Opposition Brief — Blanchardard v. Morton School School District (No. 07-825)

D

G ~~ rILep |

No. 07-825 JAN 18 2008

OEEICR-OF HE CLERK |

In The

Supreme Court of the GAnited States

¢

CHERYL BLANCHARD,

Petitioner,

v.

MORTON SCHOOL DISTRICT, et al.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION

e

JOCELYN J. LYMAN*

W. DALE KAMERRER

LAW, LYMAN, DANIEL, KAMERRER & BOGDANOVICH, PS.

P.O. Box 11880

Olympia, WA 98508-1880

(360) 754-3480

Counsel for Respondent

Morton School District

January 18, 2008 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF

QUESTION PRESENTED

Does 42 U.S.C. §1983 provide a cause of action

for damages to compensate a parent for her pro se

participation in a due process hearing under the

Individuals with Disabilities Act?

i

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION

a aitansiy suterrinnnnawdsnsduedseuerseeemmerennes 1

MEE GDEW RAMEE © Discanincsssincisosusvaxessesveccssccpsanes il

SM PE AR BEOUPECL © LES... 005.0c0.cacscnsecsdcckesnacncaeas iv

SLATEMENT OF THE CASE............................006. 1

I. OVERVIEW OF THE PROCEEDINGS

IIT sto vs cule Géoeilénlsh cus oevnstealoas eemauedaemaa ae 1

Il. OVERVIEW OF RELATED PROCEED-

I. THE QUESTION RAISED DOES NOT

INVOLVE A RECURRING ISSUE OF

SUBSTANTIAL IMPORTANCE ................. 5

Il. THE INSUBSTANTIAL CIRCUIT SPLIT

DOES NOT WARRANT REVIEW................ 8

A. Supreme Court Precedent Provides

Direction For Courts to Conclude That

42 U.S.C. §1983 Does Not Provide

a Remedy For Violations Of the Indi-

viduals With Disabilities Education

Pe REPRE sic dkidsnsvcisvcsitarcegts en eee 8

B. All Circuit Courts Deciding the Issue

Conclude That the IDEA Does Not

Provide a Damages Remedy As Part

Of Its Comprehensive Enforcement

MUNN O ic 7ssdnaatnosisoiidactoccrsssarsnaeecaleeaeene 13

il

TABLE OF CONTENTS — Continued

Page

C. The Clear Trend In the Circuit Courts

Is to Conclude That §1983 Does Not

Provide a Damages Remedy For a Vio-

Bape CIP Cit EEO widen deavics tssanscderethcens 16

D. Circuit Courts Deciding That §1983

Provides a Remedy For a Violation of

= the IDEA Are In the Clear Minority..... 19

lil. THERE IS NO WIDELY RECOGNIZED

RE Ce BEE vinistcnc snincensdaschsnpacyxc nents fives 23

CAPER NS naxniisidvdnancisydnnascddacenseanisentialeeuientean 25

1V

TABLE OF AUTHORITIES

CASES

A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d

RY I Rs repens Se cae arnt cd ad cuca ader coeur rises 16

Alex G. v. Bd. of Trustees of Davis Joint Uni.

Sch. Dist., 332 F. Supp.2d 1315 (E.D. Cal.

Anderson v. Thompson, 658 F.2d 1205 (7th Cir.

A isl sa sain ca seceteincecauceparcaenamaciere sere 10, 18, 21, 24

Andrew S. ex rel. Margaret S. v. Sch. Comm. of

Greenfield, 59 F.Supp.2d 237 (D. Mass.

s)he DICE attire pike IY. Deneve op RU Eat PSNR REED tlhe ote PL ER 23

Angela L. vu. Pasadena Independent School

District, 918 F.2d 1188 (5th Cir. 1990).................... 21

Blanchard v. Morton Sch. Dist., 420 F.2d 918

a er Ne ae cette 14, 24

Carney ex rel. Carney v. Nev. ex rel. Dept. of

Education, No. 03:05-CV-00713, 2007 WL

777697 (D. Nev. Mar. 12, 2007), clarified on

other grounds by 2007 WL 3256573 (D. Nev.

ROG A ED etait pea hes ois os shih ena acuacatseanceaend 24

Charlie F. v. Board of Education of Skokie Sch.

EMst., 08 F.3d GBS (7th Cir. 1O0G) oo vccccicccicsc ccc ceess.0.0: 15

City of Rancho Palos Verdes v. Abrams, 544

ee WE I iced ice Ges ce bsieris \ canbenhneceuseneoiondes passim

Crocker v. Tennessee Secondary Sch. Athletic

Assoc., 980 F.2d 382 (6th Cir. 1992)................. 15, 17

Department of Education of Hawatui v. Kathe-

rine ID)., 727 F.2d 809 (9th Cir. 1983)...................... 10

TABLE OF AUTHORITIES — Continued

Page

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st

sre il alae heccennakinananancadan 16, 24

Doe v. Board of Education, 165 F.3d 260 (4th

es nu pumeneanennawennnonmandl 6

Ford v. Long Beach Uni. Sch. Dist., 461 F.3d

I I ssc nedadannacdsacsankecssaseseaussondennved 8

Gean v. Hattaway, 330 F.3d 758 (6th Cir. 2003)........ 22

Goleta Union Elem. Sch. Dist. v. Ordway 166

F. Supp.2d 1287 (C.D. Cal. 2001), overruled

on other grounds by Blanchard v. Morton

pom cee, Pe (BE Cir. 2007)..........s000..020601 23

Hall v. Knott Bd. of Educ., 941 F.2d 402 (6th

a 2 a ican dndisivinnanenenesuawnion 15

Heidemann v. Rother, 84 F.3d 1021 (8th Cir.

