                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2007

A.W. v. Jersey Cty Pub Sch
Precedential or Non-Precedential: Precedential

Docket No. 05-2553




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                                 PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                  No. 05-2553


                     A.W.

                      v.

     THE JERSEY CITY PUBLIC SCHOOLS;
 NEW JERSEY DEPARTMENT OF EDUCATION;
     JEFFREY V. OSOWSKI, former Director,
           Division of Special Education;
       BARBARA GANTWERK, Director,
       Office of Special Education Programs;
   SILVIA ELIAS, former Executive Director of
             Pupil Personnel Services;
 PRISCILLA PETROSKY, Associate Superintendent
               for Special Education;
    JOHN IWANOWSKI; MARY HEPBURN;
      JOAN EDMISTON; DENISE BRAAK;
 MARY MACEACHERN; EDWARD FAUERBACH,
     Learning Disabilities Teacher-Consultants;
NORMA CHRISOMALIS; GWENDOLYN JACKSON;
      LINDA COLON; RONNE BASSMAN;
  WILLIAM RONZITTI; ROXANNE JOHNSON,
         Supervisors of Special Education;
         SHARNETTE GREEN, Teacher;
MELINDA ZANGRILLO, Coordinator of Compliance;
            JANE DOE AND JOHN DOE (1)-(5),
         all in their official and individual capacities

             New Jersey Department of Education;
                     Jeffrey V. Osowski;
                      Melinda Zangrillo;
                      Barbara Gantwerk,
                              Appellants


        Appeal from the United States District Court
               for the District of New Jersey
               (D.C. Civil No. 01-cv-00140)
         District Judge: Honorable Jose L. Linares


                  Argued July 10, 2006
       Before: SLOVITER, McKEE and RENDELL,
                     Circuit Judges.

           Reargued En Banc February 21, 2007
   Before: SCIRICA, Chief Judge, SLOVITER, McKEE,
    RENDELL, BARRY, AMBRO, FUENTES, SMITH,
      FISHER, JORDAN and VAN ANTWERPEN*,
                     Circuit Judges.

                    (Filed: May 24, 2007)




 * Honorable Franklin S. Van Antwerpen assumed senior status
on October 23, 2006 after the case was initially argued and
continues to participate in the matter pursuant to I.O.P 9.6.4.
Michael C. Walters [ARGUED]
Office of Attorney General of New Jersey

                               2
Division of Law
P.O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
  Counsel for Appellants

Stephen M. Latimer
Loughlin & Latimer
131 Main Street, Suite 235
Hackensack, NJ 07601

Elizabeth A. Athos [ARGUED]
Education Law Center
60 Park Place, Suite 300
Newark, NJ 07102

Rebecca K. Spar [ARGUED - en banc]
Cole, Schotz, Meisel, Forman & Leonard
25 Main Street - Court Plaza North
P.O. Box 800
Hackensack, NJ 07601
  Counsel for Appellee



                OPINION OF THE COURT


RENDELL, Circuit Judge.

       In this appeal, we reexamine our holding in W.B. v.
Matula, 67 F.3d 484 (3d Cir. 1995), that an action can be
maintained against school officials under 42 U.S.C. § 1983 for
violations of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq. We do so in light of the

                              3
Supreme Court’s reasoning in City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113 (2005), regarding the availability of §
1983 to redress violations of federal statutory rights and the
opinions of our sister courts of appeals that have questioned
Matula.

       The District Court, relying on Matula, held that the
alleged violations of plaintiff’s rights were actionable under §
1983 and denied defendants’ motion for summary judgment on
the ground of qualified immunity, concluding that plaintiff’s
cause of action could be maintained and there was sufficient
evidence for a jury to find that defendants violated clearly
established federal law. We will reverse.

                        I. Background

       In January 2001, A.W., a dyslexic former student of the
Jersey City Public Schools (“JCPS”), filed this action in the
United States District Court for the District of New Jersey.
A.W. alleged that New Jersey officials failed to comply with
federal law and, as a result, deprived him of a free, appropriate
public education. In addition to suing JCPS and its officials,
A.W. also brought claims against Barbara Gantwerk, Director
of the Office of Special Education Programs for the New Jersey
Department of Education (“NJDOE”), and Melinda Zangrillo,
Coordinator of Compliance at NJDOE, in their personal
capacities.1

        With respect to Gantwerk and Zangrillo, A.W. asserted
that, in response to his December 1997 complaint alleging that
he had unidentified and untreated dyslexia, Gantwerk and
Zangrillo conducted an inadequate investigation and provided


   1
    A.W. reached a settlement with JCPS and its officials in
February 2004.

                               4
no relief to A.W., despite ample evidence of A.W.’s disability.
In A.W.’s amended complaint,2 he sought to hold Gantwerk and
Zangrillo personally liable under § 1983 for violations of
A.W.’s rights under the IDEA and Section 504 of the
Rehabilitation Act (“Section 504”), 29 U.S.C. § 794.

        Following the completion of all discovery other than
expert depositions, defendants moved for summary judgment on
numerous grounds, including qualified immunity and a
challenge to the use of § 1983 to remedy the alleged violations
of the IDEA and Section 504. On April 21, 2005, the District
Court struck A.W.’s claim for declaratory relief and denied
summary judgment to the defendants on all other bases. The
Court found that the IDEA could be enforced through an action
under § 1983 based on our decision in W.B. v. Matula, 67 F.3d
484, 494 (3d Cir. 1995), wherein we specifically reasoned that
§ 1983 was available to redress a violation of a student’s rights
secured by the IDEA. The District Court also rejected
defendants’ argument that individuals could not be sued under
§ 1983 for alleged violations of the IDEA and Section 504
because these statutes impose liability only on entities that


  2
    The procedure leading to the amendment of A.W.’s original
complaint was as follows: the NJDOE defendants, including
Gantwerk and Zangrillo, filed a motion to dismiss A.W.’s
complaint for failure to state a claim upon which relief can be
granted, based on sovereign immunity and other grounds. A.W.
filed a motion in opposition and also filed a motion to amend his
complaint. On March 18, 2002, the District Court issued an
order denying the motion to dismiss and granting A.W. leave to
file an amended complaint. The defendants appealed this order,
which we affirmed, holding that the various defendants had
waived sovereign immunity from suit under the IDEA and
Section 504 by accepting federal financial assistance. See A.W.
v. Jersey City Pub. Schs., 341 F.3d 234 (3d Cir. 2003).

