No. 10-1411

upreme tI e tnitel

FILED

JUL I 20t

~~’HE CLERK

JONATHAN DOE, a minor, by and throughDOROTHY DOE, his legal guardian and next friend,

Petitioner,V.

TODD COUNTY SCHOOL DISTRICT; MICHAEL V.BERG, Assistant Principal of Todd County High School;VICTORIA SHERMAN, Principal of Todd County HighSchool; and RICHARD BORDEAUX, Superintendent of

Schools, in their individual and official capacities,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

RICHARD P. TIESZEN*TIESZEN LAW OFFICE, PROF. L.L.C.

PO Box 550Pierre, SD 57501-0550

(605) 224-1500office@tieszenlaw.com

Counsel for Todd County School District

ROBERT B. ANDERSONMAY, ADAM, GERDES ~ THOMPSON LLP

PO Box 160Pierre, SD 57501-0160

(605) 224-8803Counsel .for Respondents Michael V. Berg,Victoria Sherm an and Richard Bordeaux

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800 225-6964OR CALL COLLECT (402 342-2831

Page

QUESTION PRESENTED

Whether a student receiving special educa-tion services who agrees to placement through anindividualized education program (IEP) may assert aclaim for violation of his civil rights under 42 U.S.C.§ 1983 by alleging that the agreed upon IEP place-ment constituted a constructive long-term suspensionrequiring due process guarantees such as notice andhearing.

ii

TABLE OF CONTENTS

QUESTION PRESENTED. ....................................

TABLE OF CONTENTS .........................................

TABLE OF AUTHORITIES ...................................

OPINIONS BELOW ...............................................

JURISDICTION .....................................................

STATEMENT OF THE CASE ................................

PROCEDURAL HISTORY .....................................

FACTUAL BACKGROUND ...................................

ARGUMENT ............................................................

I.

II.

Page

i

ii

V

1

2

7

11

Petitioner has waived his right to file apetition for writ of certiorari with thisCourt .............................................................12

Petitioner, who agreed to placementthrough an individualized education pro-gram (IEP) is barred from asserting aclaim for violation of his civil rights byalleging that the agreed upon IEP place-ment constituted a constructive long-termsuspension ....................................................16

A. Under the facts of this case, the actionof Petitioner’s IEP team ended theshort-term suspension implemented bythe school principal ...............................16

B. The court of appeals’ ruling does notconflict with this Court’s decision inHonig v. Doe ...........................................18

III

TABLE OF CONTENTS - ContinuedPage

III. The Eighth Circuit’s ruling does not abro-gate the IDEA, does not conflict with statedue process laws, and does not deprive aclass of individuals of equal protection ordue process ...................................................20

A. IDEA ......................................................20

B. State due process laws ..........................22

C. The court of appeals’ decision does notresult in a deprivation of equal protec-tion or due process for disabled stu-dents .......................................................25

IV. Petitioner’s claimed injuries could havebeen remedied by an IDEA hearing ............28

V. Amici curiae’s motion for leave to file andbrief should be denied ..................................31

CONCLUSION .......................................................32

APPENDIX

June 16, 2009 Stipulation for Entry of Judg-ment ..................................................................App. 1

August 26, 2009 Judgment ...................: .............App. 6

June 16, 2009 Mediation Settlement Tran-script .................................................................App. 8

iv

TABLE OF CONTENTS - Continued

Page

Deposition of Special Education DirectorDebera Lucas (excerpts) ................................ App. 13

October 27, 2005 Special Educational DirectorLucas letter to Dorothy Doe ..........................App. 19

20 U.S.C. § 1425(b) ............................................App. 22

V

TABLE OF AUTHORITIES

Page

CASES

Ashland School Dist. v. Parents of StudentE.H., 583 F.Supp.2d 1220 (D.Or. 2008) ..................21

Baker v. McCollam, 443 U.S. 137 (1979) ...................25

Bd. of Educ. of Hendrick Hudson Central Sch.Dist. v. Rowley, 458 U.S. 176 (1982) .................22, 26

Black Coalition v. Portland Sch. Dist. No. 1,484 F.2d 1040 (9th Cir. 1973) .................................27

Booth v. Churner, 532 U.S. 731 (2001) .................29, 30

Boster v. Philpot, 645 F.Supp. 798 (D.Kan.1986) ........................................................................27

Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027(8th Cir. 2000) .........................................................26

Goodsell v. Shea, 651 F.2d 765 (United StatesCourt of Customs and Patent Appeals 1981) .....13, 14

Goss v. Lopez, 419 U.S. 565 (1975) .............................32

Haig v. Agee, 453 U.S. 280 (1981) ..............................21

Honig v. Doe, 484 U.S. 305 (1988) ......................passim

Hope v. Cortines, 872 F.Supp. 14 (E.D.N.Y.1995), aft’d, 69 F.3d 687 (2nd Cir. 1995) ................30

Jama v. Immigration and Customs Enforce-ment, 543 U.S. 335 (2005) .......................................21

Keough v. Tate County Bd. of Educ., 748 F.2d1077 (5th Cir. 1984) ................................................27

Leavitt vo Jane L., 518 U.S. 137 (1996) ......................24

vi

TABLE OF AUTHORITIES - Continued

Page

Lybarger v. Hauck, 793 F.2d 136 (6th Cir. 1986) .....14, 15

Payne v. Peninsula Sch. Dist., 598 F.3d 1123(9th Cir. 2010) .........................................................29

Polera v. Bd. of Educ. of the Newburgh En-larged City Sch. Dist., 288 F.3d 478 (2nd Cir.2002) ........................................................................30

Robb v. Bethell Sch. Dist. #403, 308 F.3d 1047(9th Cir. 2002) ...................................................29, 30

Rodiriecus L. and Betty H. v. Waukegan Sch.Dist. No. 60, 90 F.3d 249 (7th Cir. 1996) ................26

United States Consolidated Seeded Raisin Co.v. Chaddock & Co., 173 F. 577 (9th Ciro 1909) .......13

Watson ex rel. Watson v. Beckel, 242 F.3d 1237(10th Cir. 2001) .......................................................27

UNITED STATES CODE

20 U.S.C. §§ 1400 et seq ...............................................9

20 U.S.C.

20 U.S.C.

2O U.S.C.

