D.H.H. v. Kirbyville Consolidated

Case: 20-40315 Document: 00516066341 Page: 1 Date Filed: 10/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 22, 2021
No. 20-40315 Lyle W. Cayce
Clerk
D.H.H., a minor student with disabilities, by and with
and through her parent/guardian/next friend Rob
Anna H.; Rob Anna H., parent/guardian/next friend of
D.H.H., a minor student with disabilities,
Plaintiffs—Appellants,
versus
Kirbyville Consolidated Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:18-CV-120
Before Wiener, Costa, and Willett, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40315 Document: 00516066341 Page: 2 Date Filed: 10/22/2021
No. 20-40315
This case concerns the Individuals with Disabilities Education Act
(“IDEA”), 1 Title II of the Americans with Disabilities Act (“ADA”), 2 and
§ 504 of the Rehabilitation Act of 1973. 3 The parties ask us to focus on the
differences and similarities between these statutes, but we need not do so.
Instead, we apply binding precedent and hold that Plaintiffs-Appellants do
not meet the “intentional discrimination” standard on which their claims are
based. We therefore affirm.
I.
Plaintiff-Appellant D.H.H., a senior in high school at the time of this
appeal, has been attending school in the Kirbyville Consolidated
Independent School District (the “School District”) since the sixth grade.
D.H.H. obtained mostly good grades in school, but the record is inconsistent
regarding her overall behavior, both in and out of the school setting.
Plaintiff-Appellant Rob Anna H., one of D.H.H.’s parents, emailed
the School District requesting a comprehensive evaluation of then eighth
grader D.H.H. for special education services or § 504 services, or both. The
following day, Rob Anna H. consented to a full individual evaluation of
D.H.H. 4 The School District’s evaluators interviewed D.H.H. and her
teachers and ultimately concluded that D.H.H. was not eligible for special
education and related services.
1
20 U.S.C. § 1400 et seq.
2
42 U.S.C. § 12131 et seq.
3
29 U.S.C. § 794. Because the only difference between a § 504 claim and an ADA
claim is causation, see Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005),
we refer to both claims and statutes as “§ 504 claims” and “§ 504.”
4
See 20 U.S.C. § 1414(D)(i)(1).
2
Case: 20-40315 Document: 00516066341 Page: 3 Date Filed: 10/22/2021
No. 20-40315
While the evaluations were ongoing, Rob Anna H. filed a request on
behalf of D.H.H. for a due process hearing, complaining that the School
District had wrongly failed to identify D.H.H. as an eligible child with a
disability. The request sought a determination that D.H.H. was eligible for
educational accommodations under IDEA and § 504.
A special education hearing officer (“SEHO”) dismissed D.H.H.’s
§ 504 claim for lack of subject matter jurisdiction, and the hearing proceeded
on the IDEA claim. The SEHO made factual findings about D.H.H.’s
performance in school and interactions with her peers. He also took into
account Rob Anna H.’s retained psychologist’s findings concerning
D.H.H.’s wellbeing. The SEHO ordered the School District to reimburse
Plaintiffs for the private evaluations in the amount of $3,830. The SEHO
ultimately concluded that D.H.H. was not an eligible student with a
disability.
Rob Anna H. requested a second due process hearing, again seeking
an eligibility determination under IDEA, § 504, and the ADA. A new SEHO
found that, by the tenth grade, D.H.H. had experienced a marked
improvement in her behavior since middle school and had been academically
successful in the general education setting during the ninth and tenth grades.
The SEHO issued a decision concluding that D.H.H. was not an eligible
student with a disability. 5
Plaintiffs had filed this lawsuit prior to filing for a second due process
hearing, appealing the first SEHO’s decision and litigating their claims under
§ 504 only. After compiling an extensive record, the parties each filed
5
Rob Anna H. initially appealed this decision to the district court, but later
dismissed that appeal. See D.H.H. v. Kirbyville Consol. Indep. Sch. Dist., No. 1:19-cv-00130
(E.D. Tex. Sept. 6, 2019). The second SEHO’s decision is therefore not at issue in this
appeal.
3
Case: 20-40315 Document: 00516066341 Page: 4 Date Filed: 10/22/2021
No. 20-40315
motions for summary judgment. The district court referred the case to a
magistrate judge, who issued a report and recommendation. The district
court entered an order adopting the magistrate judge’s report and
recommendation in full and entered final judgment for the School District on
all claims. Plaintiffs timely appealed.
II.
The district court disposed of Plaintiffs’ § 504 claim on summary
judgment, so our review is de novo. 6 We review all evidence and make
reasonable inferences in favor of the non-movant when necessary. 7 Summary
judgment is appropriate when there is no dispute of material fact and the
movant is entitled to judgment as a matter of law. 8
III.
Our binding precedent requires intentional discrimination (bad faith
or gross misjudgment) to survive summary judgment when a plaintiff brings
a § 504 claim. Plaintiffs provided no evidence of intentional discrimination. 9
A.
