UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CADY SHIREY, by her parents and
next friends, Timothy B. and
Katherine Ann Kyger; TIMOTHY B.
KYGER; KATHERINE ANN KYGER,
                                                                    No. 99-1127
Plaintiffs-Appellants,

v.

CITY OF ALEXANDRIA SCHOOL BOARD,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-98-313-A)

Argued: May 2, 2000

Decided: August 23, 2000

Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Patricia Ann Smith, Alexandria, Virginia, for Appellants.
William Michael Holm, REDMON, BOYKIN & BRASWELL,
L.L.P., Alexandria, Virginia, for Appellee. ON BRIEF: E. Andrew
Burcher, REDMON, BOYKIN & BRASWELL, L.L.P., Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cady Shirey, her mother Katherine Kyger, and her step father Tim
Kyger ("Plaintiffs") sued the City of Alexandria School Board (the
"School Board") alleging violations of Section 504 of the Rehabilita-
tion Act of 1973 and Title II of the Americans with Disabilities Act.
The Plaintiffs' complaint is based on two incidents involving the
emergency evacuation of school buildings. Plaintiffs contend that the
School Board's alleged failure to develop and implement effective
procedures for the safe evacuation of disabled children amounts to
discrimination in violation of federal law. Because we agree with the
District Court that there are no genuine issues of material fact and that
the School Board is entitled to judgment as a matter of law, we affirm
the order granting Defendant's motion for summary judgment.

I.

Cady Shirey is a public school student in Alexandria, Virginia.
Cady suffers from a form of dwarfism that limits her strength, endur-
ance, and mobility. The School Board has provided Cady with accom-
modations to promote her full participation in school activities,
including computers and special voice recognition software, a modi-
fied academic program, ramps and a motorized wheelchair, and a full-
time aide assigned exclusively to assist Cady in a variety of tasks.

In 1996, Cady was a student at G.W. Middle School, part of the
Alexandria City Public School System. In April of that year, Cady's
school was evacuated because of a bomb threat. Cady, along with a
responsible adult and another disabled child, was left in the otherwise
evacuated building for approximately seventy minutes. Although no
bomb was ever discovered in the school, the incident was a source of
great concern for Cady's parents, and left Cady feeling angry and
upset.

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Shortly after the bomb-threat incident, Cady's parents filed a com-
plaint with the Office of Civil Rights ("OCR") of the Department of
Education. The complaint alleged that the School Board discriminated
against Cady on the basis of her disability by failing to evacuate her
from the school during the bomb-threat incident. The Kygers and the
School Board eventually agreed to mediation as part of an "Early Res-
olution" procedure; and as a result of that mediation, an Agreement
dated November 12, 1996 was reached and signed by, among others,
Cady's mother - Katherine Kyger.

Under the OCR Agreement, Cady's parents agreed to drop their
pending OCR complaint against the School Board in exchange for the
School Board's agreement to adopt a new Emergency Preparedness
Plan. The Agreement expressly provided that all of Mrs. Kyger's con-
cerns listed in the OCR complaint had been addressed.

The School Board did in fact develop a new Emergency Plan for
disabled students, with input from Cady's parents. The new plan
included a procedure whereby, in the event of an emergency, Cady
and other disabled students would be sent to a designated "safe
room." A responsible adult and an alternate were designated for each
safe room, where a special flag and a cellular phone were placed to
facilitate communication with school and emergency officials. If
actual evacuation were necessary, emergency personnel would rescue
the children directly from the identified safe rooms.

The new plan was instituted by the School Board in January of
1997. The principal held a meeting to explain the new procedure to
students and teachers who would be affected, and a practice drill was
successfully run.

On March 6, 1997, an unscheduled fire alarm went off in the
school Cady attended. Cady went to the library, which was a desig-
nated "safe room." While the other students evacuated the building,
Cady was left alone. The librarian, who was originally designated as
the responsible adult for the library safe room, left with the non-
disabled students, while the alternate responsible adult, a guidance
counselor, was en route to the library.1 Before the alternate arrived
_________________________________________________________________
1 The librarian received permission from school administrators to be
relieved, for personal reasons, of her safe room responsibilities during an
emergency evacuation.