20 U.S.C.

2O U.S.C.

20 U.S.C.

20 U.S.C.

20 U.S.C.

§ 1414(d)(1)(A) ............................................26

§ 1415 ...........................................................1

§ 1415(b)(6) .................................................31

§ 1415(e)(3) .................................................19

§ 1415(j) ......................................................19

§ 1415(k)(1)(A) ............................................22

§ 1415(k)(1)(C) ..........................20, 21, 22, 23

§ 1415(k)(1)(G) ...........................................28

vii

TABLE OF AUTHORITIES - ContinuedPage

20 U.S.C. § 1415(k)(2) .................................................26

20 U.S.C. § 1415(k)(3)(A) ............................................31

20 U.S.C. § 1415(1) ......................................................28

28 U.S.C. § 1254(1) .......................................................1

42 U.S.C. § 1983 .................................................1, 2, 25

CODE OF FEDERAL REGULATIONS

34 C.F.R. § 300.530(d)(5) .............................................17

SOUTH DAKOTA STATUTES

SDCL § 13-32-4 ...........................................................23

SDCL § 13-32-4.2 ........................................................23

SOUTH DAKOTA ADMINISTRATIVE RULES

ARSD 24:05:25:04.02 ..................................................26

ARSD 24:05:25:04.03 ..................................................26

5~lan~ Page

BRIEF OF RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-13) is reported at 625 F.3d 459 (8th Cir. 2010). Thedistrict court’s decision granting summary judgmentto the Petitioner is unpublished but included inPetitioner’s Appendix at App. 14-33.

JURISDICTION

The order by the court of appeals denying rehear-ing and rehearing en banc was entered on February15, 2011. The jurisdiction of this Court is invokedunder 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

This case presents the question of whether astudent with an acknowledged disability receivingspecial education services, who agrees to placementthrough an individualized education program (IEP)may assert a claim for violation of his civil rightsunder 42 U.S.C. § 1983 by alleging that the IEPplacement results in a constructive long-term suspen-sion requiring notice and hearing. The court of ap-peals held that Petitioner’s right to procedural dueprocess was limited to the procedures governing theIDEA decision-maker under 20 U.S.C. § 1415. Thedecision of Petitioner’s IEP team to place him in an

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individualized education program, to which Petitionerthrough his guardian agreed, negates any require-ment that a due process hearing be held. Further,in reaching an agreement as to the amount of thejudgment to be entered in this case Petitioner waivedhis right to file a petition for writ of certiorari. Thepetition should be denied.

PROCEDURAL HISTORY

As a result of a fight which occurred on ToddCounty High School grounds on September 8, 2005,and being found in possession of a pocket knife,Jonathan Doe (Doe) was suspended from Todd CountyHigh School by letter dated September 12. The let-ter made the suspension effective ~September 8. OnSeptember 13, Doe’s IEP team met and created anaddendum to his IEP plan which changed his place-ment. He was then advised that he was no longersuspended from school because his IEP placementhad been changed. Doe’s guardian participated in thedecision to change his placement and agreed to it.

By summons and complaint dated June 20, 2007,Doe, through his next friend, commenced an actionagainst Respondents seeking money damages underthe remedy provisions of 42 U.S.C. § 1983 arisingfrom the alleged deprivation of Doe’s constitutionallyprotected right to a public education without clueprocess of law.

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After considerable time, effort and expense in thecourse of the litigation summary judgment on theissue of liability only was entered by the district courton November 24, 2008. Pet. App. 14. The districtcourt’s order granted summary judgment on liabilityin favor of Petitioner and denied a similar motionmade by Respondents.

Thereafter, in an effort " ... to avoid the timeand expense of further litigation and in order to fosterjudicial economy ... " the parties engaged in volun-tary mediation with the United States Magistrate todetermine the amount of damages to be inserted in afinal judgment that would give rise to limited rightsof appeal to the United States Court of Appealsfor the Eighth Circuit. Stipulation for Entry of Judg-ment - App. 1-4.

The parties successfully reached an agreementas to the amount of a judgment which could be en-tered by the district court pursuant to stipulation.As a result the parties entered into a written stipula-tion which was reviewed on the record with the U.S.Magistrate. Stipulation -App. 1-4 and MediationSettlement Transcript, App. 8-12.

The stipulation specifically gave Respondents(Defendants) the right to appeal the finding of lia-bility to the United States Court of Appeals. App. 3,~I4.

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The stipulation likewise discussed the contingentoutcomes of such an appeal. In paragraph 5 thestipulation provided as follows:

"In the event Defendants or some of themchoose to appeal the final judgment enteredby the court pursuant to this stipulation, de-pending on the outcome of the appeal, theparties will ihave the following rights and ob-ligations:

i. If the Court of Appeals affirms theUnited States District Court on appealthe judgment will be paid by Defendantsand/or the insurance carriers withinthirty days of the issuance of a mandateby the Court of Appeals;

ii. If the Court of Appeals reverses theUnited States District Court on the issueof liability and orders that a judgment infavor of Defendants be entered then thecase shall be dismissed without anypayment on the part of the Defendantsor their insurers;

iii. If the Court of Appeals remands the casefor further consideration to the UnitedStates District Court the judgment en-tered pursuant to this stipulation shallbecome null and void with the exceptionof any portions of said judgment whichare affirmed by the Court of Appeals.The parties are free to make such claimsand raise such defenses as they could

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otherwise have made without the execu-tion of the stipulation.

iv. If for any reason the Court of Appeals re-fuses to rule on the merits of any suchappeal then the judgment entered pur-suant to this stipulation shall becomenull and void. The parties are free tomake such claims and raise such de-fenses as they could otherwise havemade without the execution of the stipu-lation." Stipulation for Entry of Judg-ment- App. 3, 4, ~I 5.