a eee ac inmascachadeaxkdnninsisnsvancanda 15

Kay v. Ehler, 499 U.S. 432 (1991)...............ccssccsecsses 6, 7

M.H. v. Bristol Bd. of Ed., 169 F. Supp.2d 21

sila iiks sanadnadpicdeacderuand 23

Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) ....... 21

Marvin H. v. Austin Sch. Dist., 714 F.2d 1348

an aacdnenkacnacseanncens 15

Middlesex County Sewerage Authority v. Na-

tional Sea Clammers Assn., 453 U.S. 1 (1981) ...... 12

Morris-Hayes v. Bd. of Ed. of the Chester Union

Free Sch. Dis., 423 F.3d 153 (2d Cir. 2005) ............ 20

Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987)....... 19, 21

TABLE OF AUTHORITIES — Continued

Page

Nieves-Marquez v. Puerto Rico, 353 F.3d 108

es Des i eaksdeinednenndbacaséodedsess mpuerees 14

Ortega v. Bibb County Sch. Dist., 397 F.3d 1321

ie a leneiissedptunaciddapeucunsnnstesteneadees 14

Pace v. Bogalusa City Sch. Bd., No. Civ.A. 99-

806, 2001 WL 969103 (E.D. La. 2001), aff’d

in part on other grounds, 403 F.3d 272 (5th

ee aly csadacnsntaceiennvnkipasalsanssusatseoseas 21

Padilla ex. rel. Padilla v. Sch. Dist. No. 1,

Denver, 233 F.3d 1268 (10th Cir. 2000)............ 17, 24

Polera v. Board of Education, 288 F.3d 478 (2d

Cais pce naenhgsébnnokaskaundnsdnscsesan 14, 19, 20

Quackenbush v. Johnson City Sch. Dist., 716

ED I OE RODD crane vindeoscdecsadenennvecesccvesccentaees 10

Sammons v. Polk County Sch. Bd., 2007 WL

4358266 (M.D. Fla. 2007)...... To ARS Rare ae eee 18

S.D. by D.B. v. Houston Ind. Sch. Dist., 2007

WL, 2947443 (S.D. Tex. 2007) .............00ccscccsecees 18, 22

Sellers ex rel. Sellers v. Sch. Bd. of Manassas,

141 F.3d 524 (4th Cir. 1998) ....................06 14, 17, 24

Smith v. Robinson, 468 U.S. 992 (1984) ............ passim

S.N. ex rel. J.N. v. Pittsford Cent. Sch. Dist.,

Re NE CA GA, I) oon... ccecscrcvenccnssnsnssscneesee 7

Van Duyn v. Baker Sch. Dist., 502 F.3d 811 (9th

Nee scan nesnsnadvanrenindcndsoxaien 8

Vil

TABLE OF AUTHORITIES — Continued

Page

W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995),

abrogated by A.W. v. Jersey City Pub. Sch..,

BO FOG TOE Ce Ce: BET) aaicsisesnsnccssriveViesicececinancnces 16

Weixel v. Bd. of Ed. of City of New York, 287

aR ee LN PII Fac cdesacetdcnakaccncetdnescenticiansonsi 20

Woodside v. Sch. Dist. of Philadelphia Bd. of

Educ., 248 F.3d 129 (4th Cir. 2001)..................2....... 7

Zearly v. Ackerman, 116 F. Supp.2d 109 (D.D.C.

NIUE vicar acs:cota caewandhdaandeetacnakanes acco taeatentasenlansathieds 23

STATUTES

BR CE te, BRAT) occscniccnssnsscsascsscsencscsonscecenasaries 10

Be Rica ca nce ecestaprn dents atnianssnansaries 10, 13

er ars Ee icae gc incicocnicanvcserssesccevonsssaianioness 13

20 U.S.C. §1415(i)(2)(B).......000... iavrudestas sacks esi cadianteaen 13

Mr RST, Ge a vccnsscsesscsconavaccecavacssvacavecnnnseces 10

See ET Te Kees Be AD second cds pa sinacccacaccacasnshenshaccassas 13

ee ie oral poe sew acca ceceaiantecauaaeeiaeeaen 10

Be ee i I its ca cisccvssisa cad sadenszenscnatensesciedececeatanecel 20

A re ry ee eit Goris eee passim

Me By ears, RMI uctciscanccxxcubnisacdeseecomnanntnbeacuerecansien passim

STATEMENT OF THE CASE

I. OVERVIEW OF THE PROCEEDINGS

BELOW

The Respondent Morton School District is a small

district located in a rural community in southwest

Washington. The District serves approximately four

hundred students.

The Petition arises from Cheryl Blanchard’s

disagreement with the December 3, 2007 decision of

the Ninth Circuit Court of Appeals affirming the

district court’s order granting summary judgment of

dismissal of her case.’

