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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JOY PARNES and BRIAN PARNES,

Individually and on behalf of S.P.,
a minor child,

Plaintiffs,

v. Case No.: 6:23-cv-00854

ORANGE COUNTY SCHOOL BOARD,

Defendant.
___________________________________________/

DEFENDANT’S MOTION TO DISMISS COMPLAINT

Defendant, ORANGE COUNTY SCHOOL BOARD (“School Board”),

pursuant to Fed. R. Civ. P. 12(b)(6) and 12(e), and M.D. Fla. Loc. R. 3.01, hereby

files this Motion to Dismiss Plaintiff’s Complaint. In support thereof, the School

Board states as follows:

ALLEGATIONS CONTAINED IN THE COMPLAINT

1. In August 2020, Plaintiffs Joy and Brian Parnes initiated a state board

complaint with the Bureau of Exceptional Education and Student Services at the

Florida Department of Education (“State Board”), alleging Defendant had failed to

properly educate their child with a disability, S.P. See Complaint, Doc. 1, ¶¶45-46.

2. In November 2020, the State Board issued a written Report of Inquiry

finding that Defendant had failed to provide S.P. with an appropriate education

pursuant to the Individuals with Disabilities Education Act (“IDEA”) and ordered
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Defendant to provide S.P. with compensatory services. See Complaint, Doc. 1,

¶¶47-51.

3. Defendant did not agree with the outcome of the State Board

Complaint and in December 2020, Defendant filed a due process hearing request

with the Florida Division of Administrative Hearings (“Division”) to contest the

State Board’s findings under the IDEA. The Division dismissed this action, finding

that it lacked jurisdiction to adjudicate Defendant’s claims. Defendant also filed an

appeal of the State Board’s decision with the Fifth District Court of Appeal, which

likewise dismissed Defendant’s appeal for lack of jurisdiction. See Complaint. Doc.

1, ¶¶54, 56, 59-60.

4. Plaintiffs withdrew S.P. from the Orange County School District in

February 2021. See Complaint, Doc. 1, ¶65.

CLAIMS ASSERTED IN THE COMPLAINT

5. Plaintiffs filed the instant Complaint on May 9, 2023. The Complaint

attempts to state three causes of action as follows:

Count I: Violation of Title II of the Americans with

Disabilities Act, 42 U.S.C. § 1213, et. seq.

Count II: Claim for Relief under Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794

Count III: Retaliation

6. Plaintiff’s claims are subject to dismissal because Plaintiffs have failed

to exhaust administrative remedies. Additionally, Plaintiffs have failed to state a

claim for which relief can be granted.

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WHEREFORE, Defendant Orange County School Board respectfully

requests entry of an Order dismissing the Complaint with prejudice.

MEMORANDUM OF LAW

I. Dismissal Standard

When reviewing a motion to dismiss, a court must accept factual allegations

contained in the complaint as true and view the facts in a light most favorable to

the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike

factual allegations, conclusions in a pleading “are not entitled to the assumption of

truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). On the contrary, legal

conclusions “must be supported by factual allegations.” Id. Indeed, “conclusory

allegations, unwarranted factual deductions or legal conclusions masquerading as

facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183,

1185 (11th Cir. 2003).

Here, Plaintiffs seek an award of damages, to include tuition reimbursement

and attorneys’ fees, stemming from Defendant’s failure to provide S.P. with a free

and appropriate public education prior to her removal from the public education

system in February 2021. See Complaint, Doc. 1, ¶¶65-69. The claims asserted in

the Complaint are premised on rights enumerated in the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”) and as such, these

claims must have been exhausted administratively prior to Plaintiffs initiating this

case. The IDEA guarantees a “free and appropriate public education” to students

with disabilities in need of special education and related services; S.P. is

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undisputedly such a student. See Complaint, Doc. 1, ¶ 11; see also 20 U.S.C. §

1400(d)(1).

Even assuming the truth of the factual allegations made by Plaintiffs, the

facts do not support the legal conclusions contained in the Complaint that would

justify an award of damages to Plaintiffs. Plaintiffs base their Complaint on the

incorrect legal conclusion that they have performed all necessary conditions

precedent to maintain an action for damages in this court under the Americans

with Disabilities Act (“ADA”) and Section 504.

