United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion to
Dismiss (Dkt. 9) Counts II-V of Plaintiffs' Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
are B.D., an eighteen-year-old twelfth-grade student at
George C. Marshall High School (MHS), and his parents. B.D.
has Down syndrome and has been identified as intellectually
disabled. B.D. has received special education services from
Fairfax County Public Schools (FCPS) since he was in the
second grade. All of these services have been pursuant to
Individualized Education Plans (IEP). B.D.'s parents have
worked with educators throughout this time to create IEPs
with rigorous goals, the ultimate goal being that B.D. would
graduate from high school with a Standard Diploma, as opposed
to an alternative diploma or certificate. Defendant is
Fairfax County School Board, the body governing FCPS.
December 2015, during B.D.'s first year at MHS,
B.D.'s parents along with a team of educators from MHS
developed and agreed on a new IEP. The 2015 IEP was based on
prior IEPs and the growth that B.D. had shown while receiving
support under those documents. All agreed that the 2015 IEP
was reasonably calculated to continue that trajectory.
after the 2015 IEP was put into effect, things began going
downhill. B.D. was not provided the services called for in
the IEP. Certain teachers and specialists stated that they
did not agree with the goals in the IEP and so chose to work
with B.D. towards other goals. B.D. was also allowed to avoid
academic participation and watch videos on YouTube instead.
Plaintiffs allege that as a result of these actions,
B.D.'s educational achievement began to stagnate in
certain areas and regress in others.
special education team at MHS then began to suggest new IEPs
that did not require as much rigor. B.D.'s parents
refused to agree to these IEPs because they believed that if
B.D. was receiving the academic supports the 2015 IEP
required, then he would have continued to demonstrate growth.
As a result, the 2015 IEP is still the IEP governing
October 2017, B.D.'s parents filed an administrative
complaint alleging that MHS had failed to follow B.D.'s
IEP and provide a free and adequate public education (FAPE).
The hearing officer rendered his decision on the
administrative complaint in August of 2018 finding that the
2015 IEP met FAPE and MHS and FCPS had provided FAPE to B.D.
since that time. Since this decision was handed down, MHS has
removed B.D. from general curriculum classes without his
parents' consent. MHS has also continued to prevent B.D.
from taking VSOLs in furtherance of the goal of receiving the
have brought this lawsuit alleging five counts: Failure to
Provide FAPE under the Individuals with Disabilities
Education Act (IDEA) (Count I); Discrimination under Section
504 of the Rehabilitation Act of 1973 (Count II); Retaliation
under Section 504 of the Rehabilitation Act of 1973 (Count
III); Discrimination under the Americans with Disabilities
Act of 1990 (Count IV); and Retaliation under the Americans
with Disabilities Act of 1990 (Count V). Defendant has moved
to dismiss Counts II-V for failure to state a claim for which
relief can be granted.
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). On a Rule 12(b)(6) motion to
dismiss, a court must accept all well-pleaded facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Reyes v. Waples Mobile Home Park Ltd.
P'ship, 903 F.3d 415, 423 (4th Cir. 2018). The
complaint must provide a short and plain statement showing
that the pleader is entitled to relief, Fed.R.Civ.P. 8(a)(2),
and it must state a plausible claim for relief to survive a
motion to dismiss, Iqbal, 556 U.S. at 679; Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
504 of the Rehabilitation Act of 1973 and Title II of the
Americans with Disabilities Act of 1990 both prohibit
discrimination by public entities on the basis of disability.
29 U.S.C. § 794(a); 42 U.S.C. § 12132. Because the
statutes have very similar language, the Fourth Circuit
applies the same analysis to discrimination claims brought
under either statute. See Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 498 (4th
Cir. 2005); Baird ex rel. Baird v. Rose, 192 F.3d
462, 468 (4th Cir. 1999) ("The ADA and Rehabilitation
Act generally are construed to impose the same requirements
due to the similarity of the language of the two
acts."). A violation of either statute is established by
the plaintiff proving that (1) he has a disability; (2) he is
otherwise qualified for the benefit or program in question;
and (3) he was excluded from participation in or denied the
benefits of such program, or otherwise discriminated against,
due to his disability. Constantine, 411 F.3d at 498.
only significant difference between the analyses under the
statutes is the causation requirement. Under Section 504, a
plaintiff must demonstrate that the discrimination he
suffered was "solely by reason" of his disability,
while the ADA allows the disability to play "a
motivating role" in the discriminatory conduct.
Constantine, 411 F.3d at 498 n.17 (quoting
Baird, 192 F.3d at 469-70).
cases where the dispute is centered around educational
services provided to a student with a disability under IDEA,
gross misjudgment or bad faith must be established for both
Section 504 and ADA claims. See Sellers by Sellers v.
Sch. Bd. of Manassas, 141 F.3d 524, 529 (4th Cir. 1998);
accord Shirey ex rel. Kyger v. City of Alexandria Sch.
Bd., No. 99-1127, 2000 WL 1198054 at *4 (4th Cir. Aug.
23, 2000) (stating analysis of both statutes requires a
finding of bad faith or gross misjudgment). Thus, to prove
discrimination in the education context,
“'something more than a mere failure to provide
[FAPE] required by [IDEA] must be shown.'"
Sellers, 141 F.3d at 529 (quoting Monahan v.
Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)).
Plaintiffs have alleged facts that if proven true a
reasonable person could find bad faith or gross misjudgment
to be present and all inferences are to be drawn in their
favor. Igbal, 556 U.S. at 678; Reyes, 903
F.3d at 423. Thus, Plaintiffs have stated discrimination
claims for which relief can be granted.
Plaintiffs' retaliation claims, again courts apply
similar standards when performing analysis of Section 504 and
the ADA due to the similar statutory language. S.B. ex
rel. A.L.v. Bd. of Educ. of Harford Cty., 819
F.3d 69, 78 n. 6 (4th Cir. 2016). Courts use the familiar
burden-shifting framework when evaluating claims under these
statutes. See Rhoads v. F.D.I.C., 257 F.3d 373, 392
(4th Cir. 2001). Under this framework, a plaintiff
establishes a prima facie case by demonstrating that (1) the
plaintiff engaged in a protected activity; (2) the defendant
took an adverse action against plaintiff; and (3)
plaintiff's protected activity was causally connected to
defendant's adverse action. Id. While courts use
the elements of a prima facie case to evaluate allegations in
a complaint, a plaintiff does not need to ...