                               5
receive federal funding. Finally, the Court denied defendants
qualified immunity because A.W. adduced sufficient proof that
defendants had violated A.W.’s clearly established rights under
the IDEA and the Rehabilitation Act. Gantwerk and Zangrillo
now appeal.

         II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 and § 1343. Its order denying
qualified immunity comes to us as a “final” order for review
under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511,
530 (1985) (holding denial of claim of qualified immunity is
appealable as a “final decision”).

        We will engage in plenary review of a district court’s
summary judgment ruling on qualified immunity, Kopec v. Tate,
361 F.3d 772, 775 (3d Cir.), cert. denied, 543 U.S. 956 (2004),
and apply the same summary judgment standard that guided the
district court, Rivas v. Passaic County, 365 F.3d 181, 193 (3d
Cir. 2004). A party is entitled to summary judgment when it
demonstrates that there is no genuine issue of material fact and
that the evidence establishes its entitlement to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In considering a motion for
summary judgment, we consider all evidence in the light most
favorable to the party opposing the motion. Brewer v. Quaker
State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995).




                        III. Discussion

A. Qualified Immunity for Statutory Violations

                               6
        The first issue we confront is whether we should decide
the availability of § 1983 relief for the alleged violations of
A.W.’s statutory rights as part of the qualified immunity inquiry
that is the basis for the appeal before us. We conclude we can,
and should.

        We have jurisdiction to decide this question because it
arises in the course of our analysis of defendants’ request for
qualified immunity. Under Saucier v. Katz, 533 U.S. 194
(2001), a court analyzing a claim of qualified immunity must
first ask the “threshold” question: whether the facts alleged
show that the official’s conduct violated a constitutional right.
Id. at 201. If the plaintiff’s allegations establish the violation of
a constitutional right, the violation is necessarily actionable and
the court can then proceed to the second inquiry in the Saucier
analysis: whether the right was “clearly established.”3 Id.

        Violations of federal statutes, however, are not always
actionable. See Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984)
(“[O]fficials sued for violations of rights conferred by a statute
or regulation . . . become liable for damages only to the extent
that there is a clear violation of the statutory rights that give rise
to the cause of action for damages.” (emphasis added)). Thus,
the availability of § 1983 to remedy the alleged violations of
A.W.’s statutory rights is part and parcel of our “threshold”




    3
     The official’s conduct in Saucier allegedly violated the
plaintiff’s Fourth Amendment rights and was actionable
pursuant to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The analysis in
Saucier is equally applicable to actions for alleged constitutional
violations brought pursuant to § 1983. See Scott v. Harris, 127
S. Ct. 1769, 1774 (2007).

                                  7
inquiry into defendants’ qualified immunity defense.4 This
inquiry parallels the constitutional or “threshold” inquiry in the
Saucier two-part qualified immunity analysis applied to
constitutional claims.5 See Brosseau v. Haugen, 543 U.S. 194,
198 n.3 (2004) (per curiam) (labeling the first inquiry in Saucier
two-step analysis as the “constitutional question”).

       In fact, we cannot imagine a qualified immunity inquiry
involving statutory rights that does not include an inquiry into
the availability of relief and the existence of a cause of action
along with an inquiry into the existence of the violation itself.
This would be a useless act. We cannot conceive of why we
should subject the state actors here to a trial when the right of

      4
    A.W. has not brought claims against defendants directly
under the IDEA or Section 504. Appellee Br. 15. We therefore
need not address whether defendants could be sued directly
under these statutes, rather than under § 1983.
  5
   We also think that it can be said that the question of whether
§ 1983 is available to remedy violations of the IDEA and
Section 504 is “‘inextricably intertwined’ with the issue of
qualified immunity, that is, . . . its review is ‘necessary to ensure
meaningful review’ of the qualified immunity issue,” and that
we therefore have jurisdiction over this aspect of the District
Court’s order. See Walker v. City of Pine Bluff, 414 F.3d 989,
993 (8th Cir. 2005); see also Farm Labor Org. Comm. v. Ohio
State Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002)
(“Under the doctrine of pendent appellate jurisdiction, . . . a
court of appeals may, in its discretion, ‘exercise jurisdiction over
issues that are not independently appealable when those issues
are “inextricably intertwined” with matters over which the
appellate court properly and independently has jurisdiction.’”)
(quoting Chambers v. Ohio Dep’t of Human Servs., 145 F.3d
793, 797 (6th Cir. 1998); Malik v. Brown, 71 F.3d 724, 727 (9th
Cir. 1995)).

                                 8
the plaintiff to sue is questionable. It makes little or no sense.6
The privilege of qualified immunity is “effectively lost if a case
is erroneously permitted to go to trial.” Saucier, 533 U.S. at
201 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

        Here, the District Court followed our decision in Matula,
where we held that violations of IDEA-created rights are
actionable under § 1983.7 Matula, 67 F.3d at 494. Concluding
that it was bound by Matula to so rule, the District Court noted
that “only one judicial body is able to overrule Third Circuit
precedent, and this Court is not it.” A.W. v. Jersey City Pub.
Schs., No. 01-140, slip op. at 14 (D.N.J. Apr. 21, 2005). In light
of the recent, clear guidance provided by the Supreme Court in
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005),
regarding the availability of § 1983 to remedy statutory
violations, and the well-reasoned opinions of the Courts of
Appeals for the Fourth and Tenth Circuits in Sellers v. School
Board of Manassas, Virginia, 141 F.3d 524 (4th Cir. 1998), and
Padilla v. School District No. 1, 233 F.3d 1268, 1273 (10th Cir.

