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O.V. v. Durham County Public Schools Board of Education

United States District Court, M.D. North Carolina

June 6, 2018

O.V., et al., Plaintiffs,


          L. Patrick Auld United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for a recommendation on the “Motion to Dismiss Amended Complaint” (Docket Entry 42) (the “State Dismissal Motion”) filed by Mark Johnson, William Hussey (collectively, the “State Officials”) and the North Carolina State Board of Education (the “SBE, ” and collectively with State Officials, the “State Defendants”) and the “Motion to Dismiss Amended Complaint” (Docket Entry 47) (the “Local Dismissal Motion, ” and collectively with the State Dismissal Motion, the “Dismissal Motions”) filed by Kristin Bell, Lessley Mader, Ashley Bunn, Sheri Allen, Julie Haase (collectively, the “Individual Local Defendants”), Bert L'Homme, and Durham Public Schools Board of Education (the “Board, ” and collectively with Individual Local Defendants, the “Local Defendants”). For the reasons that follow, the Court should grant the State Dismissal Motion and grant in part and deny in part the Local Dismissal Motion.


         Minh Pham (“M.P.”) and Peter Varlashkin (“P.V.”), individually and on behalf of their minor child, O.V., (collectively, the “Plaintiffs”), initiated this action against L'Homme, Local Defendants, and the North Carolina Department of Public Instruction (the “NCDPI”) for their alleged “failure to provide O.V. a free appropriate public education” (a “FAPE”) and “discriminatory conduct against Plaintiffs based on O.V.'s disability in an education program receiving federal funds.” (Docket Entry 1 (the “Complaint”) at 1-2.) In response to NCDPI's motion to dismiss, Plaintiffs sought leave to amend their Complaint. (See Docket Entry 30.) After the Court (per the undersigned) granted their amendment request (see Docket Entry 33 at 4), Plaintiffs filed an amended “Complaint for Damages” (Docket Entry 36) (the “Amended Complaint”), which replaced NCDPI with State Defendants as defendants in this action (see, e.g., id., ¶¶ 40-52 (identifying parties)). Thereafter, all defendants moved to dismiss the Amended Complaint. (See Docket Entries 42, 47.)

         As relevant to the Dismissal Motions, the Amended Complaint alleges:

At all pertinent times, O.V., a child “with Down syndrome, Mixed Receptive-Expressive Language Disorder, Lack of Coordination, Apraxia of speech, and other Symbolic Dysfunction, ” has resided with his parents in Durham County. (Docket Entry 36, ¶¶ 40, 41, 54.) O.V. enrolled in the Durham Public School system (the “DPS”) as a preschooler for the 2009-2010 school year, and continued attending public school in Durham until November 9, 2015, when his parents “withdrew [him] from the DPS and enrolled him in Pinewoods Montessori, a private school in Hillsborough, North Carolina” (id., ¶ 254). (See id., ¶¶ 84-255.)

         The Individuals with Disability Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., imposes a “Least Restrictive Environment” (the “LRE”) requirement for the education of disabled children, pursuant to which, “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are non-disabled” (Docket Entry 36, ¶ 79 (alterations in original)). (See also id., ¶ 16.) Throughout O.V.'s DPS enrollment, State Defendants published a “Procedural Safeguards: Handbook on Parents' Rights” (the “Handbook”) that “erroneously and misleadingly define[d]” the IDEA's LRE requirement “as follows: ‘The IEP Team must consider educating a child with a disability in an environment that is appropriate for that child. Some children are educated in a more restrictive environment than others due to the significance of their needs.'” (Id., ¶ 78.) This “patently wrong . . . definition is intentionally misleading to parents who might seek an inclusive placement for their child.” (Id., ¶ 80.)

         Throughout O.V.'s DPS enrollment, “[L'Homme and Individual Local] Defendants worked in concert to systematically institute and carry out [the] Board's unwritten and illegal policy of removing disabled children from general education classrooms by the third (3rd) grade if [the] Board believes the disabled child will be unsuccessful on the state mandated end of grade tests or requires a modified curriculum.” (Id., ¶ 74.)[1] As the Board's Executive Director of Exceptional Children, Bell bore responsibility “for ensuring [the] Board is implementing and complying with the IDEA and corresponding state law for all students in the DPS, including O.V.” (Id., ¶ 44.) “The data reported by [the] Board and Bell to” State Defendants “demonstrated [the Board and Bell's] custom, policy, and practice of placing children with intellectual disabilities in the segregated setting.” (Id., ¶ 118.)

         For instance, during the 2011-2012 school year, “of the 128 children in the entire district identified under the category of Intellectual Disability - Moderate, [they] relegated 126 children or ninety-nine percent (99%) to the segregated setting.” (Id.) In the 2012-2013 school year, “of the 125 children identified under the category of Intellectual Disability - Moderate, just two (2) children were placed in the Regular education setting and ninety-seven percent (97%) were segregated from their non-disabled peers.” (Id., ¶ 137.)[2] In the final three years of O.V.'s DPS enrollment, none of the 115, 123, and 123 children, respectively, “identified under the category of Intellectual Disability - Moderate that year . . . was placed in the Regular education setting.” (Id., ¶¶ 185, 192, 200.)

         As “signatory to [the] Board's applications for IDEA funds, [L'Homme] had direct and full knowledge of the disproportionate number of students with disabilities excluded from regular education placements.” (Id., ¶ 77.) As such, the Board, State Defendants, and “L'Homme knew children like O.V. had a protected federal right to be integrated into the general student population yet failed to act, despite having actual knowledge of the segregation of children with low incidence disabilities in the DPS.” (Id., ¶ 82.)