Prior to execution of the written stipulation adiscussion was held in the presence of the U.S. Magis-trate which included, in part, the following exchange:

"Mr. Tieszen (counsel for Todd County SchoolDistrict):... if they affirm Judge Kornmann’sdecision, game over, and you would receivethe amounts that are contemplated underthis. If they affirm his decision, with or with-out a remand, it’s over, and you would takethose monies.

If, on the other hand, they reverse, with orwithout a remand, game over would be in theother way, and the monies would not be paidout at all .... " Mediation Settlement Tran-script - App. 10.

The stipulation was signed by representativesof all parties after agreement on the record thatthe parties had given their permission for counsel

to do so. Mediation Settlement Transcript, App. 11-12.

A judgment was then entered by the districtcourt incorporating the $90,000 amount as agreedupon by the parties. The judgment by its termsmakes it clear that it was entered pursuant to thestipulation for entry of judgment (Doc. 97). Judgment-App. 6.

Consistent with the stipulation, the judgmentacknowledged that:

"In the absence of this certification, the par-ties and the court would be forced into a trialwith expert witnesses and much expense todetermine the matter of damages. This is thevery unusual case where the parties haveagreed as to the amount of damages if lia-bility exists. There would be hardships andneedless expense in the absence of this cer-tification. School districts and school admin-istrators across South Dakota deserve aspeedy answer to the questions of liabilitypresented in this action." Judgment, App. 7.

After entry of judgment the contingency contem-plated by paragraph 5 (ii) came to fruition when theUnited States Court of Appeals for the Eighth Circuitreversed the district court and ordered judgment beentered in favor of Defendants (Respondents). Stipu-lation for Entry of Judgment, App. 3, ~ 5 (ii).

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After the Eighth Circuit denied Petitioner’s re-quest for rehearing Petitioner filed his petition forwrit of certiorari with this Court. Petitioner did nottreat the game as being "over" as discussed at theconclusion of the mediation .session and as requiredby the plain terms of the stipulation. Petitioner hasclearly waived his right to seek redress from thisCourt and to permit him to do so would defeat thevery purpose of the mediation and stipulation whichwas entered into by the parties at the district courtlevel.

FACTUAL BACKGROUND

Petitioner’s statement of facts omits a substan-tial portion of the relevant facts. An accurate under-standing of those facts will assist this Court as itconsiders the petition.

Petitioner was a high school student at the ToddCounty School District. He was placed on an IEPbecause of a learning disability in reading. Afterschool on September 8, 2005, he was involved in afight on school grounds, and was brought the nextday to the office of Assistant Principal, Mike Berg.At that time Petitioner possessed a knife he hadbrought to the school with him. Petitioner knew itwas a violation of school policy to have a knife atschool, and that it was a weapon with which he couldseriously harm others. Petitioner admitted this toBerg. Berg told Petitioner he would be suspended

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from school because of fighting and possessing aknife. Berg read to Petitioner the school policy andthe Discipline Protocol from the student handbookincluding the short-term and long-term suspensionsections and the weapons section. Berg called Peti-tioner’s grandfather, with whom he lived, to come andget him from school. When he arrived, Berg told thegrandfather about the fight and about the knife.Petitioner was s~spended at that point in time.1

Because Petitioner was on an IEP, Berg calledthe school’s Exceptional Education Director, DeberaLucas, immediately. Lucas and Berg discussed theincident with Petitioner and his grandfather. They

further discussed the need to arrange a manifestationdetermination meeting to comply with the require-ments of IDEA. Although there had not been a deci-sion that Petitioner would be suspended for morethan ten days, Lucas recognized the possibility ofsuch a suspension and took a proactive approach. Shescheduled a manifestation determination meeting forPetitioner immediately. The purpose was to examinehis education plan and determine if changes wererequired.

Berg sent a letter dated September 12, 2005, toPetitioner’s grandparents concerning Petitioner’ssuspension, and provided information regarding ahearing as well as the Discipline Protocol outlining

1 Petitioner’s statement in his petition that Berg intended

to impose a long-term suspension misrepresents the record.

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Petitioner’s due process rights. On September 13,2005, a manifestation determination meeting washeld with the IEP team, of which Petitioner and hisgrandmother were members. The team ultimately de-termined that Petitioner’s behavior was not a mani-festation of his disability. The IEP team discussed theneed for placing Petitioner into a different setting toreceive his education. The placement also addressedconcerns Petitioner’s guardian conveyed regardingsafety in the general classroom and a desire to notexpose Petitioner to further confrontation. LucasTranscript- App. 17-18. Petitioner explained his viewof the events. Lucas Transcript - App. 16-17. AI-though the IEP team discussed a mandated, or uni-lateral, removal of Petitioner by staff into an interimalternative educational setting for 45 days under theIndividuals With Disabilities Education Act (IDEA),20 U.S.C. §§ 1400 et seq., they determined that thechange of placement to the alternative high schoolwould be a more appropriate option. During theSeptember 13th IEP team meeting, Lucas asked thegrandmother whether she was agreeable to Petitionergoing to an after-school program as resolution of thesituation. The grandmother agreed with that plan.Pet. App. 62, 64, 65, 68. Lucas and Petitioner’sgrandmother discussed that Petitioner’s math, sci-ence, and geography would be provided at the alter-native school, and that he would also receive specificone-on-one study. The change of placement, as it wasreferred to throughout the meeting, was noted on themanifestation determination documentation as achange of placement due to a weapon.