                    3
and the all-clear bell sounded, but after the librarian and the non-
disabled students left the library, Cady was left alone for approxi-
mately two minutes. At that point, however, Cady's math teacher
came to check on her, and -- finding her alone-- stayed with the
child for the duration of the incident.

Plaintiffs filed a complaint in federal court in March of 1998. They
alleged disability discrimination in violation of Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12132, based on the two
incidents in which Cady was left in a school building during an emer-
gency evacuation, as well as alleged defects in the revised emergency
plan developed by the School Board. Plaintiffs asked for injunctive
relief requiring the school to provide adequate evacuation procedures,
as well as compensatory and punitive damages for the harm these
incidents allegedly caused Cady.

The School Board filed an answer and a motion to dismiss, which
was denied. After discovery, the School Board filed a motion for
summary judgment. The District Court found that those portions of
the claim relating to the bomb-threat incident were barred by the doc-
trines of accord and satisfaction, based on the Agreement settling the
OCR complaint, and also that Plaintiffs failed to muster any evidence
of bad faith or gross misjudgment by the School Board, the standard
used by the District Court for finding liability under both the Rehabil-
itation Act and the ADA. Defendant's motion for summary judgment
was therefore granted and the complaint was dismissed.

Plaintiffs then filed a Rule 59(e) motion for reconsideration of the
summary judgment order. The District Court denied the motion since
it raised new arguments which could have been presented in opposi-
tion to the motion for summary judgment. Plaintiffs brought this
appeal challenging both the denial of their Rule 59(e) motion and the
order granting Defendant's motion for summary judgment.

II.

The denial of a Rule 59(e) motion is reviewed only for an abuse
of discretion. Collison v. International Chemical Workers Union, 34
F.3d 233, 236 (4th Cir. 1994). A motion to alter a judgment pursuant

                    4
to Rule 59(e) should only be granted (1) to accommodate an interven-
ing change in controlling law, (2) to account for new evidence not
available at trial, or (3) to correct a clear error of law or prevent mani-
fest injustice. Id. Moreover, Rule 59(e) motions may not be used to
raise arguments which could have been raised before the judgment
was issued or to argue the case under a new legal theory. Pacific Ins.
Co. v. American Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

The District Court correctly denied Plaintiffs' motion. All of the
arguments contained in the Rule 59(e) motion could have been pre-
sented to the court in opposition to the motion for summary judgment,
but were not. Because Plaintiffs based their motion for reconsidera-
tion on arguments raised for the first time after final judgment was
issued, the District Court properly denied the motion. Plaintiffs were
merely trying to reargue the same matters decided at the summary
judgment stage, and the District Court acted well within its discretion
by denying their attempt to do so. We therefore affirm the denial of
Plaintiffs' Rule 59(e) motion for reconsideration.

III.

We review an order granting a motion for summary judgment de
novo. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.
1995). Summary judgment is appropriate only if there are no genuine
issues of material fact, and the moving party is entitled to judgment
as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Fed. R. Civ. P. 56(c). We agree with the District Court that
the School Board is entitled to summary judgment, and therefore
affirm the order entered below. We disagree, however, with the rea-
soning relied upon by the District Court, and will therefore affirm on
alternative grounds. See Ross v. Communications Satellite Corp., 759
F.2d 355, 363 (4th Cir. 1985).

A.

The District Court found that Plaintiffs were barred from raising
any claims arising out of the April, 1996 bomb-threat incident based
on the doctrines of accord and satisfaction. The District Court rea-
soned that since the OCR Agreement indicated that all of Mrs.
Kyger's concerns raised in the OCR complaint, including those

                     5
related to the bomb-threat incident, were addressed, and since Mrs.
Kyger knowingly and voluntarily signed the Agreement, Plaintiffs'
claims arising from that incident were in effect"settled." The District
Court found that the OCR Agreement was an accord, and the School
District's execution of that Agreement served as satisfaction of the
matter.