         As part of O.V.'s enrollment in DPS, the “Board conducted a psychoeducational evaluation of O.V. on May 7, 2009, ” which revealed borderline development and deficient adaptive behavior skills, but “no behavior problems.” (Id., ¶ 91.) Based on these results, the “Board determined [that] O.V. was eligible for services under the IDEA in the category of Developmentally Delayed and . . . required occupational, physical, and speech therapies as related services in order to benefit from special education.” (Id., ¶ 92.) Having “predetermined” upon meeting him that “they would place [O.V.] in the most restrictive environment, ” namely, “in the separate classroom, segregated from his non-disabled peers” (id., ¶ 85), Bell and the Board developed O.V.'s first individualized education program (an “IEP”), pursuant to which, “O.V. would not have any access to his non-disabled peers” (id., ¶ 94 (emphasis in original)). This IEP “provided for special education for two (2) days per week for 270 minutes in the Exceptional Children's (EC) classroom and occupational, speech, and physical therapies.” (Id.)

         During the two years that O.V. attended DPS preschool, M.P. and P.V. “continuously requested [that] O.V. be permitted to be educated with his non-disabled peers, but [the] Board and Bell explained O.V.'s disabilities rendered him unfit to have full access to children who did not have disabilities.” (Id., ¶ 88.) During this period, “[the Board and Bell] never considered a less restrictive environment and never considered what supports and services might allow O.V. to be successful in the regular preschool classroom, even though O.V. could have been integrated into the regular education setting with supplemental aids and services.” (Id., ¶ 86.) In addition, they “manipulated the IEP documents in IEP meetings to support their plan for O.V. to be perpetually assigned to the separate classroom.” (Id., ¶ 95.) For example, the Board and Bell falsely documented that the IEP “‘Team discussed all placement options and rejected serving [O.V.] in any placement option other than a [special education] classroom'” even though they never discussed “all placement options with O.V.'s parents, ” M.P. and P.V., and “no record of any discussion of any inclusive preschool placement” exists. (Id. (alterations in original).)

         At an IEP meeting in July 2009, the Board and Bell “increased O.V.'s time in the special education classroom from 270 minutes to 390 minutes - the entire school day” (id., ¶ 97 (emphasis omitted)) - without “discuss[ing] providing O.V.'s specially designed instruction in any location other than the segregated special education classroom” (id., ¶ 98). At O.V.'s annual IEP meeting in April 2010, M.P. and P.V. “expressed that they ‘would like to see [O.V.] in a class with typical children' and ‘would like to see him talk more.' In response, [the] Board and Bell decided that O.V. would remain in a separate class, completely segregated from his non-disabled peers, and then decreased O.V.'s speech therapy services.” (Id., ¶ 99 (first set of brackets in original).) On the IEP forms for that meeting, the Board and Bell “omitted O.V.'s parents' request that O.V. be placed with typical children, and [they] failed to provide any information about why they decreased O.V.'s speech services.” (Id., ¶ 100.) Then, at an IEP meeting in August 2010, the “Board and Bell increased O.V.'s time in the separate setting from two (2) days to three (3) days per week for 390 minutes each day.” (Id., ¶ 101.)

         “[T]o provide O.V. access to his non-disabled peers, [M.P. and P.V.] placed O.V. in a private preschool with his non-disabled peers for two (2) days each week.” (Id., ¶ 102.) The “Board and Bell refused to provide O.V.'s specially designed instruction in the private preschool setting alongside his non-disabled peers” (id.), but on IEP forms in November 2010 and March 2011, the “Board and Bell misleadingly recorded O.V.'s placement to reflect his attendance at the private school, for which his parents paid, to give the impression that O.V. was receiving services in this location” (id., ¶ 103). In addition, although M.P. and P.V. “expressed that they would like for O.V. ‘to talk, write and do things as a more typical child, '” the Board and Bell “changed O.V.'s educational placement to the Separate Class setting” on his March 2011 IEP. (Id., ¶ 104.)

         At a May 2011 IEP meeting regarding “O.V.'s transition to kindergarten” (id., ¶ 105), the Board and Bell failed to consider whether O.V. could “be educated in a regular education classroom like other students enrolling in kindergarten” before deciding that “O.V. would receive specially designed instruction for 330 minutes per day, as well as all of his related services (i.e., occupational therapy, physical therapy, and speech/language therapy) in the most restrictive setting: the special education (or EC) classroom” (id., ¶ 106). “During O.V.'s kindergarten year, [the] Board and Bell never considered a less restrictive environment and never considered what supports and services could allow O.V. to be successful in a regular education classroom.” (Id., ¶ 109.) M.P. and P.V. “continued to request O.V. be permitted to be educated with his non-disabled peers, but [the] Board and Bell acted as though O.V.'s disabilities rendered him unfit to even sit in the same room as other children who did not have disabilities.” (Id., ¶ 112.) In December 2011, O.V.'s IEP Team met to discuss O.V.'s recent evaluations and formulate a new IEP. (Id., ¶ 115.) Although M.P. and P.V. asked that O.V. “‘be exposed to a regular class for routines and models at least twice a week'” (id.), the Board and Bell

ignored Plaintiffs' request and maintained O.V.'s placement in the Separate setting five (5) days per week for 330 minutes, provided all O.V.'s related services away from his non-disabled peers, and removed O.V. from participating in physical education with his non-disabled peers, limiting his potential contact with his non-disabled peers to library, music/art, and computer

(id., ¶ 116).