In her district court complaint, Blanchard re-

quested damages under 42 U.S.C. §1983 for emo-

tional distress and loss of profits incurred from a

home based business during the time she participated

in an administrative hearing under the Individuals

with Disabilities Education Act (“IDEA”) concerning

her son’s educational program. E.R. 9. Because

Blanchard did not appeal the district court’s dis-

missal of her emotional distress claim, the Ninth

Circuit concluded that the claim was waived. App. 9.

Blanchard’s claim for lost profits was the only dam-

ages claim remaining in the case when decided below,

' Individual defendants Russ Davis, Regine Alexsunas, Jim

Grossman and Robyn Goodwyn were dismissed with prejudice

by the district court. App. 17-18. Blanchard did not appeal

dismissal of these individuals to the Ninth Circuit, and they are

no longer parties to the case.

2

and it is the only issue encompassed by the Petition

now before the Court.

Blanchard’s damages claim relates to her partici-

pation in an IDEA due process hearing that took

place in April 2000, concerning the 1999-2000 school

year. E.R. 135. The hearing, conducted by an admin-

istrative law judge (ALJ), was convened to address

Blanchard’s concerns about the District’s implemen-

tation of the Individual Education Program (IEP) in

effect for her son when he was in the first grade. E.R.

4-9, 27. The ALJ focused on Blanchard’s concern that

the District had not used a specific teaching method-

ology known as Applied Behavior Analysis with her

son and that data relating to his progress at school

was lacking. E.R. 27.

The ALJ decided in Blanchard’s favor at the

conclusion of the hearing, and ordered the District to

provide additional training for staff and compensa-

tory education for her son before the beginning of the

next school year. E.R. 55-56.

Il, OVERVIEW OF RELATED PROCEEDINGS

Blanchard states in her Petition that the case

below followed “years of administrative proceedings

against the District,” implying that the District

repeatedly denied proper educational services to her

son. [Petition at 5]. In fact however, the issues in the

complaint spanned only the time between October

1999 and April 2002. E.R. 1-9. During that period,

Blanchard obtained only one favorable decision, that

3

being the decision following the due process hearing

in April 2000, described above.

With respect to other due process hearings de-

scribed below, Blanchard either abandoned her re-

quest for a hearing, or the ALJ ordered that the

District provide only a portion of what Blanchard

requested, or the ALJ denied relief to Blanchard and

decided in favor of the District.

Spring 2001 due process hearing. Blanchard

requested a hearing concerning Extended School Year

(ESY) services because she disagreed with the Dis-

trict’s proposal to provide eight weeks of services for

her son during the upcoming summer break. The ALJ

decided in favor of the District, concluding that its

proposal for ESY services was acceptable and met

IDEA standards. E.R. 116.

June 2001 due process hearing. Blanchard

requested a hearing concerning implementation of

her son’s IEP for the preceding school year and other

issues. E.R. 120-21. After the ALJ dismissed some of

the claims on summary judgment, Blanchard can-

celed her hearing request and did not respond to the

ALJ’s request for clarification. The ALJ dismissed the

proceeding without a hearing on October 29, 2001.

E.R. 123-26.

April 2002 due process hearing. Blanchard

requested a hearing because she wanted more ESY

services for her son during the upcoming summer

break than the District offered to provide. E.R. 59, 60.

The ALJ did not adopt either Blanchard’s or the

4

District’s proposal, and ruled that services should be

provided at a rate of three hours per day, four days

per week, for a period of eight weeks during the

summer break. E.R. 68.

Spring 2003 due process hearing. Blanchard

again requested a hearing concerning the District’s

ESY proposal for the upcoming summer months. The

hearing did not occur because Blanchard and the

District reached an agreement concerning the extent

of services to be provided. E.R. 107.

March 2006 due process hearing. Blanchard

requested a hearing concerning the District’s imple-

mentation of her son’s IEP, training of staff, and other

issues relating to the 2005-2006 school year. After the

ALJ decided in favor of the District on all issues,

Blanchard filed a second complaint in district court

entirely separate from the complaint in this case.

In the second district court case filed in 2006,

Blanchard again requested an award of damages and

fees for her pro se representation under 42 U.S.C.

§1983 and §1988 even though she was not the pre-

vailing party at the underlying due process hearing.

The district court dismissed the complaint and

Blanchard appealed. On December 26, 2007, the

Ninth Circuit affirmed dismissal! of Blanchard’s §1983

and §1988 claims, and reversed the dismissal of other

claims in an unpublished opinion dealing only with

5

that case.” The case is currently pending in district

court.

REASONS TO DENY THE PETITION

I THE QUESTION RAISED DOES NOT IN-

VOLVE A RECURRING ISSUE OF SUB-

STANTIAL IMPORTANCE

Throughout this case, Blanchard has requested

damages under 42 U.S.C. §1983 as compensation for

the profits claimed to be lost from a home based

business due to the time she spent preparing for and

participating in the April 2000 due process hearing.

This request is not properly viewed as a claim for

damages at all, as it is essentially a request for a fee

based on Blanchard’s pro se representation during the

IDEA administrative process.

This fee request, disguised as a request for

damages, does not represent a recurring issue of

substantial importance warranting the Court’s re-

view. To the contrary, the answer to this issue is

determined by the universally accepted rule that a

pro se plaintiff is not entitled to an award of fees.

