A.L. v. Jackson County School Board , 635 F. App'x 774 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15368
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-00085-RS-GRJ
A. L., et al.,
Plaintiffs - Appellants,
versus
JACKSON COUNTY SCHOOL BOARD,
Defendant - Appellee,
LEE MILLER, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 30, 2015)
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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P.L.B. is the mother of A.L., a student who received special-education
services from the Jackson County School Board (the “Board”). P.L.B. and A.L.
appeal the district court’s final judgment in favor of the Board denying their claims
under the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
(the “IDEA”), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section
504”), the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (the
“ADA”), and the Fourth Amendment of the United States Constitution.
We affirm the district court’s entry of summary judgment in favor of the
Board on Appellants’ IDEA claims and their Section 504 and ADA claims. We
reverse and remand for further proceedings on the Fourth Amendment claim.
I.
The IDEA was enacted, in part, “to ensure that all children with disabilities
have available to them . . . a free appropriate public education that emphasizes
special education and related services designed to meet their unique needs and
prepare them for further education, employment and independent living.” 20
U.S.C. § 1400(d). Under the IDEA, state and local educational agencies may
receive federal assistance if they have in place policies and procedures designed to
ensure that they provide a free appropriate public education (“FAPE”) to students
with disabilities. CP v. Leon Cty. Sch. Bd. Fla., 483 F.3d 1151, 1152 (11th Cir.
2007); 20 U.S.C. § 1412. Satisfying the IDEA's duty to provide a FAPE requires
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the state or local educational agency to offer “‘personalized instruction with
sufficient support services to permit the child to benefit educationally from that
instruction.’” CP, 483 F.3d at 1152 (quoting Bd. of Educ. of Hendrick Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 3049 (1982)).
To carry out the objectives of the IDEA, procedural safeguards have been
put into place to allow for parental involvement in matters concerning their child’s
education. These safeguards also allow parents to obtain administrative and
judicial review of decisions they believe to be unsatisfactory or inappropriate. See
N.B. by D.G. v. Alachua Cty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996).
Among other things, the IDEA requires schools and parents together to
develop an individualized education program (“IEP”) that addresses the child's
unique needs. See RL v. Miami–Dade Cty. Sch. Bd., 757 F.3d 1173, 1177 (11th
Cir. 2014). An IEP, in turn, is a
written statement that describes the child's academic
performance and how the child's disability affects her
education, states measurable educational goals and
special needs of the child, establishes how the child's
progress will be measured and reported, and states the
services available, based on peer-reviewed research, to
enable the child to attain the goals, advance
educationally, and participate with disabled and
nondisabled children.
K.A. ex rel. F.A. v. Fulton Cty. Sch. Dist., 741 F.3d 1195, 1201 (11th Cir. 2013)
(citing 20 U.S.C. § 1414(d)(1)(A)(i)). The IEP is meant to be the “culmination of a
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collaborative process between parents, teachers, and school administrators,
outlining the student's disability and his educational needs, with the goal of
providing the student with a [FAPE].” RL, 757 F.3d at 1177. (citations omitted).
While the IEP should be “reasonably calculated to enable a child to receive
educational benefits,” RL, 757 F.3d at 1177 (citations omitted), the IDEA does not
require an IEP to maximize the potential of each child with a disability comparable
to the opportunity provided to children without a disability. Rowley, 458 U.S. at
200, 192 S. Ct at 3048. Nor does the IDEA require an IEP to meet “any particular
substantive educational standard.” Id. Instead, the student with a disability must
receive “personalized instruction with sufficient support services to permit the
child to benefit educationally.” Id. The IDEA requires that the IEP team reviews
the IEP at least annually to determine whether the goals of the child are being met.
20 U.S.C. § 1414(d)(4)(A).
If the child's parents are dissatisfied with the IEP (or any other aspect of
their child’s educational program) and believe that it does not comply with the
IDEA's requirements, they may file a complaint with the state administrative
agency. RL, 757 F.3d at 1177. During this process, the parents receive a due-
process hearing before an administrative law judge or hearing officer to resolve the
dispute. Id.; 20 U.S.C. § 1415(f)(1)(A). If either party disagrees with the outcome
of the due-process hearing, that party may appeal the decision by filing suit in state
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court or in the United States District Court. RL, 757 F.3d at 1178; 20 U.S.C. §
1415(i)(2)(A).
II.
A.L. suffers from a traumatic brain injury and is an individual with a
disability who was entitled to receive special-education services. Beginning in
2001, the Board identified A.L. as a child with a disability and began providing
various services to A.L. in order to meet its duties under the IDEA. Over the
years, P.L.B. claimed, among other things, that the Board violated the IDEA by (1)
failing to include her in a November 17, 2010, IEP development meeting; (2)
failing to meet her demand to provide A.L. with an independent educational
evaluation; and (3) failing to provide A.L. with special-education services during
the summer months. P.L.B. also complained that the Board discriminated against
A.L. in various ways based upon his disability and also retaliated against her son
when she complained about instances of discrimination.
