UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALLYSON B., et al., () - A149 Plaintiffs,
MONTGOMERY COUNTY INTERMEDIATE UNIT NO.23, = f i. i fy Defendant.
OPINION June 12 , 2008 Pollak, J.
Presently before the court is defendant Montgomery County Intermediate Unit
Number Twenty-Three’s (“MCIU”) partial motion to dismiss (Docket No. 10) plaintiff
Allyson B.’s complaint.
Il. Background
Allyson B., a minor, brings this action against MCIU for allegedly failing to
provide her with a free and appropriate public education in violation of the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-82; § 504 of the
Rehabilitation Act, 29 U.S.C. § 794; and 42 U.S.C. § 1983. She requests injunctive
relief, private school tuition reimbursement, declaratory relief, compensatory education,
money damages, attorneys’ fees, and costs.
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Allyson suffers from a severe hearing impairment treated with a cochlear implarih According to plaintiff, a cochlear implant processes speech and stimulates the auditory
nerve in order to simulate hearing. To use the device effectively, Allyson must be traing to understand the signals the device transmits. In addition, she must be trained to speak
A cochlear implant, plaintiff alleges, is fundamentally different from a hearing aid
inasmuch as it simulates sounds, rather than amplifying sounds. Accordingly, plaintiff
contends that a person with a cochlear implant needs particularized instruction different
in kind and amount from the instruction needed by persons with hearing aids. Plaintiff's contention is that defendant’s proposed individualized education plan (“IEP”) failed, inte
alia, to provide the individualized training that she needs. Thus, plaintiff's parents have | been paying for her to attend a private school that, she alleges, meets her needs | appropriately.
Defendant moves to dismiss four aspects of the complaint: (1) plaintiff's request
for money damages under 28 U.S.C. § 1983 for defendant’s alleged violation of the
IDEA, (2) plaintiff's request for money damages directly under the IDEA, (3) plaintiff's
request for compensatory education under the IDEA, and (4) plaintiff's request for money
damages under § 504 of the Rehabilitation Act. Plaintiff concedes defendant’s second
and third objections, so the motion will be granted as to those objections, and the court
will not address them further. The other two objections will be addressed in turn.
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Defendant moves to dismiss various aspects of the complaint under Federal Rule 7
of Civil Procedure 12(b)(6), which allows for dismissal when the complaint “fail[s] to | state a claim upon which relief can be granted.” “To survive a motion to dismiss, a civil | plaintiff must allege facts that ‘raise a right to relief above the speculative level on the
assumption that the allegations in the complaint are true (even if doubtful in fact).’”
Victaulic Co. v. Tieman, 499 F.2d 227, 234 (3d Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, U.S., 127 S. Ct. 1955, 1965 (2007)). ? III. Discussion
A. Whether plaintiff may seek money damages under § 1983
Plaintiff seeks money damages under 42 U.S.C. § 1983 for defendant’s alleged
violations of the IDEA. Defendant responds that the Third Circuit, sitting en banc, has
expressly held that a § 1983 remedy is not available for IDEA violations because the
IDEA provides a comprehensive remedial scheme. A.W. v. Jersey City Pub. Schs., 486
F.3d 791, 803, 806 (3d Cir. 2007) (en banc) (overruling , in part, W.B. v. Matula, 67 F.3d : 484 (3d Cir. 1995)). Plaintiff does not attempt to distinguish A.W. Rather, plaintiff
argues that the Third Circuit mistakenly decided A.W., and that money damages under
§ 1983 are available for violations of the IDEA.’ Pl.’s Resp. at 3. That argument, having
been made, is preserved for appeal. It cannot, however, be accepted here, as A.W. is
' Plaintiff does not appear to argue that damages are available under § 1983 for violations of § 504 of the Rehabilitation Act. Even if she had, this court would be bound to follow 4. W.’s holding that § 504 also provides a comprehensive remedial scheme, so no damages remedy is available for violations of it under § 1983. See A.W., 486 F.3d at 806.
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binding precedent on this court. Therefore, as to the claim for money damages under
§ 1983, defendant’s motion to dismiss will be granted.
B. Whether plaintiff may seek money damages under § 504 ofthe Rehabilitation Act
Defendant argues that plaintiff has failed to allege a violation of§ 504 of the
Rehabilitation Act for which money damages may be awarded. Section 504 provides, in i relevant part, that:
No otherwise qualified individual with a disability in the United States ... Shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance... .
29 U.S.C. § 794(a).
Plaintiff alleges that defendant’s failure to provide plaintiff with a free and
appropriate public education suitable for a person with plaintiff's disability constitutes
discrimination in violation ofthis statute and its implementing regulations.
Defendant notes that § 504 incorporates the remedial scheme of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d to d-7. See Bowers v. Nat'l Coll. Athletic
Ass'n, 346 F.3d 402, 427 (3d Cir. 2003). Section 601 of Title VI largely mirrors the
language of § 504 of the Rehabilitation Act:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Case 2:05-cv-06807-LP Document44 Filed 06/12/2008 Page 5of9
42 U.S.C. § 2000d.
In Guardians Ass'n v. Civil Serv. Comm’n of N.Y.C., 463 U.S. 582 (1983), the
Supreme Court, without a majority opinion, considered (a) whether the above-quoted
language of Title VI not only addresses intentional discrimination but also prohibits
activity that has a discriminatory effect on racial minorities but lacks discriminatory
intent, and (b) if so, whether money damages are available under the statute to remedy
unintentional discrimination. Five justices agreed, albeit on differing grounds, that Title
VI, taken together with its implementing regulations, prohibits unintentional
discrimination. Two of the five justices found that prohibition in the statutory text. Jd. at 584 n.2, 592 (White, J., announcing the judgment of the Court); id. at 623 (Marshall, J.,
dissenting). The other three ofthe five justices found that the statute itself did not
prohibit unintentional discrimination but that the implementing regulations validly did so. —
Id. at 645 (Stevens, J., joined by Brennan and Blackmun, J.J., dissenting). A largely
different majority, however, ruled that, under Title VI, money damages are not available
to remedy unintentional discrimination. Justice White, announcing the judgment of the
Court, opined that although Title VI prohibits unintentional discrimination, Congress’s
intent was to limit the money-damages remedy to instances of intentional discrimination.
