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 THOMAS E. KENNEDY, III                                     230 S. Bemiston Ave., Suite 800
 Licensed in MO, IL                                               St. Louis, Missouri 63105
 ANNE M. HILLYER                                                          Tel: 314.872.9041
 Licensed in MO, IL, TX
                                                                         Fax: 314.872.9043
 Licensed in MO, IL
                                                                          112 Front Street
                                                                      Alton, Illinois 62002                                               Tel: 618.474.5326
                                                                       Fax: 618.474.5331


        My introduction this year is the same as the last several years. There is no end in

sight to the autism epidemic in the United States. All students with special needs will

continue to suffer until there is a cure.

                      PUBLIC CHARTER SCHOOLS

        Charter schools are described as new or converted public schools founded by

parents, teachers or others, operated with varying levels of autonomy from state and local

rules, and funded mainly with federal, state and local funds. A recent decision described

Missouri charter schools as “a cross between a public and a private school” which can

“operate without traditional bureaucratic and legal constraints and [can] perhaps, make

more innovative and responsive curriculum changes, [and are] seen as a possible benefit

and a possible middle ground to traditional public schools and purely private schools.”

Catapult Learning, LLC v. Board of Educ., City of St. Louis, 2008 U.S. Dist. LEXIS

10306 (E.D. Mo. Feb. 12, 2008), citing State ex rel. Sch. Dist. of Kansas City v.

Williamson, 141 S.W. 3d 418, 422 (Mo. App. 2004). For purposes of special education

advocacy, the point to remember is that these are public schools. Charter schools must
conform to all federal laws and regulations including the IDEA, Section 504 of the

Rehabilitation Act, and the Americans with Disabilities Act.

Enabling Legislation.

       Charter schools in Missouri are authorized by the Missouri Charter Schools Act,

Mo. Rev. Stat. § 160.400 et seq. The Illinois Charter School Act is found at 105 ILCS

5/27A-1 et seq. In both states, the enabling legislation provides that charter schools are

exempt from all laws and rules relating to schools except those laws which are

enumerated in the statutes. Mo Rev. Stat. §160.405 (5); 105 ILCS 5/27A-5 (g). Laws

applicable to charter schools typically involve safety, administrative and reporting

requirements, such as criminal history records checks of employees, discipline of

students, reporting of child abuse and neglect, and so forth. See Northern Kane Educ.

Corp. v. Cambridge Lakes Educ. Assn., 394 Ill. App. 3d 755, 759 (4 th Dist. 2009). As a

consequence, charter schools may provide a curriculum which specializes in a particular

area, such as vocational education, or math and science, and so forth. Some states have

charter schools which specialize in the education of students with disabilities, e.g., the

New York Center for Autism Charter School. See M.N. v. New York City Dept. of Educ.,

2010 U.S. Dist. LEXIS 33239 (S.D. N.Y. Mar. 25, 2010).

History of Charter School Discrimination.

       Early research funded by the U. S. Dept. of Education which examined special

education in charter schools indicates that a) enrollment of students with more significant

disabilities is relatively rare; b) most charter schools use the term “inclusion” to describe

their approach to serving students with disabilities; c) staff at some charter schools

“counsel” parents against enrolling students with disabilities; and d) students with

disabilities uniformly receive more individualized attention at the charter school than

they did at their previous school. Charter Schools and Students with Disabilities: A

National Study (Fiore etc. 2000). A troubling survey conducted by a teacher‟s union in

New York City found that no students who previously attended self-contained classes,

e.g., the students with the highest category of need, attended any of the 38 charter schools

located in Harlem, the South Bronx, and Central Brooklyn. Special Education in

Charters and District Schools, Research Notes, UFT Research Dept., April 29, 2010.

Even considering the source, this survey suggests that traditional p ublic schools may now

be serving fewer students with less severe disabilities but virtually all of the most

significantly disabled students.

LEA and District Charters.

       Special education advocates must primarily be aware of who to sue, and for what.

The IDEA provides that a charter school is an LEA for purposes of all special education

requirements if the school is established as such under state charter law. That is, the LEA

charter school is responsible for providing a full continuum of placements to students

according to their needs, among other things. LEA charter schools have been

characterized as the “functional equivalent of an independent school district.” Racine

Charter One v. Racine Unified Sch. Dist., 424 F. 3d 677, 685 (7th Cir. 2005) (LEA charter

school students have no Equal Protection right to busing by public school district since

charter school is like an independent school district). If the charter school is established

within an LEA as a so-called “district charter,” then the LEA is responsible for educating

students with disabilities at the charter school in the same manner as students who attend

other public schools in the district. 20 U.S.C. § 1413 (a)(5); 34 C.F.R. § 300.209 (a) –

(d); see Nesbit v. District of Columbia, 2003 U.S. Dist. LEXIS 26306, *22-*23 (D.D.C.

Mar. 31, 2003). This distinction is significant in the context of necessary parties in an

IDEA proceeding. LEA charter schools are “independent entities” which are solely

responsible for providing FAPE to students. S.S. v. Howard Rd. Acad., 562 F. Supp. 2d

126, 130 (D.D.C. 2008), citing IDEA Public Charter Sch. v. Belton, 2006 U.S. Dist.

LEXIS 13321 (D.D.C. Mar. 15, 2006).

       It appears, however, that the LEA designation is not sufficient for every purpose.

In L.Y. v. Bayonne Bd. of Educ., 2010 U.S. App. LEXIS 11920 (3 rd Cir. June 10, 2010),

the Circuit Court decided that an LEA charter school‟s decision to place a child in a

private school for disabled children did not create a “stay put” placement during the time

that the local school district contested the placement. In L.Y., a LEA charter school

agreed with parents that the student required placement in a private day school and

revised the student‟s IEP accordingly. Under state law, this decision shifted financial

responsibility for the student‟s special education services to the school district where the

child resides. When the local school district challenged the placement decision, the

parents argued under 20 U.S.C. § 1415(j) that the “stay put” placement of the student was

the private day program pursuant to agreement between the parents and the LEA charter

school. The Court of Appeals held that, regardless of which entity was the LEA, the state

law which provided the local district with the opportunity to challenge a private

placement trumped IDEA‟s stay-put provision. The court simply concluded that Section

1415(j) of IDEA does not contemplate a situation when both a charter school and a local

school district have an interest in a child‟s educational placement. Id. at *12-*13.

Potential Claims on Behalf of Charter Students.

       The LEA charter school may not be solely responsible for educational services to

students with special needs. In Scaggs v. New York St. Dept. of Educ., 2007 U.S. Dist.

