Responsive Education Solutions v. Susan Kirschner, Individually, and as Next Friend of A.K., a Minor Child ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00001-CV
___________________________
RESPONSIVE EDUCATION SOLUTIONS, Appellant
V.
SUSAN KIRSCHNER, INDIVIDUALLY, AND AS NEXT FRIEND OF A.K., A
MINOR CHILD, Appellee
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 20-3422-393
Before Sudderth, C.J.; Kerr and Womack, JJ.
Opinion by Chief Justice Sudderth
OPINION
I. Introduction
Appellee Susan Kirschner, individually, and as next friend of A.K., a minor
child, sued Appellant Responsive Education Solutions (RES), an operator of open-
enrollment charter schools,1 for violating 42 U.S.C. §§ 1981, 1983 and Section 504 of
the Rehabilitation Act of 1973.2 RES filed a plea to the jurisdiction, which the trial
court granted regarding all but A.K.’s § 1983 claim. In this accelerated interlocutory
appeal, see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8), RES argues that the trial
court erred by denying part of its plea. We agree and thus reverse that portion of the
trial court’s order and render judgment dismissing the lawsuit for want of jurisdiction.
II. Background
In 2015, Kirschner, who is white, enrolled her daughter A.K., who is black, in
the second grade at Founders Classical Academy of Flower Mound, an open-
enrollment charter school, which is owned by RES. Five years later, Kirschner,
1
An open-enrollment charter school is part of the state’s public school system.
Tex. Educ. Code Ann. § 12.105. RES is thus a “governmental unit” and can bring
this interlocutory appeal. See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73,
74–75 (Tex. 2011) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(8),
101.001(3)(D)).
2
29 U.S.C. § 794(a), commonly referred to as Section 504, prohibits disability
discrimination by recipients of federal funding. Frame v. City of Arlington, 657 F.3d 215,
223 (5th Cir. 2011); see also D.A. ex rel. Latasha A. v. Houston ISD, 629 F.3d 450, 453
(5th Cir. 2010) (explaining that Section 504 broadly prohibits discrimination against
disabled persons in federally assisted programs or activities).
2
individually, and as A.K.’s next friend, initially sued RES for violating 42 U.S.C.
§ 1981 and Section 504 of the Rehabilitation Act of 1973 and for breach of contract.
In her original petition and in her subsequently amended petition, Kirschner
alleged that the school had unfairly labeled A.K. as a problem child and had not tested
A.K. for “cognitive and behavioral performance issues, such as autism or similar
disorders,” despite Kirschner’s numerous requests that she “be tested for autism or
similar academic performance and cognitive behavioral issues so that treatment and a
behavioral plan could be implemented for [her].” Kirschner alleged that she had
“requested an assessment be done to determine [the] proper course of behavioral and
treatment plan to multiple parties” but that “the school continued its refusal to test
[A.K.].” Kirschner further complained that the school did not treat A.K. with the
same care and consideration that would have been given to her if A.K. had been
white.3 She sought actual and punitive damages, interest, court costs, and attorney’s
fees.
RES answered with a general denial and raised a number of affirmative
defenses, including limitations and the failure to exhaust administrative remedies “for
their claims under Section 504 of the Rehabilitation Act of 1973.” Four months later,
Kirschner also brought her own complaints about how the school treated her
3
as a white parent of a black child, but she conceded in the trial court that limitations
barred those claims.
3
RES filed a plea to the jurisdiction, asking the trial court to dismiss all of the claims
with prejudice.
In its original plea to the jurisdiction, RES complained that limitations had run
and that immunity barred the § 1981 and breach-of-contract claims. RES also argued
that the Section 504 claim should be dismissed because it overlapped with the
Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400, which
required exhaustion of remedies.