On March 15, 2011, P.L.B. requested a due-process hearing with the Florida
Division of Administrative Hearings (“DOAH”) so that her claims could be heard.
In that filing, P.L.B. attempted to raise claims for the previous five years. In
response, the Board filed a motion to strike what it perceived to be time-barred
claims—instances that fell outside the period two years preceding the filing of the
claims. The administrative law judge (“ALJ”) handling the case partially granted
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the motion to strike, limiting the claims to those accruing between November 24,
2008, and November 24, 2010.
A six-week hearing before the ALJ commenced in September 2011 and
concluded in April 2012. By the time the hearing was completed, the ALJ had
heard from over 60 witnesses and received more than 160 exhibits. The ALJ
entered a lengthy final order on December 27, 2012, denying all of P.L.B.’s claims.
As a result of the denial of her claims, P.L.B. filed a complaint in the Northern
District of Florida on March 27, 2013. A.L. was added as a named party in 2014
after he turned eighteen.
After various amendments to their claims, Appellants filed their Third
Amended Complaint asserting claims under the IDEA, Section 504, the ADA, and
the Fourth Amendment of the Constitution. Pursuant to prior rulings by the district
court, the Third Amended Complaint advanced claims only from November 24,
2008, through November 24, 2010. Following the completion of discovery, the
Board filed a motion for summary judgment. At that time, Appellants did not file a
dispositive motion. Instead, they sought a motion for extension of time to file their
motion for summary judgment. The district court later entered an order instructing
the Board to amend its motion for summary judgment and extending the time for
Appellants to file their dispositive motion. This deadline was subsequently
extended until August 26, 2014.
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On August 26, 2014, the Board filed its Amended Motion for Summary
Judgment, seeking judgment in its favor on all of the counts in the Third Amended
Complaint. Appellants filed their partial motion for summary judgment on August
28, 2014, but they asked for additional time to amend it.
After granting several of Appellants’ requests for additional time to respond
to the Board’s motion and to amend their own motion—some that Appellants did
not seek until after they had already missed filing deadlines, the court finally
warned Appellants that it would provide no further extensions, and everything
must be filed by October 2, 2014. Despite this, Appellants did not file an amended
motion for partial summary judgment 1 until October 6, 2014, and they yet again
sought an extension of time until October 31, 2014, to file the remainder of their
motion for summary judgment. As for their response to the Board’s summary-
judgment motion, Appellants never filed a response to that. Rather, they filed a
motion for extension of time. The district court denied the request, stating that
Appellants’ “seemingly unending requests for extensions is contrary to the policy
of resolving disputes in a timely manner.”
On October 30, 2014, the district court granted summary judgment to the
Board on all counts. Although Appellants had not filed a response to the Board’s
Amended Motion for Summary Judgment, the district court explained, “To the
1
Appellants sought summary judgment on their IDEA and Fourth Amendment claims but
not on their Section 504 and ADA claims.
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extent that it can be so construed, I consider [Appellants’] own motion for partial
summary judgment to be a response.” The district court addressed the claims
advanced by Appellants and denied each in turn.
III.
District court decisions interpreting the IDEA are subject to de novo review.
Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003).
We also review de novo an appeal from an order granting summary
judgment in non-IDEA cases and apply the same legal standards that control the
district court. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th Cir.
2013); Babicz v. Sch. Bd. of Boward Cty., 135 F.3d 1420, 1421 (11th Cir. 1998).
Rule 56(a), Fed. R. Civ. P., provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” We view all
evidence most favorably towards the nonmoving party, and all justifiable
inferences are drawn in the nonmoving party's favor. Scantland, 721 F.3d at 1310.
IV.
A. The District Court Did Not Err in Granting Summary Judgment in Favor
of the School Board With Respect to Appellants’ IDEA Claims
As noted previously, Appellants contend that the Board violated provisions
of the IDEA by (1) failing to include P.L.B. in a November 17, 2010, IEP
development meeting; (2) failing to meet P.L.B.’s demand to provide A.L. with an
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independent educational evaluation; and (3) failing to provide A.L. with services
during the summer months. We disagree and address each argument in turn.