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Petitioner was initially suspended on September9, 2005. On September 13, 2005, his IEP team unan-imously determined that there would be a changeof placement, which would effectuate an end to hissuspension and begin instead a new educationalplacement. Between September 14, 2005, and Novem-ber 3, 2005, Petitioner, pursuant to the IEP team’sdetermination, received access to the general curricu-lum and met the goals and objectives of his IEP. Inmid-September 2005, Petitioner’s grandmother de-manded that Petitioner be returned to the classroom.Berg responded to the grandmother’s demand, clarify-ing that Petitioner was not on suspension, and thatalthough he was suspended on September 12th, it wasthe consensus of the IEP team at the IEI? manifesta-tion determination meeting on September 13th thathe be placed in the After-School Program, and thatthe suspension given on September 12th was consid-ered as having ended on the date Petitioner’s place-ment was changed. Therefore, since the IEP teamchanged the status from a suspension to an IEP place-ment, there was no long-term suspensio~L in effect soas to require a due process hearing before the schoolboard.

At an IEP meeting held October 12, 2005, theIEP team reviewed what had transpired at the Sep-tember 13th IEP meeting. Lucas thoroughly reviewedwith the grandmother and the rest of the IEP teamthe parental rights handbook, the manifestationdetermination, and the alternative educational set-ting sections. Lucas went over the matter with thegrandmother, who was accompanied by advocates

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and was open about asking questions, and gave noindication she did not fully understand the discus-sion. The IEP team agreed that it would meet againin several weeks to discuss the behavior rating scalesand develop an appropriate transition for Petitionerback into the Todd County High School. Upon theagreement of the IEP team, Petitioner was transi-tioned from the alternative school to the Todd CountyHigh School on November 3, 2005. In late November,he was suspended for ten days for fighting, and wassubsequently removed from the Todd County HighSchool by his family in early 2006.

ARGUMENT

During voluntary mediation engaged in by theparties at the district court level, Petitioner agreed toa stipulation for entry of judgment that effectivelywaived his right to file a petition for writ of certiorariin this Court. Therefore he has waived such right andthe petition should be dismissed.

The decision below does not conflict with a deci-sion of this Court or any court of appeals, nor does itimplicate a federal question that has not been decidedby this Court. Accordingly, Petitioner has not carriedhis burden of demonstrating any "compelling reasons"for the Petition to be granted. See Sup. Ct. R. 10.

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I. Petitioner has waived his right to file apetition for writ of certiorari with thisCourt.

The parties agreed to entry of a money judgmentin United States District Court in order to terminatethe trial court phase of this litigation. As true in mostsuch situations the agreement involved give and takeby all parties. The district court plaintiff (Petitionerherein) obtained a money judgment without addi-tional expense and risk. He further obtained theguarantee that i~f the district court judgment wasaffirmed by the court of appeals the specified amountwould be paid and the litigation would be concluded.The district court defendants (Respondents herein)retained their right to appeal the finding of liabilityonly to the court of appeals. In the event of eitheroutright affirma~Lce or reversal the parties expresseda clear agreement that the "game would be over" andthe litigation would be concluded.

Paragraph 5(ii) of the stipulation clearly andunequivocally stated that in the event of reversal bythe court of appeals " ... the case shall be dismissedwithout any payment on the part of Defendants ortheir insurers." Stipulation for Entry of Judgment -App. 3, ~I 5.

Consent to an execution of the stipulation consti-tutes a clear and unequivocal waiver of Petitioner’sright to file a petition for writ of certiorari in thiscourt.

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In Goodsell v. Shea, 651 F.2d 765 (United StatesCourt of Customs and Patent Appeals 1981), the courtgranted a motion to dismiss an appeal based onwaiver. The court recognized:

"It is common practice for parties in litiga-tion to agree among themselves to be boundby the determination of a specific tribunaland not to prosecute an appeal." Id. at 651F.2d 765, 767.

The Court in Shea went on to discuss the policyissues involved in enforcing such waivers:

"In light of the public policy mandate thatdisputing parties should be encouraged toresolve their disputes through negotiationrather than litigation, and, furthermore,should have a right to control their own liti-gious destinies to the extent of deciding notto pursue appellate review by accepting thedecision of a specified tribunal as final andtherefore avoiding protracted litigation in-volved in an appeal, agreements not to ap-peal should not be simply ignored." Id. at 651F.2d 765, 767.

The Court acknowledged that agreements bar-ring appellate review are enforced by the greatweight of authority throughout state and federal jur-isdictions. Citing United States Consolidated SeededRaisin Co. v. Chadctock & Co., 173 F. 577 (9th Cir.1909).

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The Goodsell court ultimately enforced the waiv-er made by the parties in the court below:

"In light of the above, this court will not ig~nore an agreement not to appeal where aclear mutual intent not to appeal is shownand the agreement is made part of the recordbelow."

In the present action the parties for mutuallyvalid consideration, agreed to limit rights of appeal soas to only permit the defendants (Respondents here-in) to appeal the district court’s finding of liability tothe court of appeals. In the event of either outrightaffirmance or reversal by the court of appeals, thelitigation was to be concluded. That intent was madeperfectly clear in both the stipulation for entry ofjudgment (App. 1-4) and on the record at the con-clusion of the mediation session. Transcript -App. 8-12.

The Sixth Circuit Court of Appeals addressed asimilar situation in Lybarger v. Hauck, 793 F.2d 136(6th Cir. 1986). In Lybarger the parties had agreedthat a district court’s decision as to the recovery andpayment of attorney’s fees would be final and non-appealable. When one of the parties attempted todisavow the agreement the Lybarger court stated:

"In this case, the parties entered into a set-tlement agreement which expressed a clearintent to end all litigation concerning thisage discrimination action. The first page ofthe consent decree states: ’Whereas, the par-ties, being desirous of settling these matters

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without further litigation, have agreed to thefollowing terms and conditions ....’ (Empha~sis added.)

Accordingly, when the parties could not agreeas to the amount of attorney’s fees, theysubmitted the matter to the district court fora final and non-appealable determination.Consequently, we hold that Plaintiff waivedher right to appeal any district court decisionregarding the amount of attorney’s fees re-gardless of whether the Plaintiff’s counselrendered the legal services in the underlyingage discrimination action, in the preparationof the original application for attorney’s fees,or in defense of that application." Lybargerat 138.