  6
    The Court of Appeals for the Second Circuit in a strikingly
similar situation has also viewed the issue of the availability of
relief as a threshold issue and, concluding that § 1983 was not
available to remedy the alleged statutory violations, dismissed
an appeal of a denial of qualified immunity as moot. See
Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist.,
423 F.3d 153, 159 (2d Cir. 2005). We choose a different
approach, ending up with the same result.
  7
    The District Court did not specifically address whether the
alleged Section 504 violations were actionable under § 1983,
perhaps because defendants focused their arguments on the
alleged IDEA violations. We address this issue, however,
because determining whether an alleged statutory violation is
actionable is part and parcel of our “threshold” inquiry into
defendants’ qualified immunity defense.

                                9
2000), rejecting our holding in Matula, we now conclude that
we should not continue to adhere to the principle we established
in Matula.

B. W.B. v. Matula

        Matula involved the precise issue before us: can school
officials be sued pursuant to § 1983 based on alleged violations
of a child’s rights secured by the IDEA. In addressing this
question, we strove to determine Congress’ intent, noting the
distinction regarding the use of § 1983 to redress statutory,
rather than constitutional, violations:

          When the rights at issue are statutory, however, a
          § 1983 action is impermissible when “Congress
          intended to foreclose such private enforcement.”
          Wright v. Roanoke Redevelopment & Housing
          Authority, 479 U.S. 418, 423 (1987). Such an
          intent is generally found either in the express
          language of a statute or where a statutory
          remedial scheme is so comprehensive that an
          intent to prohibit enforcement other than by the
          statute’s own means may be inferred. Id.

Matula, 67 F.3d at 493.

        In Matula, we concerned ourselves with the
jurisprudential and legislative directives regarding the
availability of relief for IDEA violations. We noted that in
Smith v. Robinson, 468 U.S. 992 (1984), the Supreme Court held
that the IDEA8 provided the exclusive means by which parents


      8
       The Smith decision refers to the Education of the
Handicapped Act (“EHA”). Congress changed the name of the
statute to the Individuals with Disabilities Education Act

                                 10
and children could remedy violations of the rights guaranteed
therein, and that no constitutional claim would be therefore
allowed. Id. at 1012-13. In Smith, the plaintiff sought to bring
a § 1983 claim for violation of his constitutional rights and a
claim under Section 504 of the Rehabilitation Act, both based on
conduct that also allegedly violated the plaintiff’s rights under
the IDEA. Id. at 1003. The Court held that, although the
plaintiff could have brought a § 1983 or Section 504 claim to
remedy injuries not cognizable under the IDEA, an action under
the IDEA was the exclusive means to seek redress for injuries
actionable thereunder. Id. at 1009. However, in response to this
decision, Congress enacted § 1415(l) of the IDEA, to
countermand Smith and make clear that actions can be
maintained under the Constitution or under federal laws
protecting the rights of children with disabilities notwithstanding
the fact that the IDEA also protects these rights. This provision
reads:

       Nothing in this chapter shall be construed to
       restrict or limit the rights, procedures, and
       remedies available under the Constitution, the
       Americans with Disabilities Act of 1990, title V of
       the Rehabilitation Act of 1973, or other Federal
       laws protecting the rights of children with
       disabilities, except that before the filing of a civil
       action under such laws seeking relief that is also
       available under this subchapter, the procedures
       under subsections (f) and (g) of this section shall
       be exhausted to the same extent as would be
       required had the action been brought under this
       subchapter.


(“IDEA”) in 1990. See Pub. L. No. 101-476, 104 Stat. 1141
(1990). To avoid confusion, we refer to the statute throughout
this opinion as the IDEA.

                                11
20 U.S.C. § 1415(l).9

       In an attempt to ascertain the significance of Congress’
addition of this provision, we reviewed its legislative history in
some detail:

       The Senate Report [on § 1415(l)] discussed Smith
       at length, including quoting favorably from the
       Smith dissent, see S.Rep. No. 99-112, 99th Cong.,
       2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N.
       1798, 1799 (“Senate Report”). The House
       Conference Report stated “[i]t is the conferees’
       intent that actions brought under 42 U.S.C. 1983
       are governed by [§ 1415(l)].” H.R.Conf.Rep. No.
       99-687, 99th Cong., 2d Sess. (1986); 1986
       U.S.C.C.A.N. 1807, 1809. In addition, the House
       Report made explicit that “since 1978, it has been
       Congress’ intent to permit parents or guardians to
       pursue the rights of handicapped children through
       EHA, section 504, and section 1983. . ..
       Congressional intent was ignored by the U.S.
       Supreme Court when . . . it handed down its
       decision in Smith v. Robinson.” H.R.Rep. No. 99-
       296, 99th Cong., 1st Sess. 4 (1985) (“House
       Report”) (first emphasis added). Section 1415[(l)]
       was thus enacted to “reaffirm, in light of [ Smith
       ], the viability of section 504, 42 U.S.C 1983, and
       other statutes as separate vehicles for ensuring the
       rights of handicapped children.” Id.

Id. at 494. In Matula, we concluded that “[f]ar from inferring a


  9
    At the time we decided Matula, this provision was codified
at 20 U.S.C.§ 1415(f). Throughout this opinion, we refer to it
at its current location in the Code, § 1415(l).

                               12
congressional intent to prevent § 1983 actions predicated on
IDEA then, we conclude that Congress explicitly approved such
actions.” Id.

