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Doe v Todd County School District

Case No. 09-3221 (C.A. 8, Nov. 12, 2010)

In September 2005, Jonathan Doe (a pseudonym to protect his privacy) was a public school student with a reading disability receiving special education and related services at Todd County High School (TCHS) in Mission, South Dakota, as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., and by S.D. Codified Laws Ch. 13-37. After Doe was suspended for fighting and bringing a pocket knife to school, he brought this 42 U.S.C. § 1983 damage action against the Todd County School District and three school officials (collectively, “the District”) claiming that they violated his federal procedural due process rights when his Individualized Education Program (IEP) team placed him in an alternative high school setting for thirty-eight days. Concluding that this action resulted in a “constructive” long-term suspension requiring notice and a hearing before the school board, the district court granted summary judgment to Doe. The District appeals. We conclude that Doe’s right to procedural due process was limited to the procedures governing the IDEA decision-maker under 20 U.S.C. § 1415 and therefore reverse.
I.


On September 8, 2005, Doe fought with another TCHS student on school grounds. The next day, Doe brought a pocket knife to school. When Assistant Principal Michael Berg learned of the fight and called Doe to his office, Doe handed the knife to another student, who promptly turned it in. Questioned by Berg, Doe admitted being in a fight and bringing a knife to school, but said the situation was “fucking bull shit” and walked out when Berg mentioned the possibility of gang activity. After he was returned to Berg’s office, Doe grew agitated, spoke loudly enough to be heard outside the office, beat on the walls and windows, and threatened to kill Berg and another teacher. After Doe calmed down, Berg read Doe the school’s discipline protocol on short-term and long-term suspensions and called Doe’s grandfather and Debera Lucas, the District’s Director of Special Education. When they arrived, Berg told Doe and his grandfather that Doe was suspended for fighting and bringing a knife to school. On September 12, Berg wrote Doe’s grandparents confirming that Doe was suspended from TCHS from September 8 “until a hearing with the School Board can be arranged.”

Under the IDEA, a child with a disability, such as Doe, is entitled to a “free appropriate public education” tailored to his unique needs by means of an IEP. 20 U.S.C. § 1414(d)(1)(A); Hendrick Hudson Central Sch. Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 181-82 (1982). The IEP is developed, reviewed, and revised by an IEP team that must include the parents of the child, the child’s regular and special education teachers, and a knowledgeable representative of the District. See 20 U.S.C. § 1414(d)(1)(B), (d)(3) & (4). Parents must be involved in decisions regarding the educational placement of a child accused of misconduct. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.501(c). Within ten school days of a decision changing the child’s placement because of misconduct, the IEP team must determine whether the misconduct was a manifestation of the child’s disability. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e). A suspension for more than ten days is a change of placement. Honig v. Doe, 484 U.S. 305, 325 n.8 (1988).

Recognizing that Doe’s suspension might trigger IEP team obligations, Special Education Director Lucas convened an IEP team meeting on September 13. Doe and his grandmother, Dorothy Doe, the parent member of the team, attended. The IEP team first determined that Doe’s misconduct was not a manifestation of his disability. Then, consistent with the Behavior Intervention Plan adopted in November 2004 to remedy Doe’s prior failures to obey school rules of conduct, the IEP team adopted, with Dorothy Doe’s written approval, an IEP Addendum. The Addendum changed Doe’s placement to an after-school program at the Alternative High School located one block from the high school, where he would receive two hours of regular and special education tutoring per day until he could be “transitioned” back to TCHS. Before his suspension, Doe received five hours of general education instruction and one hour of special education per day at TCHS. After the IEP team meeting, Lucas told Berg that Doe was “no longer under suspension” because his placement had been changed. Dorothy Doe testified that she agreed to the change of placement “because there was no alternative for him to go back to the regular classroom.”
 

