division of Special Education;

BARBARA GANTWERK, Director,

Office of Special Education Programs;

SILVIA ELIAS, former Executive Director of

Pupil Personnel Services;

PRISCILLA PETROSKY, Associate Superintendent

for Special Education;

JOHN IWANOWSKI; MARY HEPBURN;

JOAN EDMISTON; DENISE BRAAK;

MARY MACEACHERN; EDWARD FAUERBACH,

Learning Disabilities Teacher-Consultants;

NORMA CHRISOMALIS; GWENDOLYN JACKSON;

LINDA COLON; RONNE BASSMAN;

WILLIAM RONZITTI; ROXANNE JOHNSON,

Supervisors of Special Education;

SHARNETTE GREEN, Teacher;

MELINDA ZANGRILLO, Coordinator of Compliance;

JANE DOE AND JOHN DOE (1)-(5),

all in their official and individual capacities

New Jersey Department of Education;

Jeffrey V. Osowski;

Melinda Zangrillo;

Barbara Gantwerk,

Appellants

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 01-cv-00140)

District Judge: Honorable Jose L. Linares

Argued July 10, 2006

Before: SLOVITER, McKEE and RENDELL,

Circuit Judges.

Reargued En Banc February 21, 2007

Before: SCIRICA, Chief Judge, SLOVITER, McKEE,

RENDELL, BARRY, AMBRO, FUENTES, SMITH,

FISHER, JORDAN and VAN ANTWERPEN*,

Circuit Judges.

(Filed: May 24, 2007)

* Honorable Franklin S. Van Antwerpen assumed senior status

on October 23, 2006 after the case was initially argued and

continues to participate in the matter pursuant to I.O.P 9.6.4.

Michael C. Walters [ARGUED]

Office of Attorney General of New Jersey

2

Division of Law

P.O. Box 112

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellants

Stephen M. Latimer

Loughlin & Latimer

131 Main Street, Suite 235

Hackensack, NJ 07601

Elizabeth A. Athos [ARGUED]

Education Law Center

60 Park Place, Suite 300

Newark, NJ 07102

Rebecca K. Spar [ARGUED - en banc]

Cole, Schotz, Meisel, Forman & Leonard

25 Main Street - Court Plaza North

P.O. Box 800

Hackensack, NJ 07601

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

In this appeal, we reexamine our holding in W.B. v.

Matula, 67 F.3d 484 (3d Cir. 1995), that an action can be

maintained against school officials under 42 U.S.C. § 1983 for

violations of the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq. We do so in light of the

3

Supreme Court’s reasoning in City of Rancho Palos Verdes v.

Abrams, 544 U.S. 113 (2005), regarding the availability of §

1983 to redress violations of federal statutory rights and the

opinions of our sister courts of appeals that have questioned

Matula.

The District Court, relying on Matula, held that the

alleged violations of plaintiff’s rights were actionable under §

1983 and denied defendants’ motion for summary judgment on

the ground of qualified immunity, concluding that plaintiff’s

cause of action could be maintained and there was sufficient

evidence for a jury to find that defendants violated clearly

established federal law. We will reverse.

I. Background

In January 2001, A.W., a dyslexic former student of the

Jersey City Public Schools (“JCPS”), filed this action in the

United States District Court for the District of New Jersey.

A.W. alleged that New Jersey officials failed to comply with

federal law and, as a result, deprived him of a free, appropriate

public education. In addition to suing JCPS and its officials,

A.W. also brought claims against Barbara Gantwerk, Director

of the Office of Special Education Programs for the New Jersey

Department of Education (“NJDOE”), and Melinda Zangrillo,

Coordinator of Compliance at NJDOE, in their personal

capacities.1

With respect to Gantwerk and Zangrillo, A.W. asserted

that, in response to his December 1997 complaint alleging that

he had unidentified and untreated dyslexia, Gantwerk and

Zangrillo conducted an inadequate investigation and provided

1

A.W. reached a settlement with JCPS and its officials in

February 2004.

4

no relief to A.W., despite ample evidence of A.W.’s disability.

In A.W.’s amended complaint,2 he sought to hold Gantwerk and

Zangrillo personally liable under § 1983 for violations of

A.W.’s rights under the IDEA and Section 504 of the

Rehabilitation Act (“Section 504”), 29 U.S.C. § 794.

Following the completion of all discovery other than

expert depositions, defendants moved for summary judgment on

numerous grounds, including qualified immunity and a

challenge to the use of § 1983 to remedy the alleged violations

of the IDEA and Section 504. On April 21, 2005, the District

Court struck A.W.’s claim for declaratory relief and denied

summary judgment to the defendants on all other bases. The

Court found that the IDEA could be enforced through an action

under § 1983 based on our decision in W.B. v. Matula, 67 F.3d

484, 494 (3d Cir. 1995), wherein we specifically reasoned that

§ 1983 was available to redress a violation of a student’s rights

secured by the IDEA. The District Court also rejected

defendants’ argument that individuals could not be sued under

§ 1983 for alleged violations of the IDEA and Section 504

because these statutes impose liability only on entities that

2

The procedure leading to the amendment of A.W.’s original

complaint was as follows: the NJDOE defendants, including

Gantwerk and Zangrillo, filed a motion to dismiss A.W.’s

complaint for failure to state a claim upon which relief can be

granted, based on sovereign immunity and other grounds. A.W.

filed a motion in opposition and also filed a motion to amend his

complaint. On March 18, 2002, the District Court issued an

order denying the motion to dismiss and granting A.W. leave to

file an amended complaint. The defendants appealed this order,

which we affirmed, holding that the various defendants had

waived sovereign immunity from suit under the IDEA and

Section 504 by accepting federal financial assistance. See A.W.

v. Jersey City Pub. Schs., 341 F.3d 234 (3d Cir. 2003).