LEXIS 35860 (E.D. N.Y. May 16, 2007), the plaintiffs attempted to bring a class action

against the state educational agency, an LEA charter school, and Edison Schools, the

private owner, operator and supervisor of the charter school. The plaintiffs complained

that the charter school was unsafe, overcrowded, lacked certified teachers, books, paper,

pencils, adequate refrigeration or rodent extermination, and that the school failed to

identify students with special needs and failed to provide educational programs to address

the students‟ special needs. The Scaggs decision is a virtual road map for parents‟

advocates. Three issues are especially significant. First, plaintiffs‟ federal claims were

challenged for failure to exhaust in individual due process hearings. The district court

held that the alleged systemic violations - - the “complete inadequacy of the education

environment at [the charter school] . . . [and] total lack of programs designed to address

the needs of disabled students” - - were a proper basis for excusing the exhaustion

requirement of the IDEA. Id. at *28. Second, the court held that the charter schools and

Edison School, the management company, were state actors with respect to constitutional

claims brought under Section 1983, since they provide a traditional state function - - free,

public education - - and even though Edison is a private corporation. Id. at *48; but see

Caviness v. Horizon Comm. Learning Ctr., Inc., 590 F. 3d 806, 815 (9 th Cir. 2010).

Finally, the court held that the state agency defendants lacked 11th Amendment immunity

and could be sued under Section 504 for their deliberate indifference and failure to

intercede on behalf of the disabled students at the charter school. Id. at *66-67.


       The take-away from Scaggs is that, despite the LEA charter designation, there are

multiple targets for litigation on behalf of charter school students with disabilities. At a

minimum, these include the local school district, the charter school management

company and the state educational agency. All of the usual IDEA claims about denial of

FAPE are obviously available against the LEA charter. However, in order to establish

civil rights liability, advocates should provide notice of the factual basis of their claims to

the administrators of the responsible state and local entities at an early point in the

investigation of the case. For example, the Southern Poverty Law Center and other

public interest groups recently filed a complaint against the Louisiana Department of

Education alleging that the agency ignored widespread IDEA violations by charter

schools in New Orleans, including refusing to enroll student with disabilities in charter

schools. “Special Needs Students File Complaint,” (July

28, 2010).

       Following receipt of such a complaint, state administrators, charter school

operators and management companies will be hard-pressed to allege that they had no

knowledge of civil rights violations at New Orleans charter schools and that they simply

failed to supervise these schools. Thereafter, plaintiffs‟ claims of “bad faith” or “gross

misjudgment” are more likely to be upheld against state actors. See M.P. v. Independent

Sch. Dist. No. 721, 439 F. 3d 865868 (8th Cir. 2006).

                                  CASE LAW UPDATES

          The following is a brief list of important new cases in the special education area

for attorneys representing parents and students. I have chosen April 15, 2009 as the cut-

off date for “new” cases. These cases are listed in no particular order of importance.

1.        Knight v. Washington Sch. Dist., 2010 U.S. Dist. LEXIS 45433 (E.D. Mo. 2010).

          This is a pitiful case. The plaintiffs filed a due process complaint alleging an

incomplete evaluation, inappropriate IEPs, inadequate related services, lack of prior

written notice of school district actions, and failure to include parents as equal partners in

the IEP process. DESE Hearing Officer Patrick O. Boyle ordered plaintiffs to submit

additional information, after which the plaintiffs provided a 25-page single-spaced

supplement detailing their factual allegations. So far so good.

          Then the school district filed its motion to dismiss and Hearing Officer Patrick O.

Boyle dismissed the complaint. His order was based upon DESE‟s regulation permitting

hearing officers to “[i]dentify and eliminate claims and complaints that are frivolous. . .

upon proper motion of a party and an opportunity for response from opposing party “ A

parallel to DESE‟s regulation, by the way, is unknown in either the IDEA or the Code of

Federal Regulations. However, Hearing Officer Patrick O. Boyle ruled that notice

pleading as practiced under the Federal Rules of Civil Procedure was insufficient under

Missouri law and that plaintiffs had failed to plead facts demonstrating any entitlement to


          When the plaintiffs appealed, the school district moved to dismiss for lack of

jurisdiction. The school district argued that no due process hearing ever took place and

IDEA contains no provision for judicial review of decisions concerning the suffic iency of

a complaint. Judge Webber agreed. He decided that the court lacked jurisdiction under §

1415 (i)(2)(A) to review the decision “because the court has no „findings and decision‟

made under § 1415 (f) to review. Id. at *11.

       However, he found it troubling that a complaint founded on federal law, for which

federal standards provided the applicable standard, was unreviewable in federal court.

He observed that the decision might be reviewable under the Missouri Administrative

Procedure Act but noted that this was probably cold comfort to the plaintiffs who‟d

already waited several years just to obtain a hearing. This case now joins a handful of

due process proceedings in Missouri in which parents‟ complaints remain in limbo

because of very questionable procedural motions of school districts and for which

DESE‟s regulations offer no recourse.

       The only saving grace in this case is Judge Webber‟s review of the legislative

history of the standards for judging the sufficiency of due process complaints. He notes

that the IDEA‟s legislative history indicates that fact pleading is not required, that

Hearing Officer Patrick O. Boyle was mistaken to apply the Missouri Rules of Civil

Procedure inflexibly in a IDEA due process hearing, and that “the IDEA‟s pleading

standard is even more liberal than notice pleading,.” Id. at *13.

       Other courts have at least impliedly disagreed with Judge Webber. For example,

in M.S.-G. v Lenape Reg. High Sch. Dist. Bd. of Educ., 2009 U.S. App. LEXIS 604 (3 rd

Cir. 2009), the Court of Appeals affirmed the district court‟s judgment which sustained

an ALJ‟s dismissal of a due process complaint for insufficiency. Neither the district

court nor the Court of Appeals expressed any concerns about lack of jurisdiction to

review the ALJ‟s decision. In M.S.-G., the parents requested an expedited hearing

following a school suspension but failed in two attempts to describe any facts about the

nature of the student‟s problem, how it related to the student‟s suspension, and how the

proposed solution would resolve the problem. The Court held that “minimal” pleading

standards require more than bare notice pleading, and that failure to describe the nature of

the problem and a proposed solution frustrates the cooperative process between parents

and schools. Id. at **5-**7.

       Another recent case addressed the issue of due process hearing dismissals for

insufficiency in a more imaginative way. In Keene v. Zelman, 2009 U.S. App. LEXIS

16629 (6th Cir. 2009), the Court of Appeal affirmed the award of attorney‟s fees to

plaintiffs who sued their state board of education after their due process complaint was

wrongly dismissed for alleged insufficiency. The plaintiffs complained that the state

board created policies and procedures which caused widespread unlawful dismissals of

due process complaints. The case was settled when the state agreed to retrain all its

hearing officers. The Court of Appeals affirmed an attorney fee award of $81,000 to the

plaintiffs over the state board‟s objections that “special circumstances” rendered the fee

award unjust. The Court held that no special circumstances existed since defendants

violated their duty to establish procedures to ensure that children with disabilities are

guaranteed appropriate procedural safeguards. Id. at **14.

