K. M. v. School Board of Lee County ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12358 October 7, 2005
_____________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00040 CV-FTM-29-DNF
K.M. and J.M., individually, and on behalf of M.M.,
a minor,
Plaintiffs-Appellees,
versus
SCHOOL BOARD OF LEE COUNTY FLORIDA,
Defendant-Appellant,
STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT
SERVICES, DIVISION OF ADMINISTRATIVE HEARINGS,
Defendant.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(October 7, 2005)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI*,
Judge.
PER CURIAM:
Defendant-Appellant School Board of Lee County (“Board”) appeals from
the award of monetary damages under 42 U.S.C. § 1983 for violation of the
Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400 -
1482.
The Board appeals the denial of its motions for judgment as a matter of law
and for a new trial. The Board argues that the district court erred in denying
judgment as a matter of law because (1) § 1983 does not permit recovery for IDEA
violations, (2) even if such recovery was permitted, Plaintiffs did not establish the
Board had a policy or custom that inflicted Plaintiffs’ injury as § 1983 liability
requires and (3) Plaintiffs failed to establish that the Board’s acts were the
proximate cause of any damages they suffered. The Board argues that the district
court erred in denying its motion for a new trial because (1) the verdict was
against the great weight of the evidence, (2) the jury ignored jury instructions,
misapprehended the issues, and was influenced by sympathy and prejudice, and
(3) the district court erred in excluding certain testimony on the Board’s conduct.
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade sitting by
designation.
2
Because the evidence overwhelmingly supports Defendant’s position that
the Board had no policy or custom of denying potentially disabled students access
to due process hearings or delaying delivery of student records to their families,
we reverse the district court’s denial of Defendant’s motion for judgment as a
matter of law and remand for further proceedings consistent with this opinion.
Because we reverse the district court’s decision, we deny Plaintiffs’ motion for
attorney’s fees.
STATEMENT OF FACTS
M.M. was a student at Three Oaks Middle School (“Three Oaks”) in the Lee
County School district. During his seventh and eighth grade years, his grades
began to decline; and he exhibited problems with his behavior and attitude.
M.M.’s mother and aunt, an Exceptional Student Education (“ESE”) teacher, met
with Three Oaks teachers and counselors to discuss M.M.’s problems in October
2001. At the meeting, the family members and school officials prepared an
Academic Improvement Plan (“Plan”), which called for after-school tutoring, a
follow-up meeting in six weeks, and “informal screening” of M.M. The Mother
testified she understood this screening would be disability testing. The Board
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presented testimony that informal screening was not an IDEA function and the two
tests given to M.M. during the six-week period were not given as part of an ESE
evaluation. The Plan did not recommend exceptional student services, and the
director of Three Oaks’s ESE program testified that they did not usually make ESE
referrals during an initial Plan meeting. M.M.’s aunt asked if procedural
safeguards applied; school officials told her they were not necessary for a Plan.
At the meeting, the Mother also requested M.M. be tested for attention
deficit disorder (“ADD”). School officials told her that M.M.’s pediatrician was
the appropriate party to perform such an evaluation. Later in October, the Mother
obtained ADD diagnostic forms from M.M.’s pediatrician, which M.M.’s teachers
filled out.
On 20 November 2001, before the follow-up meeting was scheduled to take
place, a teacher overheard M.M. making a threat against another teacher, Mrs.
Jones. M.M. said “If she gives me another bad grade I’m going to kill her.” The
teacher wrote up the incident as a threat of violence against a teacher, for which
the School Board had a zero-tolerance policy.
At M.M.’s disciplinary hearing on 29 November 2001, M.M. was suspended
for ten days and was assigned to the school district’s Alternative Learning Center
(“ALC”) for forty-five days. M.M.’s parents told school officials M.M. had been
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diagnosed with ADD.1 M.M.’s parents requested that he be given IDEA
procedural safeguards, including an administrative due process hearing before the
Division of Administrative Hearings (“DOAH”). The Mother testified that the
Three Oaks principal told them that M.M. did not qualify for IDEA procedural
safeguards because he did not have a disability; the principal testified she did not
say this.
On 7 December, the school sent a letter to M.M.’s parents advising them of
the hearing’s outcome and that the parents could obtain a review of the decision.