 

Judge(s): James Loken
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Constitutional Law , Education
 
Circuit Court Judge(s)
Myron Bright
Raymond Gruender
James Loken

 
Trial Court Judge(s)
Charles Kornmann

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Dana Hanna Hanna Law Office

 
Defendant Lawyer(s) Defendant Law Firm(s)
Robert Anderson May Adam Gerdes & Thompson LLP
Naomi Cromwell Tieszen Law Office Prof LLC
Richard Tieszen Tieszen Law Office Prof LLC

 
Amicus Lawyer(s) Amicus Law Firm(s)
John Hamilton South Dakota Advocacy Services

 

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by the idea. see digre v. roseville schs. indep. dist. no. 623, 841 f.2d 245, 249- * doe's placement to an after-school program at the alternative high school located to 13, 2005. if correct, doe's 1983 due process claim must fail because a four-day school officials apply generally applicable disciplinary procedures and suspend doe his grandmother, dorothy doe, the parent member of the team, attended. the iep and bringing a knife to school. on september 12, berg wrote doe's grandparents 50 (8th cir. 1988). but as a matter of federal law -- the idea as well as the due inappropriate. these safeguards include . . . prior written notice v. wentzville r-iv sch. dist., 397 f.3d 1118, 1124 (8th cir. 2005). -7- public school student with a reading disability receiving special education and related alternative educational setting," that dorothy doe had agreed to the change-of- activity. after he was returned to berg's office, doe grew agitated, spoke loudly iep team with dorothy doe's consent changed doe's placement to the after school 300.536(a). the idea expressly authorizes school officials to unilaterally remove a * there was no alternative for him to go back to the regular classroom." filed this 1983 lawsuit in june 2007 without seeking relief under the idea. against the todd county school district and three school officials (collectively, "the ______________________________ suspension, the school board could not remedy the deprivation and therefore was not 1415(k)(1)(g)(i); 34 c.f.r. 300.530(g).1 courts have applied the balancing test of mathews v. eldridge, 424 u.s. 319 (1976), doeandgivingdoeanopportunitytorespond,speakingwithdoe'sgrandfatherabout in cooperation with the parents or guardian of the child." rowley, 458 u.s. at 207. a meaningful manner." mathews, 424 u.s. at 333 (emphases added; quotation that the district violated the due process clause by failing to provide doe with the clause, id. at 574, and required, for the ten-day suspension at issue, that the suspended conclude that doe's right to procedural due process was limited to the procedures and by s.d. codified laws ch. 13-37. after doe was suspended for fighting and conduct, but it is primarily an educational, not a disciplinary, decision. see m.m., 512 doe, his legal guardian and next friend, * c.f.r. 300.530(d) that afforded the child a free appropriate public education in the was not validly obtained, or that the iep team failed to provide services under 34 examine witnesses. id. at 584. though the court has not since addressed what team first determined that doe's misconduct was not a manifestation of his disability. under the idea, a child with a disability, such as doe, is entitled to a "free education director lucas convened an iep team meeting on september 13. doe and number of days doe was removed from regular classes at tchs. without question, establishes various procedural safeguards that guarantee parents both an they arrived, berg told doe and his grandfather that doe was suspended for fighting suspended ten days. she requested a hearing before the school board unless doe was decisions of the iep team, however, the district's refusal to convene a school board "weapon" means a "dangerous weapon" as defined in 18 u.s.c. 930(g)(2). program for the purpose of providing services -- counseling as well as instructional -- honig, 484 u.s. at 323-25. a change of placement, often to a more structured education afforded by the idea and requesting that his placement be changed. the returned to tchs the next day. berg responded on september 29 that the suspension education and the right to seek review of any decisions they think september 13 iep team meeting, on further reflection she decided her consent was expedited administrative hearings in this situation, see 20 u.s.c. 1415(k)(4)(b), and 2007). however, the idea left "[t]he primary responsibility for formulating the alternative high school." told berg that doe was "no longer under suspension" because his placement had been amicus curiae. * whenever the responsible educational agency proposes (or refuses) to does not require process that "would be an exercise in futility"). viewed from a board, the district court granted summary judgment to doe. the district appeals. we on september 21, dorothy doe wrote berg advising that doe had now been that would help transition him back to regular classes at tchs. the idea expressly his right to a free appropriate public education after he was excluded from regular i. after the iep team determined on september 13 that doe's misconduct was not services at todd county high school (tchs) in mission, south dakota, as required at the september 13 iep team meeting. moreover, in 2004, doe disagreed with an * suspension triggers only the limited due process requirements set forth in goss, 419 with dorothy doe's written approval, an iep addendum. the addendum changed * south dakota advocacy services, inc., * educational placement of a child accused of misconduct. 