5

receive federal funding. Finally, the Court denied defendants

qualified immunity because A.W. adduced sufficient proof that

defendants had violated A.W.’s clearly established rights under

the IDEA and the Rehabilitation Act. Gantwerk and Zangrillo

now appeal.

II. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. § 1331 and § 1343. Its order denying

qualified immunity comes to us as a “final” order for review

under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511,

530 (1985) (holding denial of claim of qualified immunity is

appealable as a “final decision”).

We will engage in plenary review of a district court’s

summary judgment ruling on qualified immunity, Kopec v. Tate,

361 F.3d 772, 775 (3d Cir.), cert. denied, 543 U.S. 956 (2004),

and apply the same summary judgment standard that guided the

district court, Rivas v. Passaic County, 365 F.3d 181, 193 (3d

Cir. 2004). A party is entitled to summary judgment when it

demonstrates that there is no genuine issue of material fact and

that the evidence establishes its entitlement to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). In considering a motion for

summary judgment, we consider all evidence in the light most

favorable to the party opposing the motion. Brewer v. Quaker

State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995).

III. Discussion

A. Qualified Immunity for Statutory Violations

6

The first issue we confront is whether we should decide

the availability of § 1983 relief for the alleged violations of

A.W.’s statutory rights as part of the qualified immunity inquiry

that is the basis for the appeal before us. We conclude we can,

and should.

We have jurisdiction to decide this question because it

arises in the course of our analysis of defendants’ request for

qualified immunity. Under Saucier v. Katz, 533 U.S. 194

(2001), a court analyzing a claim of qualified immunity must

first ask the “threshold” question: whether the facts alleged

show that the official’s conduct violated a constitutional right.

Id. at 201. If the plaintiff’s allegations establish the violation of

a constitutional right, the violation is necessarily actionable and

the court can then proceed to the second inquiry in the Saucier

analysis: whether the right was “clearly established.”3 Id.

Violations of federal statutes, however, are not always

actionable. See Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984)

(“[O]fficials sued for violations of rights conferred by a statute

or regulation . . . become liable for damages only to the extent

that there is a clear violation of the statutory rights that give rise

to the cause of action for damages.” (emphasis added)). Thus,

the availability of § 1983 to remedy the alleged violations of

A.W.’s statutory rights is part and parcel of our “threshold”

3

The official’s conduct in Saucier allegedly violated the

plaintiff’s Fourth Amendment rights and was actionable

pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The analysis in

Saucier is equally applicable to actions for alleged constitutional

violations brought pursuant to § 1983. See Scott v. Harris, 127

S. Ct. 1769, 1774 (2007).

7

inquiry into defendants’ qualified immunity defense.4 This

inquiry parallels the constitutional or “threshold” inquiry in the

Saucier two-part qualified immunity analysis applied to

constitutional claims.5 See Brosseau v. Haugen, 543 U.S. 194,

198 n.3 (2004) (per curiam) (labeling the first inquiry in Saucier

two-step analysis as the “constitutional question”).

In fact, we cannot imagine a qualified immunity inquiry

involving statutory rights that does not include an inquiry into

the availability of relief and the existence of a cause of action

along with an inquiry into the existence of the violation itself.

This would be a useless act. We cannot conceive of why we

should subject the state actors here to a trial when the right of

4

A.W. has not brought claims against defendants directly

under the IDEA or Section 504. Appellee Br. 15. We therefore

need not address whether defendants could be sued directly

under these statutes, rather than under § 1983.

5

We also think that it can be said that the question of whether

§ 1983 is available to remedy violations of the IDEA and

Section 504 is “‘inextricably intertwined’ with the issue of

qualified immunity, that is, . . . its review is ‘necessary to ensure

meaningful review’ of the qualified immunity issue,” and that

we therefore have jurisdiction over this aspect of the District

Court’s order. See Walker v. City of Pine Bluff, 414 F.3d 989,

993 (8th Cir. 2005); see also Farm Labor Org. Comm. v. Ohio

State Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002)

(“Under the doctrine of pendent appellate jurisdiction, . . . a

court of appeals may, in its discretion, ‘exercise jurisdiction over

issues that are not independently appealable when those issues

are “inextricably intertwined” with matters over which the

appellate court properly and independently has jurisdiction.’”)

(quoting Chambers v. Ohio Dep’t of Human Servs., 145 F.3d

793, 797 (6th Cir. 1998); Malik v. Brown, 71 F.3d 724, 727 (9th

Cir. 1995)).

8

the plaintiff to sue is questionable. It makes little or no sense.6

The privilege of qualified immunity is “effectively lost if a case

is erroneously permitted to go to trial.” Saucier, 533 U.S. at

201 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Here, the District Court followed our decision in Matula,

where we held that violations of IDEA-created rights are

actionable under § 1983.7 Matula, 67 F.3d at 494. Concluding

that it was bound by Matula to so rule, the District Court noted

that “only one judicial body is able to overrule Third Circuit

precedent, and this Court is not it.” A.W. v. Jersey City Pub.

Schs., No. 01-140, slip op. at 14 (D.N.J. Apr. 21, 2005). In light

of the recent, clear guidance provided by the Supreme Court in

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005),

regarding the availability of § 1983 to remedy statutory

violations, and the well-reasoned opinions of the Courts of

Appeals for the Fourth and Tenth Circuits in Sellers v. School

Board of Manassas, Virginia, 141 F.3d 524 (4th Cir. 1998), and

Padilla v. School District No. 1, 233 F.3d 1268, 1273 (10th Cir.

6

The Court of Appeals for the Second Circuit in a strikingly

similar situation has also viewed the issue of the availability of

relief as a threshold issue and, concluding that § 1983 was not

available to remedy the alleged statutory violations, dismissed

an appeal of a denial of qualified immunity as moot. See

Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist.,

423 F.3d 153, 159 (2d Cir. 2005). We choose a different

approach, ending up with the same result.