       Also underlying our ruling in Matula was the Supreme
Court’s statement in Franklin v. Gwinnett County Public
Schools, 503 U.S. 60, 66 (1992), that “we presume the
availability of all appropriate remedies unless Congress has
expressly indicated otherwise.” Given this presumption, we
searched for some “clear direction” in the text or history of the
IDEA indicating that we were to limit the relief available and,
finding none, we held that:

       the traditional presumption in favor of all
       appropriate relief is not rebutted as to § 1983
       actions to enforce IDEA. Defendants have
       identified no “clear direction” in the text or
       history of IDEA indicating such a limitation, and
       indeed there is strong suggestion that Congress
       intended no such restriction. Certainly the plain
       language of § 1983 authorizes actions at law or
       equity, and our prior holding in Diamond compels
       the conclusion that, as a matter of law, an
       aggrieved parent or disabled child is not barred
       from seeking monetary damages in such an
       action.

Id. at 495. We should note that we were not alone in this view
at the time, as we cited to numerous other courts’ opinions that
approved § 1983 actions to enforce IDEA rights. See id.
(collecting cases).

       However, following Matula, reasonable minds have
differed as to the correctness of our interpretation of the
congressional reaction to Smith v. Robinson embodied in §
1415(l). In addition, over the past decade, the Supreme Court

                               13
has further refined its guidance as to how we should decide
whether § 1983 relief is available for violations of statutory
rights, most recently in City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 120 (2005). All of these developments since
Matula have informed our analysis in a way that requires us to
reconsider our view.

        The Courts of Appeals for the Fourth and Tenth Circuits
have taken issue with our reading of § 1415(l) and discernment
of Congress’ intent in enacting it. They note that the provision
does not refer to § 1983; rather, it focuses on substantive
rights.10 In Sellers v. School Board of Manassas, Virginia, 141
F.3d 524 (4th Cir. 1998), and Padilla v. School District No. 1,
233 F.3d 1268, 1273 (10th Cir. 2000), the Courts of Appeals for
the Fourth and Tenth Circuits, respectively, challenged our
analysis of the congressional enactment of § 1415(l) in reaction
to Smith. In Sellers, the Fourth Circuit Court of Appeals
concluded that a “closer reading” of the new provision “reveals
no intent that parties be able to bypass the remedies provided in
IDEA by suing instead under Section 1983 for an IDEA
violation.” 141 F.3d at 530. Deciphering § 1415(l), the court
noted that it specifically refers to the preservation of remedies
available under the Constitution, the Rehabilitation Act, and


 10
    Several district courts have also made this observation. See,
e.g., Carney v. Nevada, No. 05 Civ. 713, 2007 WL 777697, at
*3 (D. Nev. Mar. 12, 2007); Alex G. v. Bd. of Trustees of Davis
Joint Unified Sch. Dist., 332 F. Supp. 2d 1315, 1318-19 (E.D.
Cal. 2004) (“[I]t appears that Congress intended to permit §
1983 suits to enforce rights secured independently of the IDEA.
But this does not mean that Congress also intended to allow
plaintiffs to use § 1983 to enforce the IDEA, thereby foregoing
the various procedural and remedial requirements and
restrictions that exist when a claim is brought under the
IDEA.”).

                               14
“other statutes protecting the rights of disabled children.”
Section 1983 “speaks generally and mentions neither disability
nor youth.” Id. The court concluded:

        By preserving rights and remedies “under the
        Constitution,” section 1415[(l)] does permit
        plaintiffs to resort to section 1983 for
        constitutional violations, notwithstanding the
        similarity of such claims to those stated directly
        under IDEA. But section 1415[(l)] does not
        permit plaintiffs to sue under section 1983 for an
        IDEA violation, which is statutory in nature.
        Nothing in section 1415[(l)] overrules the Court’s
        decision in Smith to the extent it held that
        Congress intended IDEA to provide the sole
        remedies for violations of that same statute.

Id. (internal citations omitted). The court further disagreed with
the notion that the legislative history reveals the requisite intent
to permit § 1983 suits merely because § 1983 is referred to in
the House Reports. Id. at 531. The court concluded that insofar
as one of the specific substantive provisions preserved in §
1415(l) is the Constitution, it was not surprising that the
legislative history referenced § 1983, which provides a vehicle
for redressing violations of constitutional rights. Id. “When
construed in their most natural form, the excerpts demonstrate
the unremarkable proposition that Congress intended section
1415[(l)] to restore the ability of disabled children and their
parents or guardians to utilize section 1983 to protect
constitutional rights.” Id.11


   11
    In Sellers, the court also called upon an interpretive rule
whereby, because the IDEA was enacted pursuant to Congress’
spending power, the statutory response to Smith should not be
read to impose liability on state officials unless it is

                                15
        In Padilla, the Court of Appeals for the Tenth Circuit
noted that the issue had created a circuit split. Padilla, 233 F.3d
at 1273 (comparing Sellers with Matula and Marie O. v. Edgar,
131 F.3d 610, 620-22 (7th Cir. 1997)). The court agreed with
the reasoning in Sellers that subsequent amendments to the
IDEA “left intact Smith’s implication that the [IDEA] may not
provide the basis for § 1983 claims.” Id. The court also noted
that the Supreme Court had twice since the passage of § 1415(l)
referenced the IDEA as an example of a legislative enforcement
scheme that precludes a § 1983 remedy. Id. (citing Blessing v.
Freestone, 520 U.S. 329, 347-48 (1997); Wright v. Roanoke
Redev. & Hous. Auth., 479 U.S. 418, 423-24, 427 (1987)).
Thus, the court in Padilla not only disagreed with our view of
§ 1415(l), but also our view that there was no apparent
limitation on the availability of relief for violations of the IDEA
by way of § 1983.