Kirschner conceded in her response to the plea that the breach of contract
claim was improper, that limitations had run for her individual claims, and that those
claims should be dismissed. But she argued that limitations had not run for A.K.’s
claims because of A.K.’s minor status and that they had met the exhaustion
requirement “through implication” because of the “numerous requests to address
A.K.’s educational needs” that the school had ignored. She filed an amended petition
on the same day that she filed her response, adding a claim under 42 U.S.C. § 1983.44
42 U.S.C. § 1983 authorizes a civil claim for deprivation of rights and provides,
in pertinent part, that
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C.A. § 1983.
4
Regarding § 1983, Kirschner alleged,
The liberty interest that [A.K.] has been deprived of is to receive [the]
same quality education and attention to her educational needs as other
students. Or, or in addition to, she has been deprived of her liberty
interests to receive an education that is sufficient enough to meet her
needs. Instead, she has been harmed by the Defendant through this
abridgment of her rights and deprivation of her liberty interests, one of
which[] is to remain free of gross neglect or intentional conduct, leading
to emotional abuse and/or trauma.
RES then filed an amended plea to the jurisdiction, adding the § 1983 claim to
its limitations5 and IDEA overlap-and-failure-to-exhaust arguments. RES asserted
that Kirschner and A.K. had failed to request a special education due process hearing
under the IDEA and that there was “no request for a hearing by ‘implication’”
because IDEA exhaustion requires findings and a decision by an administrative body.
See 20 U.S.C.A. § 1415(f)–(g) (explaining the IDEA’s exhaustion procedures), (l)
(explaining interplay between the IDEA and other federal statutes).
5
The applicable limitations period for a § 1983 claim is two years—the state’s
limitations period for personal injury torts. Wallace v. Kato, 549 U.S. 384, 387, 127 S.
Ct. 1091, 1093 (2007); Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). While a minor
is generally considered to be under a legal disability, Tex. Civ. Prac. & Rem. Code
Ann. § 16.001(a)–(b), Section 16.001’s tolling provisions have not been incorporated
into the IDEA limitations scheme. See 19 Tex. Admin. Code § 89.1151(c) (2018)
(Tex. Educ. Agency, Special Education Due Process Hearings) (stating tolling of the
one-year limitations period is pursuant to 50 U.S.C. § 3936, (e) (stating that TEA must
include in the notice of procedural safeguards a statement that limitations for the
parent of a student to request an impartial due process hearing may be tolled if the
parent is an active-duty member of the armed forces or for other exceptions not
applicable here); Reyes v. Manor ISD, 850 F.3d 251, 255 (5th Cir. 2017) (“[W]e cannot
borrow a limitations provision from a different state statute when the legislature of
Texas set up a specific limitations scheme for IDEA due process hearings.”). Thus, if
the § 1983 claim is an IDEA claim in disguise, a one-year limitations period applies.
5
During the hearing on RES’s amended plea, Kirschner’s counsel argued that
“the implication of all [of Kirschner’s] numerous requests to have meetings, to have
assessments created for her daughter to see what best course of academic curriculum
should be presented to her,” was enough to meet the exhaustion requirement and,
alternatively, that § 1983 did not have an exhaustion requirement, relying on Patsy v.
Board of Regents of Florida, 457 U.S. 496, 516, 102 S. Ct. 2557, 2568 (1982).6
After the hearing, the trial court dismissed with prejudice all of Kirschner’s
individual claims based on limitations. It dismissed with prejudice A.K.’s § 1981 claim
based on Eleventh Amendment immunity. And it dismissed with prejudice A.K.’s
Section 504 claim for failure to exhaust administrative remedies.7 However, it denied
the amended plea to the jurisdiction regarding A.K.’s § 1983 claim.
III. Discussion
In its single issue, RES argues that the trial court erred by failing to find that
A.K.’s § 1983 claim was subject to the IDEA’s exhaustion requirement because the
claim relates to RES’s alleged failure to provide A.K. with a free and appropriate
public education. RES further argues that its plea should have been granted because
Patsy involved a § 1983 employment discrimination lawsuit against a university.
6
457 U.S. at 498, 102 S. Ct. at 2558.
As noted by the Fifth Circuit regarding Section 504, a child “cannot be
7
discriminated against because of his disability until it has been demonstrated to exist.”