2.     Lathrop R-II Sch. Dist. v. Gray, 2010 U. S. App. LEXIS 13581 (8 th Cir. July 2,

       This is another pitiful case involving the same lawyers, with even worse result for


       This case involved a student with autism whose parents complained that he was

learning little or nothing at school. The parents filed a due process complaint alleging

denial of FAPE due to inappropriate IEPs over several school years and lack of prior

written notice resulting in exclusion of parents from participation in the IEP process. The

parents initially sought reimbursement for private services they obtained plus

compensatory education and related services, and later requested placement at a private

school for student with autism. After an 18-day hearing, the panel decided in August

2005 that the IEPs were deficient for lack of baseline data, that the IEPs were

inappropriate for failure to address negative behaviors and poor social skills, but that the

parents were not entitled to relief for the alleged procedural violations or for

reimbursement for their private expenses. The hearing panel ordered placement at a state-

approved agency for students with autism.

        The school district appealed on the basis that the panel incorrectly placed the

burden of persuasion on the district. The parents counterclaimed, arguing among other

things that the school district violated the IDEA for failure to implement the panel‟s

order. It is not clear from the decision, however, whether the parents previously sought

enforcement of the panel‟s order. The district court simply remanded the case based

upon the then-recent decision in Schaefer v. Weast, 546 U.S. 49 (2005), which holds that

the burden of proof lies with the party challenging the IEP.

        On remand the hearing panel upheld its original decision in its entirety, the district

filed suit again and the parents counterclaimed. In September 2009, almost four (4) years

after their due process decision, the district court granted summary judgment in favor of

the district and against the parents.

        On appeal, the Court of Appeals held that whether the school district has offered

FAPE is a mixed question of fact and law and the district court‟s decision is reviewed de

novo. Thereupon the Court of Appeals upheld all of the district court‟s findings which

reversed the factual decisions of the hearing panel. First, the Court of Appeals held that

the student‟s IEPs were not deficient despite the absence of baseline data because the

IEPs contained detailed statement of present levels of performance, plus baseline data for

some IEP goals. The court held that “we will not compel a school district to put more in

its IEPs than is required by law.” Id. at *12.

       Second, the Court of Appeals held that the student‟s IEPs were not deficient for

failure to address the student‟s behavioral issues, even when these behaviors did not

improve: “The IDEA does not however require an IEP to create specific goals with

regard to behavior. If a behavior impedes a child‟s learning, the IEP team need only

„consider, when appropriate, strategies . . . to address that behavior.‟ ” Id. at *12-*13,

citing 20 U.S.C. §1414 (d)(3)(B)(i). Here the school district made a “good faith effort” to

address the student‟s disruptive behaviors and the student‟s IEPs included extensive

behavior plans and sensory diets. Since the panel noted some progress on behavioral

issues, however minimal, the court found that the panel erred in requiring more than

consideration of behavioral strategies.

       Finally, in a footnote sure to lead to more litigation, the Court of Appeals

observed - - despite the parents‟ apparent abandonment of the issue - - that the student

was not entitled to immediate enforcement of the hearing panel‟s decision, since “[t]he

IDEA requires a district to follow the provisions of the last mutually agreed upon IEP

until the entire dispute is resolved. 20 U.S.C. §1415(j).” Id. at *20.

3.     C.N. v. Willmar Pub. Sch., 591 F. 3d 624 (8th Cir. 2010).

          This case restates the Eighth Circuit‟s rule that a parent‟s due process hearing

request must be filed against the offending school district while the student is in

attendance; otherwise, the case will be dismissed.

          In C.N., the parent filed a due process hearing request against her former school

district after learning of suspected abuse of their daughter by the student‟s teacher,

including improper and excessive use of seclusion and restraints, pulling the student‟s

hair, choking the student, and denying the student the use of a restroom. It appears tha t

this teacher had been investigated for possible child abuse on at least three occasions.

The teacher was placed on leave for at least two months while the school district

investigated the complaints. When the parent asked to be notified when or if the teacher

returned to the school district, a district administrator informed the parent that the district

had no obligation to provide that information. Thereafter the parent removed her

daughter from school and placed her in a private school. Ten months later the parent

filed her due process hearing request.

          The ALJ dismissed the parents‟ due process hearing request because the student

was no longer enrolled in the district. The parent then filed a multi-count complaint

against the school district, alleging violations of IDEA, Section 504, and Section 1983 for

violations of the Fourth and Fourteenth Amendments, plus various state law claims. The

district court affirmed the ALJ‟s decision on the IDEA claim because the parent filed the

complaint after she moved away. The district court also dismissed the remaining federal

counts for failure to state a claim and declined jurisdiction over the plaintiff‟s state law


       On appeal, the Court of Appeals affirmed the dismissal of all federal claims,

restating its previous judicially-created rationale from Thompson v. Board of Special Sch.

Dist. No. 1, 144 F. 3d 574 (8th Cir. 1998). It held that the purpose of requesting a due

process hearing is to put the school district on notice of the student‟s complaints and give

the district the opportunity to address the problem. If a student moves away before

requesting a hearing, all challenges to previous IEP programs and services become moot

because a new school district is responsible for the hearing. Even if the student‟s sudden

transfer is necessitated by legitimate safety concerns, the due process hearing request

must be made while the student is enrolled within the district or the case will be

dismissed. Id. at 630-31.

       The Court of Appeals also dismissed the student‟s claims under Section 504 for

failure to exhaust, citing 20 U.S.C. §1415(l). The student‟s Fourth Amendment claim

was dismissed because the IEP specifically authorized seclusion and restraint and the

teacher‟s conduct was not a substantial departure from acceptable professional judgment,

standards or practice because the IEP “set the standard for accepted practice.” Id. at 633.

With respect to the student‟s “shock the conscience” Fourteenth Amendment claim, the

Court of Appeals affirmed dismissal under Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),

because the student failed to allege facts such as the times, places and persons involved in

alleged abuse, giving the school district insufficient notice of the student‟s claims. The

Court did express sympathy for the parent, who alleged that her inability to provide

sufficient factual details to support a plausible claim for relief was due to her

communication problems and incomplete school district records, but held that it was

bound by the Supreme Court‟s pleading directives. See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)

4.     Ruben A. v. El Paso Indep. Sch. Dist., 657 F. Supp. 2d 778 (W.D. Tex. 2009).

       This encouraging case approves the award of attorney‟s fees to the parents‟

counsel where the school district‟s offer of settlement failed to include adequate

attorney‟s fees. Plaintiff‟s counsel should probably read this decision in the event of

receipt of an offer of settlement.

