Damages

damages

DAMAGES

Update:  In a decision from a district court in Texas, the judge provided an updated summary of decisions establishing binding precedent for establishing liability and  deliberate indifference within the Fifth Circuit.  Excerpts from that decision summarizing relevant cases as of December, 2016, are posted at the end of this page.

While reimbursement for services and/or compensatory education when the school has not provided their children with a free appropriate public education (FAPE) and attorney fees are available to parents under the IDEA Part B, damages and punitive damages are not available under that statute.  (Courts have held attorney fees are not available under Part C.)

Neither damages nor punitive damages are available under FERPA or the PPRA, either.

However, spedlaw is never quite what it seems, and that fact should give no comfort to school administrators or teachers.  Attorneys are quite creative when it comes to representing their clients, and while successful lawsuits for damages remain rare, that does not mean they are non existent.   The reason, of course, is that the IDEA is not the only statute protecting disabled children and children in the general education program.   Not all the cases cited below are “good law,” either.   

Let’s begin with Doe v. Withers.   It is only being cited here because it continues to be available on other websites.  Whereas there are some precedents that should cause genuine alarm. Doe v. Withers is not one of them.   Decided in 1993, it involved a teacher, who also served in the state legislature of West Virginia, who thought that the modifications written into the child’s IEP were inappropriate for the student.   As a result, the student failed, and as a result of that, lost the privilege of playing on school teams.   The parents, incensed, sued.   Actual damages awarded (under Section 1983 of the Civil Rights Act) were five thousand dollars, and punitive damages of $10,000.  Virtually every court since then has ruled that punitive damages are not available under the IDEA.  Most courts have ruled that damages are also unavailable, despite one case that awarded nominal damages to some parents because they were not provided their rights as required by law.  (Salley v. Tamnnay Parish, 5th Circuit, 1995  Salley v. Tammany Parish, 5th Circuit, 1995 (Link)

 Doe v Withers 1993

It was commonly believed before 2001 that damages were not available under the ADA/504, although there had been a split in the circuit courts.   The issue was partially settled in 2002, in a case not involving educational institutions, when the Supreme Court ruled in Barnes v. Gorman that while  damages were available under Title VI and the ADA, punitive damages were not available.  

Barnes v. Gorman 2001

And it was all but settled in 2005 when the Supreme Court ruled in Rancho Palos Verde, wherein they ruled that if a statute provided a means for relief different from Section 1983 of the Civil Rights Act, then the relief available under Section 1983 was precluded.

RANCHO PALOS VERDES V. ABRAMS

Of course, just having a case did not mean that parents could sue for damages without exhausting administrative remedies first.   That principle is still applicable today . . . the IDEA requires that schools make administrative remedies available to parents.   Where the parents might have had a case for damages, the courts have sometimes rejected their claim because they had not accessed administrative remedies first.  This has happened additionally in cases where the parents alleged a 504 claim but the court has concluded the relief they were seeking would have been available under the IDEA.    (Parents may also lose their right of appeal when they exercise their right under the 2008 IDEA amendment to terminate special educational services for their child.)  

Polera v. Newburgh 2002

More recently, in 2010, the Ninth Circuit heard a school case, Mark H. v. Hamamoto, wherein the parents were seeking damages under Section 504.   The Ninth reiterated the principle above with respect to punitive damages, but held that schools could be held liable for actual damages for injury resulting from “deliberate indifference.”.   

The actual outcome in that case was less important than the principles applied by the Ninth Circuit:

Plaintiffs may prevail in a § 504 claim for damages, we held, by establishing that an organization that receives federal funds violated § 504 “intentionally or with deliberate indifference.” Id. at 938. Plaintiffs may establish that an organization violated § 504 by showing that the public entity discriminated against, excluded, or denied the benefits of a public program to a qualified person with a disability. Id. at 937. This includes showing that the public entity denied the plaintiff a reasonable accommodation. Id. A violation of one of the regulations implementing § 504 may support a claim for damages if the violation denied the plaintiff meaningful access to a public benefit, and the defendant organization acted with deliberate indifference. Id. at 938-39. Having so clarified the legal standards, we remanded with the direction that the H. Family be given the opportunity to amend their complaint. Id. at 939.