1. November 17, 2010, IEP Meeting
Parent participation in the IEP process is important to effectuating the
purpose of the IDEA. See 20 U.S.C. § 1414(d)(1)(B)(i) (requiring inclusion of
parents in the IEP team). The IDEA itself and its implementing regulations
memorialize the importance of this participation. Indeed, 34 C.F.R. §300.322,
entitled “Parent Participation,” generally provides that a school board must take
steps to ensure that one or both parents of a child with a disability are present at
each IEP meeting or are afforded the opportunity to participate. See 34 C.F.R. §
300.322(a). Moreover, the Supreme Court has emphasized that the IDEA’s
structure relies upon parent participation in developing successful IEPs. Rowley,
458 U.S. at 206, 102 S. Ct. 3034 (“Congress placed every bit as much emphasis
upon compliance with procedures giving parents and guardians a large measure of
participation at every stage of the administrative process, as it did upon the
measurement of the resulting IEP against a substantive standard.”).
Although parent participation in the development of IEPs is important, the
IDEA’s implementing regulations provide for instances in which a school board
may conduct an IEP meeting in the absence of the parent. Specifically, 34 C.F.R.
§300.322(d) states,
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(d) Conducting an IEP Team meeting without a parent in
attendance. A meeting may be conducted without a
parent in attendance if the public agency is unable to
convince the parents that they should attend. In this case,
the public agency must keep a record of its attempts to
arrange a mutually agreed on time and place, such as—
(1) Detailed records of telephone calls made or
attempted and the results of those calls;
(2) Copies of correspondence sent to the parents
and any responses received; and
(3) Detailed records of visits made to the
parent's home or place of employment and the
results of those visits.
34 C.F.R. § 300.322(d). So if a parent refuses to attend an IEP meeting or takes
actions that are equivalent to refusing to attend an IEP meeting, the school board
may hold the meeting without the parent in order to develop the child’s IEP. Id.Here, the Board conducted an IEP development meeting on November 17,
2010, without P.L.B. present. P.L.B. claims that the completion of this meeting
without her violated the IDEA and resulted in a denial of a FAPE to A.L. We
disagree.
Although P.L.B. did not explicitly refuse to attend the November 17, 2010,
IEP meeting, her actions were tantamount to refusal. The Board attempted to
schedule the IEP meeting over several months, with notification to P.L.B. so that
she could participate in the process. The attempts to schedule a meeting for the
development of A.L.’s IEP began in early August 2010 and continued through
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mid-November. During this period, despite the Board’s efforts to accommodate
P.L.B.’s schedule and demands, P.L.B. either missed or refused to consent to
attending four separately scheduled meetings, including the last one, scheduled for
November 17, 2010.
On that morning, P.L.B. sent the Board an e-mail indicating that she could
not attend the meeting because she was sick. She once again asked the School
Board to reschedule the IEP meeting. Although the principal responded that the
IEP meeting would proceed as planned due to A.L’s “urgent academic and
emotional needs,” the Board offered to allow P.L.B. to attend the IEP meeting by
telephone, as she had done in the past. P.L.B. refused.
The Board faced the dilemma of allowing the IEP meeting to be continued
indefinitely or proceeding with the meeting without parent participation. While
parent participation in developing a child’s IEP is certainly an important goal of
the IDEA, in this case, A.L.’s specific educational goals stagnated because of
P.L.B.’s seemingly endless requests for continuances of the meetings scheduled by
school personnel. Under these circumstances, the Board did not violate the IDEA
when it proceeded with the November 17, 2010, IEP meeting in P.L.B.’s absence.
And the district court did not err when it concluded that the Board met its
obligations under the IDEA with respect to the November 17, 2010, IEP meeting.
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We also find inapposite Appellants’ reliance on Doug C. v. Hawaii Dep't of
Educ., 720 F.3d 1038, 1044 (9th Cir. 2013). First, it is not binding on us. Second,
even if it were, the facts of Doug C. are materially distinguishable from those of
the instant case.
For one thing, the IEP meeting that took place in Doug C. was completed in
order to meet the IDEA’s requirement that an IEP be completed annually. Unlike
here, nothing in Doug C. suggests that the student was struggling in school or that
other circumstances warranted the immediate development of an IEP.
In addition, the IEP meeting in Doug C. was rescheduled only twice over a
month’s time. And more significantly, the reason that the department of education
refused to reschedule in Doug C. was out of concern for disrupting the other IEP
team members’ schedules. Here, though, it was P.L.B. who caused all of the
delays and rescheduling. Moreover, the Board refused to rescheduled again out of
concern for A.L., not because rescheduling was inconvenient for team members.
The IEP meeting in Doug C. was also conducted outside the presence of the
parent and the only IEP team member who was on the staff of the student’s school.
Here, nobody was absent at the November 17, 2010, meeting except for P.L.B.,
who had previously refused to attend scheduled IEP meetings. And, unlike the
situation in Doug C., P.L.B. provided the School Board with a parent-proposed IEP
(“PPIEP”) before the meeting, which the IEP team considered when it went
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forward with the November 17, 2010, IEP meeting. In Doug C., the department of
education changed the student’s school placement without his father’s input. Here,
no such drastic change resulted from the IEP meeting.