The present case is remarkably similar. Theparties expressed their desire to end what had beentime consuming and expensive litigation, agreed tothe entry of a judgment and agreed to the eventualoutcome of the litigation dependent on certain contin~gencies in the court of appeals. Petitioner now seeksto disavow that agreement.

Paragraph 5(ii) of the stipulation for entry ofjudgment clearly states that if the court of appealsreverses the United States District Court and ordersthat judgment in favor of defendants be entered thenthe case".., shall be dismissed without any paymenton the part of the defendants or their insurers."Stipulation for Entry of Judgment, App. 3. The stip-ulation was simply an agreement to dismiss theaction in the court below upon the occurrence of a

contingency. That contingency occurred. Petitionerhas waived his right to file a petition in this Court fora writ of certiorari and the petition should be dis-missed.

II. Petitioner, who agreed to placementthrough an individualized education pro-gram (IEP) is barred from asserting aclaim for violation of his civil rights byalleging that the agreed upon IEP place-ment constituted a constructive long-termsuspension.

A. Under the facts of this case, the ac-tions of Petitioner’s IEP team endedthe short-term suspension imposed bythe school principal,

Petitioner, in a convoluted argument, asserts theIEP team did not have the legal power to end Peti-tioner’s suspension because his guardian did notconsent to a long-term suspension, and then proceedsto assert that the IEP team ordered Petitioner’sexclusion from the high school. Petitioner misrepre-sents the lower court’s ruling, the facts in this case,and the law.

Petitioner attempts to convince this Court thatPetitioner’s guardian did not consent to the place-ment change by his IEP team. The record, however,reflects that Petitioner’s guardian agreed, on severaloccasions, with the IEP team’s plan for Petitioner’seducational placement in the alternative setting. As a

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result of that consent, the IEP team, and not theschool board, became the decision-maker authorizedto make any further changes to Petitioner’s place-ment. 34 C.F.R. § 300.530(d)(5).

The record strongly supports that it was theintent and understanding of all involved that Peti-tioner’s suspension ended upon the IEP team’splacement. It was discussed at the September 13,2005, IEP meeting that Petitioner would no longer besuspended. Petitioner testified that he understoodhe was under a change of placement, not a long-term suspension. Petitioner’s guardian wrote absencenotes to excuse Petitioner from attendance at thealternative school during that period of time. Further,the school’s attendance record clearly reflects thatit considered Petitioner’s suspension concluded onSeptember 13, 2005, and that on September 14, 2005he was again attending school at the alternative highschool pursuant to the IEP team’s placement into thealternative setting.

The purpose of Petitioner’s IEP plan was to keephim in school to work on issues that had been identi-fied in a prior behavior plan. Petitioner had a historyof disciplinary events, and had received numerous in-school and out-of-school suspensions, as recently asearlier in that same school year, and the IEP team

felt placing him in the alternative school was neces-sary in order for him to receive an education. LucasTranscript -App. 14-15. During the September 13thmeeting, the IEP team determined that the best op-tion for Petitioner was to enroll him in the alternative

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school. Petitioner and his guardian were present, andparticipated in and understood the IEP team’s deci-sion. Lucas Transcript -App. 15-17.

Upon conclusion of the September 13th manifes-tation meeting, Lucas informed Berg that Petitionerwas no longer suspended and that his educationalplacement had been changed. Petitioner was notsubjected to a long-term suspension as he contends,and as a result he cannot meet the threshold re-quirement for his allegation that he was deprived of adue process hearing.

B. The court of appeals’ ruling does notconflict with this Court’s decision inHonig v. Doe.

Petitioner further fails to establish that the lowercourt’s ruling conflicts in principle with the Court’sholding in Honig v. Doe, 484 U.S. 305 (1988). Thistangential policy argument by Petitioner miscon-strues Honig. Petitioner cites directly to footnote 8 inHonig, and represents to this Court that Honig heldthat when a disabled student is suspended for morethan ten school days, the suspension constitutes achange of placement under federal special educationlaw. Petitioner’s argument is mistaken on a numberof levels, and when Honig is correctly analyzed, it isapparent that the court of appeals’ decision in thiscase does not conflict in any respect with Honig.

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Petitioner attempts to take language from Honigoutside of the limited context of the exigency argu-ment that was then before this Court. In Honig, thisCourt considered whether a dangerousness or exigen-cy exception existed to the stay-put provisions of 20U.S.C. § 1415(e)(3).2 The Court ruled that even wherea disabled student presented a danger to other stu-dents, the plain language of the section prevented aschool from removing a child from the school without

the permission of the parent or until resolution by ahearing officer. Honig, 484 U.S. at 323. The HonigCourt determined Congress intended to strip schoolsof the unilateral authority they had traditionallyemployed to exclude disabled students from school.Id. Honig simply does not stand for the propositionthat when a student with a disability is placed intoan alternative educational setting by that student’sIEP team, and with the consent and agreement ofthat child’s parent or guardian, that a due processhearing before the school board is implicated for the"change of placement." Petitioner is incorrect in hisimprecise assertion that because the Court in Honigstates in footnote 8 that "a suspension in excess of 10days does constitute a prohibited ’change in place-ment,’" a change in placement for more than ten daysconstitutes a "suspension." Honig simply does notstand for that proposition.

2 The stay-put provision assessed in Honig is now codified

as 20 U.S.C. § 1415(j).

2O

Honig addressed a unilateral action by theschool, i.e., one taken without the agreement of thestudent’s parent. In contrast, Petitioner’s guardianactively participated in and consented to the deter-mination of his placement in the Todd County SchoolDistrict’s After-School Program as the most appro-priate location for him to receive his education.Petitioner strains to transform the narrow ruling ofHonig (that Congress did not intend a dangerousnessexception to the stay-put provisions of the IDEA) intoone that an IEP team, with the consent of the stu-dent’s parent, may not place that student into theeducational setting the IEP team determines best forthe student. The lower court’s ruling in this matterdoes not conflict with the ruling in Honig.