7

The District Court did not specifically address whether the

alleged Section 504 violations were actionable under § 1983,

perhaps because defendants focused their arguments on the

alleged IDEA violations. We address this issue, however,

because determining whether an alleged statutory violation is

actionable is part and parcel of our “threshold” inquiry into

defendants’ qualified immunity defense.

9

2000), rejecting our holding in Matula, we now conclude that

we should not continue to adhere to the principle we established

in Matula.

B. W.B. v. Matula

Matula involved the precise issue before us: can school

officials be sued pursuant to § 1983 based on alleged violations

of a child’s rights secured by the IDEA. In addressing this

question, we strove to determine Congress’ intent, noting the

distinction regarding the use of § 1983 to redress statutory,

rather than constitutional, violations:

When the rights at issue are statutory, however, a

§ 1983 action is impermissible when “Congress

intended to foreclose such private enforcement.”

Wright v. Roanoke Redevelopment & Housing

Authority, 479 U.S. 418, 423 (1987). Such an

intent is generally found either in the express

language of a statute or where a statutory

remedial scheme is so comprehensive that an

intent to prohibit enforcement other than by the

statute’s own means may be inferred. Id.

Matula, 67 F.3d at 493.

In Matula, we concerned ourselves with the

jurisprudential and legislative directives regarding the

availability of relief for IDEA violations. We noted that in

Smith v. Robinson, 468 U.S. 992 (1984), the Supreme Court held

that the IDEA8 provided the exclusive means by which parents

8

The Smith decision refers to the Education of the

Handicapped Act (“EHA”). Congress changed the name of the

statute to the Individuals with Disabilities Education Act

10

and children could remedy violations of the rights guaranteed

therein, and that no constitutional claim would be therefore

allowed. Id. at 1012-13. In Smith, the plaintiff sought to bring

a § 1983 claim for violation of his constitutional rights and a

claim under Section 504 of the Rehabilitation Act, both based on

conduct that also allegedly violated the plaintiff’s rights under

the IDEA. Id. at 1003. The Court held that, although the

plaintiff could have brought a § 1983 or Section 504 claim to

remedy injuries not cognizable under the IDEA, an action under

the IDEA was the exclusive means to seek redress for injuries

actionable thereunder. Id. at 1009. However, in response to this

decision, Congress enacted § 1415(l) of the IDEA, to

countermand Smith and make clear that actions can be

maintained under the Constitution or under federal laws

protecting the rights of children with disabilities notwithstanding

the fact that the IDEA also protects these rights. This provision

reads:

Nothing in this chapter shall be construed to

restrict or limit the rights, procedures, and

remedies available under the Constitution, the

Americans with Disabilities Act of 1990, title V of

the Rehabilitation Act of 1973, or other Federal

laws protecting the rights of children with

disabilities, except that before the filing of a civil

action under such laws seeking relief that is also

available under this subchapter, the procedures

under subsections (f) and (g) of this section shall

be exhausted to the same extent as would be

required had the action been brought under this

subchapter.

(“IDEA”) in 1990. See Pub. L. No. 101-476, 104 Stat. 1141

(1990). To avoid confusion, we refer to the statute throughout

this opinion as the IDEA.

11

20 U.S.C. § 1415(l).9

In an attempt to ascertain the significance of Congress’

addition of this provision, we reviewed its legislative history in

some detail:

The Senate Report [on § 1415(l)] discussed Smith

at length, including quoting favorably from the

Smith dissent, see S.Rep. No. 99-112, 99th Cong.,

2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N.

1798, 1799 (“Senate Report”). The House

Conference Report stated “[i]t is the conferees’

intent that actions brought under 42 U.S.C. 1983

are governed by [§ 1415(l)].” H.R.Conf.Rep. No.

99-687, 99th Cong., 2d Sess. (1986); 1986

U.S.C.C.A.N. 1807, 1809. In addition, the House

Report made explicit that “since 1978, it has been

Congress’ intent to permit parents or guardians to

pursue the rights of handicapped children through

EHA, section 504, and section 1983. . ..

Congressional intent was ignored by the U.S.

Supreme Court when . . . it handed down its

decision in Smith v. Robinson.” H.R.Rep. No. 99-

296, 99th Cong., 1st Sess. 4 (1985) (“House

Report”) (first emphasis added). Section 1415[(l)]

was thus enacted to “reaffirm, in light of [ Smith

], the viability of section 504, 42 U.S.C 1983, and

other statutes as separate vehicles for ensuring the

rights of handicapped children.” Id.

Id. at 494. In Matula, we concluded that “[f]ar from inferring a

9

At the time we decided Matula, this provision was codified

at 20 U.S.C.§ 1415(f). Throughout this opinion, we refer to it

at its current location in the Code, § 1415(l).

12

congressional intent to prevent § 1983 actions predicated on

IDEA then, we conclude that Congress explicitly approved such

actions.” Id.

Also underlying our ruling in Matula was the Supreme

Court’s statement in Franklin v. Gwinnett County Public

Schools, 503 U.S. 60, 66 (1992), that “we presume the

availability of all appropriate remedies unless Congress has

expressly indicated otherwise.” Given this presumption, we

searched for some “clear direction” in the text or history of the

IDEA indicating that we were to limit the relief available and,

finding none, we held that:

the traditional presumption in favor of all

appropriate relief is not rebutted as to § 1983

actions to enforce IDEA. Defendants have

identified no “clear direction” in the text or

history of IDEA indicating such a limitation, and

indeed there is strong suggestion that Congress

intended no such restriction. Certainly the plain

language of § 1983 authorizes actions at law or

equity, and our prior holding in Diamond compels

the conclusion that, as a matter of law, an

aggrieved parent or disabled child is not barred

from seeking monetary damages in such an

action.