The Ninth Circuit characterized Blanchard’s

damages claim as a request for compensation for

* Blanchard, et al. v. Morton Schvol District, et al., 2006 WL

2459167 (W.D. Wash., Aug. 25, 2006), aff'd in part, rev. in part,

2007 WL 4533472 (Dec. 26, 2007).

6

acting as her own lawyer. Relying upon the decision

in Kay v. Ehler, 499 U.S. 432 (1991),° the court de-

cided against Blanchard, explaining that a pro se

plaintiff is not entitled to an award of attorneys’ fees.

App. 9.

Blanchard argues that the Ninth Circuit decision

is an incentive for parents to hire attorneys to provide

representation for their children in IDEA proceed-

ings. |Petition at 20]. Assuming this is so, this incen-

tive is one specifically intended by the Supreme

Court. As explained in Kay:

Arule that authorizes awards of counsel fees

to pro se litigants — even if limited to those

who are members of the bar — would create a

disincentive to employ counsel whenever

such a plaintiff considered himself competent

to litigate on his own behalf. The statutory

policy of furthering the successful prosecu-

tion of meritorious claims is better served by

a rule that creates an incentive to retain

counsel in every such case.

499 U.S. at 438. This reasoning has been followed by

the circuit courts that have addressed the issue of

fees for parents who proceed pro se in IDEA proceed-

ings. In Doe v. Board of Education, 165 F.3d 260 (4th

Cir. 1998), the court explained:

* In Kay v. Ehler, the pro se plaintiff that requested an

award of fees under $1988 was a licensed attorney.

7

(T)he central trust of Kay is that fee-shifting

statutes are meant to encourage the effective

prosecution of meritorious claims, and that

they seek to achieve this purpose by encour-

aging parties to obtain independent repre-

sentation. Like attorneys appearing pro se,

attorney-parents are generally incapable of

exercising sufficient independent judgment

on behalf of their children to ensure that

“reason, rather than emotion” will dictate

the conduct of the litigation.

Precisely because disabled children deserve

independent legal services, the IDEA fee-

shifting provision should be read to encour-

age parents to obtain independent legal ser-

vices.

Id. at 263-64. All circuit courts deciding this issue are

in accord.

In Woodside v. School Dist. of Philadelphia Bd. of

Educ., 248 F.3d 129 (4th Cir. 2001) the court denied a

pro se parent’s fee request, noting that the danger of

inadequate representation is as great when an emo-

tionally charged parent represents his minor child as

when the parent represents himself. Jd. at 131.

In S.N. ex rel. J.N. v. Pittsford Cent. Sch. Dist.,

448 F.3d 601 (2d Cir. 2006), the court affirmed dis-

missal of an attorney-parent’s fee request following a

settlement reached after conclusion of a due process

hearing. The court recognized the risk that a parent-

attorney lacks sufficient emotional detachment to

8

provide effective representation is a risk which is

“undeniably present in disputes arising under the

IDEA.” Id. at 603.

Concluding that the fee shifting provision in 42

U.S.C. §1988 is nearly identical to that contained in

the IDEA, the Ninth Circuit follows the Second, Third

and Fourth Circuits to hold that fees are not avail-

able to parents, who are also attorneys, for their

representation in IDEA proceedings. Ford v. Long

Beach Uni. Sch. Dist., 461 F.3d 1087 (9th Cir. 2006);

Van Duyn v. Baker Sch. Dist., 502 F.3d 811 (9th Cir.

2007) [court awarded fees for work done by retained

counsel during a successful administrative proceed-

ing, but not for the attorney-parent who also partici-

pated in that proceeding].

When Blanchard’s claim for damages is viewed for

what it is — a request for compensation based on pro se

representation during the IDEA administrative proc-

ess — it does not qualify as a recurring issue of sub-

stantial importance warranting review by the Court.

II. THE INSUBSTANTIAL CIRCUIT SPLIT

DOES NOT WARRANT REVIEW

A. Supreme Court precedent provides di-

rection for courts to conclude that 42

U.S.C. §1983 does not provide a remedy

for violations of the Individuals With

Disabilities Education Act (IDEA).

The Court’s decisions in Smith v. Robinson, 468

U.S. 992 (1984) and City of Rancho Palos Verdes v.

9

Abrams, 544 U.S. 113 (2005) provide the definitive

analysis for courts to apply when determining

whether a violation of a federal statutory right can be

remedied through §1983. Given this clear guidance,

there is no need for the Court to resolve what is only

an illusory circuit split.

In Smith v. Robinson, the Court addressed

whether parents were entitled to recover attorneys’

fees under 42 U.S.C. §1988 for their successful efforts

challenging the school district’s decision to withdraw

funding for their child’s private educational program.

At the time, the predecessor to the IDEA, the Educa-

tion of the Handicapped Act (EHA)* did not include

an attorneys’ fee provision. Jd. at 995. As a result, the

parents’ claim for attorneys’ fees was based on consti-

tutional equal protection and due process grounds,

and not on the IDEA itself. Jd. at 1008-1009.