20 u.s.c. 1415(k)(1)(e); in waln v. todd county sch. dist., 388 f. supp. 2d 994 (d.s.d. 2005), the court held united states court of appeals placement. honig v. doe, 484 u.s. 305, 325 n.8 (1988). plaintiff - appellee, * student be provided "oral or written notice of the charges against him and, if he denies in our view, the district court erred in focusing its due process analysis on the the statute's stay-put provision "in no way purports to limit or pre-empt the [remedial] him to an alternative educational setting. however, under 20 u.s.c. 1415(j), the 20 u.s.c. 1415(k)(7)(c). doe's knife may not have met that definition. doe's attorney, lucas wrote dorothy doe on october 27, reiterating that doe was not jonathan doe, a minor, by dorothy * in this case, although dorothy doe consented to the change of placement at the admitted being in a fight and bringing a knife to school, but said the situation was submitted: june 17, 2010 improperly obtained, and she further concluded that doe's limited instruction at the -3- loken, circuit judge. 34 c.f.r. 300.501(c). within ten school days of a decision changing the child's v. * appeal from the united states (1993); kutasi v. las virgenes unified sch. dist., 494 f.3d 1162, 1169-70 (9th cir. have broad discretion to order educational relief, including compensatory education placement because of misconduct, the iep team must determine whether the being disciplined for misconduct. it was about the effect of the disciplinary action on -9- control of the situation. some days later, unhappy with the results of that decision and no. 09-3221 -8- different perspective, all but four days of the deprivation on which doe's due process before his suspension, doe received five hours of general education instruction and ___________ days" if the child "carries or possesses a weapon to or at school . . . ." 20 u.s.c. education to be accorded a handicapped child, and for choosing the educational ___________ "may require more formal procedures," such as the right to counsel or to cross- . . . so as to enable the child to continue to participate in the general education enough to be heard outside the office, beat on the walls and windows, and threatened extent to which the due process clause of the fourteenth amendment applies to with the extensive -- and constitutionally adequate -- procedural safeguards of the grandfather and debera lucas, the district's director of special education. when ___________ applied to children without disabilities . . . ." 20 u.s.c. 1415(k)(1)(c); 34 c.f.r. free appropriate public education; and an opportunity for `an impartial iii. school board that a long-term suspension was not warranted, the board could not have u.s.c. at 581. principal berg met those requirements by explaining the charges to additional process may be required for longer suspensions, ten days has become the opportunity for meaningful input into all decisions affecting their child's alternative educational setting. see m.m., 512 f.3d at 464. by the individuals with disabilities education act (idea), 20 u.s.c. 1400 et seq., due process hearing' with respect to any such complaints. [20 u.s.c.] goss makes clear that doe's removal from his public school for misconduct entitled u.s.c. 1415(k)(1)(b); s.d. admin. r. 24:07:01:01(2), (5), and federal appellate jennings, 397 f.3d at 1122. complaints concerning any aspect of the local agency's provision of a remedy. as the supreme court explained in honig, 484 u.s. at 311-12, the idea: then, consistent with the behavior intervention plan adopted in november 2004 to bringing a pocket knife to school, he brought this 42 u.s.c. 1983 damage action of the team. but it is undisputed that she signed a document agreeing to a change of his individualized education program (iep) team placed him in an alternative high one block from the high school, where he would receive two hours of regular and ___________ formal notice and school board hearing required by south dakota department of placement, and that doe would be transitioned back to tchs on or about october 31. iep team, not the school board, became the decision-maker authorized to change his 34 c.f.r. 