Id. at 495. We should note that we were not alone in this view

at the time, as we cited to numerous other courts’ opinions that

approved § 1983 actions to enforce IDEA rights. See id.

(collecting cases).

However, following Matula, reasonable minds have

differed as to the correctness of our interpretation of the

congressional reaction to Smith v. Robinson embodied in §

1415(l). In addition, over the past decade, the Supreme Court

13

has further refined its guidance as to how we should decide

whether § 1983 relief is available for violations of statutory

rights, most recently in City of Rancho Palos Verdes v. Abrams,

544 U.S. 113, 120 (2005). All of these developments since

Matula have informed our analysis in a way that requires us to

reconsider our view.

The Courts of Appeals for the Fourth and Tenth Circuits

have taken issue with our reading of § 1415(l) and discernment

of Congress’ intent in enacting it. They note that the provision

does not refer to § 1983; rather, it focuses on substantive

rights.10 In Sellers v. School Board of Manassas, Virginia, 141

F.3d 524 (4th Cir. 1998), and Padilla v. School District No. 1,

233 F.3d 1268, 1273 (10th Cir. 2000), the Courts of Appeals for

the Fourth and Tenth Circuits, respectively, challenged our

analysis of the congressional enactment of § 1415(l) in reaction

to Smith. In Sellers, the Fourth Circuit Court of Appeals

concluded that a “closer reading” of the new provision “reveals

no intent that parties be able to bypass the remedies provided in

IDEA by suing instead under Section 1983 for an IDEA

violation.” 141 F.3d at 530. Deciphering § 1415(l), the court

noted that it specifically refers to the preservation of remedies

available under the Constitution, the Rehabilitation Act, and

10

Several district courts have also made this observation. See,

e.g., Carney v. Nevada, No. 05 Civ. 713, 2007 WL 777697, at

*3 (D. Nev. Mar. 12, 2007); Alex G. v. Bd. of Trustees of Davis

Joint Unified Sch. Dist., 332 F. Supp. 2d 1315, 1318-19 (E.D.

Cal. 2004) (“[I]t appears that Congress intended to permit §

1983 suits to enforce rights secured independently of the IDEA.

But this does not mean that Congress also intended to allow

plaintiffs to use § 1983 to enforce the IDEA, thereby foregoing

the various procedural and remedial requirements and

restrictions that exist when a claim is brought under the

IDEA.”).

14

“other statutes protecting the rights of disabled children.”

Section 1983 “speaks generally and mentions neither disability

nor youth.” Id. The court concluded:

By preserving rights and remedies “under the

Constitution,” section 1415[(l)] does permit

plaintiffs to resort to section 1983 for

constitutional violations, notwithstanding the

similarity of such claims to those stated directly

under IDEA. But section 1415[(l)] does not

permit plaintiffs to sue under section 1983 for an

IDEA violation, which is statutory in nature.

Nothing in section 1415[(l)] overrules the Court’s

decision in Smith to the extent it held that

Congress intended IDEA to provide the sole

remedies for violations of that same statute.

Id. (internal citations omitted). The court further disagreed with

the notion that the legislative history reveals the requisite intent

to permit § 1983 suits merely because § 1983 is referred to in

the House Reports. Id. at 531. The court concluded that insofar

as one of the specific substantive provisions preserved in §

1415(l) is the Constitution, it was not surprising that the

legislative history referenced § 1983, which provides a vehicle

for redressing violations of constitutional rights. Id. “When

construed in their most natural form, the excerpts demonstrate

the unremarkable proposition that Congress intended section

1415[(l)] to restore the ability of disabled children and their

parents or guardians to utilize section 1983 to protect

constitutional rights.” Id.11

11

In Sellers, the court also called upon an interpretive rule

whereby, because the IDEA was enacted pursuant to Congress’

spending power, the statutory response to Smith should not be

read to impose liability on state officials unless it is

15

In Padilla, the Court of Appeals for the Tenth Circuit

noted that the issue had created a circuit split. Padilla, 233 F.3d

at 1273 (comparing Sellers with Matula and Marie O. v. Edgar,

131 F.3d 610, 620-22 (7th Cir. 1997)). The court agreed with

the reasoning in Sellers that subsequent amendments to the

IDEA “left intact Smith’s implication that the [IDEA] may not

provide the basis for § 1983 claims.” Id. The court also noted

that the Supreme Court had twice since the passage of § 1415(l)

referenced the IDEA as an example of a legislative enforcement

scheme that precludes a § 1983 remedy. Id. (citing Blessing v.

Freestone, 520 U.S. 329, 347-48 (1997); Wright v. Roanoke

Redev. & Hous. Auth., 479 U.S. 418, 423-24, 427 (1987)).

Thus, the court in Padilla not only disagreed with our view of

§ 1415(l), but also our view that there was no apparent

limitation on the availability of relief for violations of the IDEA

by way of § 1983.

Were we deciding this case in the year 2001, after these

courts had voiced their disagreement with Matula, we might be

conflicted as to whether to revisit the issue. On the one hand,

the Courts of Appeals for the Fourth and Tenth Circuits offered

the convincing arguments, noted above, as to how Congress’

enactment of § 1415(l) did not provide for § 1983 as a remedial

tool here, and as to how our analysis with respect to the

availability of relief in Matula was incomplete in light of other

Supreme Court cases. On the other hand, several other courts

had expressed views similar to ours in Matula, or had assumed

§ 1983 to be available.12 While the former may have tipped the

unambiguous. The court found a lack of the requisite clarity, in

that § 1415(l) does not state or imply that § 1983 suits may be

brought for IDEA violations. 141 F.3d at 530.