II. Plaintiffs Failed to Exhaust Administrative Remedies

A. Due Process Proceedings under the IDEA

When a student initiates a legal action in a court of law against a school

board alleging violations of the ADA and/or Section 504 premised on denial of a

free and appropriate public education under the IDEA, the student must first

exhaust administrative remedies. See, e.g., Sorah v. Tipp Exempted Village School

District Board of Education, 611 F.Supp.2d 441 (S.D. Ohio 2020)(also noting that

whether exhaustion is required is a question of law, not fact). The IDEA contains

explicit language requiring parties to exhaust claims via due process proceedings

pursuant to 20 U.S.C. § 1415(f) and (g) prior to filing an action for damages in state

or federal court. 20 U.S.C. § 1415(l) states:

Nothing in this chapter shall be construed to restrict or limit the

rights, procedures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], Title
V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other
Federal laws protecting the rights of children with disabilities, except

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that before the filing of a civil action under such laws seeking relief
that is also available under this subchapter, the procedures under
subsections (f) and (g) shall be exhausted to the same extent as would
be required had the action been brought under this subchapter.

(emphasis added).

The IDEA does not “restrict or limit the rights [or] remedies” provided to

disabled children by the ADA or § 504. 20 U.S.C. § 1415(l). However, an action

brought under the ADA or § 504 is subject to the IDEA's exhaustion requirements

if it “seek[s] relief that is also available under” the IDEA. C.H. by Hilligoss v. Sch.

Bd. of Okaloosa County, Florida, 2019 WL 4774042 at *18 (N.D. Fla. September

30, 2019). Specifically, an action seeks relief under the IDEA, and exhaustion is

therefore required, when the gravamen of the action seeks relief for the denial of a

free and appropriate public education (“FAPE”). See Fry v. Napoleon Cmty. Sch.,

137 S. Ct. 743, 748 (2017); see also Perez v. Sturgis Public Schools, 143 S.Ct. 859,

865 (2023)(the Court determined that a plaintiff who files an ADA action seeking

both damages and the sort of equitable relief IDEA provides may find his request

for equitable relief barred or deferred if he has yet to exhaust § 1415(f) and (g)); cf.

C.H., 2019 WL 4774042 at *19 (an allegation of systematic physical abuse of

disabled students by a teacher does not concern the appropriateness of an

educational program and would therefore not be subject to the exhaustion

requirement under the IDEA prior to initiating ADA and 504 claims for damages).

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Here, Plaintiffs allege that Defendant violated the IDEA with respect to S.P.

See Complaint, Doc. 1, ¶ 17, 46. 1 Specifically, Plaintiffs allege Defendant denied S.P.

a FAPE from March 2020 through February 2021, which led Plaintiffs to file state

complaints against Defendant, withdraw S.P. from public school, and subsequently

enroll her in private educational programs at their own expense. See Complaint,

Doc. 1, ¶¶ 14-29, 45-51, 65, 67. Given this set of alleged facts, Plaintiffs were

required to exhaust administrative remedies in a due process proceeding prior to

initiating this case.

Due process proceedings are described in the IDEA regulations promulgated

by the United States Department of Education at 34 C.F.R. §§ 300.507-300.517. A

parent or guardian may file a due process complaint concerning the identification,

evaluation, or educational placement of a child with a disability, or the provision

of a free and appropriate public education (“FAPE”) to the child. 34 C.F.R. §

300.507(a)(1). The complaint must concern matters occurring not more than two

years prior to the date of filing the complaint. 34 C.F.R. § 300.507(a)(2). The

parties must convene a resolution session after the filing of a complaint to

determine if the matter can be settled without a hearing; if the parties reach a

resolution, it is reduced to a legally binding written agreement. 34 C.F.R. §300.510.

1In ¶ 17 of the Complaint, Plaintiffs cite to the federal and state regulations implementing
the IDEA and state that “a free and appropriate public education (FAPE) must be
available to all students residing in the state between the ages of 3 and 21. This education
was deliberately and expressly denied to S.P. and her family.”