III. The Eighth Circuit’s ruling does not abro-gate the IDEA, does not conflict with statedue process laws, and does not deprive aclass of individuals of equal protection ordue process.

A. IDEA.

Petitioner’s argument that the lower court’s rul-ing somehow abrogates IDEA is dependent upon anerroneous interpretation of 20 U.S.C. § 1415(k)(1)(C).

Petitioner insists that because there was a "no mani-festation" finding by the IEP team, the school boardwas granted authority over the situation. Petitioner’sargument mistakenly interposes into the statute theconcept of a mandate where discretionary authority isset out.

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The subject language states that where behavioris determined not to be a manifestation of the child’sdisability, "the relevant disciplinary procedures appli-cable to children without disabilities may be appliedto the child in the same manner and for the sameduration in which the procedures would be applied tochildren without disabilities." 20 U.S.C. § 1415(k)(1)(C)(emphasis added). A clear reading of the section -"may be applied" - is that it allows the application ofthe same disciplinary procedures applicable to chil-dren without disabilities to discipline a disabledchild. The plain language of the section simply doesnot mandate that course, however. As this Court hasrecognized, "It]he word ’may’ customarily connotesdiscretion." Jama v. Immigration and Customs En-forcement, 543 U.S. 335, 346 (2005) (citing Haig v.Agee, 453 U.S. 280, 294, n.26 (1981)); see also Ash-land School Dist. v. Parents of Student E.H., 583F.Supp.2d 1220, 1226 (D.Or. 2008) (noting use ofword "may" rather than "shall" denotes denial ofreimbursement in IDEA is discretionary). Such dis-cretion by the student’s IEP team is consistent withthe balance of IDEA; certainly if Congress had in-tended a mandatory imposition of disciplinary proce-dures in the same manner as for children withoutdisabilities, it would have used the word "shall" asit did in numerous other portions of the IDEA. Peti-tioner’s argument that disciplinary procedures ap-plicable to children without disabilities "shall" beapplied must fail.

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The lower court was correct when it observedthat under IDEA the IEP team "could have let schoolofficials apply generally applicable disciplinary pro-cedures and suspend [Petitioner] ’in the same mannerand for the same duration in which the procedureswould be applied to children without disabilities,’"thus recognizing the discretionary language of 20U.S.C. § 1415(k)(1)(C). Further, any unique circum-stances may be considered on a case-by-case basiswhen determining whether to order a change in place-ment; here, the IEP team’s decision took into consid-eration Petitioner’s 2004 Behavioral InterventionPlan and determined a change of placement, not asuspension from school, was in his best interest. 20U.S.C. § 1415(k)(1)(A). The clear language of IDEAdoes indeed allow the IEP team to address Peti-tioner’s situation, in the manner in which it did,which the lower court correctly recognized. The IDEAleft "[t]he primary responsibility for formulating theeducation to be accorded a handicapped child, and forchoosing the educational method most suitable to thechild’s needs ... to state and local educational agen-cies in cooperation with the parents or guardian ofthe child." Bd. of Educ. of Hendrick Hudson CentralSch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). ThusPetitioner fails to establish a reason whatsoever thathis petition should be granted.

B. State due process laws.

In a similarly mistaken argument, Petitionerasserts that the lower court abrogated and nullifiedstatutory powers of a school board when ruling that

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the IEP team, and not the school board, had controlover the situation, and that in doing so the lowercourt committed plain error. Petitioner’s argument isagain wholly dependent upon his misinterpretation of8 1415(k)(1)(C). Relying upon SDCL 88 13-32-4 and13-32-4.2, Petitioner claims the court of appeals abro-gated and nullified state law that sets out authorityof school superintendents regarding disciplinarymatters and authorizes school boards to hear a stu-dent’s appeal of a long-term suspension or expulsion.Once again, Petitioner fails to establish any basis forfiling his petition.

The crux of Petitioner’s argument is, in essence,that SDCL 88 13-32-4 and 13-32-4.2 trump the IDEA.Rather, the court below recognized that when astudent is on an IEP, pursuant to the IDEA, a sepa-rate set of procedural processes are called into play.Honig, 484 U.S. at 311 (noting procedural safeguardsunder IDEA that guarantee an opportunity for mean-ingful input into all decisions affecting their child’seducation and the right to seek review of any decisionthey think inappropriate).

The South Dakota state laws Petitioner refer-ences remain effective to authorize superintendentsand school boards regarding procedures on studentsuspensions. However, those statutes do not addressthe matters implicated by the more specific languageof IDEA as to matters of a student on an IEP, andwhich grant authority to the IEP team regardingplacement and educational decisions of a student on

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an IEP. The lower court properly applied the IDEA inthis matter.

Petitioner’s attempt to alarm this Court by hisunfounded accusation that the lower court’s decisionamounts to blatant federal court nullification of statelaw should be flatly rejected, as Petitioner was notstripped of any right, and instead was provided the

additional procedural safeguards under IDEA. This isalso not a situation where the lower federal courtexpressly ruled state statutes unenforceable, as was

the situation before this Court in Leavitt v. Jane L.,518 U.S. 137 (1996). Here, a school board’s authority

to act pursuant to those South Dakota statutes re-mains soundly in effect.

Petitioner’s argument further ignores Petitioner’sguardian’s active participation in his IEP team andagreement to the placement and handling of Petition-er’s matter. The administrative procedures underIDEA provide the process intended for such a matter.3

There is no conflict with or nullification of state lawto support granting the petition for writ of certiorari.

~ The record establishes that in 2004, Petitioner and hisguardian availed themselves to the IDEA hearing process,appealing a decision to an IDEA mediation proceeding; thus,Petitioner and his guardian were well aware of the process.