The same day, the parents retained a psychologist to evaluate M.M. On 10
December, the parents delivered a letter to Three Oaks requesting that M.M.’s
grades and discipline records be available for pickup the next day and that certain
forms which the new psychologist would use for evaluation be filled out by
M.M.’s teachers. The school did not comply. On 13 December, when M.M.’s
mother attempted to enroll him in ALC, she was informed she could not do so
until 8 January.
On 14 December, M.M.’s parents sent a letter to the Superintendent of the
school system, stating that the October meeting had placed the School District on
notice that M.M. had a potential disability. The letter requested that school
1
In fact, M.M.’s pediatrician had declined to diagnose M.M. with ADD.
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officials comply with the parents’ requests for forms and invoked the IDEA’s
“stay put” clause to try to keep M.M. in regular classes. See 20 U.S.C. § 1415(j).
The letter asked for an IDEA due process hearing if those requests were not
granted.2
On 18 December, the parents sent the District’s staff attorney a letter
requesting an IDEA due process hearing. The attorney’s response, regarding both
letters, was that the school district did not agree that M.M. was entitled to IDEA
procedural safeguards. The attorney offered a reminder that the parents could
request a due process hearing regarding M.M.’s assignment to ALC. On 20
December, the parents sent a letter to the District’s attorney clarifying that they
wanted an IDEA due process hearing. The parents declined the due process
hearing about the ALC assignment and began home schooling M.M. on 20
January.
The parents made two more requests for an IDEA due process hearing, on 7
and 10 January. The School District’s attorney again advised the parents that they
were not entitled to an IDEA due process hearing, and no due process hearing was
ever held. According to the director of the Board’s ESE program, this incident
2
Whether M.M.’s parents’ letters before 20 December clearly asked for a due process hearing
under IDEA was disputed. This issue does not change our analysis; so for clarity we will refer to
these requests as for IDEA due process hearings.
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was the only time in at least the previous three years that a parent requested an
IDEA due process hearing and was not given one.
Although a Florida Department of Education Rule requires schools to
provide copies of education records to parents within thirty days of a request for
the records, M.M.’s records were not produced until 30 January, more than thirty
days after the request. M.M’s father identified two other specific parts of the
record that were turned over after 30 January. The Board claimed that production
was delayed because (1) the school-system’s two-week winter break was between
the request for records and their delivery and (2) M.M.’s records were difficult to
locate while being transported to and from the ALC facility.3 Before the request
for the cumulative file, Three Oaks had given M.M.’s father copies of records he
specifically requested.
M.M.’s family brought suit under 42 U.S.C. § 1983, claiming the Board’s
failure to deliver M.M.’s complete records in thirty days and to provide M.M. an
IDEA due process hearing or forward their request for a due process hearing to
DOAH violated their right to due process under the Fifth and Fourteenth
Amendments to the U.S. Constitution.
3
Plaintiffs admitted that the winter break and records being transported to and from ALC likely
caused some delays in Three Oaks’ production of M.M.’s records.
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DISCUSSION
We review de novo a district court’s denial of a motion for judgment as a
matter of law. Etienne v. Inter-County Sec. Group, 173 F.3d 1372, 1374 (11th Cir.
1999). We consider the evidence in the light most favorable to the nonmoving
party. Id. We look to see if “the evidence presents sufficient disagreement to
require submission to a jury, or whether it is so one-sided that one party must
prevail as a matter of law.” Combs v. Plantation Patterns, 106 F.3d 1519, 1526
(11th Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512
(1986)). If the facts and inferences overwhelmingly support one party, such that
reasonable people could not disagree about the verdict, then the motion should
have been granted. Id.We conclude that the district court erred in not granting judgment as a matter
of law because Plaintiffs failed to present evidence sufficient to create a jury
question about whether the Board’s policy or custom inflicted their damages; so,
we do not reach Defendant’s other arguments.
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Municipal Liability under 1983
At the outset, we stress that Plaintiffs sued the School Board itself, rather
than any individual officers of the School District. Local government bodies, such
as school boards, may be held liable under § 1983 only for acts “‘of the
municipality’ -- that is, acts which the municipality has officially sanctioned or
ordered.” Pembaur v. Cincinnatti, 106 S.Ct. 1292, 1298 (1986); see Cuesta v.