       Here the school district failed to perform an evaluation of a student for a period of

more than nine months. The parents filed a due process hearing request complaining that

the failure to perform required evaluations meant that the student‟s IEPs were inadequate

and denied FAPE. Thereafter the school district made a series of settlement offers, each

of which was rejected by the parents. First, the school district offered to perform the

requested evaluations if the parent would dismiss their due process complaint. This was

rejected immediately. Following a resolution session which did not produce a settlement,

the school district then offered a resolution agreement with no attorney‟s fees as well as a

second resolution agreement with $750 in attorney‟s fees. At the time the parents‟ fees

were about $5,000. The parents responded by rejecting both offers and suggesting a

consent order with the issue of attorney‟s fees submitted to mediation. This was rejected

by the school district, which a) filed a motion to dismiss the due process hearing because

the case was moot, and b) submitted a motion and proposed order to the hearing officer

granting the requested relief to the student but dismissing the case with prejudice. The

hearing officer denied both motions, conducted a two-day hearing, and found that the

student was denied FAPE due to the failure of the school district to conduct timely

evaluations. The hearing officer ordered the district to conduct a speech/language

evaluation and present the findings to the IEP Team but did not find that the student was

eligible for additional special education services.

        After the hearing, parents‟ counsel again suggested mediation of the attorney‟s fee

claim. The school district agreed only on condition that plaintiffs‟ “detailed billing

statements” would be provided to the district. The parents rejected this demand on

grounds of attorney-client privilege, then filed a complaint in federal court seeking an

award of attorney‟s fees as prevailing parties.

        Rather than simply litigate the issue of fees, the school d istrict filed an answer, an

untimely counterclaim and third-party complaint against the parents‟ counsel for alleged

continuation of the due process hearing for an improper purpose. It argued that it had

completed the requested evaluations at the time of the due process hearing and the

parents‟ desire to obtain a consent order was not sufficient grounds to proceed with a

hearing since resolution settlements are enforceable. The procedural history of the case

then became incredibly complicated. It is sufficient to say here that the school district

lost all of its claims and the parents incurred attorneys‟ fees for the federal litigation, e.g.,

fees on fees, which were in excess of their fees at the due process hearing.

        The district court concluded that the parents “prevailed” at the due process

hearing by altering the legal relationship of the parties. Even though the parents did not

obtain all the relief they sought, they obtained a judgment bearing judicial imprimatur

which fosters the purposes of the IDEA by providing the student with FAPE. The court

held that the parents were justified in rejecting the settlement offer because the school

district never acknowledged its failure to evaluate the student and only agreed to

dismissal with prejudice. In particular, the court stated: “Ruben A. did not have to waive

his statutory right to attorney‟s fees in obtaining the warranted relief. . . . [S]ince Ruben

A. received more relief that what was offered to him in [the school district‟s] proposed

settlement agreements . . . IDEA‟s bar for attorney‟s fees does not apply to him.” Id. at


       For attorneys who practice in Illinois, an new case outlining the standards for an

award of fees in a case where the parents prevail on some but not all issues is John M. v.

Board of Educ., City of Chicago, Dist. 299, 612 F. Supp. 981 (N.D. Ill. 2009).

5.     Houston Indep. Sch. Dist. v. V.P., 566 F. 3d 459 (5 th Cir. 2009)

       This is a recent tuition reimbursement case which should be reviewed by parents‟

attorneys with a possible pendant placement case. In this case the parents of a hearing

impaired student rejected the school district‟s IEP, filed a due process hearing request,

and enrolled their daughter in private school. The student‟s IEP provided for placement

in a second grade general education class with two hours per week of speech therapy, one

hour per week with a special education itinerant teacher, FM amplification in the

classroom, and other classroom accommodations. The parents complained that the

student was mainstreamed beyond her capabilities, that the IEP failed to address her

auditory processing disorder, and that the accommodations provided within the IEP were

inadequate. For example, the FM loop system was inoperable for months, the student‟s

use of headphones over her hearing aids was dangerous and prevented the student from

participating in class discussions, and there was little coordination between the key

stakeholders involved with the student. Although the student achieved passing grades,

her teachers unilaterally modified her tests and assignments without reference to the

student‟s IEP, and the teachers agreed that the student had not mastered the second grade


       The hearing officer found that the school district‟s IEP denied FAPE, particularly

because of the absence of noise desensitization training, sequencing ability training, and

gap-detection training, and ordered reimbursement for one year of private school

services. The district court affirmed. However, the district court denied the parents‟

request for a second year of tuition reimbursement which was incurred after the hearing

and before the district court‟s decision. Thereafter the school district appealed, and the

parents cross-appealed on the issue of denial of a second year of reimbursement.

       The Court of Appeals employed four factors as indictors to assess whether the

student‟s IEP was reasonably calculated to provide educational benefit: 1) whether the

program was individualized; 2) whether the program was in the least restrictive

environment; 3) whether key stakeholders provided services in a coordinated and

collaborative manner; and 4) whether positive academic and non-academic benefits were

demonstrated. Id at 584. Here the Court found that the student‟s IEP was not sufficiently

individualized, that the student did not receive educational benefit from her mainstream

placement, that key stakeholders failed to communicate and collaborate in delivery of

services, and that the district court‟s decision that student‟s benefit from instruction was

only minimal and not meaningful was not clear error.

       The Court affirmed the award of tuition reimbursement by the hearing officer for

one school year. It also held that parents were entitled to a second year of reimbursement

because the private school placement became the student‟s stay-put placement: “[B]y

force of Supreme Court opinion and federal regulation, the decision by the . . . hearing

officer . . . was an agreement between [the school district] and V.P.‟s parents that t he

Parish School was the appropriate placement. The agreement last for the pendency of the

review of the administrative decision. . . [U]nless the parents and the school agree

otherwise, the Parish School by operation of law is the proper placement.” Id. at 591;

see, 34 C.F.R. §300.518(d). The court specifically rejected the school district‟s argument

that, if it had notice of the parents‟ intention to seek reimbursement for a second year, it

could have proposed a different placement. The Court held that it had notice as a matter

of law, whether or not the parents asked for reimbursement, and that it made no effort to

convene an IEP meeting to change the student‟s placement.

6.    Drobnicki v. Poway Unified Sch. Dist., 2009 U.S. App. LEXIS 25206 (9 th Cir.

       This is a case for advocates to remember on those not-so-rare occasions when

school districts conduct IEP meetings without making an effort to accommodate the

parents‟ schedule. In Drobnicki, the parents complained that they were unable to attend

an IEP meeting which was unilaterally scheduled by the school district. They asked the

school district to reschedule the meeting, to no avail. The school district made no further

attempts to accommodate the parents. On the date of the IEP meeting, the s chool district

called the parents and offered to allow them to participate by speakerphone, at which

time the parent asked again to reschedule the meeting.

       The ALJ and the district court ruled in favor of the school district. The Court of

Appeals reversed, holding that school districts have an affirmative duty to schedule IEP

meetings with parents at a “mutually agreed on time and place.” 34 C.F.R.

§300.322(a)(2). Conducting meetings by speakerphone is only an option if neither parent

can attend the IEP meeting. Id. at **4. The ALJ‟s finding that the parents had a

“history” of missing IEP meetings was clearly erroneous, since the parents had

previously attended five of six earlier IEP meetings and one later meeting.