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C. The court of appeals’ decision does notresult in a deprivation of equal pro-tection or due process for disabledstudents.

Petitioner contends that the lower court’s rulingsomehow deprives all students with disabilities of dueprocess rights. Petitioner’s argument is founded onthe false premise that he was subjected to a long-term suspension. Because that premise is false, hisentire argument fails. Without a constitutional rightto a hearing, there can be no deprivation of a rightwhen such a hearing is not provided. The IDEA"establishes various safeguards that guarantee par-ents both an opportunity for meaningful input into alldecisions affecting their child’s education and theright to seek review of any decisions they thinkinappropriate." Honig, 484 U.S. at 311. Petitioner andhis guardian agreed with and consented to thechange of placement to an alternative educationalsetting; that change was not unilateral, as was theissue addressed in Honig, and did not affect or con-tinue a period of suspension.

Petitioner was not deprived of constitutionallysufficient notice and due process hearing before theschool board. Threshold to that issue is whether aconstitutional deprivation occurred; there must firstbe an unconstitutional act. Baker v. McCollan, 443U.S. 137, 140 (1979). Where there is no violation of aplaintiff’s rights under the Constitution, there can beno liability under 42 U.S.C. § 1983. In this matter,as set out above, Petitioner was not subjected to a

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long-term suspension, and thus was not deprived ofhis constitutional right to a public education withoutdue process of law.

"The ’free appropriate public education’ requiredby [IDEA] is tailored to the unique needs of thehandicapped child by means of an ’individualizededucation program’ (IEP)." Rowley, 458 U.S. at 181.The IEP is a specialized course of instruction that"must be developed for each disabled student, takinginto account that child’s capabilities." Gill v. Co-lumbia 93 Sch. Dist., 217 F.3d 1027, 1034 (8th Cir.2000) (citing 20 U.S.C. § 1414(d)(1)(A)). South Dakotalaw also mandates evaluation and placement pro-cedures, which includes an IEP team. See ARSD24:05:25:04.03 (stating that upon completing requiredevaluation of student, "the individual educationprogram team and other qualified individuals re-quired by 24:05:25:04.02 shall determine whether thestudent is a student with a disability, and shalldetermine the educational needs of the child... ?’).The IEP is the governing document for all educa-tional decisions regarding the disabled student.Rodiriecus L. and Betty H. v. Waukegan Sch. Dist. No.60, 90 F.3d 249, 252 (7th Cir. 1996) (citing Honig, 484U.S. at 311). The ruling by the court below is con-sistent with that dictate; it is the IEP team, not theschool board, that is responsible for and has authorityover the educational decisions of a student on an IEP.See 20 U.S.C. § 1415(k)(2) (interim alternative edu-cational setting to be determined by student’s IEPteam). Petitioner’s assertion that the school board

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has the authority to overturn determinations of astudent’s IEP team is inconsistent with the intentand purpose of IDEA.

Further supporting that there are no compellingreasons for granting Petitioner’s petition for a writ ofcertiorari is the fact that Petitioner admitted to theacts that would have formed the basis for a long-termsuspension, had Petitioner in fact been subjected to

one. In order to establish a denial of procedural dueprocess, Petitioner must show he suffered substantialprejudice. Watson ex rel. Watson v. Beckel, 242 F.3d1237, 1242 (10th Cir. 20011; Keough v. Tate County

Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir. 1984).When a plaintiff has admitted unequivocally to theallegations, no substantial prejudice can be shownand no claim of due process violation may be made.See, e.g., Boster v. Philpot, 645 F.Supp. 798, 804 (D.Kan. 1986) (citing Black Coalition v. Portland Sch.

Dist. No. 1,484 F.2d 1040, 1045 (9th Cir. 1973) (rec-ognizing that by admitting underlying facts, theplaintiffs waived the right to a due process hearing)).Here, the record reflects that at the time of the eventsat issue, Petitioner admitted to fighting on schoolproperty and to having a knife at school thatwas "dangerous" and could have hurt or killed some-one. He further admitted that he knew, as of Septem-ber 8, 2005, that it was a violation of school policy tofight and to bring a weapon onto school premises.4

4 District’s disciplinary protocol identifies a number of acts asconduct which may result in short-term suspension, long-term

{Continued on following page)

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Accordingly, Petitioner unequivocally admitted to theactions and cannot establish substantial prejudice,and his procedural due process claim must fail.

In addition, the lower court also does not rulethat all "long-term" suspensions end upon a change ofplacement, as Petitioner alludes. Instead, in thissituation and upon the particular facts in this matter,including the consent of Petitioner and his guardianto the educational placement, Petitioner’s suspensionended upon his transfer by the IEP team into thealternative school. The lower court’s ruling does notcreate a new exception or in any respect conflict withIDEA. Petitioner does not establish a compellingreason for grant of his petition for writ of certiorari.

IV. Petitioner’s claimed injuries could havebeen remedied by an IDEA hearing.

Petitioner argues that he was not required toexhaust administrative remedies pursuant to 20U.S.C. § 1415(1) because an administrative hearingunder IDEA could not address his allegation of depri-vation of a due process hearing, and that resort tothose remedies would have been futile. He contends

suspension, or expulsion, and includes possession or use of adangerous weapon on school grounds. "Weapon" includes in itsmeaning a "device designed as a weapon that through its use iscapable of threatening or producing great bodily harm or death";for example, a knife. That the knife may not have met the deft-nition of a "dangerous weapon" under 20 U.S.C. § 1415(k)(1)(G)is of no relevance.

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now that his "chief complaint" was denial of a schoolboard hearing and that refusal of a school boardhearing caused him actual injury. Of note, Petitionerfails to also acknowledge that in his Complaint hetwice alleged deprivation of his right to education.Pet. App. 80, 83. Despite Petitioner’s argumentsthat his ease is about failure to receive a hearing tochallenge a long-term suspension, it is instead ines-capably a challenge to the educational placement ofPetitioner pursuant to the terms of IDEA. This asser-tion raises no "compelling reason" for the Petition tobe granted.