The right to file a disability discrimination claim under the Reha-
bilitation Act and the ADA is a statutory right created by Congress.
The OCR Agreement cannot bar the instant federal claim unless that
agreement contains a knowing and intelligent waiver of the Plaintiffs'
right to bring such a claim. See Alexander v. Gardner-Denver Co.,
415 U.S. 36, 52 & n. 15 (1974). We have carefully examined the
OCR Agreement signed by the School Board and Mrs. Kyger, and in
it we find no mention of a waiver or release of any rights or claims
under federal discrimination laws. Although Mrs. Kyger agreed that
"all of her concerns in her complaint to OCR . . . have been
addressed," she did not agree to waive or release her statutory right
to file a federal discrimination claim under the Rehabilitation Act or
the ADA. We do not think a general statement that"all concerns have
been addressed" is sufficient to waive or release an important federal
remedial right.

Thus, although Mrs. Kyger accepted the OCR Agreement know-
ingly, there was nothing in that agreement which amounts to a waiver
of her federal claims. We therefore cannot agree with the District
Court's conclusion that any of Plaintiffs' claims emanating from the
allegations contained in the OCR Complaint and Agreement (includ-
ing the bomb-threat incident) are barred. Accordingly, we will con-
sider Plaintiffs' claims in light of both the bomb-threat incident and
the false fire alarm incident.

B.

Both the Rehabilitation Act and the ADA prohibit discrimination
on the basis of disability. The Rehabilitation Act provides:

          No otherwise qualified individual with a disability . . . shall,
          solely by reason of her or his disability, be excluded from
          the participation in, be denied the benefits of, or be sub-

                    6
          jected to discrimination under any program or activity
          receiving Federal financial assistance . . . .

29 U.S.C. § 794(a). Building on the prohibitions contained in the
Rehabilitation Act, the Americans with Disabilities Act was later
enacted "to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabili-
ties." 42 U.S.C. § 12101(b)(1). Title II of the ADA, which applies to
public entities, including public schools, states in relevant part:

          [N]o qualified individual with a disability shall, by reason
          of such disability, be excluded from participation in or be
          denied the benefits of the services, programs, or activities of
          a public entity or be subjected to discrimination by any such
          entity.

Id. § 12132.

Because the language and purpose of both Acts is substantially the
same, the same analysis applies to claims brought under both statutes.
Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9
(4th Cir. 1995). To establish a violation of either statute, a plaintiff
must prove: (1) that she has a disability; (2) that she is otherwise qual-
ified for the benefit or program in question, and (3) that she was
excluded from the benefit or program due to discrimination solely on
the basis of the disability. Id. at 1265. The real question in this case
is whether Cady was excluded from a benefit or program due to dis-
ability discrimination.

The District Court relied on this court's recent articulation of what
constitutes disability discrimination in Sellers v. School Bd. of Manas-
sas, 141 F.3d 524 (4th Cir. 1998). In Sellers we held that "either bad
faith or gross misjudgment should be shown before a§ 504 violation
can be made out, at least in the context of education of handicapped
children." Id. at 529 (quoting Monahan v. Nebraska, 687 F.2d 1164,
1171 (8th Cir. 1982)).

We do not think the heightened Sellers standard is applicable here.
In one sense, this case does deal with the education of handicapped

                     7
children, insofar as the activities in question take place in a school
and are directed at disabled children. The "context" referred to in Sell-
ers, however, dealt specifically with the development of appropriate
Individualized Education Plans (IEP's) for disabled children, a pro-
cess in which "[e]xperts often disagree" and which "is often necessar-
ily an arguable matter." Id. (quoting Monahan, 687 F.2d at 1170).
Because negligent error in the development of an appropriate IEP
does not amount to the kind of invidious discrimination at which the
Rehabilitation Act or the ADA is directed, we adopted the heightened
standard of "bad faith or gross misjudgment" for proving discrimina-
tion in the specific context of developing appropriate IEP's for dis-
abled children.