         As a result of proceeding with the IEP meeting without the parents, the Court

concluded that the school district caused a loss of educational opportunity and seriously

infringed on the parents‟ opportunity to participate in the IEP process. As a result of this

serious procedural violation the Court did not even consider the school district‟s

substantive compliance with the IDEA. The Court reversed the district court‟s judgment

in favor of the district and remanded the case with instructions to enter judgment for the

parents and to determine appropriate relief. Id. at **6-**7.

                                      NON-IDEA DAMAGES


         The Individuals with Disabilities Education Act (IDEA) provides that nothing in

the Act shall be construed to restrict or limit the rights, procedures, and remedies

available under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., or

section 504 of the Rehabilitation Act, 29 U.S.C.S. 20 U.S.C.S. § 1415(l). Plaintiffs may

also have claims under Section 1983, but these are not discussed here as they involve

greater questions of eleventh amendment immunity which is beyond the scope of this

article. 1

         For plaintiffs, it is especially important to understand what awards are available,

then venue in which to pursue them and the proof needed to recover them. This article

will 1) distinguish between IDEA and non-IDEA damages; 2) describe what a plaintiff

 So me state defendants try to argue immunity fro m Section 504 as well, but acceptance of federal funds
generally abrogates any immun ity. United States v. Georgia, 546 U.S. 151, 159 (2006) and Doe v.
Nebraska, 345 F.3d 593 (8th Cir. 2003).

must prove to establish a prima facie case for damages under Section 504 and the ADA

for disability discrimination in education, 3) illustrate when a plaintiff must exhaust other

administrative remedies and 4) explain what damages are available under Section 504

and the ADA.

       1. Distinguishing IDEA and non-IDEA damages

       The IDEA provides that courts “shall grant such relief as the court determines is

appropriate.” 20 U.S.C. § 1415(i)(2)(B)(iii) (2010) and 34 C.FR. § 300.516(c)(3) (2010).

However, the courts have enforced self- imposed limitations on what is appropriate in

IDEA cases. The remedies available to parents in IDEA cases are IEP-related, including

compensatory services, reimbursement for evaluations, private therapies, and attorney‟s

fees. Parents are not entitled to money damages, such as compensatory damages or

punitive damages. However, the IDEA does not offer the only relief for pa rents in

disability discrimination cases; parents may also seek damages in suits under Section 504

of the Rehabilitation Act and Title II of the Americans with Disabilities Act.

       The relevant language of Section 504 of the Rehabilitation Act states that
       No otherwise qualified individual with a disability in the United States, as defined
       in Sec. 705(20) of this title, shall, solely by reason of her or his disability, be
       excluded from the participation in, be denied the benefits of, or be subjected to
       discrimination under any program or activity receiving Federal financial
       assistance or under any program or activity conducted by any Executive agency or
       by the United States Postal Service.

29 U.S.C. 794(a) (2010). Similarly, the ADA provides “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. 12132 (2010).

         The Rehabilitation Act and the ADA share the same remedies, rights, and

procedures when it comes to discrimination in education. 42 U.S.C. 12133 (“The

remedies, procedures, and rights set forth in section 794 (a) of Title 29 shall be the

remedies, procedures, and rights this subchapter provides to any person alleging

discrimination on the basis of disability in violation of section 12132 of this title.”) The

primary difference is that Section 504 is limited to recipients of federal funds whereas the

ADA prohibits discrimination on the basis of disability in state and local government
programs, regardless of whether they receive funding.

         The power of Section 504 to prohibit discrimination stems from the Spending

Clause of the Constitution. In exchange for the receipt of federal funds, funding

recipients agree to abide by certain rules, including an agreement not to discriminate

against individuals benefiting from its programs based upon disability. Plaintiffs under

Section 504 have a private right of action as third party beneficiaries to the contract

between the federal funding recipient and the federal government. Barnes v. Gorman,

536 U.S. 181 (2002). As a result, the relief the courts have tended to grant to plaintiffs

under 504 is influenced by 504‟s origins in the Spending Clause and therefore is not all-

inclusive. 3

         Both the Rehabilitation Act and the ADA refer to the Civil Rights Act as their

source of remedies, procedures and rights. 29 U.S.C. 794(a)(2) (2010) (stating “the

remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 shall

be available to any person aggrieved by an act or omission by any recipient or provider of

  Because the two statutes are analyzed the same way, references to Section 504 herein also refer to Tit le II
of the ADA unless otherwise specified.
  Plitt, Steven, Valerie Fasolo and Daniel Maldonado, Disability Under a Judicial M icroscope: The
Struggle to Define the Rights and Remed ies for Claims Brought Under the Rehabilitation Act , 47 N.Y.L.
Sch. L.Rev. 269, 279-285 (2003).

federal assistance under Section 794.”); 42 U.S.C § 12133 (referencing the remedies,

procedures and rights of Section 504). The courts have found an implied right of action

under Title VI but the law does not delineate the exact remedies that are available to a

plaintiff in a private action. As a result, the evolution of available remedies under Title VI

directly implicates the available remedies under Section 504 and ADA claims. 4

         2. The prima facie case

         The prima facie case in a Section 504 case is identical to that in an ADA action,

except that the plaintiff must also show that the defendant receives federal funding.

Enright v. Springfiled Sch. Dist., 2007 U.S. Dist. LEXIS 90006 (D.Penn. 2007). The

circuits each apply their own prima facie requirement, with the most significant

distinguishing factor being the level of intent a plaintiff must prove. In the Eighth

Circuit, the elements a plaintiff must prove are that the plaintiff: 1) is a qualified

individual with a disability; (2) was denied the benefits of a program or activity of a

public entity receiving federal funds; and (3) was discriminated against based on her

disability. Additionally, in the Eight Circuit a plaintiff must show that the discrimination

reflected “bad faith or gross misjudgment.” M.P. v. Independent School District No. 721,

439 F.3d 865 (8th Cir. 2006); M.Y. v. Special Sch. Dist., 544 F.3d 885 (8th Cir. 2008),

citing Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir.

1999); Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982).

         In M.P. v. Independent School District, a student brought a 504 claim after his

paraprofessional asked him, in front of other students, whether his medication was for

schizophrenia. Subsequently, the student was verbally and physically harassed by other

 Remed ies under Title IX also closely track the remed ies available under Section 504 because it is a piece
of Spending Clause legislation as well.

students. Id. at 866. The student‟s claim was based on the school‟s alleged failure to

protect M.P.‟s academic and safety interests by failing to investigate his complaints of

harassment, creating a hostile education environment, failing to provide him with

accommodations and to take remedial action once the disclosure was made and the

school was on notice of the harassment. Id. at 867. The jury found that the school acted

with gross misjudgment or bad faith and awarded damages of $84,675. M.P. v. Indep.

Sch. Dist. No. 721, 2007 U.S. Dist. LEXIS 18874, 2 (D.Minn. 2007).