In other words, if a plaintiff can prove school administrators deliberately denied a child a right guaranteed under the ADA/Section 504 and was indifferent to the possible negative outcomes of that denied, that school system could be sued for damages.  While the courts have generally found that a school official cannot be held individually accountable for acts of deliberate indifference, there has been a split in the courts regarding an official’s potential liability under Section 504 for acts of retaliation against a parent.  

Mark H v Hamamoto 9th Circuit 2010

For better or worse (depending on from what perspective you are reading this essay), spedlaw is not the only source of concern when it comes to lawsuits.

Title VI prohibits discrimination based on gender, and the Supreme Court ruled that Section 1983 of the Civil Rights Act may be invoked when alleging sexual discrimination.  

Fitzgerald v Barnstable 2009

 

The circuit courts have been split with respect to damages available under Section 1983 of the Civil Rights Act when based on IDEA claims (one reason why it is important to know which circuit holds sway in your jurisdiction.)  According to LRP, the 1st, 3rd, 4th, 9th, and 10th Circuit Courts have held that litigants may NOT use Section 1983 in an IDEA case.  The 2nd and 7th Circuits have held the opposite view.  The 6th Circuit has held 1983 claims may be brought in some instances, while the 8th has issued conflicting views in 1988 and 1996.  (Heidemann v. Rother, 8th Circuit and Digre v. Roseville, 1988 )

If you are unsure as to within which Circuit Court your school system falls, the following map may prove helpful:

Circuit Courts Map

When the Shoe is On the Other Foot

Sometimes teachers sue their school systems for violating their free speech rights.  Sometimes they win, but sometimes they lose.   The Constitution guarantees teachers the right to speak out as private citizens on matters of public interest without being retaliated against by their school system.  School systems when confronted with a suit alleging retaliation will argue one or both of the following.  (1) That the teacher’s speech was not about a matter of public interest but about the conditions of his or her employment; or (2) that the school system would have fired or disciplined him or her for reasons unrelated to the speech; or both.

The Supreme Court articulated the standards under which free speech would be protected in the Pickering decision in 1968.

supreme court

Pickering Supreme Court 1968

There are a number of examples wherein schools have prevailed on that argument.

Boring, for example, was a teacher in Asheville.   She wanted to put on a play that her administrators thought inappropriate.  They transferred her.  She alleged retaliation for the exercise of free speech.   The court found that the school board has ultimate authority for what is being taught and that her case was not an issue of public interest.  

Boring v Buncombe Fourth Circuit 1998

Again, another teacher lost when she was allegedly retaliated against for complaining about her class size.   The court concluded that this was a concern about her conditions of employment, not a matter of public interest, and dismissed her lawsuit.

Fox v Traverse City 2010

In the 2010 Lamb v. Booneville case below, a teacher alleged that she was terminated for a younger teacher because she had complained about an autistic child being corporally punished.  On the face of it, a seemingly defensible action.   However, the teacher undermined her own case by emailing a colleague that she was not so much concerned about the physical punishment as she was that the administration had not consulted her beforehand.  That in the eyes of the court made it a condition of employment issue, not a matter of public interest.   As for her argument based on age, the court found that the school system had adequate justification for terminating her because in several cited instances her behavior was unprofessional and disrespectful.  

Lamb v Boonville 2010

In an example where a special education teacher’s right to sue under Section 1983 was upheld  see Sturm v. Rocky Hill in 2005.  

 Sturm v Rocky Hill 2005

And another nurse’s rights were upheld by the Third Circuit that same year.

McGreevy v Stroup 3rd 2005

Even when a teacher does succeed in defending herself, the process can be long and emotionally painful.   One of the best examples of that kind of case was that of Pamela Settlegoode (an appropriate name if there ever was one.)  She was fired after advocating for her students.   The district failed to convince a jury that her speech should not have been protected or that she would have been fired even if she had not engaged in protected speech.   As a result, and after many trips to the courtroom, the Circuit court upheld her award of more than one million dollars.