         During the 2012-2013 school year, “O.V.'s first (1st) grade year, [his] parents continued to request O.V. be permitted to be educated with his non-disabled peers.” (Id., ¶ 120.) In September 2012, the IEP Team met to modify O.V.'s IEP. (Id., ¶ 127.) At that meeting, the “Board and Bell determined O.V. would participate in the general education class for literacy, because ‘the IEP Team felt that O.V.[] would benefit from the socialization/communication experiences gained by participating in a general education class.'” (Id., ¶ 128 (brackets omitted).) However, “other than an assistant to escort [O.V.] to and from the classroom, ” they “refused to provide O.V. with any supplemental aids and services to enable him to access his education with non-disabled peers.” (Id., ¶ 129.)

         At O.V.'s annual IEP meeting in November 2012 (see id., ¶ 130), the “Board and Bell refused to even consider placing O.V. in the regular setting with his non-disabled peers” (id., ¶ 131). Instead, “despite reporting O.V. was making progress, [they] decided O.V. could no longer attend literacy in the general education classroom; however, as a consolation, he was now permitted to eat lunch and play on the playground with his non-disabled peers and join in morning circle time for fifteen (15) minutes each day.” (Id., ¶ 132.) In response to the LRE Justification Statement's requirement “to ‘explain why the services cannot be delivered with non-disabled peers with the use of supplemental aids and services, '” Bell and the Board stated only “that ‘O.V. would be removed from non-disabled peers for direct instruction[, ]'” as “‘he needs the repetitions and the small group setting for academic success.'” (Id., ¶ 134 (brackets omitted).) However, Bell and the Board did not “document the removal of O.V. from literacy instruction with his non-disabled peers” on his IEP forms. (Id., ¶ 136.)

         O.V. began second grade in the 2013-2014 school year. (See id., ¶ 139.) At this time, Mader served as “a Director of Exceptional Children for [the] Board” (id., ¶ 45), and Haase and Allen served as DPS special education teachers (id., ¶¶ 47, 48). For the 2013-2014 through 2015-2016 school years, Haase and Allen served as O.V.'s special education teachers. (Id., ¶¶ 47, 48.)

         During the 2013-2014 school year, M.P. and P.V. “again requested [that] O.V. be educated with his non-disabled peers” (id., ¶ 139), but the “Board, Bell, and Mader continued to refuse to consider placing O.V. in the regular education classroom or what supports and services could allow O.V. to be successful in a regular education classroom” (id., ¶ 140). At O.V.'s annual IEP review on November 15, 2013 (see id., ¶ 145), P.V. and M.P. “requested [that the] Board, Bell, and Mader change O.V.'s placement to a general education first (1st) grade classroom” (id., ¶ 146). “Without even considering whether any supplemental aids and services could enable O.V. to access his education with non-disabled peers, [the] Board and Bell rejected O.V.'s parents' proposal and, instead, increased the time O.V. would spend in the separate special education classroom, isolated from his non-disabled peers.” (Id., ¶ 147 (emphasis in original).)

         “Shortly after the November 15, 2013 IEP Meeting, O.V.'s parents sought legal counsel.” (Id., ¶ 149.) “[A]fter legal intervention, on December 6, 2013, [the] Board, Bell, and Mader determined O.V. would be placed in a regular education second (2nd) grade classroom and would receive pull out resource services.” (Id., ¶ 150.) However, “to support their plan for O.V. to be perpetually assigned to the separate classroom . . . . despite changing O.V.'s educational placement, [the Board, Bell, and Mader] purposefully did not amend O.V.'s IEP, as required, to reflect his change in placement to a less restrictive setting.” (Id., ¶ 151 (emphasis in original).) The Board's refusal to “change O.V.'s placement in his IEP” was designed “to prevent a less restrictive setting from becoming O.V.'s ‘stay put' placement in the future.” (Id., ¶ 344.)[3]

         The “Board, Bell, and Mader placed O.V. in Mr. Montgomery's second (2nd) grade regular education classroom, ” but neither provided Mr. Montgomery with “specialized training in educating children with developmental or intellectual disabilities” nor arranged for him to meet regularly with special education teachers to plan O.V.'s instruction (id., ¶ 152), even though, according to Mader, Mr. Montgomery “‘ha[d] to completely change the curriculum for [O.V.]'” (id., ¶ 169). Moreover:

Without any specialized knowledge as to how to instruct O.V. or address O.V.'s unique challenges, and without a valid IEP to implement, at the suggestion of an untrained paraprofessional, Mr. Montgomery placed O.V. behind a cardboard partition at the back of the classroom for academic instruction, effectively enclosing O.V. within the cardboard and the walls.

(Id., ¶ 153.)[4]

         At an IEP meeting on February 5, 2014, “Mr. Montgomery reported O.V. was making academic progress.” (Id., ¶ 154.) At that same meeting, the “Board, Mader, Bell, and Allen proposed conducting a comprehensive reevaluation of O.V.” (id.) and “refused to amend O.V.'s IEP to reflect his change in placement” (id., ¶ 156). “On May 9, 2014, the IEP Team convened to discuss the recent evaluations.” (Id., ¶ 157.) At that meeting, the “Board, Mader, Bell, Haase, and Allen changed O.V.'s eligibility category from Developmental Delay to Intellectual Disability - Moderate” (id., ¶ 159) and, without “notice to Plaintiffs, . . . reduced O.V.'s occupational therapy and physical therapy services” (id., ¶ 162). Also at that meeting, “O.V.'s speech therapist . . . reported [that] O.V. was making progress.” (Id., ¶ 160.)