12

The courts that have concluded that Congress intended to

allow recourse to § 1983 to remedy IDEA violations have based

their reasoning on the same reading of the legislative history of

16

scales somewhat towards rethinking Matula even then, the

Supreme Court’s discussion of the availability of § 1983 as a

vehicle for redressing violations of federal statutory rights in

Rancho Palos Verdes, 544 U.S. 113, has tipped them

definitively, and we are now convinced that our ruling in Matula

the IDEA that we adopted in Matula. See Marie O. v. Edgar,

131 F.3d 610, 620-22 (7th Cir. 1997) (relying on § 1415(l) and

holding that Congress did not foreclose the enforcement of Part

H of the IDEA through § 1983); Digre v. Roseville Schs., 841

F.2d 245, 250 (8th Cir. 1988) (holding § 1983 is available to

remedy IDEA and constitutional violations, as a result of the

passage of § 1415(l)). The Court of Appeals for the Second

Circuit has also allowed IDEA-based § 1983 claims to proceed,

but without acknowledging that violations of statutory rights are

not actionable under § 1983 if Congress did not so intend. See

Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir. 2002)

(reinstating § 1983 claim because plaintiff stated a cause of

action under the IDEA, but not addressing whether IDEA

violations were actionable under § 1983); Mrs. W. v. Tirozzi,

832 F.2d 748, 754 (2d Cir. 1987) (finding that money damages

are available in § 1983 action based on IDEA violation, but not

addressing whether Congress intended § 1983 to provide a

remedy for IDEA violations). Finally, some courts of appeals

have not clearly decided whether § 1983 is available only to

remedy violations of the constitutional rights of children with

disabilities, or also to remedy violations of IDEA-created rights.

See Gean v. Hattaway, 330 F.3d 758, 773 (6th Cir. 2003)

(noting that IDEA claims can “in some circumstances” be

brought under § 1983 and citing case in which § 1983 action

was brought to remedy violations of disabled student’s

constitutional rights); Angela L. v. Pasadena Ind. Sch. Dist., 918

F.2d 1188, 1193 n.3 (5th Cir. 1990) (stating in dicta that

aggrieved parents of disabled children can still “obtain relief”

through § 1983, as a result of the passage of § 1415(l)).

17

is no longer sound.

C. Rancho Palos Verdes

Rancho Palos Verdes, 544 U.S. 113, is the most recent

Supreme Court pronouncement on the availability of § 1983 to

redress violations of federal statutes, and it provides the best

guidance in this area. It is interesting to note what had, and had

not, been said by the Supreme Court about the use of § 1983

prior to Rancho Palos Verdes, and prior to Matula. It is also

interesting to note that Franklin, the case we relied upon so

heavily in Matula, was not a § 1983 case at all; rather, it focused

on whether damages could be recovered in an action to enforce

Title IX. Thus, the idea that “we presume the availability of all

appropriate remedies unless Congress has expressly indicated

otherwise,” Franklin, 503 U.S. at 66, was not a concept

developed in the Supreme Court’s § 1983 jurisprudence.

The Supreme Court held many years before Matula that

violations of certain federal statutory rights are actionable under

§ 1983. See Maine v. Thiboutot, 448 U.S. 1 (1980). Then, in

1987, the Supreme Court decided in Wright v. Roanoke

Redevelopment & Housing Authority, 479 U.S. 418 (1987), that

the administrative enforcement scheme of the Housing Act did

not demonstrate that Congress had specifically foreclosed a

remedy under § 1983 for the alleged violations of that statute.

In so doing, the Court rejected the notion that the Department of

Housing and Urban Development had the exclusive power to

enforce the benefits due housing project tenants. It noted that in

two cases the Court had found “an intent to foreclose resort to

§ 1983” where there was a “comprehensive remedial scheme

provided by Congress, a scheme that itself provided for private

actions and left no room for additional private remedies under

§ 1983”:

In [Middlesex County Sewerage Authority v.

18

National Sea Clammers Ass’n, 453 U.S. 1

(1981)], an intent to foreclose resort to § 1983

was found in the comprehensive remedial scheme

provided by Congress, a scheme that itself

provided for private actions and left no room for

additional private remedies under § 1983.

Similarly, Smith v. Robinson, 468 U.S. 992, 1012,

104 S.Ct. 3457, 3469, 82 L.Ed.2d 746 (1984),

held that allowing a plaintiff to circumvent the

Education of the Handicapped Act’s

administrative remedies would be inconsistent

with Congress’ carefully tailored scheme, which

itself allowed private parties to seek remedies for

violating federal law.

479 U.S. at 423. But the Court then went on to state that “‘[w]e

do not lightly conclude that Congress intended to preclude

reliance on § 1983 as a remedy’ for the deprivation of a

federally secured right.” Id. at 423-24 (quoting Smith, 468 U.S.

at 1012). In a 5-to-4 decision, the Court ruled that § 1983 was

an available remedy for housing authority tenants whose rights

under the rent ceiling provision of the Housing Act were

allegedly violated. Id. at 429.

It was not until after our decision in Matula that the

Supreme Court offered us more precise guidance as to

restrictions on the availability of § 1983, stating that “[e]ven if

a plaintiff demonstrates that a federal statute creates an

individual right, there is only a rebuttable presumption that the

right is enforceable under § 1983.” Blessing v. Freestone, 520

U.S. 329, 341 (1997). In Blessing, the Court noted that there

could be an “implied” foreclosure of a § 1983 right of action if

the statute contains a “comprehensive enforcement scheme that

is incompatible with individual enforcement under § 1983.” Id.

at 341 (citing Livadas v. Bradshaw, 512 U.S. 107, 133 (1994)).

19

The Court again referred to Sea Clammers and Smith.