Finally, while the Ninth Circuit found the department of education’s actions
in Doug C. to be unreasonable, it nonetheless recognized that circumstances could
arise in which “accommodating a parent’s schedule would do more harm to the
student’s interest than proceeding without the parent’s presence at the IEP.” Id.Here, the Board made a reasonable determination about the course of action
least likely to result in denial of a FAPE. We therefore affirm the district court’s
grant of summary judgment in favor of the Board with respect to this claim.
2. The Board Did Not Violate the IDEA With Respect to P.L.B.’s
Request for an Independent Educational Evaluation
The IDEA provides parents with the right to obtain an independent
educational evaluation (“IEE”) at the expense of the local education agency.
See 34 C.F.R. §300.502(a). An IEE is an evaluation conducted by a qualified
examiner who is not employed by the public agency. Id. The regulation provides,
in relevant part, as follows:
Each public agency must provide to parents, upon request
for an independent educational evaluation, information
about where an independent educational evaluation may
be obtained, and the agency criteria applicable for
independent educational evaluations as set forth in
paragraph (e) of this section.
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***
(e) If an independent educational evaluation is at public
expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the
criteria that the public agency uses when it initiates an
evaluation, to the extent those criteria are consistent with
the parent's right to an independent educational
evaluation.
34 C.F.R. § 300.502 (emphasis added). When presented with a request for an IEE,
an agency must either ensure that an IEE is provided at public expense or file a
due-process complaint to request a hearing to show that its own evaluation is
appropriate. See 34 C.F.R. § 300.502(b)(2). Here, the Board took reasonable steps
to ensure that an IEE took place, but P.L.B.’s own actions caused the IEE process
to fail. Accordingly, we agree with the district court’s finding that the School
Board did not violate the IDEA with respect to the provision of an IEE.
In the spring of 2009, P.L.B. requested an IEE at the Board’s expense.
When P.L.B. finally chose an evaluator, his fee was $1,500 more than the
approved fee. Nonetheless, the Board agreed to cover the fee. Then P.L.B.
insisted that the evaluation be conducted by a different evaluator at the Morris
Center, a facility 200 miles away. The Board declined that demand, noting the
high expense and the availability of closer, appropriate facilities. Although P.L.B.
relented and agreed to have the IEE performed by an evaluator located closer, she
did not have the evaluation done. Instead, more than two years later, during the
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summer of 2012, P.L.B. took her son to Colorado to be evaluated by a doctor from
the Morris Center who had since moved.2
Under these circumstances, the Board did not deny Appellants an IEE.
Rather, we concur with the well-reasoned decision of the ALJ, as adopted by the
district court, that P.L.B.’s actions sabotaged the IEE process. See Loren F. v.
Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1314 n.5 (11th Cir. 2003) (findings of fact
made by the ALJ are considered prima facie correct and are entitled to deference).
Nor did the Board’s refusal to pay for an IEE at the Morris Center violate the
requirements of the IDEA. The Board complied with the requirements of 24
C.F.R. § 300.502 by making available an IEE at its own expense by a qualified
provider within the relevant geographic area and within monetary limits that were
more than reasonable.
To the extent that Appellants assert that the Board was required to either
consent to an evaluation at the Morris Center or file for a due-process hearing, we
disagree and find that Appellants’ citation to OSEP Letter to Parker (Feb. 20,
2004)3 does not require this result. Neither situation covered by 34 C.F.R.
2
Appellants suggested for the first time in their Motion for Partial Summary Judgment
that the evaluation conducted during the summer of 2012 was an IEE. But the evaluation was
appears to have been obtained for use in litigation based on the timing of the evaluation and the
fact that Appellants listed the doctor who conducted the evaluation as their expert witness during
the district court proceedings.
3
The United States Department of Education, Office of Special Education Programs
(“OSEP”) is the federal agency charged with the administration, interpretation, and enforcement
of the IDEA.
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300.502(b) is present here because the School Board ensured that an appropriate
IEE was provided at public expense. It was P.L.B. who refused to follow through.
The Board was not required to give in to the unreasonable demands of the parent
when a suitable local evaluator was available. The Morris Center did not meet the
reasonable criteria of the Board, and the district court did not err in finding no
violation of the IDEA.
3. The Board Did Not Fail to Provide Extended Year Services
Finally, Appellants contend that the Board failed to provide extended school
year services (“ESY”) when it assigned A.L. to the Jackson Alternative School in
the summer of 2009 because the school did not offer a “regular school
environment.” In other words, Appellants claim that the School Board violated the
IDEA by failing to place A.L. in the least restrictive environment. Appellants note
that the Jackson Alternative School, to which A.L. was assigned, had a policy of
conducting routine searches of its students because many exhibited behavioral
problems. Since A.L. did not have behavioral issues, Appellants argue that he was
not placed in the least restrictive environment.