The damages provisions of the Rehabilitations Act direct us to Title
VI remedies, so we look to Title VI caselaw to determine the requirements
6
See D.A. ex rel Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.
2010).
7
Id. (citing Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir. 2003)).
8
Fed. R. Civ. P. 56(a).
9
See D.A., 629 F.3d at 455 (“We concur that facts creating an inference of
professional bad faith or gross misjudgment are necessary to substantiate a cause of action
for intentional discrimination under § 504 . . . against a school district predicated on a
disagreement over compliance with IDEA.”).
4
Case: 20-40315 Document: 00516066341 Page: 5 Date Filed: 10/22/2021
No. 20-40315
for a § 504 claim. 10 “[A] private right of action under Title VI for damages
requires intentional discrimination by the defendants.” 11
In Marvin H. v. Austin Independent School District, we explained “that
a cause of action is stated under section 504 when it is alleged that a school
district has refused to provide reasonable accommodations for the
handicapped plaintiff to receive the full benefits of the school program.” 12
We noted in D.A. that “Marvin H[.] used the term ‘refusal’ because the
statute requires intentional discrimination against a student on the basis of his
disability.” 13 Therefore, “‘something more than a mere failure to provide the
“free appropriate education [(“FAPE”)] required by [IDEA] must be
shown.’” 14
We also explained the evidence with which a plaintiff is required to
come forward to show intentional discrimination at the summary judgment
stage to show intentional discrimination. We require “facts creating an
inference of professional bad faith or gross misjudgment . . . to substantiate a
cause of action for intentional discrimination under § 504.” 15
10
29 U.S.C. § 794a(a)(2); see also Scokin v. Texas, 723 F.2d 432, 441 (5th Cir. 1984).
11
Scokin, 723 F.2d at 441 (citing Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d
1348, 1357 (5th Cir. 1983)). But see Guardians Ass’n v. Civ. Serv. Comm’n, 463 U.S. 582,
584 (1983) (affirming judgment of lower court when there was no evidence of
discriminatory animus or intent); see also id. at 599–600 (White, J., concurring) (explaining
that a private right of action for Title VI violations requires “proof of intentional
discrimination”).
12
714 F.2d at 1356 (emphasis in original).
13
629 F.3d at 454 (emphasis added) (citing Marvin H., 714 F.2d at 1357).
14
Id. (alterations in original) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170
(8th Cir. 1982)).
15
Id. at 455.
5
Case: 20-40315 Document: 00516066341 Page: 6 Date Filed: 10/22/2021
No. 20-40315
B.
Here, Plaintiffs’ allegations are based entirely on the School District’s
refusal to identify D.H.H. as a student entitled to special education and
related services. 16 Therefore, Plaintiffs had to show that the School District
intentionally discriminated against D.H.H. 17 Plaintiffs, however, have
provided no evidence that the School District intentionally discriminated
against D.H.H. The School District provided D.H.H. with educational
services, but D.H.H. refused to take advantage of those services. The School
District initiated a thorough, committee-driven evaluation of D.H.H.’s
disabilities and needs. The committee determined that D.H.H. experienced
no educational impact from her diagnosed emotional disturbance. The
committee found more specifically that (1) D.H.H. had average to above-
average grades in the sixth and seventh grades, (2) her attendance was
satisfactory, and (3) that her interviewed teachers all stated that they had not
experienced any behavioral problems with D.H.H. The only evidence of
emotional disabilities and needs stems from Rob Anna H.’s accounts.
Plaintiffs have failed to adduce any evidence of intentional discrimination at
the summary judgement stage, so their claim fails as a matter of law.
Plaintiffs nevertheless contend in their brief, and asserted at oral
argument, that their claims are not for damages, but that instead they are for
equitable relief, inferring that disparate impact is the proper standard. We
disagree. Although Plaintiffs are correct that they demanded equitable relief
in their First Amended Complaint, their allegations are completely based on
refusal to provide educational services, or a FAPE. Our precedents require
16
See Marvin H., 714 F.2d at 1356; D.A., 629 F.3d at 454.
17
See D.A., 629 F.3d at 454–55 (requiring intentional discrimination at the
summary judgment level when it is alleged that a school district refused to comply with the
IDEA).
6
Case: 20-40315 Document: 00516066341 Page: 7 Date Filed: 10/22/2021
No. 20-40315
evidence of intentional discrimination at the summary judgment stage for
claims based on a refusal to provide a FAPE. 18
In sum, the School District fulfilled its duties under the
Rehabilitations Act (§ 504) by not intentionally discriminating against
D.H.H.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
18
See id. at 451 (concluding that, at the summary judgment stage, the plaintiffs
could not demonstrate intentional discrimination based on a refusal to provide a FAPE and
therefore their claims were properly dismissed).
7