DOE EX REL. DOE v. TODD COUNTY SCHOOL DIST. No. 09-3221.
625 F.3d 459 (2010)
Jonathan DOE, a minor, by Dorothy DOE, his legal guardian and next friend, Plaintiff-Appellee, v. TODD COUNTY SCHOOL DISTRICT, et al., Defendants-Appellants. South Dakota Advocacy Services, Inc., Amicus Curiae.
United States Court of Appeals, Eighth Circuit.
Filed: November 12, 2010.
Naomi R. Cromwell, argued, Robert B. Anderson, on the brief, Pierre, SD, for appellant.
Dana L. Hanna, argued, Rapid City, SD, for appellee.
Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
LOKEN, Circuit Judge.
In September 2005, Jonathan Doe (a pseudonym to protect his privacy) was a public school student with a reading disability receiving special education and related
On September 8, 2005, Doe fought with another TCHS student on school grounds. The next day, Doe brought a pocket knife to school. When Assistant Principal Michael Berg learned of the fight and called Doe to his office, Doe handed the knife to another student, who promptly turned it in. Questioned by Berg, Doe admitted being in a fight and bringing a knife to school, but said the situation was "fucking bull shit" and walked out when Berg mentioned the possibility of gang activity. After he was returned to Berg's office, Doe grew agitated, spoke loudly enough to be heard outside the office, beat on the walls and windows, and threatened to kill Berg and another teacher. After Doe calmed down, Berg read Doe the school's discipline protocol on short-term and long-term suspensions and called Doe's grandfather and Debera Lucas, the District's Director of Special Education. When they arrived, Berg told Doe and his grandfather that Doe was suspended for fighting and bringing a knife to school. On September 12, Berg wrote Doe's grandparents confirming that Doe was suspended from TCHS from September 8 "until a hearing with the School Board can be arranged."
Under the IDEA, a child with a disability, such as Doe, is entitled to a "free appropriate public education" tailored to his unique needs by means of an IEP. 20 U.S.C. § 1414(d)(1)(A); Hendrick Hudson Central Sch. Dist. Bd. of Ed. v. Rowley,
Recognizing that Doe's suspension might trigger IEP team obligations, Special Education Director Lucas convened an IEP team meeting on September 13. Doe and his grandmother, Dorothy Doe, the parent member of the team, attended. The IEP team first determined that Doe's misconduct was not a manifestation of his
On September 21, Dorothy Doe wrote Berg advising that Doe had now been suspended ten days. She requested a hearing before the school board unless Doe was returned to TCHS the next day. Berg responded on September 29 that the suspension ended on September 13 when the IEP team changed Doe's placement to the After School Program. Therefore, "there is no long-term suspension presently in effect which could result in an appeal to... and hearing before the school board."
On October 11, Dorothy Doe wrote Lucas complaining that two hours of daily instruction at the After School Program denied Doe the free appropriate public education afforded by the IDEA and requesting that his placement be changed. The IEP team met the next day and agreed to complete behavioral rating scales before beginning Doe's transition back to TCHS. In response to an October 21 letter from Doe's attorney, Lucas wrote Dorothy Doe on October 27, reiterating that Doe was not suspended, that the After School Program "was selected as an appropriate interim alternative educational setting," that Dorothy Doe had agreed to the change-of-placement, and that Doe would be transitioned back to TCHS on or about October 31.
Doe returned to TCHS on November 3, 2005. He was suspended for ten days for fighting in late November. The Does removed him from TCHS in early 2006 and filed this § 1983 lawsuit in June 2007 without seeking relief under the IDEA.