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If the parties do not resolve the matter, it is set for impartial hearing before

a hearing officer as provided in state statute or regulation. 34 C.F.R. § 300.511. 2 At

the hearing, each party may be represented by legal counsel; may present evidence

and confront, cross-examine, and compel the attendance of witnesses; may

prohibit the introduction of any evidence at the hearing that has not been disclosed

to that party at least five business days before the hearing; may obtain a written,

or, at the option of the parents, electronic, verbatim record of the hearing; and may

obtain written, or, at the option of the parents, electronic findings of fact and

decisions. 34 C.F.R. § 300.512(a). The parents may bring the student to the hearing

and may open the hearing to the public. See 34 C.F.R. § 300.512(c). The hearing

decision must be reduced to writing and the hearing officer’s findings must

comport with the dictates of 34 C.F.R. § 300.513. The decision is final unless a

party aggrieved by the decision brings a civil action in state or federal court within

ninety days of receiving the hearing officer’s decision. See 34 C.F.R. §§ 300.514-

516.

A careful review of the Complaint reveals that at no time have Plaintiffs

brought a due process complaint against Defendant. No allegations indicate that

this occurred, which is correct.

B. State Complaints under the IDEA

2
In Florida, these hearings are conducted by the Florida Division of Administrative
Hearings, per § 1003.57(1)(c), Fla. Stat. (2023) and Fla. Admin. Code R. 6A.6-3311(9)(a).

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The IDEA provides that courts of law act as the reviewing body following an

evidentiary due process hearing. See 20 U.S.C. § 1415(l); see also Papania-Jones

v. Dupree, 275 Fed.Appx. 301, 303 (5th Cir. 2008). As described above, the IDEA

provides parties involved in disputes arising from the provision of special

education services with the opportunity to present evidence in front of an impartial

hearing officer, and to appeal any adverse decision. As part of that process, there

is a record of the administrative proceedings and the opportunity for the reviewing

court to hear any additional evidence at the request of a party.

A state complaint has none of the above components. Neither party is

provided with an opportunity to present evidence to a hearing officer, there is no

record to appeal, and there is no final order or decision by a hearing officer. There

would be no way to even appeal a state complaint decision. 3

With respect to IDEA state complaints, the United States Department of

Education directs each state educational agency (“State Board”) to adopt state

3
Ironically, this is the very situation in which the Defendant found itself following the
issuance of the Florida Department of Education’s Report of Inquiry pursuant to
Plaintiffs’ August 2020 State Complaint. As Plaintiffs allege in the Complaint at ¶¶ 54-55,
Defendant did not agree with the Report of Inquiry and attempted to challenge the
outcome of the state complaint in December 2020 by filing a request for due process
hearing before the Florida Division of Administrative Hearings. Defendant also
attempted to challenge the outcome of the state complaint via appeal to Florida’s Fifth
District Court of Appeal. See Complaint, Doc. 1, ¶56. The request for due process hearing
and the appellate action were both dismissed for lack of jurisdiction in February 2021.
See Complaint, Doc. 1, ¶¶ 59-62. These dismissals for lack of jurisdiction before the
Division and the Fifth District established without question that in Florida, an adverse
outcome in a state complaint proceeding under the IDEA is final, without any opportunity
for appeal, even if a school board disputes that outcome. This is clearly very different from
the due process hearing scheme found in the IDEA, which results in a record that can be
transmitted to a court of review on appeal. See 34 C.F.R. §§ 300.514-516.

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complaint procedures, whereby the State Board may receive a complaint that a

school district has violated Part B of the IDEA. See 34 C.F.R. § 300.151; see also

Fla. Admin. Code R. 6A-6.03311(5)(containing the state complaint procedures for

Florida). The State Board reviews all relevant information and makes an

independent determination as to whether the public agency is violating the statute

and issues a written decision that addresses each allegation in the complaint. See

34 C.F.R. §§ 300.151-153; see also Fla. Admin. Code R. 6a-6.03311(5). A state

complaint must allege violations of the IDEA occurring not more than one year

prior to the date the complaint is received. See Fla. Admin. Code R. 6A-

6.03311(5)(d)(4)f.

If a parent files a state complaint and a due process hearing request

concerning the same subject matter, the State Board must pause its complaint

review while the due process matter is pending, since the due process hearing

decision is binding on the State Board’s disposition of the state complaint. See 34

C.F.R. § 300.152(c). Nothing in the federal implementing regulations provides for

review of a state complaint in a court of law and as alleged in this Complaint, both

the Division and the Fifth District Court of Appeal dismissed Defendant’s efforts

to challenge the 2020 state complaint outcome, for lack of jurisdiction. See 34

C.F.R. §§ 300.151-153; see also Complaint, Doc. 1, ¶¶ 54-61.

