IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20551

D. A., by next friend and individually; LATASHA A.,

Plaintiffs - Appellants

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT; CELESTINA MARTINEZ;

SHARON COLVIN,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR, District

Judge.

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EDITH H. JONES, Chief Judge:

D.A., through his mother L.A., brought suit against the Houston

Independent School District (“HISD”) and two school officials, alleging that

D.A.’s rights under various federal laws were violated because two of its schools

failed to test him timely for special education. They sought declaratory relief,

compensatory and punitive damages, for violations of the Individuals with

Disabilities Education Act (20 U.S.C. § 1400 et seq.) (“IDEA”), § 504 of the

Rehabilitation Act (29 U.S.C. § 794) (“§ 504”), the Americans with Disabilities

United States Court of Appeals

Fifth Circuit

F I L E D

December 28, 2010

Lyle W. Cayce

Clerk

District Judge, Northern District of Texas, sitting by designation.

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Act (42 U.S.C. § 12101 et seq.) (“ADA”), the Age Discrimination Act (42 U.S.C.

§ 6104(f)), the Texas and United States Constitutions, and 42 U.S.C. § 1983. The

district court granted summary judgment for the defendants. We affirm

principally because appellants have not furnished proof of intentional

discrimination as required by § 504 and the ADA, and § 1983 offers no additional

cause of action for D.A.

I.

BACKGROUND

D.A. attended HISD as a pre-kindergarten student from 2005 until he

withdrew from the district in January 2008. In pre-kindergarten, D.A.’s teacher

noticed that he had trouble completing work and following directions. He was

not tested for special education while in pre-kindergarten and was advanced to

kindergarten. In kindergarten, he was still unable to complete his work. L.A.,

D.A.’s mother, wanted him to have special education testing. A substitute

teacher for D.A.’s kindergarten class recommended special education testing, but

the school counselor agreed only to conduct a speech therapy evaluation. When

D.A.’s regular teacher returned, she had no trouble understanding D.A.’s speech.

The school officials decided not to test D.A., but they failed to inform his mother

of the decision.

Despite warning that D.A. might have to repeat kindergarten, his teacher

promoted him to the first grade. She believed there would be more testing and

special education opportunities for D.A. in the first grade. The school had a

practice of waiting until the first grade to test children for special education, in

order to give them a chance to develop.

In first grade, D.A. immediately misbehaved and performed below grade

level. His teacher referred him for special education testing. D.A. was removed

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from class to help him do his work. Eventually, L.A. had to sit with her son

during class. A private speech pathologist who had been treating D.A. since

kindergarten wrote to the school to express concern about D.A.’s psychoeducational problems. In October 2007, two months into the school year, the

Intervention Assistance Team (“IAT”) first met to consider D.A.’s needs and

decided that a special education evaluation was premature because his teacher

had not sufficiently documented D.A.’s problems. The IAT reached the same

conclusion again on December 5. L.A. wrote several letters to the school

requesting that D.A. be tested. The school evaluation specialist collected

updated documentation from D.A.’s teacher and a psychologist and submitted

the documents to a Committee of Evaluation Specialists, which ultimately

determines whether a student’s behavior warrants a special education referral.

The IAT met before Christmas but delayed D.A.’s referral until after the

holidays. On January 31, 2008, before any testing had occurred, L.A. withdrew

D.A. from the HISD. D.A. entered the Conroe Independent School District

where he was immediately recommended for special education testing.

L.A. filed an IDEA claim with the Texas Education Agency, which held a

due process hearing in April 2008. A special hearing officer determined that

HISD violated IDEA by failing to refer D.A. to an eligibility screening in October

2007. During the proceeding, L.A. requested that HISD fully test D.A.’s

suspected disabilities, but the hearing officer ruled this claim moot because D.A.

had left HISD and was already being tested for special education in the other

district. The hearing officer rejected for insufficient proof the medical expenses

allegedly incurred on D.A.’s behalf and concluded that monetary damages were

unavailable under IDEA.

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D.A. appealed the administrative decision to the district court, requesting

declaratory relief, compensatory and punitive damages. D.A. asserted claims

under IDEA, § 504, ADA, the Age Discrimination Act, the Texas and United

States Constitutions, and 42 U.S.C. § 1983. In a comprehensive and thoughtful

opinion, the district court granted summary judgment in favor of the appellees.