Settlegoode v Portland Ninth Circuit 1993

Excerpts from Plainscapital v. Keller Unified School District, November 29 2016 North District Court, Texas regarding liability and deliberate indifference standards. *

In 1998, the United States Supreme Court, in Gesber v. Lago Vista Indep. Sch. Dist., held that recovery of damages from a school district under Title IX for a teacher’s discriminatory harassment4 of a student requires proof that (1) a school-district employee with supervisory power over the offending teacher (2) had actual notice of the discrimination and (3) responded with deliberate indifference. See Gesber v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277.(1998); see also King v. Conroe Indep. Sch. Dist., 289 F.App’x 1, 4 n.3 (5th Cir. 2007). A year later, in Davis v. Monroe Cty. Bd. of Educ., also a Title IX case, the Supreme Court held that school districts may also be liable for failing to address a student’s sexual harassment of another student only where the district is deliberately indifferent to known acts of harassment. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In 2014, the Fifth Circuit extended the deliberateindifference standard to cases under § 504 and the ADA involving an allegation of a student’s disability-based harassment of another student. See Estate of Lance v. Lewisville ISD, 743 F.3d 982, 996 (5th Cir. 2014). In doing so, the court explained that the Supreme Court’s reasoning in Davis applies equally to harassment on the basis of personal characteristics enumerated in Title VI, Title IX, § 504, and other relevant federal antidiscrimination statutes.5 See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015)(citing Lance, 743 F.3d at 955). Although the case before this Court is neither a Title IX case6 nor one involving peer harassment, the Court finds instructive the Lance court’s application of Davis–-a Title IX case–to determine a school district’s liability for disabilitybased harassment under § 504 and the ADA.

“””

A. Deliberate-Indifference Standard In Davis, the Supreme Court explained that a school district should be deemed deliberately indifferent to acts of peer harassment only where its response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398 (5th Cir. 2015)(quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661). As such, the deliberate-indifference inquiry does not “transform every school disciplinary decision into a jury question.” Lance, 743 F.3d at 997 (quoting Gant ex rel. Gant v. Wallingford Bd. Of Educ., 195 F.3d 134, 141 (2d Cir. 1999)). Instead, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not ‘clearly unreasonable’ as a matter of law.” Id. (citing Davis, 526 U.S. at 649). The deliberate-indifference standard is a high one. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir. 1998). Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not necessarily amount to deliberate indifference. Id. A school district’s ineffective responses are not clearly unreasonable just because the actions continue. See Sanches v. Carrolton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) (citing Doe v. Dallas Indep. Sch. Dist., 220 F.3d 390 (5th Cir. 2000)). Schools are not required to accede to a parent’s remedial demands, and courts should refrain from second-guessing the disciplinary decisions made by school administrators. Id. at 167 (citing Davis, 526 U.S. at 642, 648, 119 S.Ct. 1661).

B. Case Analysis 1. Deliberate Indifference Found a. Doe v. Taylor Independent School District In Doe v. Taylor Ind. Sch. Dist., high-school student Jane Doe, who had been sexually molested by her teacher, Jesse Stroud, sued Taylor Independent School District, its superintendent, Mike Caplinger, and her campus principal, Eddy Lankford, under 42 U.S.C § 1983. See Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443 (5th Cir.)(en banc), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). Doe’s claims were based on the following facts.