In reaching its decision that an award of attor-

neys’ fees was not available to the parents through a

constitutional challenge that was virtually identical

to the IDEA claim, the Court in Smith concluded that

the comprehensive remedy provided by the IDEA

precludes a fee award through an ancillary action

* The IDEA was first named the Education for all Handi-

capped Children Act (KHACA). In 1990, Congress renamed the

EAHCA as the Education for Handicapped Act (EHA). Since

1990, the act has been named the Individuals with Disabilities

Education Act (IDEA). To be consistent with Blanchard’s method

of referring to this legislation, the EAHCA and the EHA will be

referred to as the IDEA throughout this response.

10

under §1983. The Court noted with approval that

courts in the Second, Seventh and Ninth Circuits’

had already reached a similar conclusion. Jd., n.11.

After Smith was decided, Congress responded to

its specific holding concerning attorneys’ fees and

amended the IDEA in 1986 to include a provision

allowing for an award of fees. See 20 U.S.C.

§1415(e)(4)(B). This provision permits awards of

attorneys’ fees to prevailing parties under the IDEA

itself,” without the need to assert a claim under

§1983.

The 1986 amendments to the IDEA also added a

savings clause to clarify that the right to pursue

constitutional claims is not limited by the IDEA. 20

U.S.C. §1415(f) [now §1415(1)]. With several changes

of no significance here, the clause now states in

relevant part:

Nothing in this title ... shall be construed to

restrict or limit the rights, procedures, and

remedies available under the Constitution,

Title V of the Rehabilitation Act of 1973 [],

* Quackenbush v. Johnson City School District, 716 F.2d 141

(2d Cir. 1983); Department of Education of Hawaii v. Katherine

D., 727 F.2d 809 (9th Cir. 1983); Anderson v. Thompson, 658 F.2d

1205 (7th Cir. 1981).

* The current version of the IDEA authorizes the district

court to award reasonable attorneys’ fees as part of the costs to a

parent who is the prevailing party, and also against the parent,

or the attorney for the parent in specific circumstances as set

forth in the statute. 20 U.S.C. §1415(i(3)(B).

11

or other Federal laws protecting the rights of

children with disabilities . . .

The IDEA savings clause makes no reference

whatsoever to §1983, and cannot be read to allow an

IDEA based statutory claim to be pursued through

§1983. Nor does the savings clause overrule the

Court’s explanation in Smith v. Robinson, 468 U.S.

992, relating to the analysis to be applied when

determining whether a statutory violation can be the

basis of a §1983 claim.

In 2005, the Court decided City of Rancho Palos

Verdes v. Abrams, 544 U.S. 113. The decision provides

detailed clarification as to when a statutory right can

provide the basis for a §1983 claim. With specific

reliance on its earlier decision in Smith v. Robinson,

the Court explained:

The existence of a more restrictive private

remedy for statutory violations has been the

dividing line between those cases in which

we have held that an action would lie under

Section 1983 and those in which we have

held it would not.

(I)n all of the cases in which we have held

that §1983 is available for a violation of a

federal statute, we have emphasized that the

statute at issue, in contrast to those in Sea

12

Clammers' and Smith, did not provide a pri-

vate judicial remedy (or in most cases, even a

private administrative remedy) for the rights

violated.

Sea Clammers and Smith adopt the ... as-

sumption ... that limitations upon the rem-

edy contained in the statute are deliberate

and are not to be evaded through Section

1983.

Id., 544 U.S. at 121-24 [internal text and citations

omitted].

Accordingly, federal courts have been provided a

clear and specific methodology to apply to the ques-

tion of whether a federal statute confers rights that

may be enforced through an action under 42 U.S.C.

§1983. Notably, the Ninth Circuit decision below, and

every other circuit court applying the methodology

described in Rancho Palos Verdes, have reached the

same conclusion: §1983 is not available as a damages

remedy for claims based on asserted violations of the

IDFA.

" Middlesex County Sewerage Authority v. National Sea

Clammers Assn., 453 U.S. 1 (1981).

13

B. All circuit courts deciding the issue

conclude that the IDEA does not pro-

vide a damages remedy as part of its

comprehensive enforcement scheme.

The IDEA provides timely access to an admin-

istrative hearing process — referred to in the IDEA

as an “impartial due process hearing” — for parents

to present complaints with respect to any matter

relating to the identification, evaluation, educational

placement, or the provision of a free appropriate

public education for their child. 20 U.S.C. §1415(f).

Should parents disagree with the outcome of a

due process hearing, they are entitled to bring a civil

action with respect to their complaint in district

court, without regard to the amount in controversy.

20 U.S.C. §14150)(2)(A). Prompt resolution of the

complaint is encouraged, as the district court case

is to be initiated within ninety (90) days of the

administrative hearing officer’s decision. 20 U.S.C.

§14150)(2)(B). The district court is authorized to

grant appropriate relief, including an award of rea-

sonable attorneys’ fees to parents if they are deter-

mined to be the prevailing party. 20 U.S.C.

§14150)(3)B)Q).

The IDEA provides a comprehensive remedial

and enforcement scheme for violations of its provi-

sions, but it is silent concerning the availability of a

damage remedy. This distinction is recognized by the

First, Second, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth and Eleventh Circuits, and all of these circuits

14

have concluded that a damages award is not available

under the IDEA.

Circuit courts deciding this issue during the last

five years include Blanchard v. Morton School Dis-

trict, 420 F.2d 918, 921 (9th Cir. 2005) [“money dam-

ages for retrospective and non-educational injuries

are not available under the IDEA];* Ortega v. Bibb

County School District, 397 F.3d 1321, 1325 (11th Cir.