D.A., 629 F.3d at 455.
6
it was undisputed that A.K. had not exhausted her administrative remedies under the
IDEA and that a stay to exhaust those remedies would be futile.
A. Standard of Review
A plea to the jurisdiction is a dilatory plea, the purpose of which is generally to
defeat an action “without regard to whether the claims asserted have merit.” Mission
Consol. ISD v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Typically, the plea challenges
whether the plaintiff has alleged facts that affirmatively demonstrate the trial court’s
jurisdiction to hear the case. Id. Whether a trial court has subject matter jurisdiction
and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s
subject matter jurisdiction are questions of law that we review de novo. City of
Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 239 (Tex. App.—Fort Worth
2018, pet. denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004)).
When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction to
hear the cause, construing the pleadings liberally in the plaintiff’s favor and looking to
the pleader’s intent. Id. (citing Miranda, 133 S.W.3d at 226). If the pleadings do not
contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but
do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency and the plaintiff should be afforded the opportunity to amend.
Id. at 239–40.
7
B. The Pleadings
Kirschner alleged that the school had refused to test A.K. for “cognitive and
behavioral performance issues, such as autism or similar disorders” despite
Kirschner’s numerous requests “to multiple parties” for assessment and testing so
that a treatment and behavioral plan could be implemented and despite her
“suggest[ions] that the school take supportive action concerning her daughter.”
Kirschner complained that her requests “fell on deaf ears and thus[] were routinely
ignored” and that the school “dismissed all of her pleas for intervention.” Kirchner
stated that the school continued to refuse to test A.K. and “refused nurturing,
supportive action that would have better facilitated a healthy and constructive
academic environment” for A.K. until the end of the school year.
Kirschner further complained that the school did not treat A.K. with the same
care and consideration that would have been given to her if A.K. had been white.
Specifically regarding § 1983, Kirschner alleged that A.K. had been deprived of
“receiv[ing] same quality education and attention to her educational needs as other
students” and of “receiv[ing] an education that is sufficient to meet her needs.” She
sought actual and punitive damages,8 interest, court costs, and attorney’s fees.
8
Punitive damages are not available against a governmental entity for
constitutional violations. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101
S. Ct. 2748, 2762 (1981); McMillen v. New Caney ISD, 939 F.3d 640, 647 n.1 (5th Cir.
2019), cert. denied, 140 S. Ct. 2803 (2020).
8
C. The IDEA
The IDEA exists to ensure that all children with disabilities9 have available to
them a free appropriate public education (FAPE) 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.A. § 1400(d)(1)(A).
Through the IDEA, Congress offers federal funds to the states to assist in educating
children with disabilities in exchange for the states’ pledge to comply with a number
of statutory conditions, including the provision of a FAPE to all eligible children.
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017).
Under the IDEA, a FAPE consists of special education and related services
that encompass instruction tailored to meet a child’s unique needs and sufficient
supporting services to permit the child to benefit from the instruction. Fry v. Napoleon
Cmty. Sch., 137 S. Ct. 743, 748–49 (2017) (referencing 20 U.S.C.A. § 1401(9)). An
The IDEA defines a “child with a disability” as a child
9
with intellectual disabilities, hearing impairments (including deafness),
speech or language impairments, visual impairments (including
blindness), serious emotional disturbance . . . , orthopedic impairments,
autism, traumatic brain injury, other health impairments, or specific
learning disabilities; and . . . who, by reason thereof, needs special
education and related services.
20 U.S.C.A. § 1401(3)(A); see Tex. Educ. Code Ann. § 29.003(b)(2) (listing
disabilities—including autism—that prevent students between ages 3 and 21 from
being adequately or safely educated in public school without the provision of special
services); see also 19 Tex. Admin. Code § 89.1040 (2018) (Tex. Educ. Agency,
Eligibility Criteria).