School Board of Miami-Dade County, 285 F.3d 962, 967 (11th Cir. 2002). This
“‘official policy’ requirement was intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is actually responsible.”
Pembaur, 106 S.Ct. at 1298. Plaintiffs have the burden to establish the existence of
a municipal policy.
State law determines which bodies or persons may establish municipal
policy. Jett v. Dallas Independent School District, 109 S.Ct. 2702, 2723-24 (1989).
Under Florida law, final policymaking authority for a school district is vested in
the School Board. Fla. Stat. Ann. § 230. 22(1) (2001) (now codified at § 1001.41).
The Superintendent may recommend policies to the School Board, but is not given
authority to make final policy without the Board’s approval. Fla. Stat. Ann. §
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230.32 (2001) (now codified at § 1001.49). Nor does state law authorize any other
employee to make final policy for the Board. “[A]lthough authority to make
municipal policy may be . . . delegated by an official who possesses such
authority[,]” Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989), there is no
evidence the Board delegated its policymaking authority.
Because Florida law identifies the School Board as the policymaker for the
School District, a single decision by the Board may constitute School Board policy,
even if not phrased as a formal policy statement. Cuesta, 285 F.3d at 967-68; Jett,
109 S.Ct. at 2723-24. If, before a decision becomes final, the School Board ratified
the decision of a subordinate who did not have final policymaking authority, the
Board will be liable for that decision. Garvie v. City of Fort Walton Beach, 366
F.3d 1186, 1189 (11th Cir. 2004); Thomas v. Roberts, 261 F.3d 1160, 1174 (11th
Cir. 2001), vacated on other grounds by, 122 S.Ct. 2653 (2002), reinstated by 323
F.3d 950 (11th Cir. 2003).
The School Board will also be responsible for multiple acts by subordinates
that constitute a custom, if that custom caused the plaintiff’s injury. McDowell v.
Brown, 392 F.3d 1283, 1290 (11th Cir. 2004). A custom is a practice that has not
received official approval, but is “so settled and permanent that it takes on the force
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of the law.” Id. Showing an isolated incident is not enough to establish custom;
the practice must be “persistent and widespread.” Id.The Due Process Hearing
For the Board to be liable under § 1983, Plaintiffs were required to show the
decision to deny M.M. an IDEA due process hearing was (1) made pursuant to a
custom or (2) made pursuant to a preexisting formal Board policy or (3) made
directly by the Board, as the policymaker for the School District or (4) ratified by
the Board before the decision became final.
Plaintiffs presented no evidence that any other students had ever been denied
an IDEA due process hearing; therefore, Plaintiffs cannot establish the denial was
made pursuant to a custom. Plaintiffs do not point to a preexisting formal Board
policy and so do not establish that the decision to deny a hearing was made
pursuant to a preexisting official policy that compelled no hearing. Therefore,
Plaintiffs must establish that either the Board itself made the decision to deny M.M.
(in particular) an IDEA due process hearing or that the Board ratified the decision
before it became final. So, we turn to the evidence Plaintiffs presented about who
made the decision to deny M.M. an IDEA due process hearing.
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Plaintiffs established: that the School District’s ESE Director was part of a
group that determined M.M. was not eligible for the hearing; that this group met
with the Superintendent and discussed with him that M.M. was not eligible for the
hearing; and that the School District’s staff attorney, who typically arranged IDEA
due process hearings with DOAH, communicated the decision to Plaintiffs.
But none of this evidence demonstrates that the Board itself made or ratified
the decision. Plaintiffs presented no evidence that any of these individuals
communicated with the Board members about M.M.’s situation. The only evidence
Plaintiffs presented that the Board made – or ratified – the decision were the letters
from the School District’s staff attorney informing M.M.’s family of the decision to
deny M.M. the due process hearing. We therefore turn our examination to these
letters.