2005) [damages are inconsistent with IDEA’s statu-

tory scheme]; Nieves-Marquez v. Puerto Rico, 353 F.3d

108, 124 (1st Cir. 2003) [“tort-like money damages, as

opposed to compensatory equitable relief, are not

available under IDEA”); Polera v. Board of Education,

288 F.3d 478, 486 (2d Cir. 2002) (“the purpose of the

IDEA is to provide educational services, not compen-

sation for personal injury, and a damages remedy — as

contrasted with reimbursement of expenses —- is

fundamentally inconsistent with that goal.”]

Circuit courts deciding this issue more than five

years, but less than fifteen years ago include Sellers

ex rel. Sellers v. Sch. Bd. of Manassas, 141 F.3d 524,

527 (4th Cir. 1998) [“tort-like damages are simply

* This is the decision in Blanchard’s first appeal to the

Ninth Circuit in this case, referred to as Blanchard I in the

Petition. The court reversed the district court’s dismissal on

exhaustion of remedy grounds and remanded the case. The

Petition arises from the Ninth Circuit’s decision following her

second appeal.

15

inconsistent with IDEA’s statutory scheme”]; Charlie

F. v. Board of: Education of Skokie School Dist., 98

F.3d 989, 991 (7th Cir. 1996) [“the structure of the

statute — with its elaborate provision for education

services and payments to those who deliver them - is

inconsistent with monetary awards to children and

parents; damages are not relief that is available

under the IDEA”]; Heitdemann v. Rother, 84 F.3d

1021, 1033 (8th Cir. 1996) [general and punitive

damages for the types of injuries alleged by plaintiffs

are not available under the IDEA]; Crocker v. Tennes-

see Secondary Sch. Athletic Assoc., 980 F.2d 382, 386

(6th Cir. 1992 ) [no recovery of general damages

under the IDEA].

Circuit courts deciding this issue more than

fifteen years ago include Hall v. Knott Bd. of Educ.,

941 F.2d 402, 407 (6th Cir. 1991) [no right to recover

damages for a student’s loss of earning power attrib-

uted to a school board’s failure to provide appropriate

education]; Marvin H. v. Austin School District, 714

F.2d 1348, 1356 (5th Cir. 1983) [relief under the IDEA

generally includes only prospective relief and a

damage remedy is not generally consistent with the

goals of the statute].

All circuit courts considering the issue have

uniformly concluded that the comprehensive en-

forcement and remedial scheme of the IDEA does not

allow for an award of damages.

16

C. The clear trend in the circuit courts is

to conclude that §1983 does not pro-

vide a damages remedy for a violation

of the IDEA.

Given the complete unanimity among the circuit

courts deciding that damages are not available in a

direct action under the IDEA, it is a short step for all

courts to eventually conclude that this limitation in

the IDEA cannot be circumvented through resort to a

damages claim under 42 U.S.C. §1983.

In A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d

Cir. 2007) (en banc), the Third Circuit decided that

the comprehensive enforcement scheme of the IDEA

precludes enforcement of its provisions through an

action under §1983. Jd. at 803. The court was guided

by the Supreme Court’s methodology described in

Rancho Palos Verdes, 544 U.S. 113, to abrogate its

earlier decision in W.B. v. Matula, 67 F.3d 484 (3d Cir.

1995), where the court previously decided that §1983

was available to redress rights secured by the IDEA.

In Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st

Cir. 2006), the First Circuit rejected resort to §1983 to

evade the limited remedial structure of the IDEA.

The Court noted that allowing a plaintiff to claim

money damages under §1983 would “subvert the

overall scheme that Congress envisioned for dealing

with educational disabilities, as well as the purpose of

the IDEA, which is to ensure a free appropriate

public education.” Jd. at 29.

17

In Padilla ex. rel. Padilla v. Sch. Dist. No. 1,

Denver, 233 F.3d 1268 (10th Cir. 2000), the Tenth

Circuit decided that a cause of action under §1983 is

not available to remedy IDEA violations, noting that

the Supreme Court has cited the IDEA as an example

of an exhaustive legislative enforcement scheme that

precludes resort to §1983. The Tenth Circuit recog-

nized that the Court considers the decision in Smith

v. Robinson, 466 U.S. 992, to be “alive and well inso-

far as it asserts that §1983 claims may not be used to

remedy IDEA violations.” Jd. at 1274.

In Sellers ex rel. Sellers v. Sch. Bd. of Manassas,

141 F.3d 524 (4th Cir. 1998), the court noted that the

Supreme Court has never approved an award of

compensatory or punitive damages under the IDEA

for a violation of its terms. Noting that tort-like

damages are simply inconsistent with IDEA’s statu-

tory scheme, the Fourth Circuit explained that the

purpose of the IDEA’s procedural mechanisms is to

preserve the right to a free appropriate public educa-

tion, not to provide a forum for tort-like claims of

educational malpractice. The court stated that under

Smith v. Robinson, 468 U.S. 992, the parents “un-

doubtedly would be precluded from circumventing

IDEA’s limits on remedial relief by suing instead

under §1983.” Jd. at 530.

