Simpson-Vlach v. Mich. Dep't of Educ.

1

RITA C. SIMPSON-VLACH and ALAN SIMPSON-VLACH on behalf of A.S. and M.S.; KATHY BISHOP and CHRISTOPHER PLACE on behalf of C.P. and H.P., Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF EDUCATION; ANN ARBOR PUBLIC SCHOOLS; WASHTENAW INTERMEDIATE SCHOOL DISTRICT; DR. JEANICE KERR SWIFT; DR. MARIANNE FIDISHIN; SCOTT A. MENZEL; NAOMI NORMAN; MICHAEL F. RICE, Defendants-Appellees.

No. 22-1724

United States Court of Appeals, Sixth Circuit

May 10, 2023

NOT RECOMMENDED FOR PUBLICATION

On Appeal from the United States District Court for the Eastern District of Michigan

Before: COLE, GIBBONS, and READLER, Circuit Judges.

OPINION

COLE CIRCUIT JUDGE

Rita Simpson-Vlach, Alan Simpson-Vlach, Kathy Bishop, and Christopher Place (collectively, "plaintiffs") are parents of children A.S., M.S., C.P., and H.P, all of whom qualify as students with disabilities under the Individuals with Disabilities Education Act ("IDEA"). Plaintiffs allege that the defendants, local and state education agencies and individuals employed by them, violated the IDEA, the Americans with Disabilities Act ("ADA"), and several related state laws when schools switched to remote instruction in March 2020 due to the COVID-19 pandemic. Plaintiffs also allege that the individual defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") due to their allegedly false assurances made to ensure receipt of IDEA funds that were then misspent. Because plaintiffs have failed to allege necessary elements of constitutional standing that would permit the requested relief, we affirm.^[1]

I. BACKGROUND

In March 2020, Ann Arbor Public Schools closed their doors and transitioned students to remote learning due to COVID-19. At the time of this transition, Ann Arbor Public Schools students A.S., M.S., C.P., and H.P. each had an individualized education program ("IEP") that outlined the student-specific goals and services necessary to ensure that each student received a free appropriate public education ("FAPE") as mandated by the IDEA. See 20 U.S.C. §§ 1400(d), 1401(14). Notably, none of the students' IEPs in place at the time of the transition to remote learning specified whether the required services needed to be provided in-person. As with all other students in the district, A.S., M.S., and C.P. received remote instruction through May 2021, when schools re-opened for hybrid learning. H.P. participated in remote learning until January 2021 when her mother placed her in a private school. The 2021-2022 school year proceeded primarily in-person, though Ann Arbor Public Schools delayed the return to in-person learning after winter break for one week in January 2022. Since then, there has been no indication that another temporary or extended closure or period of remote instruction has occurred or will occur.

In June 2021, plaintiffs filed a putative class action complaint against the Michigan Department of Education ("MDE"), Washtenaw Intermediate School District ("WISD"), Ann Arbor Public Schools ("AAPS"), AAPS's superintendent Dr. Jeanice Swift, AAPS's Executive Director of Student Intervention and Support Services Dr. Marianne Fidishin, WISD's former interim superintendent Scott Menzel, WISD's current interim superintendent Naomi Norman, and MDE's state superintendent Dr. Michael F. Rice. AAPS, Swift, and Fidishin are collectively referred to as the "AAPS defendants"; WISD, Menzel, and Norman are collectively referred to as the "WISD defendants"; and the MDE and Rice are collectively referred to as the "MDE defendants."

Plaintiffs claim that the transition to remote learning in March 2020 effected a change in placement for students with IEPs, therefore triggering several of the IDEA's procedural protections. From this premise, plaintiffs' original complaint asserted eight separate claims. The remaining claims^[2] on appeal include:

• Count 1: MDE, WISD, and AAPS engaged in systemic violations of the IDEA when they transitioned to remote learning in March 2020 by failing to (1) provide parents with prior written notice of the change in educational placement, (2) provide parents with meaningful participation in decisions regarding changes to their child's IEP, (3) reconvene IEP meetings prior to or shortly following the change in placement, and (4) ensure that students with IEPs could access a FAPE on the same level as their peers without disabilities.

• Count 2: AAPS (and possibly WISD) violated the Michigan Administrative Rules for Special Education ("MARSE").^[3]

• Count 4: AAPS and MDE violated Title II of the ADA.

