The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
Plaintiffs, a class of disabled 3- to 5-year-olds in the District of Columbia, bring this action against defendants the District of Columbia, Michelle Rhee in her official capacity as Chancellor of the District of Columbia Public Schools, and Kerri Briggs in her official capacity as the current District of Columbia State Superintendent of Education.*fn2 Plaintiffs allege that defendants denied them a free appropriate public education ("FAPE"); failed to identify, locate, and evaluate them as qualified disabled children ("Child Find" duties); and failed to provide them a smooth and effective transition from assistance under Part C of the IDEA to assistance under Part B of the IDEA by their third birthdays, in violation of the Individuals with Disabilities and Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), the Due Process Clause, U.S. CONST. amend. V, and District of Columbia law.
Before the Court are Defendants' Motion  for Summary Judgment, Plaintiffs' Motion  for Partial Summary Judgment on Liability, and Plaintiffs' Consent Motion  for Order Scheduling Oral Argument on Pending Summary Judgment Motions. Upon consideration of Defendants' Motion for Summary Judgment, the opposition  thereto, the reply brief , applicable law, and the entire record in this case, the Court will grant in part and deny in part the motion for the reasons set forth below. Upon consideration of Plaintiffs' Motion for Partial Summary Judgment on Liability, the opposition  thereto, the reply brief , applicable law, and the entire record in this case, the Court will grant the motion for the reasons set forth below. Upon consideration of Plaintiffs' Consent Motion  for Order Scheduling Oral Argument on Pending Summary Judgment Motions, the Court will deny the motion for the reasons set forth below.
The IDEA was enacted to "ensure that all children with disabilities have available to them a free appropriate public education 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. § 1400(d)(1)(A). States, as well as the District of Columbia, are eligible for federal funding under this statute if they comply with its terms.
Plaintiffs are a class of disabled 3- to 5-year-olds in the District who allege that they have been denied the benefits of the IDEA. The Court previously ordered that plaintiffs' class consists of
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.
( Order, Aug. 25, 2006.) Plaintiffs have alleged systematic failures by defendants, claiming that defendants have failed to provide a free appropriate public education to a large number of qualifying children, have failed to find all of the disabled children in the District, have failed to ensure smooth transitions for children within the system, and have done all of this in bad faith or with gross misjudgment.
In their First Amended Complaint for Declaratory and Injunctive Relief ("Amended Complaint") [46-2], plaintiffs brought suit against defendants on five separate claims, seeking injunctive and declaratory relief. The First Claim alleged a violation of 42 U.S.C. § 1983, as a means of enforcing the IDEA. The Second Claim alleged a violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). The Third Claim alleged a violation of § 1983, as a means of enforcing the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The Fourth and Fifth Claims alleged violations of District of Columbia law, D.C. MUN. REGS. tit. 5, §§ 3000.1, 3002.1(a), 3002.1(d), and 3002.3(a).
In several orders dated August 25, 2006, the Court, inter alia, held that plaintiffs did not need to exhaust their administrative remedies, because exhaustion was futile. Even if exhaustion was futile, however, the Court found that plaintiffs had properly exhausted their administrative remedies. ( Order, Aug. 25, 2006.) The Court also certified the plaintiffs' class. ( Order.) The parties have completed discovery and have both moved for summary judgment.
The Court will treat both defendants' and plaintiffs' motions as motions for summary judgment. Plaintiffs argue that defendants' motion is more akin to a motion to dismiss plaintiffs' claims under Rule 12(b)(6) than to a motion for summary judgment under Rule 56. (Pls.' Opp'n at 1.) Defendants' failure to raise this defense in their answer, however, would not waive their right to file a 12(b)(6) motion to dismiss now. FED. R. CIV. P. 12(h)(2). But the Court need not resolve whether this is more like a Rule 12(b)(6) or Rule 56 motion. Even if this were a Rule 12(b)(6) motion, the Court can treat it as a Rule 56 motion for summary judgment, because both parties have had the opportunity to present matters outside the pleadings in this motion. FED. R. CIV. P. 12(d).
The Court will grant a motion for summary judgment where a party shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2). There is a genuine issue as to a material fact if "reasonable minds could differ" as to that fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), cited in Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex, 477 U.S. at 323. The Court will believe the evidence of the non-moving party and will draw all reasonable inferences from the record in the non-moving party's favor. Anderson, 477 U.S at 255. It is not enough, however, for the non-moving party to show that there is merely "some alleged factual dispute": the fact must be "material." Id. at 247 (emphasis in original). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Thus, summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252. "In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." D.D.C. LCvR 7(h)(1).
A. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS GRANTED IN PART AND DENIED IN PART.
Defendants do not raise any factual disputes in their motion. Accordingly, the Court will decide whether defendants are entitled to judgment as a matter of law as to the legal disputes raised by defendants.