The district court held that the plaintiff’s IDEA claim for compensatory damages

was not moot, but it affirmed the hearing officer’s findings that the plaintiff

lacked any evidence to support claims for compensatory relief. The court

rejected liability under the ADA and § 504 because plaintiffs failed to demonstrate that the school’s actions were motivated by bad faith or gross

misjudgment. The district court dismissed the plaintiff’s Age Discrimination Act

claim for failure to exhaust the proper administrative remedies. The district

court concluded that § 1983 cannot be used as an additional vehicle to redress

violations of the ADA, § 504 or the IDEA. The plaintiff’s constitutional claims

were also dismissed. D.A. has appealed, contending that genuine issues of

material fact exist concerning the district’s liability and that the district court

applied incorrect legal standards when interpreting the statutes.

II.

DISCUSSION

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Although this case was filed to challenge the rejection of D.A.’s IDEA

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claim by the administrative hearing officer, the appeal relies only on the other

statutory claims. The appellant’s argument concerning the district court’s

adverse decision on the IDEA claim raises two points, mentioned only in passing.

Because appellant neither briefs nor seeks relief under IDEA in this appeal, he

has abandoned any such claim. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.

1990). Waiving another point, appellant also chose not to brief the dismissal of

the individual defendants.

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The district court’s grant of summary judgment on the non-IDEA claims

is reviewed de novo. Summary judgment is appropriate when, viewing the

evidence and all justifiable inferences in the light most favorable to the nonmovant, there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. See Bridgmon v. Array Sys. Corp., 325 F.3d 572,

576 (5th Cir. 2003).

A. § 504 and ADA Claims

D.A. contends that the record reveals genuine material fact issues

concerning whether, paraphrasing § 504:

[he] was excluded from participation in, denied the benefits of, and

subject to discrimination at school included, but [not] limited to

being excluded from the classroom activities, learning, work

assignments and lunch, being denied the benefits of receiving

special education testing, speech testing, speech therapy, special

education and free appropriate public education, and being subject

to discrimination regarding his disability, race and age.

The district court, he asserts, erroneously heightened the standard for a

district’s liability under § 504. Because this court has equated liability

standards under § 504 and the ADA, we evaluate D.A.’s claims under the

statutes together. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Pace

v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en banc).

A student may assert claims under IDEA as well as § 504 and the ADA.

Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983). This

court and others have explained that while IDEA imposes an affirmative

obligation on states to assure disabled children a free appropriate public

education, see, e.g., 20 U.S.C. § 1412(l), § 504 and the ADA broadly prohibit

discrimination against disabled persons in federally assisted programs or

activities. See 29 U.S.C. § 794(a); 42 U.S.C. § 12132; see also Sellers v. Sch. Bd.

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of Manassas, Va., 141 F.3d 528-29 (4th Cir. 1998); Pace, 403 F.3d at 290-91. A

web of procedural regulations, including the “Child Find” mandate applicable

here, governs the school district’s identification, assessment and treatment

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plans for disabled students. The regulations seek to maximize educational

professionals’ coordination and collaboration with the parents. Substantively,

IDEA aims to provide an adequate educational opportunity, not necessarily the

maximization of a disabled child’s abilities, and it leaves considerable discretion

in the hands of professionals. See Monahan v. Nebraska, 687 F.2d 1164, 1170

(8th Cir. 1982); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,

458 U.S. 176, 102 S. Ct. 3034 (1982) (interpreting EAHCA, the statutory

predecessor to IDEA).

Exactly what remedies remain under § 504 and the ADA for children

whose parents are dissatisfied with the school’s determinations under IDEA are

unclear. This court applies issue preclusion where the legal standards

underlying such claims are not significantly different. See Pace, 403 F.3d at 290.

In reaching this conclusion, Pace cited favorably an Eighth Circuit decision that

applied claim and issue preclusion to “short-circuit redundant claims” when

IDEA’s administrative process “produces an administrative decision that is

upheld on judicial review.” Ind. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th

Cir. 1996). Thus, the resolution of an IDEA claim in the school district’s favor

will frequently preclude parents’ resort to redundant claims under § 504 and

ADA.

Further constraining the viability of claims under the disability nondiscrimination laws is this court’s long-established rule that:

See Child Find, 34 C.F.R. § 300.111(a) (2006).

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[A] cause of action is stated under § 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.