         “On June 4, 2014, the IEP Team convened to develop O.V.'s Annual Review IEP. Both Plaintiffs' and [the] Board's counsel attended the meeting.” (Id., ¶ 163.) “Plaintiffs continued to advocate for O.V. to be placed in the regular education setting with his non-disabled peers.” (Id., ¶ 165.) Because “O.V. would be entering third grade in the fall, the IEP Team discussed whether O.V. would be assessed on the standard state wide assessment (‘End of Grade' or ‘EOG') or the alternate assessment (‘EXTEND1'), and whether O.V. would be taught on the Common Core curriculum or Extended Content Standards.” (Id., ¶ 167.) Mader falsely told Plaintiffs that “‘the decision of the test influences the educational placement as they are based on 2 different curriculums which are taught in 2 different classes.'” (Id., ¶ 168.) The “Board's counsel did not correct . . . Mader's false assertion that if O.V. was educated on the Extended Content Standards, he could not receive services with his non-disabled peers.” (Id.)

         Further, “[c]ontinuing to ignore Plaintiffs' request that O.V. be provided supplemental aids and services in the general education classroom, [the] Board, Mader, Bell, Haase, and Allen determined O.V. would ‘get all of his support in Exceptional Children's classroom.'” (Id., ¶ 170.) In addition, “[the] Board, Mader, Bell, Haase, and Allen discussed O.V.'s educational placement” (id., ¶ 171), as follows:

“On the continuum he is still considered ‘separate' because he needs extensive instruction due to his foundational skill sets.” The [Prior Written Notice[5] failed to provide notice of the team's decision that O.V. would be placed in the Separate setting, and instead stated “the team rejected determining [educational] placement and service delivery.”

(Id. (alterations omitted).) Due to some outstanding scheduling issues, the IEP Team agreed to “reconvene shortly in order to finalize O.V.'s IEP.” (Id., ¶ 172.)

         “On June 13, 2014, the IEP Team convened and finalized O.V.'s IEP for the upcoming school year. Prior to the meeting, the principal of O.V.'s elementary school determined O.V. would be retained for second (2nd) grade.” (Id., ¶ 173.) Mader, Bell, Haase, Allen, and Bunn attended this meeting. (Id., ¶ 174.) At that time, Bunn “did not yet know O.V., because she had only recently accepted a transfer to O.V.'s elementary school to teach the students assigned to the third through fifth (3rd - 5th) grade segregated class.” (Id., ¶ 175.) “Without conducting an evaluation of or collecting any data on O.V.'s behavior, much less discussing strategies to address it, [Local Defendants] impermissibly used O.V.'s short attention span and distracting behaviors” to justify “completely separating O.V. from his non-disabled peers in the regular education classroom.” (Id., ¶ 177.) Without explaining “why O.V. could not receive any specially designed instruction in the regular education classroom, and despite O.V.'s significant, documented advances in the general education classroom, [Local Defendants] determined O.V. would receive all academic instruction in the EC classroom.” (Id., ¶ 180 (emphasis in original).)

         On July 22, 2014, the Board and Plaintiffs participated in mediation and “reached a confidential settlement agreement” (the “Mediation Agreement”). (Id., ¶ 184.) “On November 14, 2014, uncertain whether [the Board] would continue to implement the Mediation Agreement, Plaintiffs filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings Docket No. 14-EDC-09295 (‘2014 Petition') to preserve their claims.” (Id., ¶ 261.) “The 2014 Petition alleged that [the Board] violated the procedural and substantive requirements of the IDEA, 20 U.S.C. §§ 1400 et seq., and the North Carolina special education statutes, N.C. Gen. Stat. §§ 115C-106 et seq., while providing educational services to O.V.” (Id., ¶ 262.)

         Following assurances from the Board's counsel to Plaintiffs' counsel on November 14, 2014, “that the [Board] was in ‘full compliance' with the Mediation Agreement” (id., ¶ 263), “[t]he parties entered into a Settlement Agreement and Release of Claims (‘Settlement Agreement') on November 26, 2014, which wholly incorporated the Mediation Agreement” (id., ¶ 264). Given “the ongoing implementation of the Settlement Agreement for the remainder of the 2014-[20]15 academic year, Plaintiffs refused to dismiss the 2014 Petition with prejudice and only agreed to file a Voluntary Dismissal Without Prejudice” (id., ¶ 266 (emphasis in original)), which they did on November 26, 2014 (id., ¶ 267). However, the Board “did not implement the compensatory services and [M]ediation [A]greement as outlined in the Settlement Agreement, thus breaching the terms of the [Settlement] Agreement.” (Id., ¶ 268.) For instance, the Board “routinely postponed the monthly parent-teacher conferences agreed to in the Settlement Agreement” (id., ¶ 269 (emphasis in original)) and (as discussed below) failed to instruct O.V. “with a co-teaching model as agreed to by the parties” (id., ¶ 270).

