Blanchard v. Morton School ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL BLANCHARD, 
Plaintiff-Appellant,
No. 06-35388
v.
D.C. No.
MORTON SCHOOL DISTRICT; RUSS
DAVIS, Superintendent; REGINE  CV-02-05101-FDB
ORDER AND
ALEKSUNAS, SE Teacher; JIM
AMENDED
GROSSMAN, SLP; ROBYN GOODWIN,
OPINION
Principal,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
July 31, 2007—Portland, Oregon
Filed September 20, 2007
Amended December 3, 2007
Before: Alfred T. Goodwin, Mary M. Schroeder, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Schroeder
15491
BLANCHARD v. MORTON SCHOOL DISTRICT 15493
COUNSEL
Lonnie Davis, Disabilities Law Project, Seattle, Washington,
for the plaintiff-appellant.
Jocelyn J. Lyman, Law, Lyman, Daniel, Kamerrer & Bog-
danovich, P.S., Olympia, Washington, for the defendants-
appellees.
ORDER
The Opinion filed on September 20, 2007, is amended as
follows: on slip Opinion page 12821, remove lines 21 through
34, and insert the following text:
Blanchard also brings claims under section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794(a),
and title II of the ADA, 42 U.S.C. § 12132. Under
those statutes, Blanchard is a proper plaintiff, at least
insofar as she is asserting and enforcing the rights of
her son and incurring expenses for his benefit. See
Greater L.A. Council on Deafness, Inc. v. Zolin, 812
15494 BLANCHARD v. MORTON SCHOOL DISTRICT
F.2d 1103, 1115 (9th Cir. 1987); see also Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d
37, 46-47 (2d Cir. 1997) (holding that a hospital had
standing to sue under the Rehabilitation Act and the
ADA), superseded on other grounds, as recognized
in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171
n.7 (2d Cir. 2001). As the Supreme Court has noted,
“a parent of a child with a disability has a particular
and personal interest” in preventing discrimination
against the child. Winkelman, 127 S. Ct. at 2003.
Blanchard is not entitled to the damages that she
seeks, however. We need not decide whether dam-
ages are available for a parent’s own emotional dis-
tress resulting from the enforcement of a child’s
educational rights, because Blanchard abandoned
that claim by failing to raise it in her brief on appeal.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Her claim for lost profits essentially seeks
compensation for acting as her own lawyer. Pro se
plaintiffs, though, are not entitled to attorney’s fees.
See Kay v. Ehrler, 499 U.S. 432, 438 (1991).
Because Blanchard cannot recover damages, the dis-
trict court properly dismissed her Rehabilitation Act
and ADA claims.
No future petitions for rehearing or petitions for rehearing
en banc will be entertained.
OPINION
SCHROEDER, Circuit Judge:
Plaintiff-Appellant Cheryl Blanchard seeks damages to
compensate her for lost income and the emotional distress she
experienced during her ultimately successful efforts to obtain
BLANCHARD v. MORTON SCHOOL DISTRICT 15495
benefits for her son under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. When this
matter was before us previously, we reversed the district
court’s dismissal for failure to exhaust administrative reme-
dies. Blanchard v. Morton Sch. Dist., 420 F.3d 918 (9th Cir.
2005) (“Blanchard I”). We held that, because Blanchard
sought damages on her own behalf rather than her son’s, no
administrative remedies existed. Id. at 921-22. We expressed
no opinion on the merits of her claim. Id. at 922.
On remand, the district court granted summary judgment
for Defendants, holding that Blanchard had no individual
rights under the IDEA and that the IDEA’s enforcement
scheme did not contemplate the damages she seeks. It further
held that, because Blanchard is not a qualified individual with
a disability, her claim is not cognizable under either title II of
the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12132, or section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794(a). See 42 U.S.C. § 12132; 29 U.S.C.
§ 705(20).
After the district court’s entry of summary judgment, how-
ever, the United States Supreme Court held that parents do
have individually enforceable substantive rights under the
IDEA. Winkelman ex rel. Winkelman v. Parma City Sch.
Dist., 127 S. Ct. 1994, 1999 (2007). The Court said that those
rights were sufficient to permit a parent to appear pro se in
pursuit of IDEA remedies to secure for a child the free appro-
priate public education guaranteed under § 1415 of the IDEA.
Id. at 2005.
[1] We have held that money damages are not available
under the IDEA for the pain and suffering of a disabled child.
Witte ex rel. Witte v. Clark County Sch. Dist., 197 F.3d 1271,
1275 (9th Cir. 1999). The question before us now is whether
42 U.S.C. § 1983 creates a cause of action for money dam-
ages under the IDEA for the lost earnings and suffering of a
parent pursuing IDEA relief. We hold that it does not. We
15496 BLANCHARD v. MORTON SCHOOL DISTRICT
affirm the district court’s judgment in favor of the school dis-
trict after taking into account the intervening Supreme Court
decision in Winkelman.
[2] Section 1983 does not in itself create any right under
federal law. It provides remedies for violations of federal
rights only where a “federal statute creates an individually
enforceable right in the class of beneficiaries to which [plain-
tiff] belongs.” City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 120 (2005).
[3] In Winkelman, 127 S. Ct. at 1999, the Supreme Court
provided a thorough analysis of the IDEA’s “interlocking stat-
utory” enforcement scheme. The Court catalogued the
IDEA’s numerous provisions creating substantive rights, and
it concluded that the statute confers those rights on the parents
of disabled children as well as on the children themselves. Id.
at 2000-05. Notably, all the rights created by the statute,
including the rights to reimbursement of expenses and to
recovery of attorney’s fees, relate to necessary efforts to
secure a child’s free appropriate public education. See 20
U.S.C. § 1400(d)(1)(A)-(B) (stating that the IDEA’s substan-
tive and procedural protections exist in order to “ensure that
all children with disabilities have available to them a free
appropriate public education,” and to protect the rights of the
parents of such children in the process of ensuring the chil-
dren’s access to education); 20 U.S.C. § 1415(b)(6) (provid-
ing a judicial remedy for violations of any right “relating to
the identification, evaluation, or educational placement of [a]
child”).