Marvin H, 714 F.2d at 1356 (emphasis in original); see also Tatro v. Texas,

703 F.2d 823, 832 (5th Cir. 1983) (Tatro II); Helms v. McDaniel, 657 F.2d 800,

806 n.10 (5th Cir. 1981). Marvin H used the term “refusal” because the statute

requires intentional discrimination against a student on the basis of his

disability. See 714 F.2d at 1357; Sellers, 141 F.3d at 528. Marvin H. is

consistent with courts that have held that to establish a claim for disability

discrimination, in this educational context, “something more than a mere failure

to provide the ‘free appropriate education’ required by [IDEA] must be shown.”

Monahan, 687 F.2d at 1170; see also Sellers, 141 F.3d at 529; Lunceford v. D.C.

Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984). As Monahan reasoned,

experts often disagree on what the special needs of a handicapped child may be

and the proper placement of a child is often is an arguable matter.

That a court may, after hearing evidence and argument, come to the

conclusion that an incorrect evaluation has been made, and that a

different placement must be required . . . is not necessarily the same

thing as a holding that a handicapped child has been discriminated

against solely by reason of his or her handicap.

687 F.2d at 1170. The court did not read § 504 as creating “general tort liability

for educational malpractice” because the Supreme Court in interpreting the

IDEA has warned against a court’s substitution of its own judgment for

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educational decisions made by state officials. Monahan concluded that bad faith

or gross misjudgment must be shown in order to state a cause of action under

See, e.g., Rowley, 458 U.S. at 181, 102 S. Ct. at 3038 (interpreting

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EAHCA, the statutory predecessor to IDEA).

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§ 504. Id. at 1171. “So long as state officials involved have exercised

professional judgment, in such a way as not to depart grossly from accepted

standards among educational professionals, we cannot believe that Congress

intended to create liability under § 504.” Id. 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 or ADA

against a school district predicated on a disagreement over compliance with

IDEA.

The state hearing officer found that the school violated IDEA by failing to

test D.A. for special education needs in October 2007, two months before the

final testing decision was made. Because this was the only violation found, it

could be contended that D.A. may not seek to recharacterize the district’s other

pre-referral and pre-intervention actions, which the hearing officer did not

impugn, as discriminatory violations of § 504 or ADA. See Indep. Sch. Dist. No.

283, 88 F.3d at 562 (citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 796-99,

106 S. Ct. 3220, 3224-27 (1986)). Moreover, it could be argued that D.A. has no

cognizable claim under § 504 or the ADA because the gravamen of his disagreement is the district’s failure to diagnose his disability at an appropriate age. He

cannot be discriminated against because of his disability until it has been

demonstrated to exist. Under these scenarios, the district court might have

found the § 504/ADA claims precluded or subject to dismissal. The school

district, however, does not make these arguments on appeal.

What is preserved for review is that even though the hearing officer’s

findings may suggest an untimely diagnosis of D.A.’s psycho-educational

problems, the error reflects no more than negligence. The district’s actions,

including its pre-referral attempts to use a disciplinary strategy with D.A., were

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found “well intended” by the hearing officer. The district court properly relied

on the hearing officer’s determination that the district delayed evaluating D.A.

because the professionals believed that behavioral interventions would be

successful and that the classroom teacher had not properly documented his

behavior. Further, construing the facts in the light most favorable to D.A., we,

like the district court, find no fact issue as to whether HISD officials “departed

grossly from accepted standards among educational professionals.” D.A.’s mere

disagreement with the correctness of the educational services rendered to him

does not state a claim for disability discrimination. Marvin H., 714 F.2d at 1356.

That HISD authorized an evaluation for special education within two months

after its initial denial further demonstrates at most misjudgment, not bad faith.

The district court correctly granted judgment as a matter of law on D.A.’s § 504

and ADA claims.

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B. Age Discrimination Act Claims

Strange as it may seem, D.A. could file a claim under the Age Discrimination Act, which provides that “no person . . . shall, on the basis of age, be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under, any program or activity receiving Federal financial

assistance.” 42 U.S.C. § 6102.

Under the Age Act, however, a plaintiff must exhaust his administrative

remedies before filing an action in the district court. See 42 U.S.C. § 6104(f);

34 C.F.R. § 110.39 (Department of Education enforcement regulations).

Appellant did not fulfill any of the exhaustion requirements. Instead, L.A.

The court also correctly observed that D.A. has failed to offer proof of

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monetary damages either before the hearing officer or in court.

