                     COURT OF APPEALS
                      SECOND DISTRICT OF TEXAS
                           FORT WORTH


                           NO. 2-08-401-CV


JERRY HOLLINGSWORTH AND                                     APPELLANTS
KENNETH ANDERSON
                                    V.

KIM HACKLER, INDIVIDUALLY                                    APPELLEES
AND AS NEXT FRIEND FOR
C.H., A MINOR, AND STEVE
HACKLER, INDIVIDUALLY
ANDAS NEXT FRIEND FOR C.H.,
A MINOR

                                ------------

       FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                ------------

                               OPINION

                                ------------

     Appellants Jerry Hollingsworth and Kenneth Anderson appeal the trial

court’s denial of their motion for summary judgment based on qualified

immunity. We reverse and render.
                               I.   Background

      In October 2003, C.H., the child of Kim and Steve Hackler, was a student

at Dawson Middle School (Dawson) in the Carroll Independent School District.

Appellant Jerry Hollingsworth was the principal and appellant Kenneth

Anderson was the assistant principal of Dawson. On October 21, 2003, C.H.

made an obscene gesture toward some of his classmates in response to their

making fun of him. Later that day, certain classmates of C.H. accused him of

making physical threats toward one or more students. At the time, C.H. was

disabled for purposes of the Individuals with Disabilities Education Act (IDEA)1

by virtue of being diagnosed with attention deficit disorder (ADD) in 2002.

      On October 27, 2003, an admission, review, and dismissal (ARD)

“manifestation determination” committee meeting was held.2            The ARD



      1
        … 20 U.S.C.A. §§ 1400–1487 (West 2004). The IDEA was amended
by the Individuals with Disabilities Education Improvement Act of 2004, which
took effect on July 1, 2005. Pub. L. No. 108–446, Title I, § 101, 118 Stat.
2647 (2004); see id. Title III, § 302, 118 Stat. 2647, 2803 (establishing
general effective date of July 1, 2005). All citations to the IDEA and Code of
Federal Regulations are to versions in effect during the period of time relevant
to this appeal.
      2
        … See 34 C.F.R. § 300.523. By statute, the ARD committee is
comprised of members of the child’s “IEP Team“ (individual education program
team) and “other qualified personnel.” 20 U.S.C.A. § 1415(k)(4)(B); see also
34 C.F.R. § 300.523(b) (stating the same requirement in IDEA implementing
regulation). The child’s IEP Team includes the child’s parents, at least one
regular and one special education teacher of the child, and other school
officials. See 20 U.S.C.A. § 1414(d)(1)(B).

                                       2
committee included the Hacklers, Hollingsworth, Anderson, other educators

from the school district, a counselor, and a psychologist. The purpose of the

ARD committee meeting was to determine if C.H.’s behavior in making an

obscene gesture on October 21 and allegedly threatening students was a

“manifestation” of his ADD, as that term is defined by the IDEA and

implementing regulations. 3     The ARD committee determined that C.H.’s

behavior was not a manifestation of his ADD, and the Hacklers admit they

initially agreed with this determination.

      Later that day, however, Anderson informed the Hacklers that, based on

the ARD committee’s determination, C.H. would be disciplined by placement

in the school district’s Disciplinary Alternative Education Program (DAEP) for

forty-five days. The Hacklers informed Anderson that they had changed their

minds and disagreed with the ARD committee’s determination. By the end of

the day, they filed a request for a special education due process hearing with

the Texas Education Agency to review the DAEP decision.         The Hacklers’

request allowed C.H. to remain at Dawson pending the outcome of the hearing.

Ultimately, the Hacklers and the school district resolved their dispute through

mediation, and C.H. was allowed to transfer schools without spending time in

the DAEP.


      3
          … See id. § 1415(k)(4); 34 C.F.R. § 300.523.

                                        3
      Appellees sued Hollingsworth and Anderson for libel, slander, malicious

prosecution, gross neglect, gross negligence, malice, and a claim under the Civil

Rights Act of 1871, 42 U.S.C.A. § 1983. Appellees’ § 1983 claim was based

on the allegation that Hollingsworth and Anderson violated C.H.’s rights under

the IDEA by placing C.H. in the DAEP for forty-five days instead of referring the

disciplinary decision to the ARD committee.

      Hollingsworth and Anderson filed traditional and no-evidence summary

judgment motions based, in part, on the qualified immunity of public officials

sued in their individual capacities under § 1983. The trial court denied their

motions as to qualified immunity on the § 1983 claim, but granted summary

judgment on all remaining claims against them. On September 24, 2008, the

trial court denied a motion to reconsider, and this appeal followed.