In conclusion, only a due process proceeding directed to an alleged IDEA

violation exhausts administrative remedies such that a parent may subsequently

file an action for damages under the ADA and/or Section 504. See 20 U.S.C. §

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1415(l). The statute makes no mention of state complaint procedures in the section

at § 1415(l) addressing the exhaustion requirement. “Merely filing a complaint in

the state complaint process does not satisfy the exhaustion requirement under the

IDEA.” Motyka v. Howell Public School District, 2014 WL 2804349 *2 (E.D. Mich.

June 20, 2014); see also Vultaggio v Board of Education, 216 F.Supp.2d. 96, 103

(E.D.N.Y. 2002)(only a due process hearing exhausts administrative remedies and

failure to exhaust deprives a subsequent court of subject matter jurisdiction). 4

Federal courts have consistently held that a due process hearing exhausts

administrative remedies but a state complaint does not. See T.S. v. Utica

Community Schools, 2012 WL 1340492 *2 (E.D. Mich. February 16, 2012).

C. Failure to Exhaust

Plaintiffs failed to exhaust their administrative remedies prior to initiating

the instant Complaint. First, Plaintiffs never initiated a due process complaint

before the Florida Division of Administrative Hearings against Defendant. The

Complaint alleges, correctly, that Plaintiffs only ever initiated a state complaint

against Defendant with the Florida Department of Education pursuant to Fla.

4 In Vultaggio, the federal district court noted that administrative due process
proceedings are more formal than state complaint procedures, more adversarial, they
guarantee the parties the “full panoply of rights” associated with a legal action, and only
a due process proceeding can provide the legal foundation for a subsequent claim for
prevailing party attorneys’ fees. Vultaggio, 216 F.Supp.2d at 104. The New York district
court further noted that with respect to the subject student Robert Vultaggio, the tribunal
adjudicating the administrative due process complaint has “greater expertise in the area
of education than this court” and therefore “must be allowed to complete their assessment
of what is appropriate for Robert.” Id. at 107.

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Admin. Code R. 6A-6.03311(5). 5 See Complaint, Doc. 1, ¶ 45 and incorporated

Exhibit “A.” 6

Second, even if a state complaint exhausted administrative remedies, which

it does not, the state complaint Plaintiffs filed in August 2020 did not address the

issues raised in the instant Complaint, including but not limited to the tuition

reimbursement claim Plaintiffs now assert pursuant to the ADA and Section 504.

The state complaint Plaintiffs filed on August 31, 2020, is described as follows in ¶

46 of the Complaint: “…the State Complaint alleged that the Board failed to

educate S.P. appropriately and failed to develop a plan to implement the student’s

IEP since March 2020.” The period complained of in the state complaint is March

2020 – August 31, 2020. Plaintiffs allege they filed a second state complaint in

September 2020 in which they also claimed Defendant denied S.P. an appropriate

public education. See Complaint, Doc. 1, ¶ 98, n. 5. The 2nd state complaint resulted

in a disposition against Defendant in December, finding that it had denied S.P a

FAPE. See id. Plaintiffs did not withdraw S.P. from a Defendant-operated school

and enroll her in a private program until February 2021. See id., ¶¶65-67. Nothing

in the Complaint alleges that Plaintiffs attempted to obtain tuition reimbursement

5
This regulation promulgated by the Florida Department of Education effectuates the
federal regulations at 34 C.F.R. §§ 300.151-153 requiring each state educational agency to
implement a state complaint procedure. As previously noted, the state complaint
procedure is separate and distinct from due process hearing procedures.
6 Plaintiffs failed to attach this Exhibit and the other Exhibits referenced in the Complaint

when Plaintiffs’ counsel filed the Complaint with the Court and served the Complaint on
Defendant.

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following the February 2021 withdrawal of S.P. in any administrative proceeding,

prior to instituting this Complaint.

Given the above, this Court lacks subject matter jurisdiction over Plaintiffs’

claims because Plaintiffs failed to raise these claims in a due process hearing before

the Division prior to initiating this case. These claims are subject to dismissal with

prejudice because Plaintiffs have no means by which to cure their failure to

exhaust, due to the statute of limitations applicable to these matters. A due process

complaint must be initiated within two years of the date the parent knew about the

alleged action that forms the basis of the complaint. See 20 U.S.C. § 1415(b)(6)(B).