Id. at 602-03, 607. Chief Justice Burger, Justice Powell, Justice Rehnquist, and Justice
O’Connor agreed with this result, but their view was that Title VI does not prohibit
unintentional discrimination at all, that the regulations that do so impermissibly stray from Case 2:05-cv-06807-LP Document44 Filed 06/12/2008 Page6of9
the statute, and that, accordingly, no remedy is available for unintentional discrimination
Id. at 611 & n.5 (Powell, J., joined by Burger C.J., and Rehnquist, J., concurring in
judgment); id. at 614 (O’Connor, J., concurring in judgment). A curious result of the
Court’s several opinions in Guardians is that, while seven members of the Court (Burger. C.J., and Powell, Brennan, Blackmun, Stevens, Rehnquist, and O’Connor, J.J.) believed | that the text of Title VI prohibited only intentional discrimination, regulations that
prohibited unintentional discrimination were allowed to stand, albeit without any
corresponding money-damages remedy.
In Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001), the Court acknowledged ; that Guardians had allowed the Title VI regulations to come unmoored from the
interpretation of the statute embraced by a majority of the Court. /d. (noting
“considerable tension” between the validity of the regulations and the rule that Title VI
prohibits only intentional discrimination). In Sandoval, the Court held that the private
right of action implicit in Title VI extends only to actions based on the statutory
prohibition of intentional discrimination; there is no private right of action for
unintentional discrimination under the Title VI regulations. Jd. at 284,293. Sandoval did : not, however, expressly consider the validity of the regulations prohibiting unintentional
discrimination, since those regulations were not at issue. /d. at 282.
Defendant here argues that § 504 should be read to conform to the Sandoval
Court’s reading of Title VI, and that plaintiff should not be allowed to maintain her § 504 Case 2:07-cv-02798-LP Document 25 Filed 06/12/08 Page 7 of9 Case 2:05-cv-06807-LP Document 44 Filed 06/12/2008 Page 7 of9
action against defendant without alleging intentional discrimination.” Defendant
acknowledges, however, that the Third Circuit, in decisions antedating Sandoval, has hell that a § 504 plaintiff need not allege intentional discrimination, Ridgewood Bd. of Ed. v. : N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999); W.B. v. Matula, 67 F.3d 484, 492 Gd Cir. 1995), overruled on other grounds, A.W., 486 F.3d at 803, 806; Nathanson v. Med. : Coll. of Pa., 926 F.2d 1368, 1384 (3d Cir. 1992), and that money damages are available : directly under § 504, Matula, 67 F.3d at 494. But defendant argues that these decisions
are superseded by Sandoval.
This court must follow precedent set by the Third Circuit unless that precedent is : clearly overruled by the Supreme Court. Here, Sandoval’s effect on Ridgewood, Matula, : and Nathanson is not clear. Sandoval dealt specifically with the disconnect that the
Guardians decision left between the text of Title VI and the conduct prohibited by its
implementing regulations. The Supreme Court has not suggested that any such
disconnect exists in the § 504 context. To the contrary, the Court has noted in dicta that
§ 504 itself may prohibit more than intentional discrimination. Alexander v. Choate, 269 i U.S. 287, 296-97 (1985). Given that the Supreme Court has not drawn the distinction
that defendant urges between the statutory prohibition and the affirmative duties provided
by the implementing regulations in the § 504 context, and that the Third Circuit has
? Defendant frames its argument as one about the availability of money damages, but, as Sandoval did not address that question, this court assumes that defendant’s real argument is that no private right of action attaches to § 504 claims that do not allege intentional discrimination.
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specifically held that money damages are available under § 504 without regard to whethe
the plaintiff alleges intentional discrimination, this court is not at liberty to deviate from :
the Third Circuit’s holdings in Ridgewood, Matula, and Nathanson. It is for the Third
Circuit, not this court, to decide whether the authority of those decisions has been
undermined by Sandoval.’
An appropriate order follows.
> There is some dispute between the parties as to whether plaintiff has, in fact, alleged intentional discrimination. In light of this court’s decision that the § 504 claim for money damages may stand irrespective of whether plaintiff has alleged intentional discrimination, there is no need to dissect the complaint further.
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IN THE UNITED STATES DISTRICT COUR T FOR THE EASTERN DISTRICT OF PENN SYLVANIA
ALLYSON B., et al., - Plaintiffs, x G
Civ. No. (1 2 ] f VBUs
MONTGOMERY COUNTY INTERMEDIATE UNIT NO.23,
Defendant.
ORDER
AND NOW, this 12th day of June, 2008, for the reasons given in the foregoing opinion, it is hereby ORDERED that:
(1) defendant’s motion to dismiss is DENIED as to the availability of money damages under § 504 of the Rehabilitation Act for violations ofthe Act that do not involve intentional discrimination, and
(2) defendant’s motion to dismiss is GRANTEDin all other respects.
BY THE COURT:
/s/ Louis H. Pollak
Pollak, J.