In Crocker v. Tennessee Secondary Sch. Athletic

Assoc., 980 F.2d 382, 387 (6th Cir. 1992), the Sixth

Circuit reached the same conclusion that §1983 is not

available to provide a damages remedy for a violation

of rights secured by the IDEA, although it made that

18

decision without reference to the underlying analysis

it used.

In Anderson v. Thompson, 658 F.2d 1205 (7th Cir.

1981), even before the decision in Smith v. Robinson,

the Seventh Circuit rejected a claim that an IDEA

based complaint was cognizable under §1983. The

court explained that the IDEA provided a detailed

statutory administrative and judicial scheme for

enforcement of its provisions but did not include a

traditional damages remedy, thereby precluding

resort to §1983 as a “conduit to attorneys’ fees” under

§1988. Id. at 1217.

In recent months, district courts have followed

the majority view. In the Eleventh Circuit, where the

issue has not yet been decided by the Court of Ap-

peals, a district court followed the majority to con-

clude that a claim based on a violation of the IDEA

cannot be remedied through §1983. Sammons v. Polk

County School Board, 2007 WL 4358266 (M.D. Fla.

2007). In the Fifth Circuit, a district court relied on

the majority view to reach the same result. S.D. by

D.B. v. Houston Independent School District, 2007 WL

2947443 (S.D. Tex. 2007).

The clear trend in the lower federal courts is to

adopt the majority view that a damages claim under

$1983 is not available or a ciaimed violation of the

IDEA.

19

D. Circuit courts deciding that §1983 pro-

vides a remedy for a violation of the

IDEA are in the clear minority.

The decisions Blanchard relies on to argue that a

reviewable circuit split exists have decided that §1983

is available as a remedy without consideration of the

Court’s refined analysis concerning when a federal

statutory violation can be remedied through §1983, or

they are distinguishable in other respects.

In Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987),

the Second Circuit considered a parents’ claim that

the State Board of Education did not provide ade-

quate complaint procedures or access to due process

hearings where they could pursue complaints con-

cerning system-wide violations of the IDEA. The case

did not include a damages claim based on an IDEA

violation, as the parents sought only declaratory and

injunctive relief through §1983. The court concluded

only that the parents were entitled to pursue a $1983

claim for the declaratcry and injunctive relief they

sought in that case.

Fifteen years after the decision in Mrs. W. v.

Tirozzi, the Second Circuit decided Polera v. Board of

Education, 288 F.3d 478 (2d Cir. 2002). In Polera,

the court differentiated between equitable relief that

is available under the IDEA, and damages that are

not. Id. at 486. Now that the Second Circuit has

joined the majority of circuits to hold that IDEA’s

comprehensive remedies do not include a damages

remedy, it is likely that the court will ultimately

20

follow the majority and decide that §1983 is not

available to pursue a damages claim under §1983 for

violations of the IDEA.

Blanchard also relies on the Second Circuit

decision in Weixel v. Board of Educ. of City of New

York, 287 F.3d 138 (2d Cir. 2002). Weixel was decided

on March 29, 2002, one month before the Second

Circuit decided Polera, 288 F.3d 478. Without the

benefit of the analysis in that case, the court in Weixel

summarily concluded that the district court erred in

dismissing a §1983 claim on a motion to dismiss

under Fed. R. Civ. P. 12(b)(6). While further proceed-

ings in We:xel are nct reported, the outcome of the

case would surely have been persuaded by the Second

Circuit’s decision in Polera that an award of damages

is not available under the IDEA.

Furthermore, the Second Circuit has already

applied the refined methodology explained in Rancho

Palos Verdes, 544 U.S. 113, in a case concerning the

availability of §1983 to remedy a statutory violation

in a different context. In Morris-Hayes v. Board of

Education of the Chester Union Free School District,

423 F.3d 153 (2d Cir. 2005), the court decided that the

comprehensive remedies provided by the Uniform

Services Employment and Reemployment Rights Act,

38 U.S.C. §4311 et seg. “USERRA”) preclude a §1983

claim for damages against individual defendants,

a remedy not authorized by USERRA. Given the

Second Circuit's recognition of the methodology to

apply to claims for damages under §1983 based on a

federal statutory right, it is hkely that the court will

21

ultimately conclude that §1983 is not available for

such claims under the IDEA.

In Marie O. v. Edgar, 131 F.3d 610 (7th Cir.

1997), the Seventh Circuit determined that §1983

was available to provide a basis for parents to pursue

declaratory and injunctive relief to require state

officials to bring Illinois into compliance with the

mandates of the IDEA. Like the Second Circuit in

Mrs. W. v. Tirozzi, the court did not address the issue

of availability of damages under §1983 for violations

of the IDEA. Significantly, Marie O. did not overrule

the Seventh Circuit’s earlier decision in Anderson uv.

Thompson, 658 F.2d 1205, where the court concluded

that the IDEA did not include a damages remedy,

thereby precluding resort to §1983 as a “conduit to

attorneys’ fees” under §1988. Jd. at 1217.

The Fifth Circuit decision in Angela L. v. Pasa-

dena Independent School District, 918 F.2d 1188 (5th

Cir. 1990), cited by Blanchard, is not instructive.