Further, if Plaintiffs are seeking tuition reimbursement, which it appears

they are, they have not alleged compliance with any of the requirements contained

in the IDEA regulations to seek an award of tuition reimbursement via due process.

The regulations state as follows with respect to tuition reimbursement claims, at

34 C.F.R. § 300.148:

(c) If the parents of a child with a disability, who previously received

special education and related services under the authority of a public
agency, enroll the child in a private preschool, elementary school, or
secondary school without the consent of or referral by the public
agency, a court or a hearing officer may require the agency to
reimburse the parents for the cost of that enrollment if the court or
hearing officer finds that the agency had not made FAPE available to
the child in a timely manner prior to that enrollment and that the
private placement is appropriate. A parental placement may be found
to be appropriate by a hearing officer or a court even if it does not meet
the State standards that apply to education provided by the SEA and
LEAs.
(d) Limitation on reimbursement. The cost of reimbursement
described in paragraph (c) of this section may be reduced or denied—
(1) If—

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(i) At the most recent IEP Team meeting that the parents attended
prior to removal of the child from the public school, the parents did
not inform the IEP Team that they were rejecting the placement
proposed by the public agency to provide FAPE to their child,
including stating their concerns and their intent to enroll their child
in a private school at public expense; or
(ii) At least ten (10) business days (including any holidays that occur
on a business day) prior to the removal of the child from the public
school, the parents did not give written notice to the public agency of
the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents’ removal of the child from the public school,
the public agency informed the parents, through the notice
requirements described in §300.503(a)(1), of its intent to evaluate the
child (including a statement of the purpose of the evaluation that was
appropriate and reasonable), but the parents did not make the child
available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.

Per the regulation, only a court or a hearing officer can award tuition

reimbursement – it is not a remedy available via the state complaint process.

Additionally, reimbursement may be reduced or denied if a student’s

parent/guardian fails to either notify the school at an IEP meeting of the intent to

remove the student from public school or via written notice prior to removal.

Plaintiffs do not allege they provided the required notice at an IEP meeting or in

writing prior to removing S.P. from public school, to preserve their right to seek

tuition reimbursement for a private placement. And, as the Defendant has noted

throughout this Motion, Plaintiffs have failed to allege they ever preserved this

position or any other position with respect to S.P.’s IDEA rights, via a due process

proceeding.

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As Plaintiffs allege, S.P. has not attended a public school in Orange County

since February 2021, over two years ago. Even if Plaintiffs filed an action with the

Florida Division of Administrative Hearings today to allege denial of an

appropriate public education and/or to seek tuition reimbursement for expenses

incurred in a private setting, DOAH would dismiss the due process action as

untimely since the acts and omissions at issue occurred on or before February

2021.

In Radcliffe ex rel. Collins v. School Board of Hillsborough County, Florida,

38 F.Supp.2d 994, 1000 (M.D. Fla. 1999), this Court administratively closed a

parent’s IDEA suit on behalf of their son so the parents could pursue an

appropriate administrative remedy to meet the exhaustion requirement. The Court

did not dismiss the case, however, because the parents had an opportunity to

timely cure their failure to exhaust; the IDEA issue presented to the Middle District

Court in Radcliffe had arisen well within the two-year statute of limitations. Given

the applicable limitations period, Radcliffe’s parents had ample time to pursue an

administrative remedy to satisfy the exhaustion requirement and then re-open

their federal case. See id. That is not true here. Plaintiffs have no means by which

to cure their failure to exhaust administrative remedies, because too much time

has passed. Plaintiffs’ Complaint should be dismissed with prejudice.

III. The Complaint Fails to State a Claim Upon Which Relief Can Be
Granted

A. Claim Title II of the ADA and Section 504 (Counts 1 and 2)

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To state a cause of action under Title II and Section 504, Plaintiffs must

allege that: (1) S.P. is disabled, (2) she is a qualified individual, and (3) she was

subjected to unlawful discrimination because of her disability. See, J.S. v. Houston

County Board of Education, 877 F.3d 979, 985 (11th Cir. 2019); Meisenhelder v.

