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Albuquerque Public Schools v. Sledge

United States District Court, D. New Mexico

August 8, 2019

ALBUQUERQUE PUBLIC SCHOOLS, Plaintiff,
v.
LINDSAY SLEDGE et al., Defendants. LINDSAY SLEDGE et al., Plaintiffs,
v.
BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS et al.,, Defendants.

          MEMORANDUM OPINION AND ORDER REGARDING MOTIONS TO DISMISS

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on: (1) Defendant Albuquerque Public Schools' Rule 12(b)(6) Motion for Partial Dismissal (Doc. 9)[1] (“APS' Motion to Dismiss”), filed December 14, 2018; and, (2) Defendants State of New Mexico and New Mexico Public Education Department's Motion to Dismiss Plaintiffs' Complaint to Enforce IDEA and the Prohibition Against Disability Discrimination in Public Education (Doc. 11) (“State Defendants' Motion to Dismiss”), filed December 17, 2018. The Court, having reviewed the parties' submissions and the relevant law and being otherwise fully advised, FINDS that Defendants' motions are well taken and should be GRANTED. [2]

         I. Background and Procedural History

         In their Complaint, Plaintiffs Lindsay Sledge and David Guba (“Parents”) allege the following.[3] Parents' daughter P. S.-G. (“Student”) has Dravet syndrome and as a result has had life-threatening seizures since infancy. (Doc. 1 at 1.) Her seizures are “unchecked by traditional pharmaceuticals”; however, the administration of cannabis daily as a preventative and at the onset of seizures has significantly reduced their frequency and length. (Id.) After the family moved to New Mexico in 2016, the New Mexico Department of Health designated Student as a qualified patient with a debilitating medical condition whose primary caregiver, Ms. Sledge (“Mother”), may administer cannabis to her pursuant to the Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. §§ 26-2B-1 et seq. (“CUA”).[4] (Doc. 1 at 2.) However, at the relevant times, the CUA prohibited the possession or use of cannabis on school grounds and did not extend a waiver of civil or criminal penalties to school staff who administered cannabis to qualified students. (Id.)

         When Student began attending preschool in March 2017, she was eligible to receive special education and related services from Defendant the Board of Education of Albuquerque Public Schools (“APS”) due to her other health impairment of Dravet syndrome.[5] (Id. at 9.) After APS informed Parents that Student could not receive cannabis from school staff or on school grounds, Parents requested homebound services for Student, so that Mother could give Student cannabis in the event of a seizure.[6] (Id. at 2, 9.) However, APS rejected this request. (Id.) Instead, Student attended preschool at her neighborhood school and Mother remained on campus with her, at first in Student's classroom and later in the teacher's lounge or in Mother's car. (Id. at 9-10.) Mother accompanied Student to preschool for the rest of the 2016-2017 school year, the 2017 Extended School Year, and the 2017-18 school year. (Id. at 10.) For these time periods, “the plan was for [Mother] to run to [Student] if she began seizing, pick her up, carry her off campus and administer [cannabis] to stop the seizure.” (Id.)

         At an Individualized Education Plan (“IEP”) meeting in the spring of 2018, Parents requested homebound services for Student for the 2018-2019 school year, when she would be attending kindergarten. (Id.) APS again rejected Parents' request. (Id.) On July 3, 2018, Parents submitted a request for an administrative due process hearing against APS and the New Mexico Public Education Department (“NMPED”), alleging that these entities had denied Student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. (18-cv-1041, Doc. 1 at 6, 10.) The Due Process Hearing Officer (“DPHO”) held a three-day hearing in August and September 2018 and issued a final written decision on October 7, 2018. (Id. at 7.) In her decision, the DPHO found that APS had denied Student a FAPE and ordered it to provide Student with homebound services and an abbreviated school schedule to allow Student to interact with peers. (Id. at 7, 10.) The DPHO also ordered a “limited remedy” against the NMPED. (Id. at 7.)