         In another case, M.Y. v. Special School District, a student was allegedly

molested by the school bus driver. M.Y., 544 F.3d at 885. The plaintiff‟s 504 claim was

based on their belief that the district should have provided her with specialized

transportation that they believed would have prevented the molestation and ensuing

trauma. Id. at 888. The court found that the IEP did not say that she was eligible for the

related services of transportation. Id. at 889. Therefore, it did not act in bad faith or with

gross misjudgment when it assigned her to a regular school bus. Id. at 890. If the school

had known that the student needed special transportation arrangements and failed to

provide it, the plaintiff may have fared better.

       Allegations that the defendant knew or should have known about 504 violations is

not enough to show bad faith or gross misjudgment. Bradley ex rel. Bradley v. Ark. Dep't

of Educ., 301 F.3d 952(8th Cir. 2002). And mere disagreements between the school and

the parents about what educational strategy is best does not rise to the level of bad faith

or gross misjudgment. Smith by & through Townsend v. Special Sch. Dist., No. 1, 184

F.3d 764 (8th Cir. 1999); Thompson by & Through Buckhanon v. Board of the Special

Sch. Dist., 144 F.3d 574 (8th Cir. 1998) (parent and district disagreed over evaluation

results of student and appropriate diagnosis and treatment; overturned on other grounds).

       Whereas a plaintiff in the Eighth Circuit must show “bad faith” or “gross

misjudgment,” a plaintiff in the Seventh Circuit must show that the discrimination was

“intentional.” Monticello Sch. Dist. No. 25 v. Brock L., 102 F.3d 895 (7th Cir. 1996). In

Monticello Sch. Dist., the parents of a unilaterally placed student sought reimbursement

for private tuition and were denied when the court found that the placement did not meet

the least restrictive environment nor did the parents prove that the school intentionally

discriminated against the student by denying the placement.

       In the Third Circuit, “a plaintiff need not show that defendants‟ discrimination

was intentional,” Ridgewood Bd. Of Educ. V. N.E. for M.E., 172 F.3d 238 (3d Cir. 1999),

but at least one district court since then has refused to award compensatory damages

without such a showing. Kaitlin C. v. Cheltenham Township Sch. Dist., 2010 U.S. Dist.

LEXIS 20699, (Ed.Penn. 2010).

       The source of the split in the circuits on the issue of intent appears to be a

difference in interpretation of the connection between Title VI and Section 504. In

Alexander v. Sandoval, the Supreme Court held that “Title VI itself directly reaches only

to instances of intentional discrimination.” 532 U.S. at 275, 281 (2001). Because the

remedies of Section 504 track the remedies available under Title VI, at first glance it

seems that the holding in Sandoval would extend the intent requirement to cases under

Section 504 as well. However, the Ninth Circuit in Mark H. v. Lemahieu examined

whether two autistic sisters were denied FAPE and held that the appropriate question

according to Section 504 was whether they had been “denied meaningful access to state-

provided services.” 513 F.3d 922, 937-938 (9th Cir. 2008). Whether the denial was

intentional was not up for debate under 504. The requisite intent for the d enial of

meaningful access to state-provided services had been discussed in an earlier case, Duvall

v. County of Kitsap, 260 F.3d 1124, (9th Cir. 2001), regarding a violation of the ADA

and the Ninth Circuit in Lemahieu relied on that decision for its holding that if a

defendant has knowledge that a federally protected right is likely to be violated that

constitutes deliberate indifference and is sufficient for bringing an ADA claim and a 504

claim. Lemahieu, 513 F.3d at 938.

       Parents have tried to apply the disparate impact theory of discrimination to a

Section 504 claim, which would bypass the intent requirement. Alexander v. Choate, 469

U.S. 287 (1985). The Supreme Court in Choate dismissed the notion that proof of

disparate impact would meet the prima facie case in all instances. White it might be

possible in some instances where all accommodations were denied, the court in

Monticello considering this very issue, found that the parents did not show any neutral

action that resulted in a blanket denial of all accommodations. Monticello, 102 F.3d at


       3. Exhaustion of Remedies

       Exhaustion has been treated as a jurisdictional question in the Eighth Circuit. C.S.

v. Mo. State Bd. Of Educ., 656 F. Supp. 2d 1007, 1010-1011 (Mo.E.D. 2009), but see

Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996) and

N.B. by D.G. v. Aluchua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996) (both

cases holding that lack of exhaustion is usually waivable). When a plaintiff seeks

damages for injuries that could be provided under IDEA, the plaintiff must exhaust

administrative remedies to the extent that damages could be sought and obtained in a due

process hearing. 20 U.S.C. § 1415(f); Hoekstra by and through Hoekstra v. Independent

Sch. Dist. No. 283, 916 F. Supp. 941 (D.Minn. 1996). Whether a plaintiff‟s claim could

be addressed by the IDEA is not always immediately obvious. Different circuits have

different requirements for exhaustion. A plaintiff cannot circumvent this requirement

simply by asking for money damages. Hoekstra, 916 F.Supp. at 948; C.T. v. Necedah

Area Sch. Dist., 2002 U.S. App. LEXIS 12727 (7th Cir. 2002); and Charlie F. by Neil F.

v. Board of Educ., 98 F.3d 989 (7th Cir. 1996).

         Whether a plaintiff‟s federal claim is one that can be addressed in a due process

hearing depends on whether the issue underlying the damages claim is “wholly unrelated

to an IEP.” C.S., 656 F. Supp. 2d at 1012. Whether a plaintiff‟s claims are wholly

unrelated to an IEP can be ambiguous because of the potential reach and scope of an IEP

into all aspects of a student‟s educational experience. The circuits that require exhaustion

have struggled with categorizing claims as IEP or non-IEP related. For plaintiffs, the best

advice may be from the Ninth Circuit, which said the “Inquiry may be boiled down to

one central question: whether the plaintiffs „seek relief for injuries that could be

redressed to any degree by the IDEA‟s administrative procedures.‟ Kutasi v. Las Virgenes

Unified Sch. Dist., 494 F.3d 1162 (9th Cir. 2007). If the answer to that question is either

yes or unclear, exhaustion is required.” Payne v. Peninsula School District (9th Cir.


         In C.S., the plaintiff brought claims against the local school district (LEA) and the

State School for the Severely Disabled, a separate public day facility operated by the

State. C.S., 656 F. Supp. 2d at 1009. At the administrative level, the plaintiffs brought

IDEA related claims against the state school only. In federal court, the plaintiff brought

Section 504 and ADA claims against both the LEA and the state run facility. The claims

against the LEA alleged that the LEA discriminated against the student by referring him

to the state school which suffered from systemic failures in implementing IEP‟s and a

failure to monitor teachers and aides. Id. at 1012. While the LEA argued that it was a

FAPE decision relating to the student‟s IEP, the court looked to the pleadings which

alleged an unjust exclusion from the district without mentioning any deficiencies in the

development of the IEP. Id. The court did not require exhaustion of that issue against

the LEA at the due process level because they were not IEP-related. Id. Similar

allegations were made against the state school in four other cases, however only one is

currently pending before the district court. B.A. v. Mo. State Bd. Of Educ., 4:09-cv-1269

(Mo.E.D. 2009).