         After Plaintiffs' resort to mediation, Local Defendants “created a hostile environment that discouraged and prevented O.V.'s parents from stepping foot onto school property and participating in O.V.'s day-to-day educational activities in which any parent would be expected to participate.” (Id., ¶ 190.) To begin with, although M.P. had previously “served as a frequent volunteer in O.V.'s classroom and was permitted to visit O.V. daily at school, ” Local Defendants “began restricting [M.P.'s] access to O.V.'s classroom.” (Id., ¶ 188.) For instance, Bunn told M.P. “that she now must obtain permission via the principal's office to even visit O.V.'s special education classroom. Nearly every time [M.P.] attempted to visit the classroom, [Local] Defendants refused to allow her to visit. The only time she was able to visit the classroom, O.V. was not even present.” (Id. (emphasis in original).) Additionally, M.P. “was no longer permitted to park and walk O.V. to class in the morning; instead, she was required to drop him at the curb, so he could be escorted by school personnel to his classroom.” (Id., ¶ 189.) Yet, “parents of other children, disabled and non-disabled, were permitted to walk their children into school each day and visit their children's classroom without such restrictions.” (Id., ¶ 191.)

         Moreover, “[d]uring O.V.'s second second (2nd) grade year, [Local Defendants] claimed to implement the [S]ettlement [A]greement, yet purposefully acted to sabotage O.V.'s time and progress in the general education setting.” (Id., ¶ 187.) In August 2014, the IEP team met and agreed to follow the July 2014 Mediation Agreement. (See id., ¶ 194.) In accordance with the Mediation Agreement, the IEP from that meeting “documented O.V.'s lack of progress while he was in the special education classroom, and his increased progress during the time Defendants Board [sic] permitted O.V. to be present in the general education classroom” during the previous school year. (Id., ¶ 197.) “[Local Defendants] documented in the PWN from the meeting that O.V. would spend 220 minutes per day in the general education classroom, with 45 minutes of this time in guided reading and math instruction with a ‘co-teaching model.'” (Id., ¶ 196.)[6] “Despite changing O.V.'s educational placement due to the [M]ediation [A]greement, [Local Defendants] maintained O.V. required the same inadequate supplemental aids, services, accommodations, and modifications: consistent redirection, supervision for redirection, and incremental rewards.” (Id., ¶ 198 (emphasis in original).)

         The Board assigned O.V. to Ms. Turner's second grade classroom (id., ¶ 203), but failed to either “provide Ms. Turner any specialized training in educating children with disabilities, let alone O.V.'s particular disabilities” (id., ¶ 204 (emphasis in original)), or arrange for her to regularly meet with special education teachers “to take advantage of their specialized knowledge regarding educating children with disabilities” (id., ¶ 206). “Ms. Turner did not put forth any effort to attempt to accommodate O.V.'s disabilities and allow O.V. to learn in her classroom. Ms. Turner did not even understand what apraxia, one of O.V.'s documented disabilities that affects his ability to speak, was.” (Id., ¶ 205.) Ms. Turner further admitted that she “did not modify O.V.'s work[] because ‘it takes an extensive amount of time to work with [O.V.] and he's not the only one in my class, sorry.'” (Id., ¶ 207 (final set of brackets in original).) This refusal to modify the regular curriculum for O.V. occurred “even though a modified curriculum existed, was readily available, and was designed exactly for that purpose.” (Id., ¶ 68.)

         The Board, Bell, and Mader assigned Allen and Haase to work with O.V. in Ms. Turner's classroom for 30 minutes and 15 minutes, respectively, each day. (Id., ¶ 208.) Nevertheless, the Board, Bell, and Mader failed to provide Allen and Haase “with any training on O.V.'s documented disabilities or including children with disabilities in the regular education classroom.” (Id.)

Throughout the school year, O.V.'s special education services were not delivered as agreed upon at the August 2014 IEP Meeting and documented in the PWN. [Local Defendants] claimed [that] Haase and Allen were co-teaching O.V., pursuant to the Mediation Agreement, for a total of forty-five (45) minutes per day. Co-teaching is an evidence-based form of instruction where a special education teacher and a regular education teacher collaborate to provide both nondisabled and disabled children instruction at the same time.
. . . Haase and Allen[] and Ms. Turner all testified that they did not co-teach O.V. during their depositions. Each was able to define co-teaching, and each admitted that she was not co-teaching .....

(Id., ¶¶ 209-10 (emphasis in original).) Throughout this school year, though, Local Defendants “falsely assured Plaintiffs that the co-teaching was being implemented in O.V.'s classroom.” (Id., ¶ 211.) “[Local] Defendants' refusal to co-teach O.V. caused educational harm to O.V. and resulted in a denial of FAPE to O.V.” (Id., ¶ 212.) Moreover, although “M.P. offered to pay for training on modifying the curriculum and including children with low incidence disabilities in the regular education setting, [Local] Defendants refused.” (Id., ¶ 213.)

         Throughout this school year, in an orchestrated effort, sanctioned by Bell and Mader (see id., ¶ 215), “to create a false record of O.V.'s inability to function and make progress” in the general education classroom, O.V.'s teachers, including Allen, Bunn, and Haase, “took extensive amounts of ‘data' on the number of times the teacher redirected O.V.” (Id., ¶ 214.) This analytically meaningless (see id., ¶ 216) “practice of redirecting O.V. and collecting data of those redirections . . . demonstrated the poor quality of instruction delivered to O.V., caused educational harm to O.V., and resulted in a denial of FAPE to O.V.” (id., ¶ 215). As part of this effort, Allen, Bunn, and Haase “redirected O.V. to an extent that impeded his ability to respond, especially as a child with verbal apraxia” (id., ¶ 217), causing even the Administrative Law Judge (the “ALJ”), “who found in favor of [the Board] on every single issue at the administrative level” to find that “‘[t]he redirection data itself certainly raises questions regarding the quality of educational instruction O.V. received from Ms. Bunn, Ms. Allen, and Ms. Haase'” (id., ¶ 218 (emphasis in original)). For instance, on one occasion, “Allen redirected [O.V.] ninety-eight (98) times in just ten (10) minutes, or one redirection every 6.1 seconds.” (Id., ¶ 217.)