300.530(e). a suspension for more than ten days is a change of student's legitimate entitlement to a public education" is protected by the due process curriculum, although in another setting, and to progress toward meeting the goals set present his side of the story." id. at 581. the court cautioned that longer suspensions his iep team. because the school board lacked authority to overrule educational 1 the wrong procedural remedy, a hearing before the school board, and then commenced doe argues, on the other hand, that his suspension continued until he returned the charges, and writing the september 12 letter to doe's grandparents. see jennings the record establishes that doe received a copy of his procedural safeguards case, by changing the disabled child's placement from the school which suspended the judgment of the district court is reversed. them, an explanation of the evidence the authorities have and an opportunity to recognizing that doe's suspension might trigger iep team obligations, special on september 8, 2005, doe fought with another tchs student on school child for more than ten days, the child must "continue to receive educational services idea's "stay-put" provision -- an important procedural safeguard -- the iep team 1237, 1240 (10th cir. 2001) (collecting cases). at 327. even when the parent initially agrees to a change of placement, an requirement of due process is the opportunity to be heard at a meaningful time and in here, taking account of jonathan doe's prior history of behavioral misconduct, the -6- discipline protocol on short-term and long-term suspensions and called doe's claims could have been raised in an idea complaint seeking doe's immediate return the knife to another student, who promptly turned it in. questioned by berg, doe here, the district argues that doe was suspended four days, from september 8 education administrative rules. see s.d. admin. r. 24:07:03:02. we review the beginning doe's transition back to tchs. in response to an october 21 letter from ___________ as in waln, 388 f. supp. 2d at 1000, a case that did not involve a student with an iep. -10- statutory benchmark for distinguishing short- and long-term suspensions, see 20 process is never due. 458 u.s. 176, 181-82 (1982). the iep is developed, reviewed, and revised by an iep authority conferred on courts by [20 u.s.c. 1415(i)(2)(c)(iii)]." honig, 484 u.s. team that must include the parents of the child, the child's regular and special proceduraldueprocess,includingformalnoticeandahearingbeforetheschoolboard. out in the child's iep." 20 u.s.c. 1415(k)(1)(d)(i); 34 c.f.r. 300.530(d), benefits. see, e.g., florence county sch. dist. four v. carter, 510 u.s. 7, 12-14 special education tutoring per day until he could be "transitioned" back to tchs. 300.530(c). this would result in a purely disciplinary proceeding to which the due district") claiming that they violated his federal procedural due process rights when in september 2005, jonathan doe (a pseudonym to protect his privacy) was a one hour of special education per day at tchs. after the iep team meeting, lucas placement again. see 34 c.f.r. 300.530(d)(5). given the idea's stay-put ended on september 13 when the iep team changed doe's placement to the after school setting for thirty-eight days. concluding that this action resulted in a omitted); see mackey v. montrym, 443 u.s. 1, 16 (1979) (the due process clause ii. classroom instruction doe received at the after school program resulted in a provides that any interim alternative educational setting "shall be determined by the ten days, the alternative educational setting to be used was "after school tutoring at the mainstream classes and had his weekly classroominstruction substantially reduced by iep team decision and appealed that decision to an idea mediation proceeding. "in the same manner and for the same duration in which the procedures would be the district court agreed, concluding that the reduced quality and quantity of -5- alternatively, the iep team could act more affirmatively, as doe's did in this once the iep team changed doe's placement with dorothy doe's consent, the complaint is based was the result of an iep team decision to which dorothy doe changed. dorothy doe testified that she agreed to the change of placement "because represented by attorneys with experience in this kind of dispute, dorothy demanded on october 11, dorothy doe wrote lucas complaining that two hours of daily "constructive" long-term suspension requiring notice and a hearing before the school 2 u.s.c. 1414(d)(1)(a); hendrick hudson central sch. dist. bd. of ed. v. rowley, before loken, bright, and gruender, circuit judges. constitutionally required to conduct a meaningless due process hearing. pointless todd county school district, et al., * district of south dakota. * district court for the education teachers, and a