The District’s staff attorney’s letters were written on School District
stationery that listed the School Board members on the letterhead. The letters
stated that “The District respectfully disagrees that . . . [M.M.] is entitled to the
[IDEA’s] procedural safeguards” and “The District . . . does not believe that the
IDEA applies to [M.M.]” These statements raise questions about whether this
determination represented School Board policy. But, the letters do not say that the
Board made the pertinent IDEA decision for M.M. nor indicate that the Board even
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knew about M.M.’s situation. Nor do Plaintiffs establish that the School District’s
staff attorney was speaking for the Board when he wrote the letters - or that he ever
had been authorized to speak for the Board. The letterhead itself specified that a
different person was the “Board Attorney.” The attorney who wrote the letters was
a staff attorney of the School District. Standing alone, the letters, which speak only
of “the District” and were written on behalf of an unspecified decision maker, are
insufficient to establish that the School Board made any decisions about M.M.
Plaintiffs do not present evidence apart from the letters to demonstrate that
the letters were communicating a Board decision, or that any Board members even
knew about M.M.’s situation before the lawsuit was filed. Plaintiffs never point to
a Board vote or other act or to a formal Board policy. Plaintiffs present no
evidence that the Board discussed M.M.’s situation with anyone, including the
School District’s staff attorney.
The most favorable construal of Plaintiff’s evidence is that an ex officio
member of the Board, the Superintendent, made the decision to deny M.M. a due
process hearing. With no evidence of any action – or even knowledge – by the
Board itself about M.M., this is insufficient to establish the Board had a policy.
It is also insufficient to establish that the Board ratified the decision. To
establish ratification, Plaintiffs must “demonstrate that local government
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policymakers had an opportunity to review the subordinate’s decision and agreed
with both the decision and the decision’s basis” before it became final. Id.;
Thomas, 261 F.3d at 1174. As discussed above, no language in the letters or
evidence in the trial record indicates the Board even knew about M.M.’s situation
when the attorney’s letters were written. Therefore, the attorney’s letters do not
show that the Board had reviewed and agreed with the decision and its basis.
Plaintiffs did not present sufficient evidence to create a jury question on
whether a Board policy or custom was the moving force behind denying M.M. a
due process hearing. Defendant’s motion for judgment as a matter of law should
have been granted.
Production of Complete Student Records
Plaintiffs argue that the Board had a custom of delaying production of
complete student records to families of children with disabilities. Plaintiffs
presented testimony from two families of disabled children. The first requested
records in September 1998; the mother testified she began receiving records the
following February or March, after she had filed for an IDEA due process hearing.
The second began litigation over records around September 1999. This mother
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testified that she did not receive records in thirty days, might have received some
within sixty days, and sporadically received more records throughout her litigation
over them.
The delay in producing M.M.’s records involved significantly different
circumstances. First, the district had not identified M.M. as a disabled student, as it
made clear when it denied him an IDEA due process hearing. Therefore, the denial
of his records could not be pursuant to a custom of delaying complete copies of
records to disabled students, as Plaintiffs argue. In addition, peculiar
circumstances arose during the thirty days following the request for M.M.’s
records. For two weeks, the school system was on winter break; and few
employees were available to gather and copy records. Also, M.M.’s records were
moved among several locations because of his transfer to ALC and later
withdrawal from the school system. The Board presented uncontested testimony
that this movement complicated finding the records and delayed their production.
Neither reason excuses the Board’s failure to provide the records within thirty
days; but, they do show that extenuating circumstances created a delay in the
production of M.M.’s records.
Although evidence shows that students’ records were delayed in three
instances, that circumstance alone does not establish a custom; there must be some
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connection between the three incidents. See Church v. City of Huntsville, 30 F.3d
1332, 1346 (11th Cir. 1994) (determining year-old incidents of homeless persons
being arrested and removed from city were not shown to be connected to current
incidents as necessary to support pervasive practice of displacing homeless
persons). In this case, the difference in whether the district perceived the students
as disabled, the two-year time gap, and the peculiar administrative difficulties of
M.M.’s situation make M.M.’s case materially different from the other incidents
and make Plaintiffs’ evidence inadequate to show a sufficient connection between
the incidents to demonstrate a custom. Defendant’s motion for judgment as a
matter of law should have been granted.
Because the evidence overwhelmingly supports Defendant’s position that the
Board did not have a policy of denying students not yet determined to be disabled
access to IDEA due process hearings or a custom of delaying production of
complete records to disabled students, we determine that the district court erred in
not granting Defendant’s motion for judgment as a matter of law. The decision of
the district court is therefore
REVERSED.
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