Specifically referencing the reasoning in Smith, the Court noted

that “[w]e reasoned that Congress could not possibly have

wanted parents to skip these procedures and go straight to court

by way of § 1983, since that would have ‘render[ed] superfluous

most of the detailed procedural protections outlined in the

statute.’” Id. at 347 (citing Smith, 468 U.S. at 1011). The Court

then distinguished this type of scheme from those before it in

two other cases, Golden State Transit Corp. v. Los Angeles, 493

U.S. 103 (1989), and Wilder v. Virginia Hospital Ass’n, 496

U.S. 498 (1990), where the “oversight powers” of state officials

and “limited grievance procedures for individuals” did not

amount to the “administrative enforcement arsenal” in Smith and

Sea Clammers. Blessing, 520 U.S. at 348.

Then, in Rancho Palos Verdes, 544 U.S. 113, the

Supreme Court examined whether Congress meant the remedy

available under § 1983 to coexist with the remedy expressly

authorized by the Telecommunications Act of 199613 for the

alleged violations of the plaintiff’s rights under the Act. Id. at

120-21. The plaintiff in Rancho Palos Verdes had applied to the

City Planning Commission for a permit to allow commercial use

of his radio antenna. Id. at 1456. After the permit application

was denied, the plaintiff sued for injunctive relief under §

332(c)(7)(B)(v) of the Communications Act and for money

damages and attorneys’ fees under § 1983 and 42 U.S.C. § 1988.

Id. at 118. The Supreme Court concluded that § 1983 was not

available to redress the alleged violations of the plaintiff’s

statutory rights.

The Court reiterated that to sustain a § 1983 action for the

violation of a statutory right, a plaintiff must demonstrate that

13

The Telecommunications Act amended the Communications

Act of 1934 to include § 332(c)(7).

20

the federal statute creates an individually enforceable right in the

class of beneficiaries to which he belongs. Gonzaga Univ. v.

Doe, 536 U.S. 273, 285 (2002). This demonstration creates a

rebuttable presumption that the right is enforceable under §

1983. However, the “defendant may defeat this presumption by

demonstrating that Congress did not intend that remedy for a

newly created right.” Rancho Palos Verdes, 544 U.S. at 120.

“[E]vidence of such congressional intent may be found directly

in the statute creating the right, or inferred from the statute’s

creation of a ‘comprehensive enforcement scheme that is

incompatible with individual enforcement under § 1983.’” Id.

(quoting Blessing v. Freestone, 520 U.S. 329, 341 (1997)).

In discussing its prior decisions on the availability of §

1983 as a remedy for violations of statutory rights, the Court

noted that in all of the cases in which it found § 1983 available

to provide a remedy for a violation of statutory rights, the statute

at issue did not contain a private judicial remedy (or, in most of

the cases, even a private administrative remedy). Id. at 121.

The Court also reminded us yet again that it had found that §

1983 was not an available remedy for violation of statutory

rights in only two prior cases: Sea Clammers and Smith. In both

of those cases, express, private means of redress were provided

for in the statutes themselves. Id. at 121.

The Court noted the significance of Congress’ inclusion

of private remedial provisions in the statute: it is ordinarily an

indication that Congress did not intend “to leave open a more

expansive remedy under § 1983.” Id. However, the “ordinary

inference that the remedy provided in the statute is exclusive”

can be overcome by “textual indication, express or implicit, that

the remedy is to complement, rather than supplant, § 1983.” Id.

at 122. In framing the issue in this way, the Court seems to have

upended the Blessing “presumption,” with the inclusion of a

private remedy being the pivotal factor. The inclusion of a

private remedy gives rise to a presumption that this remedy is to

21

be exclusive. This presumption may be defeated by a “textual”

showing that the remedy was not intended to be comprehensive.

The Court found that the Telecommunications Act did

provide an express, private judicial remedy and that there was

no textual indication that the remedy provided was meant “to

complement, rather than supplant, § 1983.” Id. The Court also

noted that the remedy made available by the

Telecommunications Act “adds no remedies to those available

under § 1983, and limits relief in ways that § 1983 does not.”

Id. at 122. The Court finally dismissed the plaintiff’s argument

that the “savings clause” in the Telecommunications Act was an

express statement of Congress’ intent not to preclude an action

under § 1983. Id. at 126. The Court concluded that the clause

did not require a court to permit enforcement of the Act under

§ 1983, but rather underscored Congress’s intent that “the

claims available under § 1983 prior to the enactment of the

[Communications Act] continue to be available after its

enactment.” Id.

1. The IDEA

Guided by the method of analysis outlined in Rancho

Palos Verdes, we now look to the IDEA to determine whether

Congress intended to allow rights granted by the IDEA to be

remedied through a § 1983 action. For purposes of this appeal,

the parties do not dispute that the IDEA creates individually

enforceable rights in the class of beneficiaries to which A.W.

belongs. Therefore, we presume that Congress intended § 1983

to be an available remedy for violations of the IDEA. Gonzaga

Univ. v. Doe, 536 U.S. 273, 285 (2002). Defendants, however,

can rebut this presumption by showing that Congress did not so

intend. Accordingly, we look to whether there is an express,

private means of redress in the IDEA itself, which, absent some

textual indication to the contrary, would indicate that Congress

22

did not intend to leave open a more expansive remedy under §

1983. See Rancho Palos Verdes, 544 U.S. at 121.

Under the IDEA, any aggrieved party may “present a

complaint . . . with respect to any matter relating to the

identification, evaluation, or educational placement of the child,

or the provision of a free appropriate public education to such

child.” 20 U.S.C. § 1415(b)(6). The party may elect to have the

complaint investigated by the state educational agency, see 34

C.F.R. § 300.661, or avail itself of an “impartial due process

hearing,” 20 U.S.C. § 1415(f). Any party aggrieved by the

outcome of the due process hearing “shall have the right to bring

a civil action with respect to the complaint presented . . . in a

district court of the United States, without regard to the amount

in controversy.” 20 U.S.C. § 1415(i)(2)(A). This action must

be initiated within 90 days from the date of the hearing officer’s

decision. § 1415(i)(2)(B). The district court is authorized to

grant “such relief as the court determines is appropriate,”

including attorneys’ fees, reimbursement for a private

educational placement, and compensatory education. See 20

U.S.C. § 1415(i)(3)(B)(i) (attorneys’ fees); Burlington Sch.