We find that the district court correctly determined that the Board provided
sufficient extended school year services in compliance with the IDEA because it
met the requirements of 34 C.F.R. § 300.106 by assigning A.L. to an alternative
school during the summer of 2009.
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A public school must provide ESY if a child’s IEP team determines that
such services are necessary for the student to receive a FAPE. See 24 C.F.R. §
300.106. Generally speaking, services and instruction provided by an IEP must be
“to the maximum extent appropriate,” in the least restrictive environment. See 20
U.S.C. § 1412(A)(5)(a). This requirement expresses a preference for disabled
children to be educated together with their non-disabled peers. Although we have
not yet concluded that ESY placements must be made in the least restrictive
environment in the summer, we recognize that the Second Circuit recently made
this conclusion. See T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 162 (2d Cir.
2014). But the Second Circuit also found that the least-restrictive-environment
requirement is not absolute. Id.Assuming without deciding that the Board was required to place A.L. in the
least restrictive environment for ESY, we find that Appellants failed to
demonstrate that such placement was not made. As noted by the Second Circuit in
T.M., a disabled student's least restrictive environment refers to “the least
restrictive educational setting consistent with that student's needs, not the least
restrictive setting that the school district chooses to make available.” Id. (citation
omitted). In order to comply with the least-restrictive-environment requirement for
the ESY, a school district “must consider an appropriate continuum of alternative
placements, and then must offer the student the least restrictive placement from
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that continuum that is appropriate for the student’s disabilities.” Id. The IDEA
does not require a school board to create a mainstream summer program to serve
the needs of one disabled student. Id. (citing T.R. v. Kingwood Twp. Bd. of Educ.,
205 F.3d 572, 579 (3d Cir. 2000) and Reusch v. Fountain, 872 F. Supp. 1421, 1438
(D. Md. 1994)). Indeed, the IDEA “does not require public school districts to
create any new ESY programs that they do not currently operate. It is entirely up
to each state and each school district to decide how it will fulfill the IDEA's [least
restrictive environment] requirement.” Id.Appellants provide no concrete reasons why the ESY program fell outside
statutory compliance except for the fact that A.L. was uncomfortable with the
routine searches that were conducted. While we can appreciate A.L.’s discomfort
with routine searches, this allegation, without more, was not enough for the district
court to find that the Alternative School was not the least restrictive environment
for A.L. during the summer months. The Alternative School was the only location
providing ESY services in the summer of 2009, and the Board was not required to
create a new ESY program specifically for A.L. Accordingly, the district court
properly gave deference to the findings of the ALJ and concluded that the Board
met the requirements of 34 C.F.R. § 300.106 by assigning A.L. to the Alternative
School. The order of the district court is therefore affirmed in this regard.
B. Appellants’ Non-IDEA Claims
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1. Fourth Amendment Claim
Appellants also contend that A.L.’s Fourth Amendment rights were violated
when he attended the Alternative School during the summers of 2008 and 2009.
They claim that the searches that A.L. was required to endure each day to receive
ESY services were not justified because the school had no reason to suspect A.L.
of any rule violation and because he was not a security risk.
Although we agree that the district court correctly denied Appellants’
motion for summary judgment with respect to the Fourth Amendment claim, we
cannot agree, on this record, that summary judgment was correctly granted in favor
of the Board.
In seeking summary judgment on the Fourth Amendment claim, the Board
noted that Appellants’ sole allegation with respect to this claim was that A.L. “was
assigned by [the Board] to the Jackson County District’s Alternative School, where
[the Board] physically search[ed] his body and possessions daily as a condition of
receiving extended year services for the summer 2009, in violation of the Fourth
Amendment.” The Board argued that, beyond this conclusory allegation,
Appellants had failed to present any evidence establishing that A.L. or his
possessions were physically searched at all. It further contended that Appellants
had failed to introduce any conduct that suggested that an analysis under the Fourth
Amendment was necessary.
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In granting the Board’s motion for summary judgment on the Fourth
Amendment claim, the district court concluded that Appellants had “not produced
any additional evidence relating to the searches beyond the description in the
ALJ’s factfindings.” In the district court’s view, Appellants had offered “no
evidence whatsoever” beyond the vague descriptions in the administrative record,
which did not even consider Fourth Amendment issues. The district court
determined, based on this limited evidence, that no reasonable jury could conclude
that these searches violated the Fourth Amendment.
While we acknowledge that Appellants failed to respond timely to the
Board’s motion for summary judgment, the district court stated that it would
consider Appellants’ own motion for partial summary judgment to be a response.
The district court is correct that the motion alleged in general terms that the
searches were “routine and were administered to every person” entering the school.