         On November 6, 2018, APS filed a civil action in this Court appealing the DPHO's decision. Albuquerque Pub. Schs. v. Sledge et al., Civ. No. 18-1029 KK/LF, Orig. Compl. for Review of IDEA Admin. Dec. (D.N.M. filed Nov. 6, 2018). Parents, in turn, filed this cross-appeal on November 8, 2018, seeking limited review and modification of the DPHO's decision to: (a) award Mother compensation for accompanying Student to preschool in 2017 and 2018; (b) find that the NMPED denied Student a FAPE; and, (c) award Parents their attorneys' fees and costs, all pursuant to the IDEA. (Doc. 1 at 16.) In addition, Parents allege that Defendants discriminated against Student on the basis of disability in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), and pursuant to this statute seek: (a) damages for Mother's wage loss and Student's pain and suffering; (b) a declaratory judgment that the CUA discriminates against children with disabilities; and, (c) an award of attorneys' fees and costs. (Doc. 1 at 3-4, 16-17.) On July 23, 2019, the Court entered an Order consolidating these cases. (Doc. 31, APS Doc. 25.)

         Defendants filed their respective motions to dismiss on December 14 and 17, 2018. (Docs. 9, 11.) In its motion, APS seeks dismissal of Parents' IDEA claim challenging the adequacy of the remedy the DPHO ordered against APS, and of Parents' Section 504 claims against it. (Doc. 9 at 1.) The NMPED and the State of New Mexico (“State Defendants”), in turn, seek dismissal of all of Parents' claims against them.[7] (18-cv-1041, Doc. 11 at 1.) For the following reasons, the Court finds that Defendants' motions are well-taken and should be granted.

         II. Analysis

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[F]or the purposes of a motion to dismiss [the Court] must take all of the factual allegations in the complaint as true, ” but it need not accept legal conclusions. Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not count as well-pleaded facts.” Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (quotations and citations omitted).

         A. APS' Motion to Dismiss

         1. Parents' IDEA Claim Against APS

         In its Motion to Dismiss, APS first seeks dismissal of Parents' claim challenging the adequacy of the remedy the DPHO ordered against it pursuant to the IDEA. (Doc. 9 at 3-11; see Doc. 1 at 12.) The IDEA “offers States federal funds to assist in educating children with disabilities.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ___ U.S. ___, 137 S.Ct. 988, 993 (2017). “In exchange for the funds, a State pledges to comply with a number of statutory conditions, ” including the provision of a FAPE to all eligible children residing in the State. Id.; Sytsema ex rel. Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1312 (10th Cir. 2008) (“[S]tates must provide all eligible students with a FAPE to receive federal funding under the IDEA.”); L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004) (“States must comply with the IDEA's requirements, including providing each disabled child with a FAPE . . . in order to receive funds under the statute.”). An eligible child “acquires a substantive right to such an education once a State accepts the IDEA's financial assistance.” Fry v. Napoleon Cmty. Sch., ___ U.S. ___, 137 S.Ct. 743, 749 (2017) (quotation marks omitted).

         A FAPE includes both “special education” and “related services.” Endrew F., 137 S.Ct. at 994. “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability, ” while “related services” are the support services “required to assist a child . . . to benefit from” that instruction. Id. A FAPE must provide a “substantively adequate program of education, ” which requirement is satisfied “if the child's IEP sets out an educational program that is reasonably calculated to enable the child to receive educational benefits.” Id. at 995-96, 999. In addition, a FAPE must be free, that is, “provided at public expense, under public supervision and direction, and without charge.” 20 U.S.C. § 1401(9)(A); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993). Finally, a FAPE must be offered in the least restrictive environment (“LRE”) that is appropriate under the circumstances. L.B. ex rel. K.B., 379 F.3d at 976.

         The IDEA requires special education and related services to conform to the child's IEP, which “describe[s] the special education and related services that will be provided.” Endrew F., 137 S.Ct. at 994 (quotation marks and ellipses omitted).

Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. Parents are included as members of IEP teams. They have the right to examine any records relating to their child, and to obtain an independent educational evaluation of their child. They must be given written prior notice of any changes in an IEP, and be notified in writing of the procedural safeguards available to them under the Act[.]

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citations, quotation marks, and brackets omitted).

