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Cordero v. Picayune School District

United States District Court, S.D. Mississippi, Southern Division

June 29, 2018

CRISTINA CORDERO, individually and as guardian and next friend of the minor children C.J. and J.J. PLAINTIFF
PICAYUNE SCHOOL DISTRICT; and FRANK FORD, in his official capacity as chief executive of the Picayune School District DEFENDANTS



         BEFORE THE COURT is the [16] Motion for Summary Judgment filed by the defendants Picayune School District and Frank Ford. The defendants seek dismissal of the plaintiff's claims alleging violation of Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. The plaintiff has responded in opposition and the defendants have replied. After due consideration of the submissions and the relevant law, it is the Court's opinion that the Motion should be granted because the plaintiffs have not exhausted their administrative remedies.


         The plaintiff alleges that she and her two minor children C.J. and J.J. suffer from branchio-oto-renal syndrome, which causes her to be deaf and her two children to be hard of hearing. The family's primary method of communication is American Sign Language (“ASL”). The children are enrolled in Picayune School District schools. The plaintiff alleges that since C.J. and J.J. were first enrolled in 2015, she made numerous requests that the District provide ASL interpretation services for herself as a parent and for her children as students. She requested ASL interpretation services for C.J. and J.J. “with their teachers, principal, and the school board, using email and Video Relay Service telephone calls, by making in-person visits at which written notes were exchanged with school administrators and educators, and by sending written notes to school with the children.” (Compl. 4, ECF No. 1). She states that she has “only been provided ASL interpretation services at IEP[1] meetings and special events.” (Pl. Resp. Ex. A, at 6, ECF No. 19-1.) The District “continues to suggest that [the] boys should attend the Mississippi School for the Deaf, ” but Cordero does not believe that is in their best interests. (Id. at 2.)

         In regard to J.J., Cordero alleges that the District moved him to the front of his classroom and used an assistive hearing device rather than provide him with ASL interpretation services. Cordero alleges this is insufficient to allow J.J. to effectively communicate with his teachers regarding deadlines and other assignment expectations.

         In regard to C.J., Cordero alleges that the District had him examined by Dr. Luke Thompson, an ear, nose, and throat specialist, in February 2017. Cordero alleges she has not been provided with a copy of the audiology report, but believes that Dr. Thompson suggested cochlear implants for C.J. Cordero “rejects the notion that C.J. should conform to the expectations of mainstream hearing culture rather than have his disability accommodated . . . .” (Compl. 6, ECF No. 1.) Cordero alleges that rather than provide C.J. with ASL interpretation services, the District assigned a special education assistant to C.J. for the 2017-18 school year. Cordero alleges that because of the lack of an ASL interpreter, C.J. was unable to participate in his class play. (Id. at 5-6.) C.J. also received an in-school suspension because he was unable to effectively communicate with school officials in his defense. (Id. at 6.)


         The District makes two general arguments for dismissal of this case. First, that it is immune from suit under the Eleventh Amendment. Second, that this lawsuit is subject to the Individuals with Disabilities Education Act, and Cordero has not exhausted her administrative remedies under that Act.

         1. Eleventh Amendment Immunity

         The District argues that it is immune from Cordero's ADA claims under the Eleventh Amendment. In support, the District cites two cases involving a state university. See Dansby-Giles v. Jackson State Univ., 638 F.Supp.2d 698 (S.D.Miss. 2009); Ward v. Jackson Stae Univ., No. 3:11cv188-TSL-MTP, 2013 WL 75077 (S.D.Miss. Jan. 4, 2013). Because a state university is an arm of the state, the court in those decisions found that the university was immune from ADA claims. This case involves a local school district, which is not an arm of the state and therefore not entitled to Eleventh Amendment immunity. See Black v. N. Panola Sch. Dist, 461 F.3d 584, 598 (5th Cir. 2006) (“[W]e conclude that [the school district] is not an arm of the state of Mississippi; therefore, it is not entitled to Eleventh Amendment immunity in federal or state court.”). Dismissal of the ADA claims is not warranted based on Eleventh Amendment immunity.

         2. The Individuals with Disabilities Education Act

         The District argues that Cordero's ADA and Rehabilitation Act claims are, in reality, IDEA claims. IDEA claims are subject to an administrative remedy exhaustion requirement, and the District contends that Cordero failed to exhaust her administrative remedies before filing this lawsuit.

         “[A] plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws must in certain circumstances - that is, when ‘seeking relief that is also available under' the IDEA - first exhaust the IDEA's administrative procedures.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 750 (2017); see also Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 256 (5th Cir. 2017) (“The IDEA requires administrative exhaustion not just of claims arising under it, but also of Rehabilitation Act claims that overlap with the IDEA.”). Therefore, the Court must first resolve the threshold question of whether the plaintiffs' ADA and Rehabilitation Act claims are subject to the IDEA's exhaustion requirement. The parties agree that the United States Supreme Court's decision in Fry v. Napoleon Community Schools governs this inquiry.

         In Fry, the court explained the landscape of federal regulation of educational ...

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