But following this generic description, Appellants also cited two portions of the
administrative transcript that provide further detail regarding the searches. For
instance, Ashley McDonald, who was A.L.’s teacher while he attended the
Alternative School in 2009, testified that she was required to search A.L. by
patting him down from his knees to his feet. McDonald further testified that she
checked A.L.’s pockets and placed her hands on his sides because she searched all
of the students as they entered the classroom. Finally, McDonald agreed that she
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did not have any information that suggested that A.L. was a safety risk but said that
she conducted the search because he “was entering my classroom,” and “[w]e do it
for all students, for the safety of the students.”
Based on this testimony, we disagree with the School Board’s contention—
as set forth in its motion for summary judgment—that Appellants failed to present
any evidence establishing that A.L. was physically searched when he received ESY
services in 2009. The fact that A.L. was searched when he attended the Alternative
School, however, does not require a finding that the Board violated A.L.’s Fourth
Amendment rights. Rather, the Supreme Court has established a two-part test to
determine whether a search conducted on school grounds violates a student’s
Fourth Amendment rights. See New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct.
733 (1985).
Determining the reasonableness of the search involves the following inquiry:
First, the court must decide “whether the . . . action was justified at its inception.”
Id. (citation omitted). Second, the court must determine whether the search, as
conducted, “was reasonably related in scope to the circumstances which justified
the interference in the first place.” Id. (citation omitted). Typically, a search of a
student by a teacher will be justified at its inception when reasonable grounds exist
to suspect that the search will turn up evidence that the student has violated or is
violating either the rules of the school or the law. Id. The search will be
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permissible in its scope when “the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of the age and sex of
the student and the nature of the infraction.” Id.Here, as the party seeking summary judgment on Appellants’ Fourth
Amendment claim, the Board was required to show either that A.L. was not
searched at all or that he was searched but the search was justified at its inception
and reasonable such that no reasonable jury could find that the searches were
unconstitutional. In the underlying proceedings, the Board asserted only that A.L.
had not presented any evidence of a search. It did not discuss whether the School
Board met the two-pronged analysis of T.L.O.
We recognize that a finding of individualized suspicion may not be
necessary when a school conducts a search, see Bd. of Educ. of Indep. Sch. Dist.
No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830, 122 S. Ct. 2559 (2002),
and here, unlike in other cases, a more invasive search—such as a strip search—
did not occur. See e.g., Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364,
129 S. Ct. 2633 (2009); Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821(1997). But justification for the Board’s search is required in the first instance
under T.L.O. See Safford, 557 U.S. at 373 n.3, 29 S. Ct. at 2641. The district court
did not engage in this analysis, so we remand to the district court for further
consideration of Appellants’ Fourth Amendment claim.
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2. Section 504 and ADA Discrimination and Retaliation Claims
a. The District Court Properly Dismissed Appellants’ Section 504
and ADA Claims that Accrued Prior to November 24, 2008
In the proceedings below, the ALJ struck Appellants’ Section 504 and ADA
claims that arose before November 24, 2008, finding no jurisdiction. The ALJ
noted that the IDEA has a two-year statute of limitations, 20 U.S.C. §
1415(b)(6)(B), and Appellants first filed their complaint on November 24, 2010.
Accordingly, the ALJ struck allegations relating to alleged violations that occurred
more than two-years prior to the filing of the complaint—November 24, 2008.
Following the ALJ’s denial of their claims, Appellants filed a complaint in
federal court. Various iterations of the complaint alleged violations of the IDEA,
Section 504, and the ADA that predated November 24, 2008. The Board filed a
motion to dismiss these claims, and the district court granted the relief sought. In
its order, the district court noted that in order to successfully bring their claims,
Appellants were first required to exhaust them in state administrative proceedings.
The district court emphasized that Appellants’ claims were stricken from the
administrative hearing because they were outside the two-year statute of
limitations. Consequently, the district court dismissed these claims from the
complaint.
Appellants contend that the district court improperly dismissed their Section
504 and ADA claims on failure-to-exhaust grounds. We lack jurisdiction to reach
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the merits of this argument. Appellants did not raise on appeal the issue that they
now seek for us to determine. Their Notice of Appeal designated only the district
court’s order granting summary judgment and the judgment itself. Nowhere in the
Notice of Appeal did Appellants indicate that they sought review of the district
court’s dismissal of the pre-November 2008 claims. Nor did the order granting
summary judgment reference any such pre-November 2008 claims.
We have determined that we lack jurisdiction to consider an appeal of an
order not specifically mentioned in the appellant’s notice of appeal. See Osterneck
v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528-29 (11th Cir. 1987); Pitney
Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374-75 (11th Cir. 1983). “We have
previously concluded that, where some portions of a judgment and some orders are
expressly made a part of the appeal, we must infer that the appellant did not intend
to appeal other unmentioned orders or judgments.” Osterneck, 825 F.2d at 1529.