         In addition, under Bell and Mader's supervision, Bunn “failed to provide O.V. with specially designed instruction to meet O.V.'s unique needs” during the 170 minutes each day that O.V. spent with “Bunn to receive specially designed instruction.” (Id., ¶ 219.) For instance, Bunn “failed to develop individualized lesson plans” and instead utilized “prefabricated, generic, and identical [lesson plans] for all students in each grade level.” (Id., ¶ 222.) Moreover, these lesson plans only applied to third through fifth graders, meaning that “not a single lesson plan for the entire school year was designed for O.V., ” a second grader. (Id., ¶ 223.) Additionally, “Bunn held extremely low expectations for O.V., ” failing to adjust his goals as he mastered them (id., ¶ 220), and “‘taught' through showing multiple videos” (id., ¶ 221). According to Local Defendants' own data, O.V. “regress[ed] in multiple areas in th[is] separate setting.” (Id., ¶ 228.)

         Despite Local Defendants' “refusal to prepare O.V.'s teachers to teach O.V., or implement O.V.'s IEP with regards to co-teaching, the data collected by [Local] Defendants overwhelmingly supported that O.V. made greater progress in an inclusive setting with his non-disabled peers than in the segregated setting.” (Id., ¶ 225.) This data included periodic progress reports, report cards, and the tracking of IEP goals on data sheets that Allen, Bunn, Haase, and Ms. Turner prepared. (Id., ¶ 226.) “By all accounts, O.V. made more progress in the general education classroom - despite [Local Defendants'] failure to appropriately serve O.V. - than he did in the special education classroom.” (Id., ¶ 227.) Further, on each progress report, Ms. Turner indicated “that O.V. consistently works without disturbing others - the highest level a child can achieve.” (id., ¶ 231 (emphasis in original).) Additionally,

[a]ligned with [Local Defendants'] concerted effort to bar O.V. from the regular education classroom, and to create a paper trail that supported the decision, on every progress report, . . . Bunn falsely reported that O.V. was making sufficient progress to meet his annual reading, writing, and math goals, despite the fact that none of the data collected by his teachers supported this analysis - especially in the separate setting[, where O.V.] was actually regressing . . . .

(Id., ¶ 228.)

         On May 20, 2015, O.V.'s IEP Team met for his annual IEP review. (Id., ¶ 233.) At this meeting, the information that Local Defendants reported on O.V.'s IEP (1) did not reflect the progress monitoring data provided to P.V. and M.P. during the 2014-2015 school year (id., ¶ 235); (2) lacked appropriate IEP goals (id., ¶ 237); (3) “excluded O.V.'s progress in the inclusive setting” and “misleadingly . . . reported O.V.'s progress in the separate setting, ” such as by indicating that he “identified ‘12 out of 26 letter sounds which is 46% accuracy 1 out of 4 trials'” without stating that he identified zero, zero, and three sounds on the remaining three tests in the separate setting (id., ¶ 238); and (4) differed from the draft IEP sent to M.P. and P.V. shortly before the meeting in ways that “appear designed to support the elimination of direct service in occupational therapy, ” such as by changing the “Present Level” assessment that “‘[O.V.] is making good progress with his self-help skills'” to “‘[O.V.] is independent with his self-help skills at school'” (id., ¶ 239 (alterations in original)). In addition, “[d]espite O.V.'s documented progress in the speech sessions conducted in the general education setting, now that the timeframe for implementing the Mediation Agreement was ending, [Local Defendants] eliminated the dedicated provision of speech services to O.V. in the general education setting.” (Id., ¶ 236.) They also “summarily determined that O.V. was not eligible for [extended school year] services” despite his demonstrated need for ongoing support and repetition, as well as his emerging skills in literacy, math, and occupational therapy. (Id., ¶ 240.)

         At the beginning of the IEP meeting, M.P. expressed her desire for O.V. to attend college and her belief that “he [was] capable” of “going to college.” (Id., ¶ 242 (internal quotation marks omitted; alteration in original).) Nevertheless, Local Defendants provided only a cursory explanation of the differences between regular EOG and EXTEND1 EOGs (id., ¶ 241) and “deliberately withheld . . . that O.V.'s trajectory, if taught on the Extended Content Standards and if taking the Extend 1 test, would be to receive a certificate rather than a high school diploma” (id., ¶ 242), a necessary precursor for college (see id., ¶ 243). Moreover, when “M.P. explained that O.V. does not have test anxiety and may be able to take the regular EOG, [] Mader told [] M.P. that ‘[O.V.] would not be appropriate for the EOG and [Mader] could not recommend he take that test, '” even though “the IEP Team is tasked with determining which test is appropriate for the child - not which child is appropriate for the test.” (Id., ¶ 241 (penultimate set of brackets in original).) “Contrary to the express purposes of the IDEA, . . . [Local Defendants'] proposed course would foreclose the option of a diploma, preclude college as an option for O.V.[, ]and likely lead to participation in a sheltered workshop and perpetual dependence on his family and the state.” (Id., ¶ 243.)

