Last Friday we told you a little bit about a cheerleader dispute in Highland Park ISD (Region 10).  The court held that whatever “right” a student has to be a cheerleader is not protected by the U.S. Constitution.  Thus the student’s due process claim was dismissed. But that was just one of many legal theories that the parents and student presented.  Here is a quick sample of other legal nuggets from this decision.

1. A suit against a superintendent in his “official capacity” is the same thing as a suit against the district. The plaintiffs sued both HPISD and its superintendent. The court said that this was redundant. Thus all claims against former superintendent Dawson Orr were tossed out.

2. Section 121.003 of the Texas Human Resources Code applies only to physical access to public facilities. This statute prohibits discrimination against people with disabilities in conjunction with “admission and access” to public facilities. This suit was not about physical access to, or the use of, HPISD facilities. This claim was tossed out.

3. Plaintiffs alleged denial of FAPE under IDEA and Section 504, but never requested a special education due process hearing. Thus these claims were dismissed due to failure to exhaust administrative remedies. Lawyers take note: the court held that exhaustion is a jurisdictional requirement—not just an affirmative defense.

4. Plaintiffs alleged an IIED claim: Intentional Infliction of Emotional Distress. The court dismissed this claim, noting that the Tort Claims Act protects school districts from any liability for an intentional tort.

5. The constitutional claim against HPISD failed because there was no pleading that a district policy or custom approved by the school board caused harm. The superintendent was accused of wrongdoing, but the superintendent is not a “policymaker.” Only the board is.

6. The parents’ claims as individuals were dismissed because they did not allege that they have disabilities or were discriminated against due to a disability.

7. The plaintiffs’ motion to amend their pleadings, so as to make out a stronger case, was mostly denied. The court noted “no amount of artful or creative pleading” would rescue some of the purported claims. However, the court left one door slightly ajar, permitting the plaintiffs to amend their Equal Protection Claim. But they would have to plead “sufficient facts to show that this injury occurred because of HPISD custom or policy.”

You are probably wondering what this case is all about.  The plaintiffs alleged that the district failed to provide accommodations or properly implement the student’s 504 plan.  This allegedly caused poor grades, the expense of outside tutors, and disqualification from the Cheer Squad.  The facts as alleged are much in dispute, but at this stage of the legal proceedings, the court takes the facts alleged as true. Even so, the court dismissed all of the claims outlined above.

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas, on March 31, 2016.

DAWG BONE: SUITS OVER CHEERLEADING ARE ALWAYS INTERESTING, BUT RARELY SUCCESSFUL.

And remember: those of you at the LRP National Institute in New Orleans can hear my longtime partner, Elena Gallegos, speak about OSEP advice at 10:00 this morning.  Say hi to Elena for me!