Because this case is a mess.  At least it is at the pleading stage, which, as loyal Dawg Blog readers know, is the stage of litigation at which nothing has actually been proven.  It’s [maybe] all just a bunch of lies, and sometimes even those don’t amount to actionable claims.  So, let’s look at this case out of Krum ISD and imagine finding ourselves on the receiving end of these claims:

• High school student with a respiratory illness misses 17 days during the previous school year and misses 21 days during the fall semester of the current school year.
• All absences are accompanied by a parent or doctor’s note.
• School refers student to truancy court in December (this is 2014), without first having notified parent that the absences were an issue, that an attendance hearing had been held, or that the absences would result in a loss of credits.
• Student pleads no contest in truancy court, receives probation and community service, and is ordered to make up credits.
• Principal represents to court that the student will be able to “maintain her credits,” then variously tells the student and her parent that she won’t be able to maintain credits; that she’s 91 hours behind and can only catch up by paying for online courses herself; and that she can make up credits at Saturday school.
• Following the holiday break, student receives a report card reflecting “NC” or “no credit” for all of her courses. Parent makes further inquiries about credit by exam and Saturday school and receives no response.
• Principal loudly discusses the details of student’s hearing in the cafeteria and calls her a liar.
• Principal initiates a bet with several teachers and assistant principals as to whether or not the student will be able to earn her missing credits.
• Principal follows student from class to class and insults her in front of other students.
• Student’s mental health deteriorates, she exhibits high levels of anxiety, depression, fear of going to school, and ultimately overdoses on antidepressants and is briefly hospitalized.
• Student attempts to return to school but is not permitted to return and instead is forced to withdraw.
• Student, who is pregnant, files a TEA complaint against the District which is followed shortly thereafter by a CPS complaint against her.

The student, Ms. Boggs, filed suit against the District under Section 504 and under Title II of the ADA.  She also filed suit against the District and the principal under Section 1983.  Today, let’s focus on her 504 and ADA claims.

Krum ISD moved for dismissal of these claims because Ms. Boggs did not exhaust administrative remedies available to her under the IDEA, and thus argued the Court lacked jurisdiction over them and should dismiss them.  Ms. Boggs did not expressly plead a claim under IDEA, but the District argued that the allegations in her pleadings amounted to an assertion of a denial of FAPE in as many words.  I’m assuming since you all know Jim that you know what FAPE is.

In response, Ms. Boggs argued that Krum ISD couldn’t assert that her claims were for a denial of FAPE because they had previously argued (in “the due process hearing” which wasn’t even mentioned in the factual background of the opinion) that there “were no IDEA or FAPE issues.”

Krum ISD disagreed that it had taken an inconsistent position, but the Court declined to dismiss the 504 and ADA claims.  The Court reasoned that it couldn’t determine whether the District had taken an inconsistent position because nothing in Ms. Boggs’ lawsuit made any reference to the due process hearing proceedings and nothing from the record of those proceedings was included in either Ms. Boggs’ pleadings or the District’s motion to dismiss.  So the 504 and ADA claims live on – at least until the summary judgment stage.

DAWG BONE:  IT IS DIFFICULT TO PREVAIL ON A MOTION TO DISMISS, BUT THE CASE IS FAR FROM OVER 

Tomorrow:  1983