Responsive Educ. Solutions v. Kirschner

629 S.W.3d 581

RESPONSIVE EDUCATION SOLUTIONS, Appellant

v.Susan KIRSCHNER, Individually, and as Next Friend of A.K., a Minor Child, Appellee

No. 02-21-00001-CV

Court of Appeals of Texas, Fort Worth.

Delivered: April 22, 2021

ATTORNEY FOR APPELLANT: RICARDO R. LOPEZ, JOSEPH E. HOFFER, JOHN J. JOYCE, SCHULMAN, LOPEZ, HOFFER & ADELSTEIN, LLP, SAN ANTONIO, TX.

ATTORNEY FOR APPELLEE: MARC ANSON BOZEMAN, THE BOZEMAN LAW FIRM, HOUSTON, TX.

Before Sudderth, C.J.; Kerr and Womack, JJ.

OPINION

Opinion by Chief Justice Sudderth

I. Introduction

Appellee Susan Kirschner, individually, and as next friend of A.K., a minor child, sued Appellant Responsive Education Solutions (RES), an operator of open-enrollment charter schools,¹ for violating 42 U.S.C. §§ 1981, 1983 and Section 504 of the Rehabilitation Act of 1973.² RES filed a plea to the jurisdiction, which the trial court granted regarding all but A.K.'s § 1983 claim. In this accelerated interlocutory appeal, see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8), RES argues that the trial court erred by denying part of its plea. We agree and thus reverse that portion of the trial court's order and render judgment dismissing the lawsuit for want of jurisdiction.

II. Background

In 2015, Kirschner, who is white, enrolled her daughter A.K., who is black, in the second grade at Founders Classical Academy of Flower Mound, an open-enrollment charter school, which is owned by RES. Five years later, Kirschner, individually, and as A.K.'s next friend, initially sued RES for violating 42 U.S.C. § 1981 and Section 504 of the Rehabilitation Act of 1973 and for breach of contract.

In her original petition and in her subsequently amended petition, Kirschner alleged that the school had unfairly labeled A.K. as a problem child and had not tested A.K. for "cognitive and behavioral performance issues, such as autism or similar disorders," despite Kirschner's numerous requests that she "be tested for autism or similar academic performance and cognitive behavioral issues so that treatment and a behavioral plan could be implemented for [her]." Kirschner alleged that she had "requested an assessment be done to determine [the] proper course of behavioral and treatment plan to multiple parties" but that "the school continued its refusal to test [A.K.]." Kirschner further complained that the school did not treat A.K. with the same care and consideration that would have been given to her if A.K. had been white.³ She sought actual and punitive damages, interest, court costs, and attorney's fees.

RES answered with a general denial and raised a number of affirmative defenses, including limitations and the failure to exhaust administrative remedies "for their claims under Section 504 of the Rehabilitation Act of 1973." Four months later, RES filed a plea to the jurisdiction, asking the trial court to dismiss all of the claims with prejudice.

In its original plea to the jurisdiction, RES complained that limitations had run and that immunity barred the § 1981 and breach-of-contract claims. RES also argued that the Section 504 claim should be dismissed because it overlapped with the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400, which required exhaustion of remedies.

Kirschner conceded in her response to the plea that the breach of contract claim was improper, that limitations had run for her individual claims, and that those claims should be dismissed. But she argued that limitations had not run for A.K.'s claims because of A.K.'s minor status and that they had met the exhaustion requirement "through implication" because of the "numerous requests to address A.K.'s educational needs" that the school had ignored. She filed an amended petition on the same day that she filed her response, adding a claim under 42 U.S.C. § 1983.⁴

Regarding § 1983, Kirschner alleged,

The liberty interest that [A.K.] has been deprived of is to receive [the] same quality education and attention to her educational needs as other students. Or, or in addition to, she has been deprived of her liberty interests to receive an education that is sufficient enough to meet her needs. Instead, she has been harmed by the Defendant through this abridgment of her rights and deprivation of her liberty interests, one of which[ ] is to remain free of gross neglect or intentional conduct, leading to emotional abuse and/or trauma.