       In a particularly egregious case, the Ninth Circuit found that a student with an IEP

and receiving special education services was not required to exhaust under IDEA before

bringing claims in federal court. Witte v. Clark County Sch. Dist., 197 F.3d 1271 (9th

Cir. 1999). The case of Witte involved a student diagnosed with Tourette‟s Syndrome,

asthma, attention deficit hyerpactivty disorder and emotional problems who was force fed

oatmeal, a food to which he is allergic, exhibited strangulation marks on his neck, and

was subjected repeatedly to “take downs,” a procedure by which a teacher would force

the student onto a mat on the ground and restrain the student by crossing his arms and

legs behind his back. Id. at 1273. The student had an IEP and was receiving special

education services, but the parents bypassed due process and filed directly in the federal

court seeking compensatory and punitive damages. Id. at 1274. At the time the parents

filed, the parents, with the school‟s approval, had transferred the student to a school

where he experienced zero instances of abuse. Id. at 1273. The court ruled that the

parents did not need to exhaust because all of the educational issues had already been

resolved and the parents were seeking retrospective relief only. Id. at 1275-1276.5

        In another Eighth Circuit, M.P. v. Independent School District No. 721, 439 F.3d

865 (8th Cir. 2006), a school nurse improperly disclosed a student‟s diagnosis of

schizophrenia, prompting students to verbally and physically harass him. The parents

requested compensatory damages of $500,000. M.P. v. Indep. Sch. Dist. No. 721, 2007

U.S. Dist LEXIS 188749 (D.Minn. 2007). The jury awarded $84,675, id. at 2, and it was

upheld by the Court of Appeals, which found that the school‟s alleged failure to protect

the student from unlawful discrimination was “wholly unrelated to the IEP process,

which involves individual identification, evaluation, educational placement, and free,

appropriate education (FAPE) decisions.” M.P. 439 F.3d at 868.

        A couple of years later, a district court in Minnesota found that a student who was

subjected to physical and verbal abuse at the hands of a teacher was required to exhaust.

C.N. v. Willmar Pub. Sch., ISD No. 347, 2008 U.S. Dist. LEXIS 63673 (D. Minn. 2008),

affirmed by C.N. v. Willmar Pub. Sch. ISD No. 347, 591 F.3d 624, 632 (8th Cir. 2010).

At the administrative level, the parents challenged the adequacy of the educational

services provided by the school. Id. at 12. The allegations of abuse were raised for the

first time in federal court and included claims that the teacher had pulled on the student‟s

hair, yelled and shouted at her, belittled her, required her to hold a physical posture at a

 Exhaustion is also described in cases brought solely under § 1983. These cases are not described in detail
here, but see Robb v. Bethel School District, 308 F.3d 1047 (9th Cir. 2002) for a case in which the Ninth
Circuit held that exhaustion was required even though the parents were only requested monetary relief; and
McCormick v. Waukegan Sch. Dist. #60 et al., 374 F.3d 564 (7th Cir. 2004) where a student was forced to
exercise in violat ion of his IEP resulting in physical in juries.

“thinking desk” for up to half an hour, and denied her access to the restroom. Id. at 3.

Additionally, the parents claimed that the school had failed to identify, evaluate and

provide the student with FAPE. The student had an IEP at the time with restraint and

seclusion provisions and the court found that the abuse allegations were intertwined with

the IEP claims and therefore the 504 claims were IEP-related and required exhaustion. Id.

at 12.

         Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. and Hoekstra v. Indep. Sch. Dist.

are often cited for the proposition that praying f or money damages alone is not sufficient

to circumvent the exhaustion requirement. In Charlie F., a student with attention deficit

disorder who suffered from panic attacks was subjected to ridicule by his peers at the

urging of his teacher. Charlie F., 98 F.3d at 989. Charlie‟s parents, satisfied with his

current educational placement and services and seeking money damages that are not

available under the IDEA, filed for damages under § 1983, Section 504 and the ADA for

the time Charlie was in the offending teacher‟s classroom. Id. The court considered the

reason for money damages and assumed that it was to provide counseling and other

services to help Charlie overcome the humiliation and emotional damage he had suffered.

Id. at 992. As such, the court held that appropriate damages, i.e. psychological services,

was available under IDEA and Charlie was required to exhaust his claims in due process

before filing in federal court. Id. at 992. The court stated “We read „relief available‟ to

mean relief for the events, condition, or consequences of which the person complains, not

necessarily relief of the kind the person prefers.” Id.

         Examples of other successful Section 504 claims not requiring exhaustion include

a blanket district wide policy that shortened the school day for autistic children,

Christopher S. v. Stanislaus County Office of Educ., 384 F.3d 1205, 1211-12 (9th Cir.

2004) and a school district's refusal to place a student with fibromyalgia in an honors

class or permit her to obtain school credit by way of home instruction, Weixel v. Bd. of

Educ., 287 F.3d 138, 148 (2nd Cir. 2002).

       In light of the range of factual scenarios and legal interpretations, the advice of

the Payne decision in the Ninth Circuit seems appropriate in light of these cases. When

in doubt, exhaust.

   4. Damages

       This section addresses the availability of monetary relief in the form of punitive

and compensatory damages. Although the language of Section 504 would seem to avail

plaintiffs the full panoply of remedies, 29 U.S.C. 794(a)(2), the courts have restricted the

boundaries of damages available to plaintiffs.

       Before 2002, plaintiffs, at least in the Eighth Circuit could seek and be granted

punitive damages for violations of Section 504 and Title II of the ADA. Gorman v.

Easley, 257 F.3d 738 (8th Cir. 2001); Moreno v. Consolidated Rail Corp. 99 F.3d 782

(6th Cir. 1996) (holding that punitive damages are not available under Section 504).

        In Gorman v. Easley, a paraplegic man was injured while being transported by

city police without necessary accommodations. In its decision in Gorman v. Easley, the

court relied heavily on the language of the Supreme Court in a Title IX case addressing

the same issue of punitive damages. Franklin v. Gwinnett County Public Schools. 503

U.S. 60 (1992). In that case, the court stated that absent “clear direction to the contrary

by Congress, the federal courts have the power to award any appropriate relief in a

cognizable cause of action brought pursuant to a federal statute.” Id. at 71-71. The

Eighth Circuit reluctantly held that the same was true for Section 504 and Title II and

upheld the jury‟s award of $1.2 million in punitive damages. Gorman v. Easley, 257 F.3d

at 749 (stating “We therefore rule, albeit not with great satisfaction, that these sections

permit an award of punitive damages.”). Citing a split in the circuits on the issue, it

expressed a desire for the Supreme Court to clarify the issue which had divided the

circuits. Id.

        The Supreme Court granted certiorari and overturned the Eighth Circuit‟s award

of punitive damages, bringing an end to punitive damages in all 504 and Title II cases.