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contends that she only became aware of the Age Act claim at the IDEA

administrative hearing and that fulfilling both the IDEA and Age Act filing

deadlines would have been impossible. Her sworn testimony, to the contrary,

was that D.A.’s pre-kindergarten teacher told her that HISD probably would not

test D.A. because of his young age. L.A. thus knew of the alleged age

discrimination two years before the IDEA hearing. Despite this, appellant

argues that L.A. did not know that age was a motivating factor in HISD’s

decision to delay testing because the pre-kindergarten teacher gave her a

“pretexual reason” [sic]—that young children need time to develop before special

education testing occurs. Whether right or wrong, the policy behind HISD’s

alleged discrimination does not excuse D.A. from the exhaustion requirement.

C. § 1983 Claims

Section 1983 provides a cause of action when a person has been deprived

of federal rights under color of state law. Doe v. Dall. Indep. Sch. Dist., 153 F.3d

211, 215 (5th Cir. 1998). To state a § 1983 cause of action, a plaintiff must allege

a violation of rights secured by the Constitution or by federal laws. Id.

However, where a statutory regime already provides a comprehensive set of

remedies for its enforcement, there is a presumption against the availability of

the more general remedial measures of § 1983. See Lollar v. Baker, 196 F.3d

603, 609 (5th Cir. 1999). This principle renders further discussion of the

intricacies of § 1983 unnecessary.

1. Based on alleged IDEA violations

In Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457 (1984), the Supreme

Court held that the EAHCA [IDEA] contained a comprehensive enforcement

scheme through which disabled children could assert violations of their rights

and that EAHCA claims cannot be pursued through § 1983. Id. at 1004-05,

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1013, 104 S. Ct. 3464-65, 3469. Congress amended the statute to state:

“[N]othing in this title shall be construed to restrict or limit the rights,

procedures, and remedies available under . . . other Federal statutes protecting

the rights of handicapped children and youth.” 20 U.S.C. § 1415(l). Since the

5

addition of § 1415(l), this circuit has not addressed whether recovery may be had

through § 1983 for IDEA violations. Other circuits have held that this

6

amendment did not abrogate Smith’s holding that EAHCA/IDEA violations may

not support § 1983 claims. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 795-

96 (3d Cir. 2007); Sellers, 141 F.3d at 529; Padilla v. Sch. Dist. No. 1, 233 F.3d

1268, 1273 (10th Cir. 2000). We agree with the reasoning of these circuits. The

comprehensive enforcement scheme established for IDEA violations justifies the

presumption that it is meant to be exclusive absent congressional intent to

create additional remedies. See Lollar, 196 F.3d at 609. Nothing in § 1415(l)

indicates an intent to facilitate the expansive remedies under § 1983 in addition

to IDEA’s carefully calibrated mechanism to prevent or remedy violations. See

Jersey City Pub. Sch., 486 F.3d at 802. D.A. cannot assert an IDEA claim

through § 1983.

2. Based on alleged § 504 and ADA violations

D.A.’s argument that he can use § 1983 as a method to enforce alleged

violations of rights under the ADA and § 504 is foreclosed by this court’s decision

in Lollar v. Baker, 196 F.3d at 603. Lollar held that because Congress created

This provision was originally codified at 20 U.S.C. § 1415(f), but is now at

5

§ 1415(l).

Before the addition of § 1415(l), we held that violation of EAHCA may not

6

be enforced through § 1983 because the EAHCA provided the exclusive remedy.

Marvin H., 714 F.2d at 1357-58.

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a specific and comprehensive enforcement mechanism under § 504 to ensure the

rights of the disabled persons, the presumption controls against invoking a more

general remedial scheme to vindicate those rights. Id. Appellant cannot pursue

his ADA and § 504 claims through § 1983.

3. Based on alleged constitutional violations

Appellants argue that HISD violated D.A.’s constitutional rights by

requiring him to show greater evidence of special needs than it required of nonblack children. Appellants believe that because HISD has a history of overidentifying black children as requiring special-needs education, the district is

now over-correcting by holding black children to a higher showing.

There is no actual evidence of the asserted over-correction. The only

“evidence” D.A. points to is a statement by HISD’s counsel during the closing

argument before the hearing officer that HISD was concerned about

over-identifying black children. This is not sufficient, not only because

arguments by counsel are not evidence, but also because it establishes only that

HISD was concerned about over-identification, not that HISD actually treated

black children differently.

III.

For these reasons, the judgment of the district court is AFFIRMED.

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