       Were we deciding this case in the year 2001, after these
courts had voiced their disagreement with Matula, we might be
conflicted as to whether to revisit the issue. On the one hand,
the Courts of Appeals for the Fourth and Tenth Circuits offered
the convincing arguments, noted above, as to how Congress’
enactment of § 1415(l) did not provide for § 1983 as a remedial
tool here, and as to how our analysis with respect to the
availability of relief in Matula was incomplete in light of other
Supreme Court cases. On the other hand, several other courts
had expressed views similar to ours in Matula, or had assumed
§ 1983 to be available.12 While the former may have tipped the


unambiguous. The court found a lack of the requisite clarity, in
that § 1415(l) does not state or imply that § 1983 suits may be
brought for IDEA violations. 141 F.3d at 530.
  12
     The courts that have concluded that Congress intended to
allow recourse to § 1983 to remedy IDEA violations have based
their reasoning on the same reading of the legislative history of

                                16
scales somewhat towards rethinking Matula even then, the
Supreme Court’s discussion of the availability of § 1983 as a
vehicle for redressing violations of federal statutory rights in
Rancho Palos Verdes, 544 U.S. 113, has tipped them
definitively, and we are now convinced that our ruling in Matula



the IDEA that we adopted in Matula. See Marie O. v. Edgar,
131 F.3d 610, 620-22 (7th Cir. 1997) (relying on § 1415(l) and
holding that Congress did not foreclose the enforcement of Part
H of the IDEA through § 1983); Digre v. Roseville Schs., 841
F.2d 245, 250 (8th Cir. 1988) (holding § 1983 is available to
remedy IDEA and constitutional violations, as a result of the
passage of § 1415(l)). The Court of Appeals for the Second
Circuit has also allowed IDEA-based § 1983 claims to proceed,
but without acknowledging that violations of statutory rights are
not actionable under § 1983 if Congress did not so intend. See
Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir. 2002)
(reinstating § 1983 claim because plaintiff stated a cause of
action under the IDEA, but not addressing whether IDEA
violations were actionable under § 1983); Mrs. W. v. Tirozzi,
832 F.2d 748, 754 (2d Cir. 1987) (finding that money damages
are available in § 1983 action based on IDEA violation, but not
addressing whether Congress intended § 1983 to provide a
remedy for IDEA violations). Finally, some courts of appeals
have not clearly decided whether § 1983 is available only to
remedy violations of the constitutional rights of children with
disabilities, or also to remedy violations of IDEA-created rights.
See Gean v. Hattaway, 330 F.3d 758, 773 (6th Cir. 2003)
(noting that IDEA claims can “in some circumstances” be
brought under § 1983 and citing case in which § 1983 action
was brought to remedy violations of disabled student’s
constitutional rights); Angela L. v. Pasadena Ind. Sch. Dist., 918
F.2d 1188, 1193 n.3 (5th Cir. 1990) (stating in dicta that
aggrieved parents of disabled children can still “obtain relief”
through § 1983, as a result of the passage of § 1415(l)).

                               17
is no longer sound.

C. Rancho Palos Verdes

       Rancho Palos Verdes, 544 U.S. 113, is the most recent
Supreme Court pronouncement on the availability of § 1983 to
redress violations of federal statutes, and it provides the best
guidance in this area. It is interesting to note what had, and had
not, been said by the Supreme Court about the use of § 1983
prior to Rancho Palos Verdes, and prior to Matula. It is also
interesting to note that Franklin, the case we relied upon so
heavily in Matula, was not a § 1983 case at all; rather, it focused
on whether damages could be recovered in an action to enforce
Title IX. Thus, the idea that “we presume the availability of all
appropriate remedies unless Congress has expressly indicated
otherwise,” Franklin, 503 U.S. at 66, was not a concept
developed in the Supreme Court’s § 1983 jurisprudence.

       The Supreme Court held many years before Matula that
violations of certain federal statutory rights are actionable under
§ 1983. See Maine v. Thiboutot, 448 U.S. 1 (1980). Then, in
1987, the Supreme Court decided in Wright v. Roanoke
Redevelopment & Housing Authority, 479 U.S. 418 (1987), that
the administrative enforcement scheme of the Housing Act did
not demonstrate that Congress had specifically foreclosed a
remedy under § 1983 for the alleged violations of that statute.
In so doing, the Court rejected the notion that the Department of
Housing and Urban Development had the exclusive power to
enforce the benefits due housing project tenants. It noted that in
two cases the Court had found “an intent to foreclose resort to
§ 1983” where there was a “comprehensive remedial scheme
provided by Congress, a scheme that itself provided for private
actions and left no room for additional private remedies under
§ 1983”:

       In [Middlesex County Sewerage Authority v.

                                18
       National Sea Clammers Ass’n, 453 U.S. 1
       (1981)], an intent to foreclose resort to § 1983
       was found in the comprehensive remedial scheme
       provided by Congress, a scheme that itself
       provided for private actions and left no room for
       additional private remedies under § 1983.
       Similarly, Smith v. Robinson, 468 U.S. 992, 1012,
       104 S.Ct. 3457, 3469, 82 L.Ed.2d 746 (1984),
       held that allowing a plaintiff to circumvent the
       Education of the Handicapped Act’s
       administrative remedies would be inconsistent
       with Congress’ carefully tailored scheme, which
       itself allowed private parties to seek remedies for
       violating federal law.


479 U.S. at 423. But the Court then went on to state that “‘[w]e
do not lightly conclude that Congress intended to preclude
reliance on § 1983 as a remedy’ for the deprivation of a
federally secured right.” Id. at 423-24 (quoting Smith, 468 U.S.
at 1012). In a 5-to-4 decision, the Court ruled that § 1983 was
an available remedy for housing authority tenants whose rights
under the rent ceiling provision of the Housing Act were
allegedly violated. Id. at 429.

        It was not until after our decision in Matula that the
Supreme Court offered us more precise guidance as to
restrictions on the availability of § 1983, stating that “[e]ven if
a plaintiff demonstrates that a federal statute creates an
individual right, there is only a rebuttable presumption that the
right is enforceable under § 1983.” Blessing v. Freestone, 520
U.S. 329, 341 (1997). In Blessing, the Court noted that there
could be an “implied” foreclosure of a § 1983 right of action if
the statute contains a “comprehensive enforcement scheme that
is incompatible with individual enforcement under § 1983.” Id.
at 341 (citing Livadas v. Bradshaw, 512 U.S. 107, 133 (1994)).