         Expressing the view that, notwithstanding all the data verifying his progress in the inclusive setting, “it was not ‘appropriate for [O.V.] to sit in the general education classroom' as his skills were below that of his non-disabled peers” (id., ¶ 245 (emphasis and alteration in original)), “Mader proposed that the DPS cease providing O.V. any academic services in a co-teaching model in the general education classroom” (id.). In response to M.P.'s objections to this proposal, “Mader reminded the IEP Team: ‘[W]e do not have to come to a consensus, as the [Board] can make the final decision.'” (Id., ¶ 246.) Ultimately, even “[t]hough [Local Defendants] agreed O.V. made academic, communication, social progress, and functional growth during the 2014-[20]15 school year, [Local] Defendants removed O.V. from the regular classroom for all core academic instruction and, again, changed O.V.'s placement to ‘separate.'” (Id., ¶ 244.)

         On August 13, 2015, M.P. and P.V. “filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings Docket No. 15-EDC-05966 (‘2015 Petition'), ” which incorporated by reference the 2014 Petition. (Id., ¶ 272.) They also “invoke[d] O.V.'s stay put placement, ” which prevented the Board, Allen, Bell, Bunn, and Haase from “segregat[ing] O.V. from his non-disabled peers as planned in the fall of 2015.” (Id., ¶ 247.) However, the Board, Allen, Bell, Bunn, and Haase “continued to restrict O.V.'s mother's access to O.V.'s classroom because Plaintiffs asserted their rights under the IDEA” (id., ¶ 250), and, “again, took no actions to provide any training to O.V.'s new teachers[, ] who continued the same practices of recording data on the number of redirections they decided to impose upon O.V., refusing to modify his work, and failing to instruct O.V. in a recognized co-teaching model” (id., ¶ 249). Additionally, the “Board and Bell failed to provide O.V. any compensatory services for the remainder of the 2015-[20]16 school year and failed to provide the compensatory services owed for the summer of 2016.” (Id., ¶ 252.)

         In discovery regarding the 2015 Petition, the Board “provided even more evidence that it had never complied with the material portions of the Settlement Agreement.” (Id., ¶ 273.) For instance, “during depositions, all of O.V.'s teachers stated that they never used a co-teaching model with O.V. - a key covenant of the Settlement Agreement.” (Id., ¶ 274.) “On November 9, 2015, due to [the] Board, Bell, Haase, Allen, and Bunn's retaliation and creation of a hostile environment and ongoing refusal to provide O.V. a FAPE in the LRE, Plaintiffs finally withdrew O.V. from the DPS and enrolled him in Pinewoods Montessori” (id., ¶ 254), where his “private program enabled O.V. to make meaningful progress, which continue[d]” through the filing of the Amended Complaint (id., ¶ 255). “For example, where O.V.'s May 20, 2015, IEP aspired for O.V. to learn to write 26 letter sounds over an entire year, after just a few months at Pinewoods, O.V. was writing words that he was independently spelling by looking at a picture or an object.” (Id., ¶ 256 (emphasis in original).)

         In early November 2015, the Board filed a motion for partial summary judgment in the administrative proceedings, “seeking to limit Plaintiffs' claims to those occurring after November 26, 2014.” (Id., ¶ 299.) “On January 6, 2016, Judge Elkins granted [the Board's] Motion for Partial Summary Judgment, limiting Plaintiffs' claims to those arising after November 26, 2014, because the Office of Administrative Hearings had no authority to set aside a release in a private contract between parties.” (Id., ¶ 300.) The parties proceeded to trial on Plaintiffs' remaining claims before ALJ Melissa Lassiter. (See id., ¶¶ 303-14.) On February 2017, Judge “Lassiter issued the Final Decision in this matter, ” which “ordered that all of Plaintiffs' claims be dismissed with prejudice.” (Id., ¶ 315.)

         Plaintiffs appealed this decision to the SBE, which assigned State Review Officer (the “SRO”) Lisa Lukasik to the appeal. (Id., ¶¶ 316-17.) On April 26, 2017, the SRO issued a decision in this matter, which affirmed in part and reversed in part the ALJ's decision. (See id., ¶¶ 318-23.) In particular, “the SRO affirmed the ALJ's decision that Plaintiffs failed to meet their burden to prove that [the Board] failed to provide O.V. a FAPE in the LRE from November 27, 2014, through June 12, 2015, based on the stipulation from both parties that O.V. made progress during that time.” (Id., ¶ 320.) However, the SRO “reversed the ALJ's decision that Plaintiffs failed to meet their burden to prove that O.V.'s May 20, 2015 IEP failed to offer O.V. a FAPE in the LRE.” (Id., ¶ 321.) The SRO remanded the question of appropriate relief on that issue to the ALJ. (See id., ¶ 324.) The issue of appropriate relief remained pending when Plaintiffs filed the Amended Complaint. (See id., ¶ 325.)

         Meanwhile, “[o]n February 1, 2016, Plaintiffs filed a [c]omplaint in the Durham County Superior Court, regarding [the Board's] breach of the Settlement Agreement.” (Id., ¶ 279.) This action alleged that the Board

breached the Settlement Agreement by failing to provide O.V. with instruction using a co-teaching model during the 2014-[20]15 school year[;] [the Board] fraudulently induced Plaintiffs to enter into the Settlement Agreement by falsely assuring Plaintiffs that O.V.'s teachers were instructing him using a co-teaching model; and [the Board] breached its duty to act in good faith and make reasonable efforts to perform its obligations under the Settlement Agreement by failing to meet with Plaintiffs monthly as agreed upon in the Settlement Agreement.