Florida Coastal Sch. of Law, Inc., 2010 WL 2028089 at *3 (M.D. Fla. Feb. 19,

2010), aff'd, 395 Fed. Appx. 669 (11th Cir. 2010). Discrimination claims under the

ADA and the Rehabilitation Act are governed by the same standards. See, e.g.,

Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); J.S., 877 F.3d at 985; N.R. by

Ragan v. Sch. Bd. of Okaloosa County, Florida, 418 F.Supp.3d 957, 993 n. 32 (N.D.

Fla. 2019); C.H. by Hilligoss v. Sch. Bd. of Okaloosa County, Florida, 2019 WL

4774042 at *18 n. 31 (N.D. Fla. Sept. 30, 2019).

To make a claim under section 504 and the ADA in the educational context,

a plaintiff must allege something more than an IDEA violation for failure to

provide FAPE. See W.C. ex rel. Sue C. v. Cobb County Sch. Dist., 407 F. Supp.2d

1351, 1364 (N.D. Ga. 2005)(granting summary judgment on a Section 504 claim

that failed to allege more than a denial of FAPE); see also J.S., 877 F.3d at 985. A

plaintiff must “demonstrate some bad faith or gross misjudgment by the school or

that [s]he was discriminated against solely because of h[er] disability.” W.C., 407

F.Supp.2d at 1364. In the instant case, Plaintiffs did not allege bad faith or gross

misjudgment.

While Plaintiffs allege that S.P. was discriminated against solely because of

her disability, the allegations in support of this claim concern denial of a FAPE,

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which is an IDEA violation. Plaintiffs aver the following in support of the ADA and

504 claims: 1) Defendant failed to appropriately develop, revise and implement

S.P.’s IEP; 2) Defendant denied S.P. the benefit of services, programs and activities

needed to comply with her IEP and the requirements of the IDEA; 3) Defendant

did not provide S.P. with reasonable accommodations needed to implement her

IEP during the COVID-19 pandemic; 4) Defendant prevented an individual with

knowledge or expertise regarding S.P. the ability to participate in an IEP meeting,

in violation of 34 C.F.R. § 300.321(a)(6); 7 5) Defendant imposed discipline on S.P.

that was “unfair;” 6) Defendant prevented the parent from participating in S.P.’s

education, 8 and; 7) Defendant prohibited teachers from communicating with S.P.’s

parents about S.P.’s education. See Complaint, Doc. 1, ¶ 75.

To determine if a plaintiff seeks relief for denial of FAPE under the IDEA,

the court must ask two hypothetical questions, and if the answer to these questions

is “no,” then the complaint probably implicates denial of FAPE: (1) could plaintiff

have brought essentially the same claim if the alleged conduct had occurred at a

public facility that was not a school, say public theater or library; and (2) could an

adult at the school, say an employee or visitor, have pressed essentially the same

7 This is an IDEA regulation discussing the individuals who comprise the

Individual Education Plan team for a student.
8 In the opening section of the IDEA, Congress found that education of children

with disabilities can be made more effective by “strengthening the role and
responsibility of parents and ensuring that families of such children have
meaningful opportunities to participate in the education of their children at school
and at home.” 20 U.S.C. § 1400(c)(5)(B). Additionally, in the regulations, parental
participation is explicitly addressed at 34 C.F.R. § 300.322.

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grievance. Fry v. Napoleon, 580 U.S. 154, 171 (2017). With respect to the factual

allegations in the instant Complaint, the answer to these questions is “no.”

These allegations fall squarely within the purview of the IDEA, since they

concern the identification, evaluation, or educational placement of S.P., or the

provision of a free and appropriate public education to S.P. See 20 U.S.C. §

1415(b)(6). None of these allegations could form the basis for a 504 or ADA claim

against a public theater. None of these allegations make sense if a visitor to a school

pressed the same grievance. These claims only make sense in the context of a

complaint about the procedural and substantive rights afforded to a student in an

educational setting, i.e., they are FAPE claims.

Further, Plaintiffs fail to plead any facts to support their conclusory

allegation that decisions related to S.P.’s education program or discipline were

made solely because of S.P.’s disability. School district personnel are responsible

every day for writing and implementing IEPs for students with disabilities,

convening IEP teams, disciplining students with disabilities, and working with

families to ensure participation and communication. The facts as alleged do not

support Plaintiffs’ sweeping legal conclusion that alleged deficiencies in the

education of S.P. were “solely because of S.P.’s disability” and thus constituted

disability discrimination. Something more is required. See J.S., 877 F.3d 979 (11th

Cir. 2019)(student’s ADA and 504 case survived summary judgment where student

alleged verbal and physical abuse by school staff and repeated isolation in a room

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on campus, and court concluded these allegations went beyond a mere denial of

FAPE under the IDEA and stated a cause of action for disability discrimination).