                                19
The Court again referred to Sea Clammers and Smith.
Specifically referencing the reasoning in Smith, the Court noted
that “[w]e reasoned that Congress could not possibly have
wanted parents to skip these procedures and go straight to court
by way of § 1983, since that would have ‘render[ed] superfluous
most of the detailed procedural protections outlined in the
statute.’” Id. at 347 (citing Smith, 468 U.S. at 1011). The Court
then distinguished this type of scheme from those before it in
two other cases, Golden State Transit Corp. v. Los Angeles, 493
U.S. 103 (1989), and Wilder v. Virginia Hospital Ass’n, 496
U.S. 498 (1990), where the “oversight powers” of state officials
and “limited grievance procedures for individuals” did not
amount to the “administrative enforcement arsenal” in Smith and
Sea Clammers. Blessing, 520 U.S. at 348.

        Then, in Rancho Palos Verdes, 544 U.S. 113, the
Supreme Court examined whether Congress meant the remedy
available under § 1983 to coexist with the remedy expressly
authorized by the Telecommunications Act of 199613 for the
alleged violations of the plaintiff’s rights under the Act. Id. at
120-21. The plaintiff in Rancho Palos Verdes had applied to the
City Planning Commission for a permit to allow commercial use
of his radio antenna. Id. at 1456. After the permit application
was denied, the plaintiff sued for injunctive relief under §
332(c)(7)(B)(v) of the Communications Act and for money
damages and attorneys’ fees under § 1983 and 42 U.S.C. § 1988.
Id. at 118. The Supreme Court concluded that § 1983 was not
available to redress the alleged violations of the plaintiff’s
statutory rights.

       The Court reiterated that to sustain a § 1983 action for the
violation of a statutory right, a plaintiff must demonstrate that


 13
  The Telecommunications Act amended the Communications
Act of 1934 to include § 332(c)(7).

                                20
the federal statute creates an individually enforceable right in the
class of beneficiaries to which he belongs. Gonzaga Univ. v.
Doe, 536 U.S. 273, 285 (2002). This demonstration creates a
rebuttable presumption that the right is enforceable under §
1983. However, the “defendant may defeat this presumption by
demonstrating that Congress did not intend that remedy for a
newly created right.” Rancho Palos Verdes, 544 U.S. at 120.
“[E]vidence of such congressional intent may be found directly
in the statute creating the right, or inferred from the statute’s
creation of a ‘comprehensive enforcement scheme that is
incompatible with individual enforcement under § 1983.’” Id.
(quoting Blessing v. Freestone, 520 U.S. 329, 341 (1997)).

        In discussing its prior decisions on the availability of §
1983 as a remedy for violations of statutory rights, the Court
noted that in all of the cases in which it found § 1983 available
to provide a remedy for a violation of statutory rights, the statute
at issue did not contain a private judicial remedy (or, in most of
the cases, even a private administrative remedy). Id. at 121.
The Court also reminded us yet again that it had found that §
1983 was not an available remedy for violation of statutory
rights in only two prior cases: Sea Clammers and Smith. In both
of those cases, express, private means of redress were provided
for in the statutes themselves. Id. at 121.

       The Court noted the significance of Congress’ inclusion
of private remedial provisions in the statute: it is ordinarily an
indication that Congress did not intend “to leave open a more
expansive remedy under § 1983.” Id. However, the “ordinary
inference that the remedy provided in the statute is exclusive”
can be overcome by “textual indication, express or implicit, that
the remedy is to complement, rather than supplant, § 1983.” Id.
at 122. In framing the issue in this way, the Court seems to have
upended the Blessing “presumption,” with the inclusion of a
private remedy being the pivotal factor. The inclusion of a
private remedy gives rise to a presumption that this remedy is to

                                21
be exclusive. This presumption may be defeated by a “textual”
showing that the remedy was not intended to be comprehensive.


        The Court found that the Telecommunications Act did
provide an express, private judicial remedy and that there was
no textual indication that the remedy provided was meant “to
complement, rather than supplant, § 1983.” Id. The Court also
noted that the remedy made available by the
Telecommunications Act “adds no remedies to those available
under § 1983, and limits relief in ways that § 1983 does not.”
Id. at 122. The Court finally dismissed the plaintiff’s argument
that the “savings clause” in the Telecommunications Act was an
express statement of Congress’ intent not to preclude an action
under § 1983. Id. at 126. The Court concluded that the clause
did not require a court to permit enforcement of the Act under
§ 1983, but rather underscored Congress’s intent that “the
claims available under § 1983 prior to the enactment of the
[Communications Act] continue to be available after its
enactment.” Id.

                         1. The IDEA

       Guided by the method of analysis outlined in Rancho
Palos Verdes, we now look to the IDEA to determine whether
Congress intended to allow rights granted by the IDEA to be
remedied through a § 1983 action. For purposes of this appeal,
the parties do not dispute that the IDEA creates individually
enforceable rights in the class of beneficiaries to which A.W.
belongs. Therefore, we presume that Congress intended § 1983
to be an available remedy for violations of the IDEA. Gonzaga
Univ. v. Doe, 536 U.S. 273, 285 (2002). Defendants, however,
can rebut this presumption by showing that Congress did not so
intend. Accordingly, we look to whether there is an express,
private means of redress in the IDEA itself, which, absent some
textual indication to the contrary, would indicate that Congress

                              22
did not intend to leave open a more expansive remedy under §
1983. See Rancho Palos Verdes, 544 U.S. at 121.