1. First Claim: Plaintiffs Cannot Bring Suit Under § 1983 to Enforce the IDEA
In their Amended Complaint, plaintiffs sued under § 1983 to enforce the IDEA. Plaintiffs do not have a right to sue under § 1983 to enforce the IDEA. Rather, plaintiffs must sue directly under the IDEA. Defendants argue that the U.S. Supreme Court's decision in Rancho Palos Verdes forecloses suit under § 1983, because the IDEA creates a comprehensive enforcement scheme that is incompatible with § 1983 relief. Plaintiffs argue that the broad relief that plaintiffs request exceeds the type of relief available under the IDEA, so suit under § 1983 is proper. The Court agrees with defendants.
While this case was pending, the Supreme Court decided Rancho Palos Verdes v. Abrams, which held that a plaintiff may not sue under § 1983 when there is in place a statutory "comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." 544 U.S. 113, 120 (2005). The existence of such a scheme indicates that "Congress did not intend [relief under § 1983] for a newly created right." Id. "The critical question, then, is whether Congress meant the judicial remedy expressly authorized by [the IDEA] to coexist with an alternative remedy available in a § 1983 action." Id.
In reaching this conclusion, the Supreme Court explained that "to sustain a § 1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs." Id. The parties here do not dispute that plaintiffs are within the IDEA's intended class of beneficiaries. The Court further explained that this showing, however, only creates "a rebuttable presumption that the right is enforceable under § 1983. The defendant may defeat this presumption by demonstrating that Congress did not intend that remedy for a newly created right." Id. In his concurrence, Justice Stevens underscored the "strength" of this presumption in the Court's precedent, rebuttable only in an "exceptional case" that involves "an unusually comprehensive and exclusive statutory scheme." Id. at 131 (Stevens, J., concurring). Despite the strength of the presumption, however, defendant has rebutted it. The Court concludes that Congress did not intend relief under the IDEA to coexist with relief under § 1983.
The D.C. Circuit has not decided whether an individual may sue under § 1983 to enforce the IDEA. See Blackman v. District of Columbia, 456 F.3d 167, 172 n.6 (D.C. Cir. 2006) ("We have not yet decided whether a section 1983 action can be brought to enforce the FAPE right.... Because none of the parties addresses the issue here, we save it for another day...."). There is currently a circuit split on the issue. In light of Rancho Palos Verdes, the First, Third, and Ninth Circuits have held that the IDEA is not enforceable under § 1983. See Blanchard v. Morton Sch. Dist., 509 F.3d 934, 937 (9th Cir. 2007); A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (en banc); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006). The Second Circuit, however, has noted in passing that the IDEA is enforceable under § 1983. See D.D. v. New York City Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006); see also Smith v. Guilford Bd. of Educ., 226 F. App'x 58, 63 (2d Cir. 2007). The Court agrees with the majority of circuits to address the issue, including the en banc Third Circuit, finding that plaintiffs may not sue under § 1983 to enforce the IDEA.
The IDEA creates a comprehensive enforcement scheme. First, it provides administrative remedies, which include "[a]n opportunity for any party to present a complaint... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," 20 U.S.C. § 1415(b)(6)(A), followed by the opportunity for an "impartial due process hearing":
Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
§ 1415(f)(1)(A). The Court held previously that plaintiffs did not have to exhaust these administrative remedies before bringing a civil claim, because exhaustion would be futile. ( Order.) Second, the IDEA provides a "right to bring civil action" in district court:
Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.
§ 1415(i)(2)(A). Plaintiffs may bring an action under this subsection.
§ 1415(i)(2)(A) provides a private cause of action in a district court to any "party aggrieved" by the administrative findings. Generally, a "party aggrieved" is a party who has exhausted his administrative remedies. See Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1236 (10th Cir. 2009); Pedroza v. Los Alamitos Unified Sch. Dist., 302 F. App'x 608, 609 (9th Cir. 2008). Because the Court previously ruled that exhaustion is futile, however, plaintiffs are a "party aggrieved" within the meaning of the statute. The IDEA accords independent, enforceable rights to parties aggrieved. The Supreme Court found that the IDEA accords "independent, enforceable rights" to parents of children covered by the IDEA, because the parents are "parties aggrieved." See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526, 531 (2007). The Supreme Court clarified that the IDEA provides the same rights to parents as it does to children. Id. at 531. Plaintiffs, therefore, may bring a private cause of action in this Court under § 1415(i)(2)(A) to enforce the IDEA.