[4] In Smith v. Robinson, 468 U.S. 992, 1013 (1984), the
Supreme Court held that the Education of the Handicapped
Act (“EHA”), the predecessor to the IDEA, was the exclusive
means of remedying violations of the rights it guaranteed. In
response, Congress amended the statute to include what now
is 20 U.S.C. § 1415(l).1 Handicapped Children’s Protection
1
“Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the Americans
BLANCHARD v. MORTON SCHOOL DISTRICT 15497
Act of 1986, Pub. L. No. 99-372, § 3, 100 Stat. 796, 797.
There is an existing circuit split on whether, with the amend-
ment, Congress intended the IDEA rights to be enforceable
under § 1983.2 The First, Third, Fourth, and Tenth Circuits
have held that Congress did not so intend.3 The Second and
Seventh Circuits have held that Congress did so intend.4 The
Eighth Circuit has holdings going both ways.5 We are per-
suaded by the recent thoughtful, well-reasoned opinion of the
Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d
791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing
circuit split and analyzing recent Supreme Court precedent on
the availability of § 1983 as a remedy for violation of a fed-
eral statute).6 In A.W., the Third Circuit overruled its prior
authority to the contrary and held:
with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or
other Federal laws protecting the rights of children with disabilities . . . .”
20 U.S.C. § 1415(l) (citations omitted).
2
In Department of Education v. Katherine D., 727 F.2d 809, 820 (9th
Cir. 1984), we held that the EHA’s “comprehensive and exclusive reme-
dial scheme . . . precludes reliance upon a cause of action under section
1983.” However, we decided Katherine D. before Congress amended the
IDEA. Consequently, although our holding today is consistent with it,
Katherine D. cannot answer the question of what Congress intended when
it amended the IDEA.
3
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006); A.W. v.
Jersey City Pub. Sch., 486 F.3d 791, 803 (3d Cir. 2007) (en banc); Sellers
v. Sch. Bd., 141 F.3d 524, 529 (4th Cir. 1998); Padilla v. Sch. Dist. No.
1, 233 F.3d 1268, 1273 (10th Cir. 2000).
4
Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); Marie O. v.
Edgar, 131 F.3d 610, 622 (7th Cir. 1997).
5
Compare Digre v. Roseville Sch. Indep. Dist. No. 623, 841 F.2d 245,
250 (8th Cir. 1988) (“Mrs. Digre was entitled to bring a section 1983
action based on alleged violations of the [predecessor to the IDEA] . . . .”),
with Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996) (“We now
hold as a matter of law that plaintiffs in the present case cannot recover
general or punitive damages [under § 1983] arising out of defendants’
alleged violations of the IDEA . . . .”; failing even to mention or cite
Digre).
6
We note that the holdings of the Second and Seventh Circuits predate
recent Supreme Court precedent on the availability of § 1983 actions, and
the Second Circuit’s opinion does not discuss congressional intent at all.
15498 BLANCHARD v. MORTON SCHOOL DISTRICT
The IDEA includes a judicial remedy for violations
of any right “relating to the identification, evalua-
tion, 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 avail-
able to remedy violations of the IDEA . . . .
Id. at 803 (alteration in original). We now join the First,
Third, Fourth, and Tenth Circuits and hold that the compre-
hensive enforcement scheme of the IDEA evidences Con-
gress’ intent to preclude a § 1983 claim for the violation of
rights under the IDEA.
[5] Therefore, in light of Winkelman, the district court was
not correct in ruling that the IDEA creates no individual rights
in parents. However, insofar as the district court held that
IDEA does not contemplate the remedy Blanchard seeks and
in that regard creates no right enforceable under § 1983, the
district court must be affirmed.
Blanchard also brings claims under section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and title II of
the ADA, 42 U.S.C. § 12132. Under those statutes, Blanchard
is a proper plaintiff, at least insofar as she is asserting and
enforcing the rights of her son and incurring expenses for his
benefit. See Greater L.A. Council on Deafness, Inc. v. Zolin,
812 F.2d 1103, 1115 (9th Cir. 1987); see also Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 46-47
(2d Cir. 1997) (holding that a hospital had standing to sue
under the Rehabilitation Act and the ADA), superseded on
other grounds, as recognized in Zervos v. Verizon N.Y., Inc.,
252 F.3d 163, 171 n.7 (2d Cir. 2001). As the Supreme Court
has noted, “a parent of a child with a disability has a particu-
lar and personal interest” in preventing discrimination against
the child. Winkelman, 127 S. Ct. at 2003.
[6] Blanchard is not entitled to the damages that she seeks,
however. We need not decide whether damages are available
BLANCHARD v. MORTON SCHOOL DISTRICT 15499
for a parent’s own emotional distress resulting from the
enforcement of a child’s educational rights, because Blan-
chard abandoned that claim by failing to raise it in her brief
on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Her claim for lost profits essentially seeks compensa-
tion for acting as her own lawyer. Pro se plaintiffs, though,
are not entitled to attorney’s fees. See Kay v. Ehrler, 499 U.S.
432, 438 (1991). Because Blanchard cannot recover damages,
the district court properly dismissed her Rehabilitation Act
and ADA claims.
The judgment of the district court is AFFIRMED.