• Count 5: AAPS violated the Michigan Persons with Disabilities Civil Rights Act.

• Count 7: Swift, Fidishin, Menzel, Norman, and Rice violated RICO.

Plaintiffs assert that they meet the requirements for a declaratory and injunctive relief class under Federal Rules of Civil Procedure 23(a) and (b)(2). But while the plaintiffs sought preliminary class certification in their motion for a preliminary injunction that was then held in abeyance, no separate motion for class certification has been filed. So no class was ever certified.

Plaintiffs request various forms of relief, including that the court (1) assert jurisdiction; (2) certify a class action; (3) issue several declaratory judgments, including one indicating that the "class members' pendency placement is in-person instruction and services"; and (4) appoint two Special Monitors: (i) one to "oversee the completion of Independent Education Evaluations" for all class members and to "make expert recommendations to the Court regarding compensatory education or pendency payments for the class members to address any regressions and/or loss of competencies[,]" and (ii) another to "oversee the completion of an independent audit of defendants' expenditures of their IDEA Part B Funds from March of 2020 to the present" and ensure that any improperly spent funds "are reimbursed to a monitored account to be spent only upon review and approval by the RICO Special Monitor." (Compl., R. 1, PagelD 41-43.)

While the federal litigation was pending, plaintiffs "filed four due process complaints with the State of Michigan Office of Administrative Hearings and Rules against . . . AAPS," one for each student named in the complaint. (Joint Update on Admin. Proceedings, R. 54, PageID 1427.) These administrative due process complaints similarly asserted that the transition to remote learning in March 2020 led to procedural violations of the IDEA and caused harm to students. In November 2021, plaintiffs reached settlement agreements in the administrative proceedings that acknowledged "(1) that the dispute[s] which gave rise to the Due Process Complaint[s] ha[ve] been resolved; and (2) that the Due Process Complaint[s] should be dismissed with prejudice." (Settlement Agreements, R. 54-2, PageID 1435, 1441, 1447, 1452.) Regarding additional claims, all settlement agreements state that they do not:

[S]et forth any understanding or settlement of any of the Student's allegations regarding procedural and systemic violations under IDEA, discrimination under the Americans with Disabilities Act, the Michigan Persons with Disabilities Civil Rights Act, Section 504 of the Rehabilitation Act, or 42 U.S.C. § 1983, or violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO").

(Id. at 1436, 1442, 1448, 1453.) Plaintiffs' attorneys acknowledged that these agreements "achieved a full and complete settlement of all the IDEA issues, [and] all of the FAPE" issues faced by the named plaintiffs but argued that the putative class members were owed the same relief. (Hr'g Tr., R. 62, PagelD 1777-78, 1800-01, 1804, 1818.)

The AAPS, WISD and MDE defendants each filed separate motions to dismiss the complaint. In response to AAPS's temporary delay in returning to in-person instruction in January 2022, plaintiffs filed a motion for a temporary restraining order. The district court held a hearing on these motions, during which the district court expressed concern about plaintiffs' Article III standing and about several elements of the RICO claims, including whether the alleged injury was one to business or property or was too derivative to permit plaintiffs to pursue their RICO claim. Following the hearing, the district court requested supplemental briefing on standing and mootness.

The district court then dismissed the case without prejudice, determining that plaintiffs failed to allege harm sufficient to warrant prospective relief for Counts 1, 2, 4, and 5 and failed to allege causation and redressability with respect to the RICO claim. Plaintiffs appeal.

II. ANALYSIS

A. Standing

We review issues of standing de novo. Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 523 (6th Cir. 2001). "To establish Article III standing, a plaintiff must show (1) an 'injury in fact,' (2) a sufficient 'causal connection between the injury and the conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a favorable decision.'" Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Like any other essential element of a claim, standing must be pleaded with particularity and conclusory allegations will not suffice. Binno v. Am. Bar Ass'n, 826 F.3d 338, 344 (6th Cir. 2016).

1. Counts 1, 2, 4, and 5

The district court determined that the plaintiffs lacked standing with respect to Counts 1, 2, 4, and 5 because they failed to allege an injury that permitted their requested relief. An alleged injury must be concrete, particularized, actual and imminent; it can be neither conjectural nor hypothetical. Gerber v. Herskovitz, 14 F.4th 500, 505-06 (6th Cir. 2021) (quoting Spokeo, Inc. v. Robins...