Barnes v. Gorman, 536 U.S. 181 (2002). The Supreme Court reviewed the Eighth

Circuit‟s reliance on Franklin v. Gwinnett County Public Schools, specifically its

interpretation that the phrase “any appropriate relief” entitled the plaintiff to punitive

damages.        Then the Court went on to say that “appropriate relief” did not mean that the

courts had available to them all forms of relief but only those appropriate to private rights

of action arising out of the Spending Clause, e.g. Title IV, Section 504, Title II, and Title

IX. Barnes v. Gorman, 536 U.S. at 187-188.

         Relying on a contract theory of damages, Justice Scalia, writing for the majority,

said that when a suit arises out of a violation of Spending Clause legislation, “the wrong

done is the failure to provide what the contractual obligation requires; and that wrong is

„made good‟ when the recipient compensates the Federal Government or a third-party

beneficiary (as in this case) for the loss caused by that failure.” Id. at 189. In conclusion,

the Court held that because punitive damages are not compensatory, they cannot be

appropriate relief under Section 504.

         While Barnes v. Gorman definitively excluded punitive damages from the

available arsenal of remedies for disability discrimination under 504 and Title II, the

circuits have split on how to apply the contract analogy to other forms of damages,

namely emotional damages. Adding to the confusion is the fact that five of the six

justices in the majority wrote or joined in concurring opinio ns calling the contract

analogy into question. Two justices thought it was appropriate in this particular case, but

would not be helpful in determining the “proper measure of compensatory damages” in

other cases. Id. at 191. The other three justices thought that the contract analogy was

wholly inappropriate as the case at bar had been argued on the ground that municipalities

are not subject to punitive damages, and for that reason alone the defendants should have

prevailed. Id. at 191-192.

         The impact of Barnes on other forms of damages was not immediately clear

following the Supreme Court‟s decision due to the vague rationale adopted by the

Supreme Court. Following the contract analogy, compensatory damages seemed to be

the only sure thing in the way of monetary relief. The Eleventh Circuit was the first to

test the boundaries of the Barnes decision when it grappled with whether to award

emotional damages in Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir.


         In Sheely, the plaintiff was legally blind and aided by the use of a seeing eye dog.

She brought the dog with her to accompany her minor son to an appointment for an MRI

and was denied entry to the facility. Id. at 1177-79. She prayed for emotional damages

and the district court ruled that emotional damages were not available. Id. at 1182. The

Eleventh Circuit overturned the district court decision, holding that emotional damages

“are plainly a form of compensatory damages designed to „make good the wrong done.”

Id. at 1203. Emotional damages are a predictable and foreseeable result of a breach of a

contract not to discriminate. Id. at 1198. Furthermore, the plaintiff in Sheely claimed

only emotional damage and the court was persuaded by the fact that no other type of

remedy could right this type of wrong. 6

         In the case of Sheely, the breach was intentional, but the Eleventh Circuit has held

that plaintiffs are entitled to damages even when a breach is unintentional; only the

damages are limited to prospective relief. Id. at 1191. This distinction has implications

in the discussion of when a plaintiff must exhaust administrative remedies, which is

discussed below.

         Similarly, a district court in Pennsylvania found that the Barnes ruling was

limited to punitive damages, and that with a showing of intentional discrimination, a

plaintiff could compensatory damages. Kaitlin C. v. Cheltenham Township Sch. Dist.¸

2010 U.S. Dist. Lexis 20699 (E.D. Penn. 2010) citing Guardians Ass’n v. Civil Serv.

Comm’n of the City of N.Y., 463 U.S. 582 (1983) (requiring that proof of discriminatory

intent is required to establish a claim for compensatory damages under Title VI and that

only injunctive non-compensatory damages are available for unintentional acts of


         Without addressing intent, another district court in Pennsylvania has found that

discrimination in breach of a contract is the type of breach in which one could anticipate

emotional damages, similarly to the Eleventh Circuit in Sheely. Dawn L. v. Greater

Johnstown Sch. Dist., 586 F.Supp.2d 332 (W.D.Penn. 2008). In Dawn L., the court was

 The defendant had already changed its policy in order to allow qualified persons to enter the facility with
seeing eye dogs.

examining whether emotional damages were available in a Title IX case. Citing the

concurring justices in Barnes, the court acknowledged the limitations of the contract

analogy. Id. at 383. It went on to say that “It is „fairly obvious‟ that civil rights violations

can engender emotional distress.” Id. at 383 citing Sheely, 505 F.3d at 1198-99.

        Not all courts have followed the Eleventh Circuit in awarding emotional damages.

For example, the District Court of New Mexico has adopted the contract analogy

wholeheartedly and in a 2008 case began its analysis of whether emotional damages are

available under 504 by stating that “There can be little dispute that damages for

emotional distress are not generally available in a contract case.” Bell v. Board of

Education of the Albuquerque Public Schools, 652 F. Supp. 2d 1211, 1212 (D.N.M.

2008). It allowed for the possibility of an exception in cases in which the breach results

in physical harm or the breach is of the kind that is likely to result in “serious emotional

disturbance.” Id. at 1213. The delivery of educational services, however, does not allow

for emotional damages, according to the court in Bell. Id. at 1216-1217.

        District courts in Missouri have not yet answered the question whether emotional

damages are available under Section 504. Arlt v. Mo. Dep’t of Corrections, 229 F.

Supp.2d 938 (E.D.Mo. 2002). Arlt is a case involving a prisoner who brought suit for the

prison‟s failure to accommodate him in his taking of the high school GED exam. He

brought claims under 504 and Title II of the ADA. The case was decided on other

grounds and the court did not reach the question whether emotional damages for mental

anguish were available under 504 (holding that under the Prison Litigation Reform Act,

the plaintiff had to show physical injury before seeking emotional damages).

        In Illinois, a student sought emotional damages under a state tort claim for

intentional inflection of emotional distress when a student was forced to exercise in P.E.

class in contradiction of his IEP. The court upheld both claims for emotional damages

and remanded them back to the district court for a decision on whether the defendants

acted willfully and wantonly in ignoring the medical advice of the student‟s doctors.

McCormick v. Waukegan Sch. Dist. #60, 374 F.3d 564 (7th Cir. 2004).


        In summary, the IDEA is not the sole source of remedies for students who suffer

discrimination based on their disabilities. A plaintiff who can establish a prima facie

case of discrimination and the requisite intent (bad faith or gross misjudgment in the

Eighth Circuit) may have a successful claim under Section 504 or the ADA.

Additionally, a plaintiff has to ensure that he or she has exhausted all administrative

remedies before bringing a claim in federal court. Due to the overlapping nature of the

IEP process and many instances of discrimination, or even abuse, exhaustion is almost

always recommended. And finally, the a plaintiff‟s claims for damages are generally

limited to those a court would award in contract cases, taking into consideration that the

foreseeable damages from a breach of a contract not to discriminate may exceed the

scope of traditional contract remedies.

Thomas E. Kennedy, III and Heather B. Navarro
August 2, 2010


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