 Jesse Stroud (“Stroud”) was a biology teacher and assistant coach at Taylor High School from 1981-1987. During that time, it was no secret in the school community that Stroud behaved inappropriately toward female students. Eddy Lankford (“Lankford”) became principal of Taylor High School in 1983. From 1983-1985, Lankford received various complaints about Stroud’s behavior. Specifically, Lankford received parental complaints that Stroud favored certain female students and used inappropriate sexual innuendos in his biology lectures. He also received reports from the school librarian that Stroud was grabbing girls around the waist and hugging them excessively. During the 1984-1985 school year, Stroud began an inappropriate friendship with a freshman female student. Stroud placed gifts in her locker, walked her to class, and exchanged notes with her. In the fall of 1985, rumors about Stroud and the student, who was by then a sophomore, began circulating. In addition, Stroud had begun a similar inappropriate relationship with another female student. During the 1985 football season, Lankford approached Stroud outside the fieldhouse and spoke to him about being “too friendly” with the sophomore student. In May 1986, the school librarian reported to Lankford that she had seen Stroud in the library copy room catching female students as they jumped off of a table into his arms. The librarian described the behavior as akin to “child molestation.” In July 1986, Mike Caplinger (“Caplinger”) became the superintendent of Taylor Independent School District. Lankford did not inform Caplinger of any problems with Stroud or with his pattern of conduct. In August 1986, plaintiff Jane Doe entered Taylor High as a freshman. Stroud immediately befriended Doe, and the two began exchanging notes at school. Stroud gave Doe gifts, took her to lunch during the school day, and walked Page 7 of 20 her to class. In Stroud’s biology class, Doe was not required to take tests or do class work. In January 1987, Lankford heard that Stroud had taken Doe and other students to a rock concert and received multiple complaints about Stroud’s favoritism toward Doe in the classroom. Lankford subsequently spoke with Stroud, and for the first time, notified Caplinger about possible problems with Stroud. In February 1987, the assistant principal of Taylor’s middle school reported to Caplinger that he had witnessed Stroud behaving inappropriately with several freshman girls, including Doe, at a basketball game. Caplinger instructed Principal Lankford to speak with Stroud about the incident, which he did. The athletic director also spoke to Stroud about the report. On Valentine’s Day, Stroud gave Doe a valentine that read, among other things, “ I’m in love with you.” A classmate of Doe’s, Brittani B., found the valentine and took it to the guidance counselor. Brittani also shared her suspicions that the two were having a sexual relationship. At the direction of the guidance counselor, Brittani took the valentine to Lankford the next day. After reviewing the note, Lankford told Brittani that there was no proof the valentine was from Stroud because it was not signed. Lankford did not keep a copy of the note and did not investigate the matter further. He did not tell Caplinger about the incident, nor did he speak with Stroud or Doe. Lankford’s only action was to transfer Brittani out of Stroud’s biology class. Doe and Stroud began having sexual intercourse on and off school grounds in April 1987. In June 1987, two concerned parents reported to Caplinger that Stroud was behaving inappropriately with Doe and other female students at a local fair. In response, Caplinger contacted the parents of a girl who was reported to have been intoxicated and misbehaving with Stroud and Doe. When the girl’s mother assured him that her daughter was not at the fair, Caplinger dismissed the report as unfounded without investigating further or contacting Doe’s parents to discuss the report with them.

In July 1987, Doe’s parents discovered photographs of Stroud and handwritten notes from him in Doe’s possessions. Doe’s parents immediately contacted Caplinger. Caplinger privately met with Doe, who denied any sexual relationship with Stroud. At Caplinger’s request, Lankford called Stroud, who denied any sexual involvement with Doe. For the first time, Lankford spoke of disciplinary consequences. Specifically, he suggested that Stroud resign or take an in-school suspension. Stroud refused. Caplinger, Lankford, and Stroud subsequently met to discuss the situation. Caplinger and Lankford warned Stroud to keep his distance from Doe, and that he would be fired “if something was going on.” No further action was taken. On October 5, Doe’s mother found more love letters from Stroud. On October 6, Stroud was suspended from employment. Stroud later resigned and plead guilty to criminal charges stemming from his molestation of Doe