Consequently, we lack jurisdiction to review the district court’s dismissal of claims
as indicated in its September 26, 2013, and November 5, 2013, orders.
b. The District Court Did Not Err When It Granted Summary
Judgment in Favor of the Board on Appellants’ Section 504 and
ADA Claims
Appellants claim that the district court erred when it granted summary
judgment in favor of the Board on their Section 504 and ADA claims. We
disagree. In granting summary judgment in favor of the Board on the Section 504
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and ADA counts, the district court emphasized that Appellants had not briefed the
issues at all or defended their claims. The district court concluded that Appellants’
claims failed for three reasons. First, it held the claims waived because Appellants
failed to brief them or respond to the Board’s motion for summary judgment.
Second, the court noted that Appellants never brought to its attention any evidence
supporting the claims. Third, the court found no factual basis for any alleged
misconduct by the Board under either Section 504 or the ADA.
On appeal, Appellants concede that they failed to identify any disputed facts
in response to the Board’s motion for summary judgment. But, they state “that
doesn’t mean that there is not sworn testimony and exhibits in the record that the
District Court was required to fully review under the IDEA, that prove that
disputed facts exist.” In short, Appellants suggest that the court was required to
comb through the record and make Appellants’ arguments for them. We disagree.
Rule 56(c)(3), Fed. R. Civ. P., makes clear that the district court need not
consider materials not cited by the parties. As the Advisory Committee notes state,
subsection (c)(3) acknowledges that district courts may decide a motion for
summary judgment “without undertaking an independent search of the record.” See
Fed. R. Civ. P. 56(c)(3) Advisory Committee’s Note on 2010 Amendment. We,
ourselves, have also acknowledged that district courts are not required to “mine”
the record looking for evidence not presented by the parties. See Chavez v. Sec’y
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Fla. Dept. of Corr., 647 F.3d 1057 (11th Cir. 2011). Indeed, we have cited with
approval the Seventh Circuit’s memorable quote that appellate judges “are not like
pigs, hunting for truffles buried in briefs.” Id. (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). “Likewise, district court judges are not required
to ferret out delectable facts buried in a massive record. . . .” Id.We agree with the district court that Appellants waived their claims by
failing to brief them, failing to respond to the Board’s motion for summary
judgment, and failing to bring to the court’s attention evidence that supported their
claims. Nor was the district court somehow obligated to do Appellants’ job for
them. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995).
To the extent that Appellants suggest that it may rely on its pleadings to
avoid judgment against it, we disagree. “[T]he onus is upon the parties to
formulate arguments; grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.” See id. Similarly, to the extent that
Appellants seek to rely on evidence produced with respect to the IDEA claims to
support their Section 504 and ADA claims, the claims fail for the same reason that
their IDEA claims could not succeed. See Weiss by Weiss v. Sch. Bd. of
Hillsborough Cty., 141 F.3d 990, 998 (Section 504 claim was essentially the same
as IDEA claim and failed for the same reasons that the IDEA claim failed). We
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therefore affirm summary judgment in favor or the School Board with respect to
Appellants’ Section 504 and ADA claims.
C. Appellants’ Miscellaneous Claims on Appeal
1. The IDEA Does Not Require the Board to Furnish Appellants With
Electronic Transcripts of All Hearings
During the course of the proceedings, Appellants filed a motion to compel
seeking to require the Board to provide a court reporter for all hearings in the
matter. On appeal, Appellants claim that the ALJ erred in denying the motion to
compel. We find that the ALJ did not err in denying the motion to compel and the
district court did not abuse its discretion in approving the ALJ’s decision.
20 U.S.C. § 1415 ensures that children with disabilities and their parents are
guaranteed procedural safeguards regarding the provision of a FAPE. See 20
U.S.C. § 1415(a). With respect to hearings, 20 U.S.C. § 1415(h) provides, in
relevant part as follows:
(h) Safeguards. Any party to a hearing conducted
pursuant to subsection (f) or (k), or an appeal conducted
pursuant to subsection (g), shall be accorded—
***
(3) the right to a written, or, at the option of the
parents, electronic verbatim record of such hearing. . . .