                           II.   Qualified Immunity

      Appellants’ sole issue on appeal is whether the trial court erred in denying

their traditional and no-evidence motions for summary judgment based on the

qualified immunity of public school officials sued in their individual capacities

under § 1983 for violations of the IDEA.

A.    Standard of Review

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for no-evidence summary



                                        4
judgment on the ground that there is no evidence to support an essential

element of the nonmovant’s claim or defense.4 The motion must specifically

state the elements for which there is no evidence. 5 The trial court must grant

the motion unless the nonmovant produces summary judgment evidence that

raises a genuine issue of material fact.6

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.7           We review a

no-evidence summary judgment for evidence that would enable reasonable and

fair-minded jurors to differ in their conclusions. 8 We credit evidence favorable

to the nonmovant if reasonable jurors could, and we disregard evidence

contrary to the nonmovant unless reasonable jurors could not.9            If the

nonmovant brings forward more than a scintilla of probative evidence that



      4
          … Tex. R. Civ. P. 166a(i).
      5
          … Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
      6
      … See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
      7
          … Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
      8
     … Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)).
      9
      … Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).

                                        5
raises a genuine issue of material fact, then a no-evidence summary judgment

is not proper. 10

      We review a traditional summary judgment de novo.11 We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and

disregarding evidence contrary to the nonmovant unless reasonable jurors could

not.12 We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. 13    A defendant is entitled to summary judgment on an

affirmative defense if the defendant conclusively proves all the elements of the

affirmative defense.14 To accomplish this, the defendant-movant generally must

present summary judgment evidence that establishes each element of the

affirmative defense as a matter of law.15




      10
           … Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).
      11
       … Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009).
      12
           … Id.
      13
           … 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      14
       … Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); see Tex. R. Civ.
P. 166a(b), (c).
      15
           … Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).

                                       6
B.    Qualified Immunity from Appellants’ § 1983 Claims

      Section 1983 creates a private right of action for violations of an

individual’s federally guaranteed rights by those acting under color of state

law. 16 The doctrine of qualified immunity shields an official performing

discretionary functions from individual liability for civil damages under § 1983

if the official’s “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” 17

      After a government official asserts the affirmative defense of qualified

immunity, the summary judgment burden shifts to the plaintiff to show that the

defendant’s conduct violated a clearly established statutory or constitutional

right.18 A right is “clearly established” when its contours are “sufficiently clear

that a reasonable official would understand that what he is doing violates that




      16
       … See Richardson v. McKnight, 521 U.S. 399, 403, 117 S. Ct. 2100,
2103 (1997).
      17
       … Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982); Leachman v. Dretke, 261 S.W.3d 297, 312 (Tex. App.—Fort Worth
2008, no pet.) (op. on reh’g).
      18
       … Newman v. Kock, 274 S.W.3d 697, 705 (Tex. App.—San Antonio
2008, no pet.) (following Fifth Circuit burden-shifting framework for qualified
immunity claims); Leachman, 261 S.W.3d at 312 (same); see Pearson v.
Callahan, 129 S. Ct. 808, 815–16 (2009) (describing test for qualified
immunity).

                                        7
right.” 19 Whether an official’s conduct was objectively reasonable is a question

of law for the court, not a matter for the jury. 20 If the plaintiff fails to show

that the official’s conduct violated a clearly established statutory or

constitutional right, the official is entitled to have the claims dismissed.21

      In this case, appellants contend that they are entitled to qualified

immunity because appellees failed to meet their burden of showing that

appellants violated C.H.’s rights under the IDEA by failing to have the ARD

committee decide whether to place C.H. in the DAEP for forty-five days. 22

      The purpose of the IDEA is “to ensure that all children with disabilities

have available to them a free appropriate public education . . . designed to meet

their unique needs.” 23    When a school seeks to discipline a child with a

disability, the IDEA requires that the child’s “individualized education program




      19
       … Newman, 274 S.W.3d at 705 (citing Wooley v. City of Baton Rouge,
211 F.3d 913, 919 (5th Cir. 2000)).
      20
           … Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
      21
       … Pearson, 129 S. Ct. at 815–16; Harlow, 457 U.S. 800, 818–19, 102
S. Ct. 2727, 2738–39; Leachman, 261 S.W.3d at 312–13 (citing Baker v.
McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979) (“The first inquiry
in any § 1983 suit . . . is whether the plaintiff has been deprived of a right
‘secured by the Constitution and laws.’”)).
      22
           … See Leachman, 261 S.W.3d at 312–13.
      23
       … 20 U.S.C.A. § 1400(d); see Leticia H. v. Ysleta Indep. Sch. Dist.,
502 F. Supp. 2d 512, 515 (W.D. Tex. 2006) (quoting same).