9
“individualized education program,” (IEP) serves as the primary vehicle for providing
a child with the promised FAPE. Id. at 749. The IEP spells out a personalized plan
to meet all of the child’s educational needs and documents the child’s current levels of
academic achievement, specifies measurable annual goals for how she can make
progress in the general education curriculum, and lists the special education and
related services to be provided so that she can advance appropriately toward those
goals. Id.; see Tex. Educ. Code Ann. § 29.005 (describing Texas’s IEP).
The IDEA allows for equitable monetary awards, such as reimbursement of
expenses like private school tuition that a family has incurred to provide special
education services when a FAPE has not been provided by the state in a timely
manner prior to the enrollment in private school. 20 U.S.C.A. § 1412(a)(10)(C)(ii). It
also allows for “compensatory awards,” which are designed to provide services
prospectively to compensate for a past deficient program. McMillen, 939 F.3d at 647.
D. Exhaustion
To require a plaintiff to comply with the IDEA’s exhaustion requirements
when a claim is not brought under the IDEA, the relief sought under another federal
mechanism (the Constitution, the Americans with Disabilities Act, Section 504, “or
other Federal laws protecting the rights of children with disabilities”) must “also [be]
available under” the IDEA.10 Fry, 137 S. Ct. at 750. The Court held in Fry that to
10
In its rule of construction, the IDEA states,
10
require exhaustion under the IDEA, “a suit must seek relief from the denial of a
FAPE, because that is the only ‘relief’ the IDEA makes ‘available,’” and that in
determining whether a suit “seeks” relief from such a denial, a court should look to
the substance, or gravamen, of the plaintiff’s complaint. Id. at 752.
As further explained by the Fifth Circuit,11 “a plaintiff may invoke any federal
law to support a disabled student’s claim for an adequate education; the plaintiff just
must first exhaust under the IDEA.” McMillen, 939 F.3d at 644. When IDEA
procedures are not exhausted, a suit asserting other federal claims must be dismissed
if it seeks relief that is also available under the IDEA. Id. Further, federal courts have
interpreted § 1415(l)’s “relief available” to mean “relief for the events, condition[s], or
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title V of the Rehabilitation Act
of 1973, or other Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action under such laws seeking
relief that is also available under this subchapter, the procedures under subsections (f)
and (g) shall be exhausted to the same extent as would be required had the action
been brought under this subchapter.
20 U.S.C.A. § 1415(l) (emphasis added). Subsection (f) sets out the procedure for an
impartial due process hearing. Id. § 1415(f). Subsection (g) sets out the procedure to
appeal the findings and decision rendered in the impartial due process hearing. Id.
§ 1415(g).
11
Precedent of the Fifth Circuit, though persuasive, is not binding on this court.
J & J Sports Prods., Inc. v. JWJ Mgmt., Inc., 324 S.W.3d 823, 830 (Tex. App.—Fort
Worth 2010, no pet.). We are only obligated to follow our supreme court and the
United States Supreme Court. Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296
(Tex. 1993). Nonetheless, we find the Fifth Circuit’s construction of the IDEA
helpful here.
11
consequences of which the person complains, not necessarily relief of the kind the
person prefers.” Id. at 648. That is, in a suit seeking damages for a school’s failure to
provide services under the IDEA, the plaintiff must first exhaust the IDEA’s
administrative procedures created to remedy that failure in order to enforce the
IDEA’s statutory scheme. Id.Exhaustion is not required when the gravamen of the plaintiff’s suit is other
than the denial of a FAPE, the IDEA’s core guarantee. Fry, 137 S. Ct. at 748; see
D.A., 629 F.3d at 456 (noting that when a statutory regime already provides a
comprehensive set of remedies for the enforcement of a federal right, there is a
presumption against the availability of the more general remedial measures of § 1983).
Fry applies retroactively. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97–98, 113 S.
Ct. 2510, 2517–18 (1993) (stating that when the Court does not reserve the question
of whether its holding should be applied to the parties before it, an opinion
announcing a rule of federal law is retroactive).
In Fry, a child with severe cerebral palsy was not allowed to bring her service
dog to kindergarten because the school provided a human aide who could provide to
the child equivalent support. 137 S. Ct. at 750–51. The child’s parents withdrew her
from the school, initiated home-schooling, and filed a complaint with the U.S.