         When parents and educators disagree about the contents of a student's IEP, “parents may turn to dispute resolution procedures established by the IDEA, ” including “a due process hearing before a state or local educational agency.”[8] Endrew F., 137 S.Ct. at 994; Sytsema, 538 F.3d at 1312. The party seeking relief bears the burden of persuasion at the due process hearing. Schaffer, 546 U.S. at 51. “[A]t the conclusion of the administrative process, the losing party may seek redress in state or federal court.” Endrew F., 137 S.Ct. at 994 (citations and quotation marks omitted); Sytsema, 538 F.3d at 1312. If the court finds that a school district has violated the IDEA, it may grant such discretionary equitable relief as it deems appropriate. Florence Cty. Sch. Dist. Four, 510 U.S. at 12, 15-16.

         In their cross appeal, Parents challenge the adequacy of the remedy the DPHO ordered against APS under the IDEA, claiming that the DPHO should have ordered APS to compensate Mother for accompanying Student to preschool in 2017 and 2018. (18-cv-1041, Doc. 1 at 3, 12-13, 15-16.) In its Motion to Dismiss, APS argues that the Court should dismiss this claim because Parents have failed to allege a violation of the IDEA and thus are not entitled to any remedy. (18-cv-1041, Doc. 9 at 3-11.) Specifically, APS argues that “[t]he IDEA does not require APS to either provide medical cannabis to [Student] or accommodate the use of same, and therefore [Parents'] claim fails to state a cause of action under the IDEA.” (Id.)

         In its Memorandum Opinion and Ordered entered August 8, 2019, this Court ruled that: (1) the IDEA does not require APS to administer or accommodate the administration of cannabis to Student; but, (2) Parents nevertheless met their burden of proving that APS failed to offer Student a FAPE for kindergarten and are entitled to relief under the IDEA. (APS Doc. 26, Doc. 32, hereinafter “Mem. Op. & Order”.) However, the Court also ruled that Parents did not meet their burden of proving that APS denied Student a FAPE for preschool, id., and this ruling forecloses Parents' claim that the DPHO should have ordered APS to compensate Mother for accompanying Student to school during her preschool years.

         Initially, as explained at some length in its Memorandum and Opinion and Order, the Court agrees that the IDEA does not require APS to administer or accommodate the administration of cannabis to Student. Id. The administration of cannabis to Student has at all relevant times been unlawful under the federal Controlled Substances Act (“CSA”), 21 U.S.C. § 812(b)(1) & Sch. I; Gonzales v. Raich, 545 U.S. 1, 14 (2005), and it would be absurd to interpret the IDEA to require APS to commit or accommodate a federal crime to satisfy its obligation to provide Student with a FAPE.[9] Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454 (1989). In addition, because the IDEA does not unambiguously require states to offer students services that violate federal law, the Spending Clause prevents the Court from reading this requirement into the statute. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 207 n.26 (1982); Nielsen v. Preap, ___ U.S. ___, 139 S.Ct. 954, 971 (2019). Further, by operation of the CSA, the administration of cannabis cannot be “necessary to aid a [disabled] child to benefit from special education, ” and thus cannot be a related service that APS must provide as part of a FAPE under the IDEA. Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 894 (1984). For these reasons, and as further explained in its Memorandum Opinion and Order, the Court reiterates that the IDEA does not obligate APS to administer or accommodate the administration of cannabis to Student as part of a FAPE.

         Nevertheless, in its review of the administrative record this Court found that Parents met their burden of proving that APS failed to offer Student a FAPE for kindergarten. In particular, the Court found that, in Student's IEP for the 2018-2019 school year, APS proposed that Student should attend full-day kindergarten at her neighborhood school even though the school would lack any means of providing or obtaining timely treatment for her life-threatening seizures. The IEP in question rejected homebound services for Student, but did not indicate that Parents would either provide Student's school with prescription medication to treat her seizures or accompany Student to school to administer treatment themselves.[10] Thus, the IEP would have put Student's life or health at unreasonable risk; and, an educational program that puts a child's life or health at unreasonable risk is not “reasonably calculated to enable the child to receive educational benefits, ” and therefore not a FAPE. Endrew F., 137 S.Ct. at 995-96; Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 520 F.3d 1116, 1125 (10th Cir. 2008). In light of this ruling, APS' argument that Parents have failed to plead their entitlement to any remedy under the IDEA is doomed to failure.

         However, in its Memorandum Opinion and Order, this Court ruled that Parents did not meet their burden of proving that APS denied Student a FAPE for preschool. Mem. Op. & ...


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