The instant case does not involve the development of an appropri-
ate IEP for Cady. There is nothing "arguable" about safely evacuating
disabled children from a school building during an emergency, and
we doubt there are any "experts" who would disagree about the need
to do so. Thus, the Sellers standard is not the appropriate test for lia-
bility in this case. Rather, we think that this case presents a situation
more analogous to cases in which physical barriers to public programs
or services are challenged. See, e.g., Tyler v. City of Manhattan, 118
F.3d 1400 (10th Cir. 1997); Campos v. San Francisco State Univer-
sity, 1999 WL 1201809 (N.D. Cal. 1999); Schonfeld v. City of Carls-
bad, 978 F. Supp. 1329 (S.D. Cal. 1997). Using this analogy, the
correct inquiry is simply whether the School Board's actions have
denied Cady and other disabled students access to the program in
question--namely, safe evacuation from school buildings during an
emergency.

C.

To establish a violation of either Act, therefore, Plaintiffs must
prove that Cady was excluded from safe evacuation procedures dur-
ing an emergency. As to the false fire alarm incident in March of
1997, based on the undisputed facts, we think it is clear that Cady was
not excluded from safe evacuation procedures. The School Board
developed and implemented a revised Emergency Preparedness Plan
to safely evacuate disabled children, with the advice of local fire and
police officials. School administrators held a meeting with the people
involved in executing the new procedures, including students and

                    8
staff, and explained how the new plan would work. Flags and cell
phones were placed in the designated safe rooms, and a drill was suc-
cessfully run. Accordingly, there is no liability under either Act as to
the March, 1997 incident and summary judgment was properly
granted in favor of the School Board in reference to those events.2

As to the bomb-threat incident in April, 1996, however, the undis-
puted facts demonstrate that Cady was excluded from safe evacuation
procedures. At that time, the School Board had no reasonable plan in
place to evacuate disabled children from school buildings during an
emergency. Therefore, we find that the School Board did in fact dis-
criminate against Cady based on her disability by excluding her from
safe evacuation procedures during the bomb-threat incident in April
of 1996.

Having concluded that the School Board is liable for disability dis-
crimination that occurred in April of 1996, due to its failure to
develop a reasonable evacuation plan for disabled children, we must
next consider whether this violation of the Acts requires any further
remedy. Given the nature of the violation in this case, we think it is
clear that the appropriate remedy would be injunctive relief requiring
the School Board to develop and implement a reasonable evacuation
plan for disabled children. See Layton v. Elder , 143 F.3d 469 (8th Cir.
1998). However, because the School Board has already developed
and implemented a reasonable emergency evacuation plan, we find
that no further relief is warranted. Accordingly, on this alternate basis
we affirm the District Court's order granting summary judgment to
the School Board in reference to the events of April, 1996.

Our conclusion that the appropriate remedy in this case is limited
to corrective injunctive relief is confirmed by the OCR Agreement
_________________________________________________________________
2 Plaintiffs argue strenuously that the two minutes during which Cady
was left alone in the library during the March, 1997 false fire alarm,
along with other alleged defects in the School's Emergency Plan, consti-
tute discrimination under the Acts. While we are sympathetic to the
child's distress during the confusion of a fire alarm, we cannot agree that
imperfect execution of an otherwise reasonable evacuation plan consti-
tutes disability discrimination. Minor errors in carrying out the evacua-
tion plan are not a sufficient basis for a discrimination claim.

                    9
reached by the parties. Although the OCR Agreement did not contain
an explicit waiver of Mrs. Kyger's federal cause of action under the
Acts, it did address the "concerns" which grew out of the events of
April, 1996. Mrs. Kyger herself agreed that the development and
implementation of a revised Emergency Plan would"address all of
her concerns." Clearly, the remedy sought by the Plaintiffs in pursu-
ing their complaint through administrative channels was limited to
corrective injunctive relief. Therefore, on the facts of this particular
case, we find that no further relief is warranted.

IV.

The District Court properly granted summary judgment in favor of
the School Board. Plaintiffs have demonstrated a violation of the Acts
only in regard to the bomb-threat incident in April of 1996, and, given
the subsequent development of a reasonable evacuation plan for dis-
abled children, no further relief is warranted. The orders denying
Plaintiffs' Rule 59(e) motion for reconsideration and granting sum-
mary judgment in favor of the School Board are therefore

AFFIRMED.

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