The Supreme Court has held that a plaintiff may not bring suit under § 1983 to enforce the predecessor of the IDEA-the Education of the Handicapped Act (EHA). Smith v. Robinson, 468 U.S. 992 (1984). In so holding, the Court found that the EHA was a "comprehensive scheme" that showed that Congress intended potential plaintiffs to "pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute." Id. at 1009. In Rancho Palos Verdes, the Court cited Smith favorably: "We have found § 1983 unavailable to remedy violations in two cases: Sea Clammers and Smith. Both of these decisions rested upon the existence of more restrictive remedies provided in the violated statute itself. See Smith, 468 U.S. at 1011-12 (recognizing a § 1983 action 'would render superfluous most of the detailed procedural protections outlined in the statute')." 544 U.S. at 121.
Plaintiffs would likely argue that Congress overruled Smith in 1986 when it amended the predecessor of the IDEA to include language now codified at § 1415(l). This subsection, entitled "Rule of construction," reads:
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 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities....
§ 1415(l) (emphasis added). Under this argument, this subsection would show congressional intent to allow plaintiffs to sue under § 1983 as an "other federal law." This argument may be supported by the legislative history.*fn3 Under the Supreme Court's reasoning in Rancho Palos Verdes, however, this argument is unavailing. The statute in question in Rancho Palos Verdes also contained a "saving clause," which read: "This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments." 544 U.S. at 125-26. This statute is similar to the IDEA, because they both state that the comprehensive enforcement scheme does not preclude relief under other federal laws. Just as the Supreme Court found that the statute in question had no effect on claims under § 1983, id. at 126, the Court now finds that § 1415(l) of the IDEA has no effect on § 1983. See A.W., 486 F.3d at 803 ("[W]e do not agree that § 1415(l) shows that Congress intended the remedies in the IDEA to complement, rather than supplant, § 1983. Just like the savings clause in Rancho Palos Verdes, this provision merely evidences Congress' intent that the claims available under § 1983 prior to the enactment of the Act continue to be available after its enactment."). Furthermore, as discussed above, the Supreme Court cited the Smith ruling favorably in Rancho Palos Verdes, thus implicitly indicating that § 1415(l) did not overrule Smith's holding.
Plaintiffs argue that the IDEA does not provide the full relief they are requesting and that suit under § 1983 is necessary to grant them that relief. The Court finds this argument unavailing. Plaintiffs state that "[t]he central focus of the Amended Complaint is on allegations relating to the operation of defendants' Child Find system as a whole," (Pls.' Opp'n at 6), and "[t]he type of injunctive relief that plaintiffs seek is broader than the individual relief available under the IDEA's remedial scheme," (id. at 7). Plaintiffs essentially argue that defendants have failed to comply with their obligations under the IDEA and that this failure to comply pervades the system. A successful civil action directly under the IDEA, however, will have the same effect as a § 1983 action: both will require the District of Columbia to comply with its obligations under the IDEA. Plaintiffs' argument is a better argument as to why administrative exhaustion is futile, not as to why suit should proceed under § 1983. The Court has already addressed this argument and agreed with plaintiffs that exhaustion would be futile. ( Order.)
Finally, as both parties agree, plaintiffs' status as a class is irrelevant to their right to sue under § 1983 or the IDEA. See 28 U.S.C. § 2072(b) (providing that the Federal Rules of Civil Procedure "shall not abridge, enlarge, or modify any substantive right"); see also D.D., 456 F.3d at 512 ("Plaintiffs' right to a free appropriate education is unaffected by the fact that they have chosen to assert their claim in a class action pursuant to FED. R. CIV. P. 23.").
The Court notes that even if the Court were to allow suit to proceed under § 1983, the same cap on attorneys' fees would exist under § 1983 as it would under the IDEA. See Blackman v. District of Columbia, 456 F.3d 167, 170 (D.C. Cir. 2006) ("[A]n action brought pursuant to 42 U.S.C. § 1983 to enforce IDEA rights is a suit 'under' the IDEA and thus subject to the rider [limiting attorneys' fees].").
Accordingly, the Court will grant in part and deny in part defendants' motion for summary judgment as to plaintiffs' First Claim of their Amended Complaint. The Court will grant it in part insofar as plaintiffs may not proceed under § 1983 to enforce the IDEA. The Court will deny it in part insofar as plaintiffs may proceed directly under the IDEA. Furthermore, the Court will construe the First Claim of plaintiffs' Amended Complaint to state a cause of action directly under § 1415(i)(2)(A) of the IDEA.
2. Second Claim: Plaintiffs Cannot Bring Suit Under § 1983 to Enforce § 504 of the Rehabilitation Act
Defendants argue that plaintiffs cannot bring suit under § 1983 to enforce § 504 of the Rehabilitation Act. (Defs.' Mot. at 7.) Plaintiffs concede this point. (Pls.' Opp'n at 13). Furthermore, this argument is moot, because plaintiffs did not bring suit under § 1983 to enforce § 504. (Am. Compl. at 3.) Rather, they brought suit directly under § 504.
Accordingly, the Court will deny defendants' motion for summary judgment as to plaintiffs' Second Claim under the Amended Complaint. Plaintiffs may proceed directly ...