        Under the IDEA, any aggrieved party may “present a
complaint . . . with respect to any matter relating to the
identification, evaluation, or educational placement of the child,
or the provision of a free appropriate public education to such
child.” 20 U.S.C. § 1415(b)(6). The party may elect to have the
complaint investigated by the state educational agency, see 34
C.F.R. § 300.661, or avail itself of an “impartial due process
hearing,” 20 U.S.C. § 1415(f). Any party aggrieved by the
outcome of the due process hearing “shall have the right to bring
a civil action with respect to the complaint presented . . . in a
district court of the United States, without regard to the amount
in controversy.” 20 U.S.C. § 1415(i)(2)(A). This action must
be initiated within 90 days from the date of the hearing officer’s
decision. § 1415(i)(2)(B). The district court is authorized to
grant “such relief as the court determines is appropriate,”
including attorneys’ fees, reimbursement for a private
educational placement, and compensatory education. See 20
U.S.C. § 1415(i)(3)(B)(i) (attorneys’ fees); Burlington Sch.
Comm. v. Dep’t of Educ., 471 U.S. 359, 470 (1985)
(reimbursement); Lester H. v. Gilhool, 916 F.2d 865, 873 (3d
Cir. 1990) (compensatory education). We conclude that these
provisions of the IDEA create an express, private means of
redress. This, then, means that a § 1983 action is not available
to remedy violations of IDEA-created rights, absent some
“textual indication, express or implicit, that the [statutory]
remedy is to complement, rather than supplant, § 1983.”
Rancho Palos Verdes, 544 U.S. at 122.

        A.W. argues that the “ordinary inference that the remedy
provided in the statute is exclusive” is overcome by the “textual
indication” in § 1415(l) of the IDEA that the remedies provided
for in the statute are “to complement, rather than supplant, §
1983.” Id. However, finding the reasoning of Sellers and

                               23
Padilla convincing, we do not agree that § 1415(l) shows that
Congress intended the remedies in the IDEA to complement,
rather than supplant, § 1983. Just like the savings clause in
Rancho Palos Verdes, this provision merely evidences
Congress’ intent that “the claims available under § 1983 prior to
the enactment of the [Act] continue to be available after its
enactment.” Id. at 126. We also reject A.W.’s contention that
the references to § 1983 in the legislative history of § 1415(l)14
show that Congress intended to preserve the availability of §
1983 to remedy violations of IDEA-created rights, as we concur
with the explanation of those references provided in Sellers. See
Sellers, 141 F.3d at 531 (concluding that, insofar as § 1415(l)
preserved actions based on violations of constitutional rights, it
is not surprising that the legislative history referenced § 1983,
which provides a vehicle for redressing violations of
constitutional rights).

      We agree with the reasoning of the Courts of Appeals for
the Fourth and Tenth Circuits, to say nothing of that of the


 14
   The Court’s opinion in Rancho Palos Verdes did not address
the legislative history of the Telecommunications Act, nor
discuss whether it is appropriate to consider a statute’s
legislative history as evidence of what Congress intended.
However, Justice Stevens suggested in his concurrence in
Rancho Palos Verdes that the Court assumed “that the
legislative history of the statute is totally irrelevant” in
discerning whether Congress intended to allow § 1983 actions.
544 U.S. at 131 (Stevens, J., concurring). It is therefore not clear
whether a statute’s legislative history qualifies as the sort of
“textual indication, explicit or implicit,” id. at 122, that may
guide us in determining whether Congress intended a statute’s
remedy to be exclusive of § 1983. We need not decide this
question, however, as the legislative history provides no
additional support for A.W.’s position.

                                24
Supreme Court in Smith, regarding the comprehensive nature of
the IDEA’s remedial scheme. The holding in Smith, although
superseded in part by the passage of § 1415(l) of the IDEA, was
not overruled to the extent that the Court found that the IDEA
provides a comprehensive remedial scheme. Indeed, since
Smith, the Court has continued to refer to the IDEA as an
example of a statutory enforcement scheme that precludes a §
1983 remedy. See Rancho Palos Verdes, 544 U.S. at 121;
Blessing v. Freestone, 520 U.S. 329, 347-48 (1997); Wright v.
Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423-24, 427
(1987). The IDEA includes a judicial remedy for violations of
any right “relating to the identification, evaluation, or
educational placement of [a] child, or the provision of a free
appropriate public education to such child.” § 1415(b)(6).
Given this comprehensive scheme, Congress did not intend §
1983 to be available to remedy violations of the IDEA such as
those alleged by A.W.




                        2. Section 504

       Similarly, we must examine Section 504 of the
Rehabilitation Act to determine whether Congress intended to
allow rights granted therein to be remedied through a § 1983
action. We look first to what means of redress are available
under the statute itself.

      The Rehabilitation Act adopts the scheme of “remedies,
procedures, and rights set forth in Title VI of the Civil Rights
Act of 1964,” 42 U.S.C. § 2000d et seq., to remedy alleged




                              25
violations of Section 504 by recipients of federal funding.15 29
U.S.C. § 794a(a)(2). Title VI provides for federal funding to be
terminated if an entity receiving assistance fails to comply with
its requirements. 42 U.S.C. § 2000d-1. Title VI does not,
however, contain an express private right of action. Rather, the
Supreme Court has found an implied right of action under the
statute and Congress has acknowledged this right in
amendments to the statute, “leaving it ‘beyond dispute that
private individuals may sue to enforce’ Title VI.” Barnes v.
Gorman, 536 U.S. 181, 185 (2002) (quoting Alexander v.
Sandoval, 532 U.S. 275, 280 (2001)). “Thus Congress, in
essence, provided a private right of action under Section 504 by
incorporating Title VI’s ‘remedies, procedures, and rights’ into
the statute.” Three Rivers Ctr. for Indep. Living v. Hous. Auth.
of Pittsburgh, 382 F.3d 412, 425-26 (3d Cir. 2004).

       The remedies for violation of Section 504 “are
coextensive with the remedies available in a private cause of
action brought under Title VI of the Civil Rights Act of 1964.”
Gorman, 536 U.S. at 185.             These remedies include


 15
    For some employment-related claims, the Rehabilitation Act
incorporates the remedial scheme provided by Title VII of the
Civil Rights Act, rather than that of Title VI. 29 U.S.C. §
794a(a)(1). Title VII, unlike Title VI, mandates that aggrieved
employees exhaust certain EEOC procedures prior to filing an
action in court. Several of the decisions cited by defendants are
therefore easily distinguishable because they examine the
remedial scheme provided by Title VII, rather than Title VI. See
Lollar v. Baker, 196 F.3d 603, 610 n.8 (5th Cir. 1999); Holbrook
v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997); see
also Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) (relying
on Lollar in non-employment case without acknowledging that
Title VI, rather than Title VII, procedures are used for non-
employment related complaints under Section 504).