                                        8
team” (IEP Team),24 including the child’s parents and educators, conduct a

“manifestation determination review.” 25 An IEP Team is also referred to as an

“admission, review, and dismissal” (ARD) committee.26 The purpose of the

ARD committee’s manifestation determination review is to determine whether

the child’s behavior was a manifestation of the child’s disability.27

      If the ARD committee determines that the child’s behavior was not a

manifestation of the child’s disability, then the IDEA provides that “the relevant

disciplinary procedures applicable to children without disabilities may be applied

to the child in the same manner in which they would be applied to children

without disabilities,” so long as the child is given a free appropriate public



      24
           … 20 U.S.C.A. § 1414(d)(1)(B).
      25
         … See id. § 1415(k)(4); 34 C.F.R. § 300.523 (a), (b). “[I]f a disciplinary
action involving a change of placement for more than 10 days is contemplated
for a child with a disability who has engaged in other behavior that violated any
rule or code of conduct . . . that applies to all children[,] . . . in no case later
than 10 school days after the date on which the decision to take that action is
made, a review shall be conducted of the relationship between the child's
disability and the behavior subject to the disciplinary action.” 20 U.S.C.A. §
1415(k)(4). By statute, this committee includes the child’s parents and other
members of the child’s IEP Team. Id. § 1414(d)(1)(B) (defining IEP Team to
include a child’s parents), § 1415(k)(4)(B) (requiring manifestation
determination review to be conducted by IEP Team and “other qualified
personnel”).
      26
       … See, e.g., Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328
F.3d 804, 807 (5th Cir. 2003).
      27
           … See 20 U.S.C.A. § 1415(k)(5)(A); 34 C.F.R. § 300.523.

                                         9
education.28     The IDEA specifically states that, under these circumstances,

“[s]chool personnel . . . may order a change in the placement of a child with a

disability . . . to an appropriate interim alternative educational setting for the

same amount of time that a child without a disability would be subject to

discipline.” 29 The IDEA also provides parents procedural safeguards, including

the right to participate as a member of the ARD committee conducting the

manifestation determination review and the right to appeal to a hearing officer

if they disagree with the manifestation determination or “any decision regarding

placement.” 30 Importantly, however, the IDEA grants no authority to the ARD

committee to decide what, if any, disciplinary procedures are applicable to the

child upon determining that the child’s behavior is not a manifestation of the

child’s disability.31


      28
         … 20 U.S.C.A. § 1415(k)(5)(A); see id. § 1412(a)(1) (requiring that “[a]
free appropriate public education is available to all children with
disabilities . . . including children . . . who have been suspended or expelled
from school”).
      29
           … Id. § 1415(k)(1)(A)(ii).
      30
       … Id. § 1415(k)(6)(A)(i) (establishing parental right to appeal
manifestation determination or any decision regarding placement); see id. §
1415(k)(4)(B) (requiring that child’s IEP Team be included on ARD committee),
§ 1414(d)(1)(B)(i) (requiring parents to be members of their child’s IEP Team).
      31
        … See id. § 1415(k)(4) (limiting ARD committee role regarding
manifestation determination review), § 1415(k)(1) (defining authority of school
personnel to take disciplinary action, including ordering the change in placement
of a child with a disability).

                                        10
      Pursuant to the IDEA, the Hacklers were members of the ARD committee

that conducted the “manifestation determination review” of C.H.’s behavior.32

They do not dispute that the ARD committee determined that C.H.’s behavior

was not a manifestation of his disability. The Hacklers contend, however, that

they should have been afforded the opportunity to participate in the decision

regarding their child’s discipline after it was determined that his behavior was

not a manifestation of his disability and that Hollingsworth and Anderson

violated IDEA regulations that allow parents to participate in decisions regarding

their child’s “educational placement” by unilaterally deciding to place C.H. in

the DAEP for forty-five days.33

      The Hacklers rely on 34 C.F.R. § 300.501(c), which states as follows:

      (c) Parent involvement in placement decisions.

               (1) Each public agency shall ensure that the parents of each
               child with a disability are members of any group that makes
               decisions on the educational placement of their child.