knowledgeable representative of the district. see 20 u.s.c. school program. therefore, "there is no long-term suspension presently in effect to kill berg and another teacher. after doe calmed down, berg read doe the school's district court's due process analysis and grant of summary judgment de novo. administrative hearing officer or reviewing court may later conclude that the consent idea. the does were fully aware of those safeguards but declined to invoke them.2 ordered doe's reinstatement at tchs. m.m., 512 f.3d at 464. "the fundamental for fighting in late november. the does removed him from tchs in early 2006 and u.s.c. 1415(l). doe's procedural due process complaint was not primarily about we have little doubt that, at the iep team meeting on september 13, 2005, to tchs on november 3, making it a long-term suspension entitling him to more after school program failed to provide him a free appropriate public education. both to tchs and compensatory education benefits for the inadequacies of his alternative hearing did not violate jonathan doe's federal constitutional right to procedural due f.3d at 464-65; ind. sch. dist. no. 284 v. a.c., 258 f.3d 769, 776-77 (8th cir. 2001). consented. whether or not the removal is characterized as a "constructive" long-term process protections of goss and the south dakota administrative rules would apply, iep team met the next day and agreed to complete behavioral rating scales before in goss v. lopez, 419 u.s. 565 (1975), the supreme court considered the student "to an interim alternative educational setting for not more than 45 school state hearing officers, and courts reviewing their decisions under the idea, with the school board can be arranged." affording jonathan and dorothy doe whatever process was due? governing the idea decision-maker under 20 u.s.c. 1415 and therefore reverse. ------------------------------------------------ * misconduct was a manifestation of the child's disability. 20 u.s.c. 1415(k)(1)(e); confirming that doe was suspended from tchs from september 8 "until a hearing defendants - appellants. * process. rather, the iep team's educational decision must be reviewed in accordance process clause -- the critical question is, who was the decision-maker responsible for mandate, even if the district had held a goss hearing at which doe persuaded the a manifestation of his disability, the idea gave the team two significantly different grounds. the next day, doe brought a pocket knife to school. when assistant remedies, which the idea requires before a 1983 action may be filed. see 20 no. 1, 512 f.3d 455, 463 (8th cir.), cert. denied, 129 s. ct. 452 (2008), applying 2004 behavioral intervention plan provided that, if a future suspension should exceed "constructive" suspension that lasted thirty-eight days. relying on its prior opinion placement. see 20 u.s.c. 1415(b), (f) - (i). the idea expressly provides for change the child's placement or program; an opportunity to present iep team." 20 u.s.c. 1415(k)(2); 34 c.f.r. 300.530(d)(5), 300.531. doe's -2- principal michael berg learned of the fight and called doe to his office, doe handed procedural alternatives for dealing with the situation. first, the team could have let this result does not mean the does were without an effective procedural educational setting, may be triggered by the child's violation of the school's code of doe returned to tchs on november 3, 2005. he was suspended for ten days -4- jonathan's placement that gave the iep team, rather than the district's school board, him to due process clause protection, in addition to procedural protections provided appropriate public education" tailored to his unique needs by means of an iep. 20 filed: november 12, 2010 could not take this action without the parent's consent. see m.m. v. special sch. dist. "fucking bull shit" and walked out when berg mentioned the possibility of gang instruction at the after school program denied doe the free appropriate public dorothy doe did not believe she could veto decisions being made by other members for the eighth circuit remedy doe's prior failures to obey school rules of conduct, the iep team adopted, if school officials unilaterally (i.e., without the parent's consent) remove a disabled 1414(d)(1)(b), (d)(3) & (4). parents must be involved in decisions regarding the suspended, that the after school program "was selected as an appropriate interim to determine what additional process may be due. see watson v. beckel, 242 f.3d which could result in an appeal to . . . and hearing before the school board." method most suitable to the child's needs . . . to state and local educational agencies disciplinary suspensions of public school children. the court concluded that "a this 1983 action. this was not merely a failure to exhaust idea procedural 1415(b)(1), (2).


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