                               26
compensatory damages, injunctive relief, and other forms of
relief traditionally available in suits for breach of contract. See
id. at 187. Punitive damages are not available. Id. Suits may be
brought pursuant to Section 504 against recipients of federal
financial assistance, but not against individuals. Emerson v.
Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).

        It is beyond question that Section 504’s remedial scheme
is far less detailed than the IDEA’s remedial scheme. See
Powell v. Ridge, 189 F.3d 387, 402 (3d Cir. 1999) (suggesting
that Title VI, unlike the IDEA, does not establish “an elaborate
procedural mechanism to protect the rights of [individual
plaintiffs]”), abrogated on other grounds by S. Camden Citizens
in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 777-78 (3d
Cir. 2001). However, we disagree with A.W.’s argument that
“there is simply no remedial scheme at all that governs Section
504.” Appellee Supp. Br. 20. Even though there is no express,
private right of action within Section 504, Congress clearly
incorporated, through adoption of Title VI’s remedial scheme,
a private, judicial remedy for violations of the statute. The
availability of a judicial remedy for the alleged statutory
violations carries significant weight in our analysis of whether
Congress intended to allow violations of Section 504 to be
actionable under § 1983. We must determine whether the
existence of this remedy carries with it the presumptive force set
forth in Rancho Palos Verdes.

        The Court of Appeals for the Seventh Circuit has held
that the remedial scheme in Title VI is comprehensive, and that
Congress did not intend to allow violations of Title VI to be
remedied through § 1983. See Alexander v. Chicago Park Dist.,
773 F.2d 850, 856 (7th Cir. 1985); see also Travis v. Folsom
Cordova Unified Sch. Dist., No. 06 Civ. 2074, 2007 WL
529840, at *4 (E.D. Cal. Feb. 20, 2007); Alexander v. Underhill,
416 F. Supp. 2d 999 (D. Nev. 2006). The Court of Appeals for
the Second Circuit has similarly found that the Title IX remedial

                                27
scheme, which is almost identical to the Title VI scheme, is
comprehensive. See Bruneau v. S. Kortright Cent. Sch. Dist.,
163 F.3d 749, 756 (2d Cir. 1998). Title IX, which is patterned
after Title VI, also contains an implied private right of action,
but no express, private judicial remedy. See Cannon v. Univ. of
Chicago, 441 U.S. 677 (1979). In Bruneau, the court “looked
to more than just the express remedies contained within [Title
IX],” including Congress’s plan to create a private right of
action as a remedy to secure the enforcement of the statute’s
provisions, “to ascertain fully Congress’ purpose.” Id. After
reviewing Title IX’s administrative and judicial remedies, the
court concluded that Congress intended “that a claimed violation
of Title IX be pursued under Title IX and not § 1983.” Id.; see
also Henkle v. Gregory, 150 F. Supp. 2d 1067, 1073-74 (D.
Nev. 2001) (“Given the Supreme Court decisions and the
intervening congressional action, we conclude that Congress
intended to create a private right of action in Title IX to secure
enforcement of its provisions and that this implied right of
action is part of Title IX’s enforcement scheme. When
combining Title IX’s administrative remedies and private right
of action, ‘the remedial devices provided in [Title IX] are
sufficiently comprehensive . . . to demonstrate congressional
intent to preclude the remedy of suits under § 1983.’”).

        We recognize that two of our sister courts of appeals
have concluded that the remedial scheme in Title IX is not
comprehensive. See Crawford v. Davis, 109 F.3d 1281, 1284
(8th Cir. 1997); Lillard v. Shelby County Bd. of Educ., 76 F.3d
716, 723 (6th Cir. 1996). These courts, however, did not
consider the implied private right of action under Title IX as part
of the statute’s “remedial scheme.” We disagree with this
approach. Nothing in Rancho Palos Verdes or in the Supreme
Court’s prior decisions on this subject suggests that a statute’s
“remedial scheme” encompasses only those remedies that are
expressly identified in the statute. Implied private rights of
action, like express rights of actions, provide a means for private

                                28
litigants to remedy violations of their statutory rights. The
difference between implied and express private rights of action
is that the former are implicit in Congress’s enactments, rather
than apparent on their face. We do not consider this difference
to be meaningful.

       We find the reasoning of the Courts of Appeals for the
Seventh and Second Circuits regarding the nature of the
remedial scheme under Section 504 to be more persuasive.
Following Rancho Palos Verdes, we will ordinarily infer that
when a private, judicial remedy is available for alleged statutory
violations, this remedy is intended to be exclusive. See Rancho
Palos Verdes, 544 U.S. at 121. There is nothing in Section 504
that undercuts this inference or causes us to conclude that
Congress intended to allow § 1983 to be available to remedy
Section 504 violations such as those alleged by A.W. See
Disability Rights Council of Greater Wash. v. Wash. Metro.
Area Transit Auth., 239 F.R.D. 9, 23 (D.D.C. 2006); Veal v.
Mem’l Hosp. of Wash. County, 894 F. Supp. 448, 454 (M.D. Ga.
1995). There is no showing that the remedial scheme in Section
504 was intended “to complement, rather than supplant, §
1983.” Rancho Palos Verdes, 544 U.S. at 122. Accordingly, we
conclude that § 1983 is not available to provide a remedy for
defendants’ alleged violations of A.W.’s rights under Section
504.

                        IV. Conclusion

       A.W. has not alleged an actionable violation of his rights
under the IDEA or Section 504. Accordingly, we will reverse
the order of the District Court denying defendants’ motion for
qualified immunity and remand to the District Court for entry of
judgment in favor of defendants.




                               29