In Goss v. Lopez,
Here, the District argues that Doe was suspended four days, from September 8 to 13, 2005. If correct, Doe's § 1983 due process claim must fail because a four-day suspension triggers only the limited due process requirements set forth in Goss, 419 U.S.C. at 581. Principal Berg met those requirements by explaining the charges to Doe and giving Doe an opportunity to respond, speaking with Doe's grandfather about the charges, and writing the September 12 letter to Doe's grandparents. See Jennings v. Wentzville R-IV Sch. Dist.,
Doe argues, on the other hand, that his suspension continued until he returned to TCHS on November 3, making it a long-term suspension entitling him to more procedural due process, including formal notice and a hearing before the school board. The district court agreed, concluding that the reduced quality and quantity of classroom instruction Doe received at the After School Program resulted in a "constructive" suspension that lasted thirty-eight days. Relying on its prior opinion in Waln v. Todd County Sch. Dist.,
In our view, the district court erred in focusing its due process analysis on the number of days Doe was removed from regular classes at TCHS. Without question, Goss makes clear that Doe's removal from his public school for misconduct entitled him to Due Process Clause protection, in addition to procedural protections provided by the IDEA. See Digre v. Roseville Schs. Indep. Dist. No. 623,
After the IEP team determined on September 13 that Doe's misconduct was not a manifestation of his disability, the IDEA gave the team two significantly different procedural alternatives for dealing with the situation. First, the team could have let school officials apply generally applicable disciplinary procedures and suspend Doe "in the same manner and for the same duration in which the procedures would be applied to children without disabilities...." 20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. § 300.530(c). This would result in a purely disciplinary proceeding to which the due process protections of Goss and the South Dakota Administrative Rules would apply, as in Waln, 388 F.Supp.2d at 1000, a case that did not involve a student with an IEP. If school officials unilaterally (i.e., without the parent's consent) remove a disabled child for more than ten days, the child must "continue to receive educational services ... so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." 20 U.S.C. § 1415(k)(1)(D)(i); 34 C.F.R. §§ 300.530(d), 300.536(a). The IDEA expressly authorizes school officials to unilaterally remove a student "to an interim alternative educational setting for
Alternatively, the IEP team could act more affirmatively, as Doe's did in this case, by changing the disabled child's placement from the school which suspended him to an alternative educational setting. However, under 20 U.S.C. § 1415(j), the IDEA's "stay-put" provision—an important procedural safeguard—the IEP team could not take this action without the parent's consent. See M.M. v. Special Sch. Dist. No. 1,
Once the IEP team changed Doe's placement with Dorothy Doe's consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again. See 34 C.F.R. §§ 300.530(d)(5). Given the IDEA's stay-put mandate, even if the District had held a Goss hearing at which Doe persuaded the school board that a long-term suspension was not warranted, the board could not have ordered Doe's reinstatement at TCHS. M.M., 512 F.3d at 464. "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333, 96 S.Ct. 893 (emphases added; quotation omitted); see Mackey v. Montrym,
This result does not mean the Does were without an effective procedural remedy. As the Supreme Court explained in Honig, 484 U.S. at 311-12, 108 S.Ct. 592, the IDEA:
In this case, although Dorothy Doe consented to the change of placement at the September 13 IEP team meeting, on further reflection she decided her consent was improperly obtained, and she further concluded that Doe's limited instruction at the After School Program failed to provide him a free appropriate public education. Both claims could have been raised in an IDEA complaint seeking Doe's immediate return to TCHS and compensatory education benefits for the inadequacies of his alternative placement. See 20 U.S.C. § 1415(b), (f)-(i). The IDEA expressly provides for expedited administrative hearings in this situation, see 20 U.S.C. § 1415(k)(4)(B), and the statute's stay-put provision "in no way purports to limit or pre-empt the [remedial] authority conferred on courts by [20 U.S.C. § 1415(i)(2)(C)(iii)]." Honig, 484 U.S. at 327, 108 S.Ct. 592. Even when the parent initially agrees to a change of placement, an administrative hearing officer or reviewing court may later conclude that the consent was not validly obtained, or that the IEP team failed to provide services under 34 C.F.R. § 300.530(d) that afforded the child a free appropriate public education in the alternative educational setting. See M.M., 512 F.3d at 464.
State hearing officers, and courts reviewing their decisions under the IDEA, have broad discretion to order educational relief, including compensatory education benefits. See, e.g., Florence County Sch. Dist. Four v. Carter,
We have little doubt that, at the IEP team meeting on September 13, 2005, Dorothy Doe did not believe she could veto decisions being made by other members of the team. But it is undisputed that she signed a document agreeing to a change of Jonathan's placement that gave the IEP team, rather than the District's school board, control of the situation. Some days later, unhappy with the results of that decision and represented by attorneys with experience in this kind of dispute, Dorothy demanded the wrong procedural remedy, a hearing before the school board, and then commenced this § 1983 action. This was not merely a failure to exhaust IDEA procedural remedies, which the IDEA requires before a § 1983 action may be filed. See 20 U.S.C. § 1415(l). Doe's procedural due process complaint was not primarily about being disciplined for misconduct. It was about the effect of the disciplinary action on his right to a free appropriate public education after he was excluded from regular mainstream classes and had his weekly classroom instruction substantially reduced by his IEP team. Because the school board lacked authority to overrule educational decisions of the IEP team, however, the District's refusal to convene a school board hearing did not violate Jonathan Doe's federal constitutional right to procedural due process. Rather, the IEP team's educational decision must be reviewed
The judgment of the district court is reversed.
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