The correct inquiry is whether Petitioner’s griev-ance can be addressed in any degree by the adminis-trative process; if the answer is yes, or evenquestionable, administrative remedies must be ex-hausted. See Robb v. Bethell School District #403, 308F.3d 1047, 1050 (9th Cir. 2002) (holding that "when aplaintiff has alleged injuries that could be redressedto any degree by the IDEA’s administrative proce-

dures and remedies, exhaustion of those remedies isrequired."); Payne v. Peninsula Sch. Dist., 598 F.3d1123, 1127 (9th Cir. 2010) (noting that if the questionof whether plaintiff’s injuries could be redressed toany degree by the IDEA’s administrative proceduresis either yes or unclear, exhaustion is required.).The Robb court noted that its holding is stronglysupported by this Court’s decision in Booth v. Churn-

er, 532 U.S. 731 (2001) where that plaintiff arguedexhaustion of administrative remedies would be futilebecause he sought money damages, which were not

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available under the administrative grievance scheme.Robb, 308 F.3d at 1050-51 (citing Booth, 532 U.S. at734). But regardless of the exact statutory context,mandatory administrative processes must be ex-hausted, even if tl~e precise relief sought is not avail-able in the administrative venue. Robb, 308 F.3d at1051. The Robb court rejected the plaintiff’s assertionthat the administrative processes under IDEA did notgrant the relief sought. Id. If a plaintiff’s allegedinjuries can be redressed to some degree by theadministrative procedures and remedies of IDEA,then exhaustion of administrative remedies is re-quired. Id. at 1054. Otherwise, plaintiffs could cir-cumvent administrative procedures merely by askingfor relief that an administrative authority cannotgrant. Polera v. Bd. of Educ. of the Newburgh En-larged City School Dist., 288 F.3d 478, 487 (2nd Cir.2002); see also Hope v. Cortines, 872 F.Supp. 14, 17(E.D.N.Y. 1995) (a plaintiff "cannot escape IDEA’sexhaustion requirement by drafting a complaint art-fully avoiding an IDEA claim where IDEA offersplaintiffs the very relief they seek"), aff’d, 69 F.3d 687(2nd Cir. 1995). "Under the IDEA, educational profes-sionals are supposed to have at least the first crack atformulating a plan to overcome the consequences ofeducational shortfalls." Polera, 288 F.3d at 488.

Petitioner’s grievance centers around an allegedfailure to provide him with appropriate educationalservices, and those very assertions were argued tothe lower court; indeed, the district court’s decisionwas dependent upon an alleged failure to provide

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adequate education, which it deemed to amount to a"constructive" suspension. Pet. App. 27-28. Those griev-ances could at a minimum be addressed "to somedegree" under IDEA. 20 U.S.C. §.1415(b)(6); 20 U.S.C.§ 1415(k)(3)(A). Accordingly, Petitioner here cannotescape the requirement of exhaustion of administra-tive remedies or "opt out" of that requirement bycreative pleading.

V. Amici curiae’s motion for leave to file andbrief should be denied.

A motion for leave to file and brief as amici curiaein support of Petitioner has been submitted to thisCourt as well. That motion should not be grantedbecause 1) the petition for writ of certiorari itselfshould not be allowed because Petitioner waived hisright to appeal; 2) amici bring nothing to the atten-tion of this Court that Petitioner has not alreadybrought forward; and 3) because amici rely on signifi-cant misrepresentation or misapprehension of thefacts of this matter, it is of no assistance to this Courtand would only burden the Court.

It is evidence of the duplicity of amici’s submis-sion that their assertions have been addressed in thisOpposition. In summary, amici’s arguments are alldependant on the erroneous assumption that a sus-pension of more than ten days occurred; amici’s argu-ments surmise incorrectly that Petitioner was subjectto a unilateral change of placement, when in factPetitioner and his guardian participated in and

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agreed with that decision of his IEP team; and be-cause of those two errors, amici’s assertions as to thelower court’s ruling conflicting with Goss v. Lopez5

and Honig v. Doe fail. Amici grossly misstate therecord, as the actions of the IEP team were foundedupon the best educational setting for Petitioner, not"purely a punitive discipline action" as amici prepos-terously accuses. Amici’s tale of possible misapplica-tion by future courts of the Eighth Circuit’s decisionbelow could be argued about any lower court decision.Here, the lower court ruled soundly that the Petition-er failed to avail himself of the proper procedures andfailed to exhaust his administrative remedies. Amiciprovide no authority to this Court, nor could they, fortheir position that the school board would haveauthority to override the decision of the IEP team asto Petitioner’s educational placement. Amici simplyparrot the Petitio~Ler and add nothing to this Court’sreview; instead, amici are redundant and burden-some. As no basis has been raised to justify thisCourt’s review, amici’s motion should be denied.

CONCLUSION

Petitioner waived his right to appeal the decisionof the Eighth Circuit Court of Appeals, and the peti-tion for writ of certiorari may properly be dismissedon that basis alone. In addition, the decision below

419 U.S. 565 (1975).

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does not conflict with a decision of this Court or anycourt of appeals, nor does it implicate a federal ques-tion that has not been decided by this Court. Accord-ingly, Petitioner has not carried his burden of demon-demonstrating any "compelling reasons" for thePetition to be granted. The motion for leave of amicito file and brief and the petition for a writ of certiora-

ri should be denied.

Respectfully submitted,

RICHARD P. TIESZEN*

TIESZEN LAW OFFICE, PROF. L.L.C.

PO Box 550Pierre, SD 57501-0550

(605) 224-1500Counsel for Todd County School District

ROBERT B. ANDERSON

MAY, ADAM, GERDES ~ THOMPSON LLP

PO Box 160Pierre, SD 57501-0160

(605) 224-8803Counsel for Respondents Michael V. Berg,Victoria Sherman and Richard Bordeaux

*Counsel of Record