(Id.) The Board moved to dismiss that state action. (See id., ¶ 280.) The state court granted the Board's motion “as to Plaintiffs' tort claims for fraudulent inducement and breach of good faith and fair dealing and Plaintiffs' breach of contract claim for any claims arising on or before November 26, 2014, ” but denied it “as to Plaintiffs' claim for breach of contract for any breach arising after November 26, 2014.” (Id., ¶ 281.) On October 21, 2016, Plaintiffs dismissed their state action without prejudice pursuant to North Carolina Rule of Civil Procedure 41, which authorizes a plaintiff to dismiss his lawsuit “‘any time before . . . rest[ing] his case'” and commence “‘a new action based on the same claim . . . within one year after such dismissal.'” (Id., ¶ 283.)

         Plaintiffs initiated the instant federal action on July 25, 2017. (See Docket Entry 1 at 87.) The Amended Complaint asserts seven counts against the Board, five counts against the SBE, and one count against L'Homme, State Officials, and Individual Local Defendants. More specifically, Plaintiffs contend that the Board and SBE (1) violated the IDEA (Docket Entry 36, ¶¶ 333-62); (2) discriminated against O.V. and retaliated against M.P. in violation of Section 504 of the Rehabilitation Act (“Section 504”) (id., ¶¶ 363-76); (3) discriminated against O.V. and retaliated against M.P. in violation of the Americans with Disabilities Act (the “ADA”) (id., ¶¶ 377-86); (4) violated the North Carolina Special Education Statutes (the “NCSES”) (id., ¶¶ 387-89); and (5) violated the North Carolina Persons with Disabilities Protection Act (the “NCPDPA”) (id., ¶¶ 390-94). The Amended Complaint further alleges that the Board violated the Fourteenth Amendment (id., ¶¶ 395-405) and breached the Settlement Agreement (id., ¶¶ 406-24). Finally, Plaintiffs pursue claims pursuant to 42 U.S.C. § 1983 against L'Homme, State Officials, and Individual Local Defendants for allegedly violating O.V.'s rights under the Fourteenth Amendment. (Id., ¶¶ 395-405.)


         I. Motion to Dismiss Standards

         Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (the “Rules”), State Defendants move to dismiss Plaintiffs' claims against them in their entirety. (See Docket Entries 42, 43.) Under the same Rules, L'Homme and Local Defendants move to dismiss (1) Plaintiffs' Section 504, ADA, Section 1983, breach of contract, NCSES, and NCPDPA claims in their entirety and (2) Plaintiffs' IDEA claims to the extent they arise prior to November 26, 2014. (See Docket Entry 47 at 1-2; see also Docket Entry 36, ¶¶ 333-424 (detailing claims).) In particular, L'Homme and Local Defendants seek Rule 12(b)(1) dismissal of Plaintiffs' IDEA, Section 504, ADA, Section 1983, NCSES, and NCPDPA “claims arising prior to November 26, 2014” (Docket Entry 48 at 8), for failure to exhaust administrative remedies. (See id. at 8-12.) L'Homme and Local Defendants also pursue Rule 12(b)(6) dismissal of the remaining portions of Plaintiffs' Section 504, ADA, Section 1983, NCSES, and NCPDPA claims. (See id. at 12-15, 17-30.) Finally, L'Homme and Local Defendants contend that “the Court should decline supplemental jurisdiction” (id. at 15) over Plaintiffs' breach of contract claim. (See id. at 15-17.)

         Because the defendants do not contest the validity of the Amended Complaint's jurisdictional allegations (see id. at 8-12, 15-17; Docket Entry 43 at 9-13), they present a facial challenge to the Court's subject matter jurisdiction. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (describing “two ways” that “a defendant may challenge subject matter jurisdiction, ” namely by contending that (1) “a complaint simply fails to allege facts upon which subject matter jurisdiction can be based” or (2) “the jurisdictional allegations of the complaint are not true” (internal quotation marks and alteration omitted)); see also Willner v. Dimon, 849 F.3d 93, 99 (4th Cir. 2017) (describing administrative exhaustion contentions as a “facial challenge to [the] complaint”). In such circumstances, a “plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Kerns, 585 F.3d at 192 (internal quotation marks omitted). In other words, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id.

         In turn, to avoid Rule 12(b)(6) dismissal, a complaint must contain sufficient factual allegations “to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To qualify as plausible, a claim needs sufficient factual content to support a reasonable inference of the defendant's liability for the alleged misconduct. Id. Nevertheless, the complaint need not contain detailed factual recitations, as long as it provides the defendant “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and alteration omitted).

         In reviewing a motion to dismiss, the Court must “accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff.” Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir. 2010), aff'd sub nom., Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012). The Court must also “draw all reasonable inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks omitted). “At bottom, determining whether a complaint states . . . a plausible claim for relief . . . will ‘be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

         In ruling on a Rule 12(b)(6) motion, “a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont, 637 F.3d at 448. The Court may also consider documents “attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Generally, a “court cannot go beyond these documents” without “convert[ing] the motion into one for summary judgment, ” an action from which courts should refrain “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont, 637 F.3d at 448.

         Notably, a Rule 12(b)(6) motion “tests the sufficiency of a complaint, ” but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Thus, “claims lacking merit may be dealt with through summary judgment under Rule 56” rather than through a Rule 12(b)(6) motion. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002). Nonetheless, dismissal remains “appropriate when the face of the complaint ...

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