In a footnote, the court stated without discussion

that parents can assert violations of §1983, id. at

1193, n.3, and affirmed an award of attorneys’ fees

to parents following a due process hearing.” Signifi-

cantly, a district court in the Fifth Circuit acknowl-

edged within the last year that courts have

Blanchard also cites to an unpublished decision in Pace v.

Bogalusa City Sch. Bd., 2001 WL 969103 (E.D. La. 2001), aff'd

in part on other grounds, 403 F.3d 272 (5th Cir. 1983). The Fifth

Circuit did not consider the $1983 claim because it was not

briefed on appeal. Jd. at 275.

22

determined that §1983 liability cannot be predicated

on violations of the IDEA, and dismissed a §1983

claim on that basis. S.D. by D.B. v. Houston Inde-

pendent School District, 2007 WL 2947443 (S.D. Tex.

2007).

In Gean v. Hattaway, 330 F.3d 758 (6th Cir.

2003), cited by Blanchard, the Sixth Circuit did not

decide that §1983 provides a cause of action for

damages under the IDEA. The court noted that the

plaintiffs’ claim was not a claim for general damages,

but a claim for relief available under the IDEA, and

the court required the plaintiffs to use the IDEA’s

prescribed administrative process before bringing

such claims to court.

The Second, Fifth, Sixth and Seventh Circuit

decisions referred to above either did not address the

issue raised in the Petition, or they pre-date the

decision in Rancho Palos Verdes, 544 U.S. 118. These

decisions did not take into account the Court’s expla-

nation that a damages remedy under §1983 is not

available for a federal statutory violation when the

statute, like the IDEA, provides a comprehensive

enforcement for violation of its terms.

None of the decisions relied upon by Blanchard

provide a definitive analysis supporting a damages

remedy under §1983 for an IDEA violation. Nor did

any of those cases specifically decide the legal issue

raised by the Petition — are damages available under

$1983 for asserted violations of the IDEA”?

23

Il. THERE IS NO WIDELY RECOGNIZED

CIRCUIT CONFLICT.

Six circuit courts and numerous district courts

now conclude that §1983 is not available to provide a

damages remedy for IDEA violations. These courts

have, generally applied the methodology explained in

Smith v. Robinson, 468 U.S. 992 (1984), as refined in

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

When courts use the required methodology, as they

all must, they uniformly conclude that §1983 is not

available to provide a damages remedy for an IDEA

violation. The circuit courts deciding differently have

not yet had the opportunity to apply this methodol-

ogy. Thus, it cannot be said that a true circuit split

exists at this time.

A closer look at decisions cited by Blanchard

further illustrates this point. Four of the five district

court decisions she cites to were decided prior to

2001, before the decision in Rancho Palos Verdes, and

without its guidance concerning the methodology to

apply when determining whether a statutory viola-

tion can be the basis of a §1983 claim.” At the time of

those district court decisions, only the Fourth, Sev-

enth and Tenth Circuits had determined that IDEA

"* Goleta Union Elem. Sch. Dist. v. Ordway, 166 F. Supp.2d

1287 (C.D. Cal. 2001); M.H. v. Bristol Board of Education, 169

F. Supp.2d 21 (D. Conn. 2001); Zearly v. Ackerman, 116

F. Supp.2d 109 (D.D.C. 2000); Andrew S. ex rel. Margaret S. v.

Sch. Comm. of Greenfield, 59 F. Supp.2d 237 (D. Mass. 1999).

[Petition at 18-20].

24

based rights did not provide the basis for a damages

claim under §1983. Sellers, 141 F.3d 524; Anderson,

658 F.2d 1205; Padilla, 233 F.3d 1268. Now, the First,

Third and Ninth Circuits have reached the same

conclusion. Diaz-Fonseca, 451 F.3d 13; A.W. v. Jersey

City., 486 F.3d 791; Blanchard v. Morton School

District. App. 1.

The remaining district court decision cited by

Blanchard on this issue, Carney ex rel. Carney v.

Nevada ex rel. Department of Education, 2007 WL

777697 (D. Nev. Mar. 12, 2007), clarified on other

grounds, 2007 WL 3256573 (D. Nev. Oct. 31, 2007),

concluded §1983 was not available to provide a dam-

ages remedy even when the parties had not ad-

dressed the issue in their briefs. The court found

persuasive the reasoning in Alex G. vu. Board of Trus-

tees of Davis Joint Unified Sch. Dist., 332 F. Supp.2d

1315, 1319 (E.D. Cal. 2004), where the court con-

cluded that the comprehensive enforcement scheme

in the IDEA, directed at resolution of complaints, is

incompatible with enforcement through §1983. Both

Carney (decided in Nevada) and Alex G. (decided in

California) arose in states within the Ninth Circuit,

and were decided before the Ninth Circuit decision

below. This demonstrates that the trend is clearly

toward a uniform conclusion in the federal courts that

§1983 is not available to provide a damages remedy

for claims arising under the IDEA.

¢

25

CONCLUSION

The Petitioner has not established the grounds

for this Court to grant the Petition. The Respondent

respectfully requests that the Petition be denied.

Respectfully submitted,

JOCELYN J. LYMAN

Counsel of Record

W. DALE KAMERRER

LAW, LYMAN, DANIEL, KAMERRER & BOGDANOVICH, PS.

P.O. Box 11880

Olympia, WA 98508-1880

(360) 754-3480

Counsel for Respondent