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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0418%3A2. Public record. Not legal advice.