B. Retaliation

In Count 3, Plaintiffs plead a cause of action under the anti-retaliation

provision in 42 U.S.C. § 12203, which provides:

No person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under the chapter.

To establish a prima facie case of retaliation in the education context, Plaintiffs

must allege that they: (1) engaged in activity protected under Section 504 or the

ADA; (2) Defendant knew of the protected activity; (3) Defendant then took

adverse action against Plaintiffs; and (4) there was a causal connection between

the protected activity and the adverse action. A.C. ex rel. J.C. v. Shelby Cty. Bd. of

Educ., 711 F.3d 687, 697 (6th Cir. 2013).

The retaliation claim at Count III is subject to the same exhaustion

requirement as the claims for violation of the ADA and Section 504 contained in

Counts I and II. See Sorah v. Tipp Exempted Village School District Board of

Education, 611 F.Supp.2d 441 (S.D. Ohio 2020)(the court dismissed parent and

student claims under the ADA and Section 504, including retaliation claim, after

determining that parent and student failed to exhaust administrative remedies

under the IDEA prior to initiating court case).

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In the retaliation claim, Plaintiffs allege that Defendant ignored the

corrective actions the State Board directed Defendant to perform pursuant to the

Report(s) of Inquiry. See Complaint Doc. 1, ¶ 101. Plaintiffs characterize this

alleged failure to perform the State Board’s directives as an adverse action under

the ADA and Section 504. However, a retaliation cause of action in a court of law

is not the enforcement mechanism provided for in the IDEA regulation governing

state board complaints.

In 34 C.F.R. § 300.152, the United States Department of Education directs

each state educational agency to develop procedures for effective implementation

of a state educational agency’s final decision with respect to a board complaint,

listing the following enforcement activities available to the states: technical

assistance, negotiations, and corrective actions to achieve compliance. See also Fla.

Admin. Code R. 6A-6.0331(5)(b). Both the federal and state IDEA regulations

place the compliance enforcement responsibility with respect to final decisions on

the state board of education. Nothing in the IDEA statute or its regulations provide

for an aggrieved parent to rectify alleged non-compliance with a state complaint

decision via a legal action for damages. When the IDEA intends to provide for civil

actions to challenge disputed decisions at the administrative level – as it does with

respect to final hearing decisions rendered in a due process proceeding – the IDEA

does so explicitly. See 20 U.S.C. § 1415(i)(2).

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The instant Complaint is devoid of any allegations that Plaintiffs brought

their concerns about non-compliance to the State Board to seek enforcement.

Defendant asserts that the proper remedy for alleged non-compliance is with the

State Board, the entity granted enforcement power by Congress and the United

States Department of Education. Accordingly, this suit seeking damages for

retaliation is improper and this court lacks jurisdiction to enforce the State Board’s

decisions with respect to S.P. and the Defendant.

For all the foregoing reasons, Defendant seeks dismissal with prejudice of

Plaintiff’s Complaint.

LOCAL RULE 3.01(g) CERTIFICATION

Pursuant to Local Rule 3.01(g), the undersigned certifies that she contacted

Plaintiff’s counsel Nikki Hudson via phone on July 19, 2023, to confer regarding

the relief requested herein. Plaintiff’s counsel opposes this Motion.

Dated this 24th day of July, 2023.

/s/ Amy J. Pitsch

AMY J. PITSCH
Florida Bar Number: 0338280
apitsch@sniffenlaw.com
TERRY J. HARMON
Florida Bar Number: 0029001
tharmon@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street
Tallahassee, Florida 32301
Telephone: (850) 205-1996

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Facsimile: (850) 205-3004

Counsel for Orange County School

Board

CERTIFICATE OF SERVICE

The undersigned certifies that on this 24th day of July 2023, a true and
correct copy of the foregoing was electronically filed in the U.S. District Court,
Middle District of Florida, Orlando Division, using the CM/ECF system which will
send a notice of electronic filing to all counsel of record.

/s/ Amy J. Pitsch

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