Comm. v. Dep’t of Educ., 471 U.S. 359, 470 (1985)

(reimbursement); Lester H. v. Gilhool, 916 F.2d 865, 873 (3d

Cir. 1990) (compensatory education). We conclude that these

provisions of the IDEA create an express, private means of

redress. This, then, means that a § 1983 action is not available

to remedy violations of IDEA-created rights, absent some

“textual indication, express or implicit, that the [statutory]

remedy is to complement, rather than supplant, § 1983.”

Rancho Palos Verdes, 544 U.S. at 122.

A.W. argues that the “ordinary inference that the remedy

provided in the statute is exclusive” is overcome by the “textual

indication” in § 1415(l) of the IDEA that the remedies provided

for in the statute are “to complement, rather than supplant, §

1983.” Id. However, finding the reasoning of Sellers and

23

Padilla convincing, we do not agree that § 1415(l) shows that

Congress intended the remedies in the IDEA to complement,

rather than supplant, § 1983. Just like the savings clause in

Rancho Palos Verdes, this provision merely evidences

Congress’ intent that “the claims available under § 1983 prior to

the enactment of the [Act] continue to be available after its

enactment.” Id. at 126. We also reject A.W.’s contention that

the references to § 1983 in the legislative history of § 1415(l)14

show that Congress intended to preserve the availability of §

1983 to remedy violations of IDEA-created rights, as we concur

with the explanation of those references provided in Sellers. See

Sellers, 141 F.3d at 531 (concluding that, insofar as § 1415(l)

preserved actions based on violations of constitutional rights, it

is not surprising that the legislative history referenced § 1983,

which provides a vehicle for redressing violations of

constitutional rights).

We agree with the reasoning of the Courts of Appeals for

the Fourth and Tenth Circuits, to say nothing of that of the

14

The Court’s opinion in Rancho Palos Verdes did not address

the legislative history of the Telecommunications Act, nor

discuss whether it is appropriate to consider a statute’s

legislative history as evidence of what Congress intended.

However, Justice Stevens suggested in his concurrence in

Rancho Palos Verdes that the Court assumed “that the

legislative history of the statute is totally irrelevant” in

discerning whether Congress intended to allow § 1983 actions.

544 U.S. at 131 (Stevens, J., concurring). It is therefore not clear

whether a statute’s legislative history qualifies as the sort of

“textual indication, explicit or implicit,” id. at 122, that may

guide us in determining whether Congress intended a statute’s

remedy to be exclusive of § 1983. We need not decide this

question, however, as the legislative history provides no

additional support for A.W.’s position.

24

Supreme Court in Smith, regarding the comprehensive nature of

the IDEA’s remedial scheme. The holding in Smith, although

superseded in part by the passage of § 1415(l) of the IDEA, was

not overruled to the extent that the Court found that the IDEA

provides a comprehensive remedial scheme. Indeed, since

Smith, the Court has continued to refer to the IDEA as an

example of a statutory enforcement scheme that precludes a §

1983 remedy. See Rancho Palos Verdes, 544 U.S. at 121;

Blessing v. Freestone, 520 U.S. 329, 347-48 (1997); Wright v.

Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423-24, 427

(1987). The IDEA includes a judicial remedy for violations of

any right “relating to the identification, evaluation, or

educational placement of [a] child, or the provision of a free

appropriate public education to such child.” § 1415(b)(6).

Given this comprehensive scheme, Congress did not intend §

1983 to be available to remedy violations of the IDEA such as

those alleged by A.W.

2. Section 504

Similarly, we must examine Section 504 of the

Rehabilitation Act to determine whether Congress intended to

allow rights granted therein to be remedied through a § 1983

action. We look first to what means of redress are available

under the statute itself.

The Rehabilitation Act adopts the scheme of “remedies,

procedures, and rights set forth in Title VI of the Civil Rights

Act of 1964,” 42 U.S.C. § 2000d et seq., to remedy alleged

25

violations of Section 504 by recipients of federal funding.15 29

U.S.C. § 794a(a)(2). Title VI provides for federal funding to be

terminated if an entity receiving assistance fails to comply with

its requirements. 42 U.S.C. § 2000d-1. Title VI does not,

however, contain an express private right of action. Rather, the

Supreme Court has found an implied right of action under the

statute and Congress has acknowledged this right in

amendments to the statute, “leaving it ‘beyond dispute that

private individuals may sue to enforce’ Title VI.” Barnes v.

Gorman, 536 U.S. 181, 185 (2002) (quoting Alexander v.

Sandoval, 532 U.S. 275, 280 (2001)). “Thus Congress, in

essence, provided a private right of action under Section 504 by

incorporating Title VI’s ‘remedies, procedures, and rights’ into

the statute.” Three Rivers Ctr. for Indep. Living v. Hous. Auth.

of Pittsburgh, 382 F.3d 412, 425-26 (3d Cir. 2004).

The remedies for violation of Section 504 “are

coextensive with the remedies available in a private cause of

action brought under Title VI of the Civil Rights Act of 1964.”

Gorman, 536 U.S. at 185. These remedies include

15

For some employment-related claims, the Rehabilitation Act

incorporates the remedial scheme provided by Title VII of the

Civil Rights Act, rather than that of Title VI. 29 U.S.C. §

794a(a)(1). Title VII, unlike Title VI, mandates that aggrieved

employees exhaust certain EEOC procedures prior to filing an

action in court. Several of the decisions cited by defendants are

therefore easily distinguishable because they examine the

remedial scheme provided by Title VII, rather than Title VI. See

Lollar v. Baker, 196 F.3d 603, 610 n.8 (5th Cir. 1999); Holbrook

v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997); see

also Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) (relying

on Lollar in non-employment case without acknowledging that

Title VI, rather than Title VII, procedures are used for non-

employment related complaints under Section 504).