Department of Education’s Office of Civil Rights (OCR), arguing that the school’s
decision had violated the child’s rights under Title II of the ADA and Section 504 of
the Rehabilitation Act. Id. at 751. OCR agreed, and the child’s parents sued the local
12
and regional school districts, along with the school’s principal, for discrimination
under Title II of the ADA and Section 504 of the Rehabilitation Act. Id. at 751–52.
The district court granted the defendants’ motion to dismiss, holding that the family
had to first exhaust the IDEA’s administrative procedures, and the Sixth Circuit
affirmed on that basis. Id. at 752.
The Court vacated the Sixth Circuit’s decision, observing that if a suit is
brought under a different statute and the remedy sought is not for the denial of a
FAPE, then exhaustion of the IDEA’s procedures is not required because the plaintiff
would not be able to acquire any relief from those procedures.12 Id. at 752, 754–55. It
remanded the case so that the Sixth Circuit could apply the Court’s new analysis and
establish to what extent the family had invoked the IDEA’s dispute resolution process
before bringing their suit. Id. at 758–59.
The Court noted that the IDEA guaranteed individually tailored educational
services, while Title II of the ADA and Section 504 promised nondiscriminatory
access to public institutions; although all three statutes might apply, “a complaint
brought under Title II and [Section] 504 might instead seek relief for simple
discrimination, irrespective of the IDEA’s FAPE obligation.” Id. at 756.
12
In Fry, the Court reserved for another day the question about whether
exhaustion is required when the plaintiff complains about the denial of a FAPE but
the specific remedy she requests, such as money damages for emotional distress, is not
one that an IDEA hearing officer may award. 137 S. Ct. at 752 n.4.
13
The Court set out the following test for whether the gravamen of a complaint
against a school concerns the denial of a FAPE or instead addresses disability-based
discrimination: (1) Could the plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that was not a school, i.e., a public
theater or library? (2) Could an adult at the school—an employee or visitor—have
pressed essentially the same grievance? Id. “When the answer to those questions is
yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to
be truly about that subject.” Id. “But when the answer is no, then the complaint
probably does concern a FAPE, even if it does not explicitly say so; for the FAPE
requirement is all that explains why only a child in the school setting (not an adult in
that setting or a child in some other) has a viable claim.” Id. The Court also noted
that the proceedings’ history might also identify the suit’s gravamen as the denial of a
FAPE if the parent previously initiated the IDEA’s administrative procedures by filing
a complaint and proceeding to a preliminary meeting or mediation and then a due
process hearing. Id. at 757. In Fry, the family’s pleadings did not accuse the school of
refusing to provide educational instruction and services or suggest any implicit focus
on the adequacy of the child’s education but rather alleged only disability-based
discrimination for refusing to allow the child to bring her service dog. Id. at 758.
The IDEA has a “carefully calibrated mechanism to prevent or remedy
violations.” D.A., 629 F.3d at 456. Accordingly, the Fifth Circuit has held that
nothing in § 1415(l) indicates an intent to facilitate the expansive remedies under
14
§ 1983 and that an IDEA claim cannot be asserted through § 1983. Id. The Fifth
Circuit has likewise held that the IDEA’s exhaustion requirement applies to plaintiffs
who seek damages for the denial of a FAPE. Heston, Next Friend of A.H v. Austin ISD,
816 F. App’x. 977, 983 (5th Cir. 2020) (holding that such an interpretation is necessary
so that a plaintiff cannot avoid exhaustion “merely by tacking on a request for money
damages”); see McMillen, 939 F.3d at 648 (“The statutory preference is to solve these
disputes by providing the student with her promised education, not by awarding
damages years after the problem arises in the classroom.”).