20 U.S.C. § 1415(h) (emphasis added). Subsection (f), to which § 1415(h) refers,
provides for an impartial due-process hearing. Significantly, all references to this
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type of due-process hearing are in the singular, not the plural. See 20 U.S.C. §
1415(f)(1)(A) (“the parents . . . shall have an opportunity for an impartial due
process hearing. . . .”) (emphasis added); 20 U.S.C. § 1415(f)(1)(B)(i) (“Prior to
the opportunity for an impartial due process hearing . . .”) (emphasis added); 20
U.S.C. § 1415(f)(1)(B)(ii) (“If the local educational agency has not resolved the
complaint to the satisfaction of the parents within 30 days of the receipt of the
complaint, the due process hearing may occur. . .”) (emphasis added). We agree
with the ALJ’s conclusion that the context of § 1415(f) refers to the due-process
hearing as being held at a single point in time. Accordingly, the Board is
responsible for providing a record of only that final hearing and not all preliminary
hearings leading up to the due-process hearing.
The relevant portions of the Florida Administrative Code support this
conclusion. Rule 6A-6.03311(9)(v) of the Florida Administrative Code, provides,
in relevant part, that a party to a due-process hearing has the right to “obtain
written, or at the option of the parents, electronic verbatim record of the hearing at
no cost to the parents.” Id. (emphasis added). Like the statutory provision, this
section requires a transcript of the final hearing, not all hearings conducted leading
up to the final due-process hearing.
Also noteworthy is the fact that Rule 6A-6.03311(9)(v) explicitly states that
an ALJ shall conduct hearings in accordance with the Uniform Rules of
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Administrative Proceedings, Chapter 28-106 F.A.C. Florida Administrative Code
Rule 28-106.214(1) states,
Responsibility for preserving the testimony at final
hearings shall be that of the agency transmitting the
petition to the Division of Administrative Hearings
pursuant to Sections 120.569 and 120.57, F.S., the
agency whose rule is being challenged, or the agency
whose action initiated the proceeding. Proceedings shall
be recorded by a certified court reporter or by recording
instruments.
Fla. Admin. Code R. 28-106.214 (emphasis added). This rule supports the ALJ’s
conclusion that the agency is responsible for preserving the testimony only at final
hearings and not all hearings. It is also consistent with the language of 20 U.S.C. §
1415(h)(3) and Florida Administrative Code Rule 6A-6.033111(9)(v)1.d.
In short, the Board was not required to provide transcripts of all hearings—
including preliminary hearings—conducted in this matter.
2. The District Court Did Not Abuse Its Discretion When It Refused to
Grant Appellants’ Final Motion for Extension of Time
Finally, we reject Appellants’ argument that the district court abused its
discretion when it denied their counsel’s final request for an extension of time to
file a response to the Board’s motion for summary judgment and to amend their
own dispositive motion. We review the court’s denial for an abuse of discretion,
and we give the district court “considerably more leeway than if we were
reviewing the decision de novo.” Young v. City of Palm Bay, Fla., 358 F.3d 859,
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863 (11th Cir. 2004) (citation omitted). On this record, we cannot say that the
district court clearly erred in denying Appellants’ final motion for extension of
time. When it denied Appellants’ request, the district court had already given
numerous extensions and warned Appellants repeatedly that it would grant no
further extensions of time.
This situation is similar to the one in Young. As we explained there,
In the courts, there is room for only so much lenity. The
district court must consider the equities not only to
plaintiff and his counsel, but also to the opposing parties
and counsel, as well as to the public, including those
persons affected by the court's increasingly crowded
docket. Counsel must take responsibility for the
obligations to which he committed and get the work done
by the deadline. . . . Deadlines are not meant to be
aspirational; counsel must not treat the goodwill of the
court as a sign that, as long as counsel tries to act, he has
carte blanche permission to perform when he desires. A
district court must be able to exercise its managerial
power to maintain control over its docket.
Young, 358 F.3d at 864 (citation omitted).
Like in Young, here, the district court granted five requests for extensions
with respect to Appellants’ filing of their own motion for summary judgment. The
district court also granted extensions of time for Appellants to file their response to
the Board’s motion for summary judgment. By the time the district court denied
Appellants’ final request for extension of time, three months had elapsed since the
original deadline to file dispositive motions.
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While we acknowledge that counsel for Appellants repeatedly expressed to
the district court the need for additional time due to an alleged mental disability,
we find that the district court was very reasonable in granting numerous
extensions. Moreover, although Appellants failed to file a timely response to the
Board’s motion for summary judgment, the district court construed Appellants’
own motion for partial summary judgment as a response. Finally, while we are
sympathetic to counsel, the Rules of Professional Conduct require a lawyer to
decline or terminate representation if the “lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent the client[.]” See R. Regulating
Fla. Bar 4-1.16(a). Here, if counsel for Appellants was unable to adequately
represent her clients, she had a duty to terminate the representation.
In light of the multiple extensions of time and warnings provided, the district
court did not abuse its discretion when it refused to grant Appellants’ final motion
for extension of time.
V.
For the reasons discussed above, we reverse and remand with respect to
Appellants’ Fourth Amendment claim. We affirm the judgment of district court
with respect to all other claims.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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