26

compensatory damages, injunctive relief, and other forms of

relief traditionally available in suits for breach of contract. See

id. at 187. Punitive damages are not available. Id. Suits may be

brought pursuant to Section 504 against recipients of federal

financial assistance, but not against individuals. Emerson v.

Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).

It is beyond question that Section 504’s remedial scheme

is far less detailed than the IDEA’s remedial scheme. See

Powell v. Ridge, 189 F.3d 387, 402 (3d Cir. 1999) (suggesting

that Title VI, unlike the IDEA, does not establish “an elaborate

procedural mechanism to protect the rights of [individual

plaintiffs]”), abrogated on other grounds by S. Camden Citizens

in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 777-78 (3d

Cir. 2001). However, we disagree with A.W.’s argument that

“there is simply no remedial scheme at all that governs Section

504.” Appellee Supp. Br. 20. Even though there is no express,

private right of action within Section 504, Congress clearly

incorporated, through adoption of Title VI’s remedial scheme,

a private, judicial remedy for violations of the statute. The

availability of a judicial remedy for the alleged statutory

violations carries significant weight in our analysis of whether

Congress intended to allow violations of Section 504 to be

actionable under § 1983. We must determine whether the

existence of this remedy carries with it the presumptive force set

forth in Rancho Palos Verdes.

The Court of Appeals for the Seventh Circuit has held

that the remedial scheme in Title VI is comprehensive, and that

Congress did not intend to allow violations of Title VI to be

remedied through § 1983. See Alexander v. Chicago Park Dist.,

773 F.2d 850, 856 (7th Cir. 1985); see also Travis v. Folsom

Cordova Unified Sch. Dist., No. 06 Civ. 2074, 2007 WL

529840, at *4 (E.D. Cal. Feb. 20, 2007); Alexander v. Underhill,

416 F. Supp. 2d 999 (D. Nev. 2006). The Court of Appeals for

the Second Circuit has similarly found that the Title IX remedial

27

scheme, which is almost identical to the Title VI scheme, is

comprehensive. See Bruneau v. S. Kortright Cent. Sch. Dist.,

163 F.3d 749, 756 (2d Cir. 1998). Title IX, which is patterned

after Title VI, also contains an implied private right of action,

but no express, private judicial remedy. See Cannon v. Univ. of

Chicago, 441 U.S. 677 (1979). In Bruneau, the court “looked

to more than just the express remedies contained within [Title

IX],” including Congress’s plan to create a private right of

action as a remedy to secure the enforcement of the statute’s

provisions, “to ascertain fully Congress’ purpose.” Id. After

reviewing Title IX’s administrative and judicial remedies, the

court concluded that Congress intended “that a claimed violation

of Title IX be pursued under Title IX and not § 1983.” Id.; see

also Henkle v. Gregory, 150 F. Supp. 2d 1067, 1073-74 (D.

Nev. 2001) (“Given the Supreme Court decisions and the

intervening congressional action, we conclude that Congress

intended to create a private right of action in Title IX to secure

enforcement of its provisions and that this implied right of

action is part of Title IX’s enforcement scheme. When

combining Title IX’s administrative remedies and private right

of action, ‘the remedial devices provided in [Title IX] are

sufficiently comprehensive . . . to demonstrate congressional

intent to preclude the remedy of suits under § 1983.’”).

We recognize that two of our sister courts of appeals

have concluded that the remedial scheme in Title IX is not

comprehensive. See Crawford v. Davis, 109 F.3d 1281, 1284

(8th Cir. 1997); Lillard v. Shelby County Bd. of Educ., 76 F.3d

716, 723 (6th Cir. 1996). These courts, however, did not

consider the implied private right of action under Title IX as part

of the statute’s “remedial scheme.” We disagree with this

approach. Nothing in Rancho Palos Verdes or in the Supreme

Court’s prior decisions on this subject suggests that a statute’s

“remedial scheme” encompasses only those remedies that are

expressly identified in the statute. Implied private rights of

action, like express rights of actions, provide a means for private

28

litigants to remedy violations of their statutory rights. The

difference between implied and express private rights of action

is that the former are implicit in Congress’s enactments, rather

than apparent on their face. We do not consider this difference

to be meaningful.

We find the reasoning of the Courts of Appeals for the

Seventh and Second Circuits regarding the nature of the

remedial scheme under Section 504 to be more persuasive.

Following Rancho Palos Verdes, we will ordinarily infer that

when a private, judicial remedy is available for alleged statutory

violations, this remedy is intended to be exclusive. See Rancho

Palos Verdes, 544 U.S. at 121. There is nothing in Section 504

that undercuts this inference or causes us to conclude that

Congress intended to allow § 1983 to be available to remedy

Section 504 violations such as those alleged by A.W. See

Disability Rights Council of Greater Wash. v. Wash. Metro.

Area Transit Auth., 239 F.R.D. 9, 23 (D.D.C. 2006); Veal v.

Mem’l Hosp. of Wash. County, 894 F. Supp. 448, 454 (M.D. Ga.

1995). There is no showing that the remedial scheme in Section

504 was intended “to complement, rather than supplant, §

1983.” Rancho Palos Verdes, 544 U.S. at 122. Accordingly, we

conclude that § 1983 is not available to provide a remedy for

defendants’ alleged violations of A.W.’s rights under Section

504.

IV. Conclusion

A.W. has not alleged an actionable violation of his rights

under the IDEA or Section 504. Accordingly, we will reverse

the order of the District Court denying defendants’ motion for

qualified immunity and remand to the District Court for entry of

judgment in favor of defendants.

29