E. Application
In her amended petition, Kirschner alleged that the school had refused to
assess and test A.K. for disabilities despite her requests and suggestions, thereby
depriving A.K. of a healthy and constructive academic environment and of the “same
quality education and attention to her educational needs as other students” and “an
education that [was] sufficient to meet [A.K.’s] needs.” We apply the test set out by
the Court in Fry: First, could A.K. have brought the same claim if the alleged conduct
had occurred at a public facility that was not a school, such as a public theater or
library? See 137 S. Ct. at 756. We think not, since a public facility that is not a school
is not specifically tasked with providing a child with a healthy and constructive
academic environment or an education. And second, could an adult at the school have
pressed the same grievance? See id. Again, we think not, because no adult could be
15
deprived of a healthy and constructive academic environment or education in the
school.
As to the other clue described by the Court—the history of the proceedings
and whether the plaintiff previously invoked the IDEA’s formal procedures to handle
the dispute, id. at 757—Kirschner alleged that she had made numerous requests “to
multiple parties” and had made suggestions that were ignored by the school. In
Texas, a parent or legal guardian must make a written request to a school’s director of
special education services or to a district administrative employee for a full individual
and initial evaluation of a student before the district must either (1) provide an
opportunity for the parent or legal guardian to give written consent for the evaluation
or (2) refuse to provide the evaluation and then give the parent or legal guardian
notice of the IDEA’s procedural safeguards. Tex. Educ. Code Ann. § 29.004(c); see 19
Tex. Admin. Code § 89.1011(b) (2018) (Tex. Educ. Agency, Full Individual and Initial
Evaluation). Viewed in the light most favorable to her and assuming that her requests
were made in writing to the appropriate school authorities, Kirschner’s pleadings
indicate that she invoked the IDEA’s procedures.13 See Fry, 137 S. Ct. at 757.
13
Kirschner did not allege that the school withheld any information from her
regarding the IDEA and its procedures. See Tex. Admin. Code § 89.1151(d) (2018)
(Tex. Educ. Agency, Special Education Due Process Hearings) (stating that the one-
year limit to bring an IDEA complaint “does not apply to a parent if the parent was
prevented from filing a request for a due process hearing due to: (1) specific
misrepresentations by the public education agency that it had resolved the problem
forming the basis of the request for a hearing; or (2) the public education agency’s
16
On its face, then, Kirschner’s petition seeks redress for denial of a FAPE and
indicates that she invoked, but did not exhaust, the IDEA’s procedures because she
did not first go through the hearing process to obtain findings and a decision for
which she could seek judicial review.14 See McMillen, 939 F.3d at 645 (“[C]omplaints
that a school did not adopt a plan individualized to the student’s needs sound in the
IDEA.”); see also 20 U.S.C.A. § 1415(g), (l). Accordingly, because the gravamen of
A.K.’s § 1983 claim was the denial of a FAPE—the alleged failure to provide
assessment and testing and appropriate education—the claim was subject to the
IDEA’s exhaustion requirements. See McMillen, 939 F.3d at 645. A.K.’s seeking
compensatory damages does not otherwise cause her § 1983 claim to escape the
IDEA’s orbit. See Heston, 816 F. App’x. at 983.
Because A.K. failed to exhaust her administrative remedies before filing suit,
the trial court erred by denying RES’s plea to the jurisdiction on her § 1983 claim. We
sustain RES’s sole issue.
withholding of information from the parent that was required by 34 CFR, § 300.1, et
seq. to be provided to the parent”).
14
Contrary to Kirschner’s argument in her appellee’s brief—that they made a
request for a hearing through implication—IDEA exhaustion requires not only a
hearing but also findings and a decision, and there is nothing in Kirschner’s pleadings
to show that these steps were met or that Kirschner and her daughter were otherwise
prevented from pursuing them.
17
IV. Conclusion
Having sustained RES’s sole issue, we reverse the portion of the trial court’s
order denying RES’s plea to the jurisdiction on A.K.’s § 1983 claim. And because
A.K.’s pleadings affirmatively demonstrate incurable defects in jurisdiction that
cannot be fixed by repleading, see City of Westworth Vill., 558 S.W.3d at 239–40, we
render judgment dismissing her § 1983 claim.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: April 22, 2021
18