RES then filed an amended plea to the jurisdiction, adding the § 1983 claim to its limitations⁵ and IDEA overlap-and-failure-to-exhaust arguments. RES asserted that Kirschner and A.K. had failed to request a special education due process hearing under the IDEA and that there was "no request for a hearing by ‘implication’ " because IDEA exhaustion requires findings and a decision by an administrative body. See 20 U.S.C.A. § 1415(f) – (g) (explaining the IDEA's exhaustion procedures), (l ) (explaining interplay between the IDEA and other federal statutes).

During the hearing on RES's amended plea, Kirschner's counsel argued that "the implication of all [of Kirschner's] numerous requests to have meetings, to have assessments created for her daughter to see what best course of academic curriculum should be presented to her," was enough to meet the exhaustion requirement and, alternatively, that § 1983 did not have an exhaustion requirement, relying on Patsy v. Board of Regents of Florida , 457 U.S. 496, 516, 102 S. Ct. 2557, 2568, 73 L.Ed.2d 172 (1982).⁶

After the hearing, the trial court dismissed with prejudice all of Kirschner's individual claims based on limitations. It dismissed with prejudice A.K.'s § 1981 claim based on Eleventh Amendment immunity. And it dismissed with prejudice A.K.'s Section 504 claim for failure to exhaust administrative remedies.⁷ However, it denied the amended plea to the jurisdiction regarding A.K.'s § 1983 claim.

III. Discussion

In its single issue, RES argues that the trial court erred by failing to find that A.K.'s § 1983 claim was subject to the IDEA's exhaustion requirement because the claim relates to RES's alleged failure to provide A.K. with a free and appropriate public education. RES further argues that its plea should have been granted because it was undisputed that A.K. had not exhausted her administrative remedies under the IDEA and that a stay to exhaust those remedies would be futile.

A. Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is generally to defeat an action "without regard to whether the claims asserted have merit." Mission Consol. ISD v. Garcia , 372 S.W.3d 629, 635 (Tex. 2012). Typically, the plea challenges whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. Whether a trial court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction are questions of law that we review de novo. City of Westworth Vill. v. City of White Settlement , 558 S.W.3d 232, 239 (Tex. App.—Fort Worth 2018, pet. denied) (citing Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ).

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause, construing the pleadings liberally in the plaintiff's favor and looking to the pleader's intent. Id. (citing Miranda , 133 S.W.3d at 226 ). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 239–40.

B. The Pleadings

Kirschner alleged that the school had refused to test A.K. for "cognitive and behavioral performance issues, such as autism or similar disorders" despite Kirschner's numerous requests "to multiple parties" for assessment and testing so that a treatment and behavioral plan could be implemented and despite her "suggest[ions] that the school take supportive action concerning her daughter." Kirschner complained that her requests "fell on deaf ears and thus[ ] were routinely ignored" and that the school "dismissed all of her pleas for intervention." Kirschner stated that the school continued to refuse to test A.K. and "refused nurturing, supportive action that would have better facilitated a healthy and constructive academic environment" for A.K. until the end of the school year.

Kirschner further complained that the school did not treat A.K. with the same care and consideration that would have been given to her if A.K. had been white. Specifically regarding § 1983, Kirschner alleged that A.K. had been deprived of "receiv[ing] same quality education and attention to her educational needs as other students" and of "receiv[ing] an education that is sufficient to meet her needs." She sought actual and punitive damages,⁸ interest, court costs, and attorney's fees.

C. The IDEA

The IDEA exists to ensure that all children with disabilities⁹ have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 20 U.S.C.A. § 1400(d)(1)(A). Through the IDEA, Congress offers federal funds to the states to assist in educating children with disabilities in exchange for the states' pledge to comply with a number of statutory conditions, including the provision of a FAPE to all eligible children. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 993, 197 L.Ed.2d 335 (2017).

Under the IDEA, a FAPE consists of special education and related services that encompass instruction tailored to meet a child's unique needs and sufficient supporting services to permit the child to...