Liva v. Northside Indep Sch ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50908
Summary Calendar
DEBRA LIVA, as next friend of her minor son,
Jeremy Pedro Liva,
Plaintiff-Appellant,
versus
NORTHSIDE INDEPENDENT SCHOOL DISTRICT; ET AL.,
Defendants,
NORTHSIDE INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CV-972
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June 15, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Debra Liva (“Liva”) appeals the grant of summary judgment
for the Northside Independent School District (NISD) in her
action brought pursuant to the Individuals with Disabilities
Education Act (IDEA), on behalf of her son Jeremy Liva
(“Jeremy”). Liva raises numerous issues for appeal, which are
addressed in turn.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50908
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Liva contends that NISD violated the IDEA by failing to
provide her with records related to Jeremy’s education and by
failing to provide her with five school days’ notice of an
admission, review, and dismissal board (ARD) meeting. A
plaintiff may receive nominal damages for a violation of the
IDEA’s procedural requirements, even if no prejudice resulted
from the violation. See Salley v. St. Tammany Parish Sch. Bd.,
57 F.3d 458, 466 (5th Cir. 1995)(affirming award of nominal
damages for procedural noncompliance). The IDEA provides that
parents be given the opportunity “to examine all records relating
to such child[.]” 20 U.S.C. § 1415(b)(1).
The administrative record indicated, and the parties do not
dispute, that Liva was not given some of Jeremy’s records until
the due process hearing was underway. The state hearing officer
found that Liva was not prejudiced by the nondisclosure of
records relevant to Jeremy. Because Liva may be entitled to
nominal damages for NISD’s failure to comply with the IDEA’s
disclosure requirement, the judgment is VACATED and the case is
REMANDED as to Liva’s nondisclosure contention.
Neither the IDEA nor the regulations implementing it
requires five school days’ notice before an individualized
educational program (IEP) conference, though the IDEA does
require five business days’ notice before a due process hearing.
20 U.S.C. § 1414(f)(2)(A); see § 1415(b)(3)(requiring prior
written notice; providing no specific period); 34 CFR
§ 300.345(a)(1)(requiring notice to parents early enough to give
them an opportunity to attend; providing no specific period).
No. 00-50908
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Nor does the Texas Education Code require five school days’
notice before an IEP conference. TEX. EDUC. CODE ANN.
§ 29.005 (Vernon supp. 2001). Liva’s contention that NISD
violated the IDEA by failing to give her five school days’ notice
therefore is unavailing.
Liva contends that NISD violated the IDEA by failing to
diagnose Jeremy as emotionally disturbed (ED) in 1999. Jeremy
was diagnosed as ED in 1996 by a private physician. The 1999
comprehensive individual assessment (CIA) performed by an
interdisciplinary team was thorough, and a witness at Liva’s due
process hearing testified that it was acceptable. Liva has
failed to present evidence calling the 1999 CIA into question.
NISD was entitled to judgment as a matter of law on Liva’s ED
contention.
Liva contends that the NISD failed to provide Jeremy an
adequate education or comply with the IEP by dropping grades of
zero to establish a passing grade in science; by sending him to
the behavioral intervention center (BIC) for missing a pencil or
paper; by sending him to the content mastery center (CMC) instead
of providing the appropriate assistance in a regular classroom;
by employing an inadequate dyslexia reading program; by failing
to modify Jeremy’s work requirements as required by the IEP; by
failing to completely eliminate any problems Jeremy is not
required to do rather than mark through them; and by not lowering
standards for Jeremy so he may participate in extracurricular
activities. Liva argues that use of the CMC violated the IDEA’s
No. 00-50908
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requirement that students be educated in the least restrictive
environment (LRE).
Liva offers no legal arguments to support any of her
contentions other than her contention that use of the CMC
violated the LRE requirement. She has failed to brief those
contentions for appeal. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Liva did not raise her CMC/LRE contention in her state
administrative proceedings. She has failed to exhaust her
administrative remedies, and her contention was subject to
dismissal on that ground. Gardner v. Sch. Bd. Caddo Parish, 958
F.2d 108, 111 (5th Cir. 1992); 20 U.S.C. § 1415(l). Moreover,
the IDEA and its accompanying regulations indicate that use of
the CMC, a supplemental service, in conjunction with regular
classroom placement did not violate the LRE requirement as a
matter of law. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R.
§ 300.551(b)(2). Finally, regarding Liva’s CMC/LRE contention,
the administrative record established that Jeremy needed
assistance that could not be given in a general education
classroom. The record established that NISD was entitled to
judgment as a matter of law on Liva’s CMC/LRE contention.
Finally, Liva contends that the state hearing officer should
have recused herself because she was tired when conducting the
hearing. Liva makes no legal argument to support her contention;
she has failed to brief the contention for appeal. Brinkmann,
813 F.2d at 748.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.