In determining whether Lankford and Caplinger were entitled to qualified immunity, the Fifth Circuit examined whether Doe had adduced summary judgment evidence that Lankford and Caplinger had acted with deliberate indifference. Id. at 457. The Court ultimately concluded that Principal Lankford could be found to have been deliberately indifferent based on evidence that he (1) received numerous reports of Stroud’s inappropriate conduct with female students, including Doe, over the years, (2) regularly dismissed the various reports and parental complaints about Stroud’s conduct, (3) never recorded any of the reported incidents in Stroud’s personnel file, and (4) never discussed specific incidents with Doe, her parents, Stroud, or Caplinger. Id. at 457- 58. The court explained that, “[a] jury could reasonably conclude that had Lankford taken actions that were obviously necessary in response to the valentine – indeed, if he had responded at all – the relationship might have been derailed at that point and the violation of Jane Doe’s rights would not have been as severe or prolonged.” Id. at 457. With respect to Caplinger, the Fifth Circuit noted that, when he received a complaint from a parent, he promptly notified Lankford and instructed him to speak with Stroud. When Doe’s parents complained to him, Caplinger responded by meeting with Doe, who denied any sexual relationship, and by verbally reprimanding Stroud. The Fifth Circuit found that, although Caplinger’s response was ineffective, it did not exhibit deliberate indifference. Id. In reaching its decision, the court explained: Deliberate indifference will often be a fact-laden question – as it is in this case – and, consequently, it is impossible for us to draw bright lines in such an inquiry. We can forsee many good faith but ineffective responses that might satisfy a school official’s obligations in these situations, e.g., warning the state actor, notifying the student’s parents, or removing the student from a teacher’s class. Indeed, if Lankford had sternly warned Stroud early on to stay away from Doe or risk termination and Lankford then received no later indication of further misconduct, the standard of deliberate indifference would be difficult to establish. Id. at 457, n. 12. The Court recognizes that the instant case is not a § 1983 case; however, the Fifth Circuit has since referred to the abovequoted language as the “Doe v. Taylor standard” against which it has measured evidence of a school district’s deliberate indifference under Title IX. See King v. Conroe Indep. Sch. Dist., 289 F.App’x 1, 2 (5th Cir. 2007). To the extent Keller’s liability is based on the misconduct Dan Evans, the Court must determine, like the Court in Doe v. Taylor, whether a school official with supervisory authority over Evans responded to his misconduct with deliberate indifference. As such, the Court concludes that the Fifth Circuit’s analysis of a school official’s response, even in the context of a § 1983 claim, is relevant to this Court’s analysis in this case. b. Vance v. Spencer Cnty. Pub. Sch. Dist. In Lance, the Fifth Circuit cites Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) to illustrate circumstances of deliberate indifference. See Lance, 743 F.3d at 1000. In Vance, a female high school student sued Spencer County Board of Education (“Spencer”) for gender discrimination under Title IX. Vance’s claim was based on various incidents of peer sexual harassment that she endured while at school. A jury ultimately found that Spencer had violated Title IX. In reviewing the district court’s denial of Spencer’s posttrial motion for judgment as a matter of law, the Sixth Circuit considered relevant to its analysis whether Spencer had knowledge that its initial response to alleged harassment was ineffective. Vance, 231 F.3d at 260-61. “Although no particular response is required to eradicate all [harassment], the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.” Id. The Sixth Circuit affirmed the district court’s denial of Spencer’s Rule 50 motion, holding that a jury could find deliberate indifference when:

On one occasion, a student’s harassing conduct culminated in stabbing Alma in the hand. With the exception of talking to the student, there was no evidence before the jury or this Court that Spencer took any action whatsoever. On another occasion, two male students held Alma while another took off her pants and others pulled her hair and attempted to rip off her clothes. With respect to that incident, the only evidence before the jury evincing Spencer’s response is that a class room teacher spoke to the boys and Alma. There is no evidence before this Court that Spencer ever disciplined the offending students nor informed law enforcement as a result of any of these incidents. On yet another occasion, Alma’s mother filed a detailed complaint with Spencer’s Title IX coordinator. An investigation, however, never resulted. These three incidents alone reflect a deliberate indifference in light of the known circumstances. Id. at 265. 2. Deliberate Indifference Not Found In King v. Conroe Indep. Sch. Dist., 289 F.App’x 1, 2 (5th Cir. 2007), a Title IX coach-student sexual-abuse case, a parent reported to the principal, Don Stockton, that “she had overheard her son and his friend discussing an ‘affair’ between [volleyball coach Felicia Shupp] and a female student, in which the student and coach were seen kissing and passing notes.” King, 289 F.App’x at 1. In response, Principal Stockton and the vice principal later met with Shupp and, after receiving a denial from her, warned Shupp to keep her relationships with students professional at all times. No further action was taken by Principal Stockton or other CISD officials. Id. The sexual relationship between King and Shupp ended three years later. Id. The Fifth Circuit concluded that CISD was entitled to summary judgment because King could not establish that the principal, or any other CISD employee with supervisory authority over the offending coach, acted with deliberate indifference toward King’s statutory rights. Id. at 2. The court explained that “Stockton met with Shupp, questioned her about the alleged relationship, and upon receiving a denial, warned her to keep her relationships with students professional at all times.” Id. The Fifth Circuit concluded that, “[b]ased on the limited information [Stockton] had, such action satisfies the Doe v. Taylor standard.” Id.