               (2) In implementing the requirements of paragraph (c)(1) of
               this section, the public agency shall use procedures
               consistent with the procedures described in § 300.345(a)
               through (b)(1).34




      32
           … See id. § 1415(k)(4), (k)(5)(A); 34 C.F.R. § 300.523.
      33
           … 34 C.F.R. §§ 300.501(c)(1), 300.552.
      34
           … Id. § 300.501(c) (emphasis added).

                                        11
This regulation requires school districts and other public agencies to involve

parents in decisions regarding the educational placement of their child by

following the procedures described in 34 C.F.R. § 300.345(a), which, in turn,

requires that the parents of a child with a disability be “present at each IEP

[individualized education program] meeting or are afforded the opportunity to

participate.” 35 The Hacklers also rely on IDEA regulation 34 C.F.R. § 300.552,

which similarly requires public schools to ensure that parents be included in “a

group” that determines “the educational placement of a child with a

disability.” 36

       Both federal regulations on which the Hacklers rely expressly govern

educational placement decisions. 37 There is no language in either regulation,

however, evidencing a congressional intent to include parents in disciplinary

decisions involving children whose behavior is not a manifestation of a

disability.       Those decisions are specifically governed by 20 U.S.C.A.

§ 1415(k)(5)(A), which provides in pertinent part:




       35
            … Id. § 300.345(a).
       36
            … Id. § 300.552.
       37
        … See id. § 300.501(c) (requiring “that the parents of each child with
a disability are members of any group that makes decisions on the educational
placement of their child”), § 300.552 (requiring that parents be included in “a
group” that determines “the educational placement of a child with a disability”).

                                       12
      If the result of the [manifestation determination] review described
      in paragraph (4) is a determination, consistent with paragraph
      (4)(C), that the behavior of the child with a disability was not a
      manifestation of the child's disability, the relevant disciplinary
      procedures applicable to children without disabilities may be applied
      to the child in the same manner in which they would be applied to
      children without disabilities, except as provided in section
      1412(a)(1) of this title [requiring that each child with a disability
      receive a free appropriate public education].38

Under the express language of § 1415(k), when an ARD committee determines

that the behavior of a child with a disability is not a manifestation of the

disability, the child may be disciplined “in the same manner” as “children

without disabilities.”

      The Hacklers conceded in the trial court that if the ARD committee

determined that C.H.’s behavior was not a manifestation of his disability, “then

consequences applicable to all students under the Dawson Student Code of

Conduct would apply to [C.H.].”       The Hacklers did not allege nor did they

present any evidence showing that the disciplinary procedures applicable to


      38
         … 20 U.S.C.A. § 1415(k)(5)(A) (emphasis added); see id. § 1412(a)(1)
(requiring that “[a] free appropriate public education is available to all children
with disabilities residing in the State between the ages of 3 and 21, inclusive,
including children with disabilities who have been suspended or expelled from
school”); Colvin ex rel. Colvin v. Lowndes County, Miss. Sch. Dist., 114 F.
Supp. 2d 504, 509 (N.D. Miss. 1999) (“Congress expressed no intent, either
expressly or impliedly, to shield special education students from the normal
consequences of their misconduct if that misconduct has nothing to do with
their disability.”) (citing Doe v. Bd. of Educ. of Oak Park & River Forest High
Sch. Dist. 200, 115 F.3d 1273, 1280 (7th Cir.), cert. denied, 522 U.S. 998
(1997)).

                                        13
Dawson children without disabilities require parental involvement in the school’s

disciplinary decisions.39 Accordingly, we hold that there is no evidence that

Hollingsworth and Anderson violated C.H.’s rights under the IDEA by placing

him in the DAEP for forty-five days without referring the disciplinary decision

to the ARD committee and, therefore, that Hollingsworth and Anderson are

immune from individual liability to the Hacklers for civil damages under § 1983

as a matter of law. Consequently, the trial court erred by denying appellants’

motions for summary judgment as a matter of law. 40

                                     III.   Conclusion

         Because appellants are shielded against the Hacklers’ claims based on the

doctrine of qualified immunity as a matter of law, we reverse the trial court’s

denial        of   appellants’   motions    for   summary   judgment   and   render




         39
              … See 20 U.S.C.A. § 1415(k)(5)(A).
         40
         … See Leachman, 261 S.W.3d at 312–15 (affirming dismissal of
§ 1983 claims against public official based on qualified immunity when plaintiff
failed to allege facts stating constitutional claims).

                                             14
judgment that appellees take nothing on their IDEA claims brought under 42

U.S.C.A. § 1983.




                                             JOHN CAYCE
                                             CHIEF JUSTICE


PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: December 31, 2009




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