United States District Court, E.D. Oklahoma
DARCI FORRESTER and KEITH FORRESTER, individually; C.F., a minor child, by and through his parents and next friends, Darci Forrester and Keith Forrester, Plaintiffs,
INDEPENDENT SCHOOL DISTRICT NO. 19 OF CARTER COUNTY, STATE OF OKLAHOMA, a/k/a Ardmore City Schools, a political subdivision, Defendant.
OPINION AND ORDER
KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's Partial
Motion to Dismiss (Docket Entry #14). Plaintiffs Darci and
Keith Forrester (“Parents”), the parents of the
minor child, C.F., initiated this action on April 11, 2016
bringing claims both individually and on behalf of their
child. C.F. is autistic and has severe receptive expressive
language disorder and attends Defendant. Parents allege C.F.
was secluded by employees of Defendant by locking him in a
closet without notifying them. C.F. utilizes a tablet device
known as a Talker while he is in school which assists in his
communication. Parents set this device to record events
attended by C.F. during school so they could investigate the
treatment of their child. Parents allegedly learned from the
recordings that C.F. was isolated in a “sensory
room” at Defendant and he was subjected to derogatory
comments from Defendant's personnel.
retained an attorney and, thereafter, allege Darci Forrester
was prohibited from entering the school building without an
escort. Parents also allege Defendant employed an incompetent
teacher to attend their child who had a criminal conviction
and whose teaching license was suspended by the State of
contend Defendant's superintendent and assistant
superintendent made a false police report to the Ardmore
Police Department regarding the recordings made by C.F.'s
Talker device. Parents assert the complainants falsely stated
they did not learn of the recording until a date later than
also filed an administrative due process complaint with the
Oklahoma State Department of Education pursuant to the
Individuals with Disabilities Act (“IDEA”),
seeking redress for the educational harm to C.F. by
Defendant. At last notice to this Court, this due process
procedure is ongoing.
brought this action asserting several claims - (1)
individually and on behalf of C.F. under Section 504 of the
Rehabilitation Act of 1972, 29 U.S.C. § 794
(“Section 504); (2) individually and on behalf of C.F.
under Title II of the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101, et seq.
(“ADA”); (3) individually under the ADA for
retaliation; (4) declaratory judgment requesting a
determination that Parents did not violate Title III of the
Omnibus Crime Control and Safe Streets Act; and (5)
declaratory judgment requesting a determination that Parents
did not violate the Oklahoma Security of Communications Act.
the pending Motion, Defendant seeks (1) dismissal of
Parents' individual claims and on behalf of C.F. under
the ADA and Section 504 for the failure to exhaust
administrative remedies thereby depriving this Court of
subject matter jurisdiction; (2) dismissal of Parents'
individual claims because they lack standing to bring such
claims under the ADA and Section 504; and (3) even if they do
have standing, dismissal of Parents' claim to recover
emotional distress damages based on the treatment of C.F.
initial matter, this Court has conducted multiple telephonic
status conferences with counsel in this case to ascertain the
status of the due process proceedings under the IDEA moving
forward independently from this action. It is apparent that
should that proceedings be concluded, the challenge to
subject matter jurisdiction based upon a failure of Parents
to exhaust their administrative remedies will effectively be
moot. At last notice, the IDEA proceedings continue. As a
result, the portion of the Motion addressing the exhaustion
issue will be held in abeyance pending notification of the
conclusion of the due process proceedings.
Defendant indicates, the United States Supreme Court
established in the case of Winkelman ex rel. Winkelman v.
Parma City School Dist., 550 U.S. 516 (2007) that the
IDEA grants parents of children protected by the statute
“independent, enforceable rights” and that those
rights “which are not limited to certain procedural and
reimbursement-related matters, encompass the entitlement to a
free appropriate public education for the parents'
child.” Id. at 533. The court concluded that
“[p]arents enjoy rights under the IDEA; and they are,
as a result, entitled to prosecute IDEA claims on their own
behalf.” Id. at 535.
acknowledging that the Tenth Circuit Court of Appeals has not
directly addressed the issue, Defendant urges this Court to
limit this expansion of rights to the parents to the IDEA
alone and not Section 504 and the ADA. For their part,
Parents contend that without the right to bring their claims
for Defendant filing a false police report in retaliation for
exercising rights under Section 504 and the ADA, they have no
remedy under the IDEA since this form of retaliation has no
basis in education. Parents also contend they have no source
of recovery of damages for the seclusion, mocking,
harassment, and isolation in the “sensory room”
of their minor child.
obviously on point circuit level authority to guide this
discussion, this Court turns to our sister district courts.
The case of Link ex rel. Link v. Metropolitan Gov't
of Nashville and Davidson Co., 2012 WL 4506028 (M.D.
Tenn Sept. 28, 2012) provides persuasive reasoning to the
issue. In Link, the court rejected the
plaintiff's contention that the reasoning in
Winkelman should extend to claims brought under
Section 504 and the ADA. The fundamental reasoning in
Winkelman was a recognized interest of the parents
in education of their child in the context of the IDEA's
unique statutory scheme. This statutory scheme was at the
heart of the extension of parental rights to bring claims
under the IDEA. No similar statutory scheme is present under
either Section 504 or the ADA to permit someone in
Parents' role to bring an independent claim and,
therefore, this Court declines to extend the
Winkelman reasoning to the claims asserted by
Parents in this action.
argument that they are an “aggrieved person”
authorized to bring an individual claim under Section 504 and
the ADA is unavailing as their claim is inexorably
intertwined with the claims of their child. Without the
alleged violations of their child's rights, their claim
would not exist. These rights have been represented to be
“coterminous” with one another and Section 504
and the ADA do not contemplate such a relationship in their
statutory schemes in contrast to the IDEA. See Hooker v.
Dallas Ind. School Dist., 2010 WL 4025776, at *6 (N.D.
Tex. Sept. 13, 2010). The use of the “aggrieved
person” language should not be used to open a panoply
of rights not otherwise addressed in the statutory scheme of
Section 504 and the ADA.
argue that denying them standing to bring these claims leaves
them without redress for the allegedly false police report.
Numerous claims could be contemplated to provide a vehicle
for damages including negligence and intentional infliction
of emotional distress, depending upon the precise nature of
the facts uncovered.
also seeks dismissal of the request for a declaratory
judgment under the Oklahoma Security in Communications Act,
asserting the claim is not permitted under Oklahoma law and
is now moot because a state court has ruled that an exemption
to the law applied in this ...