A.W. v. The Jersey City Public Schools New Jersey Department of Education Jeffrey v. Osowski, Former Director, Division of Special Education Barbara Gantwerk, Director, Office of Special Education Programs Silvia Elias, Former. Executive Director of Pupil Personnel Services Priscilla Petrosky, Associate Superintendent for Special Education John Iwanowski Mary Hepburn Joan Edmiston Denise Braak Mary MacEachern Edward Fauerbach, Learning Disabilities Teacher-Consultants Norma Chrisomalis Gwendolyn Jackson Linda Colon Ronne Bassman William Ronzitti Roxanne Johnson, Supervisors of Special Education Sharnette Green, Teacher Melinda Zangrillo, Coordinator of Compliance Jane Doe and John Doe (1)-(5), All in Their Official and Individual Capacities. New Jersey Department of Education Jeffrey v. Osowski Melinda Zangrillo Barbara Gantwerk

In this appeal, we reexamine our holding in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), that an action can be maintained against school officials under 42 U.S.C. § 1983 for violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. We do so in light of the Supreme Court's reasoning in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005), regarding the availability of § 1983 to redress violations of federal statutory rights and the opinions of our sister courts of appeals that have questioned Matula.

The District Court, relying on Matula, held that the alleged violations of plaintiff's rights were actionable under § 1983 and denied defendants' motion for summary judgment on the ground of qualified immunity, concluding that plaintiff's cause of action could be maintained and there was sufficient evidence for a jury to find that defendants violated clearly established federal law. We will reverse.

In January 2001, A.W., a dyslexic former student of the Jersey City Public Schools ("JCPS"), filed this action in the United States District Court for the District of New Jersey. A.W. alleged that New Jersey officials failed to comply with federal law and, as a result, deprived him of a free, appropriate public education. In addition to suing JCPS and its officials, A.W. also brought claims against Barbara Gantwerk, Director of the Office of Special Education Programs for the New Jersey Department of Education ("NJDOE"), and Melinda Zangrillo, Coordinator of Compliance at NJDOE, in their personal capacities.1

With respect to Gantwerk and Zangrillo, A.W. asserted that, in response to his December 1997 complaint alleging that he had unidentified and untreated dyslexia, Gantwerk and Zangrillo conducted an inadequate investigation and provided no relief to A.W., despite ample evidence of A.W.'s disability. In A.W.'s amended complaint,2 he sought to hold Gantwerk and Zangrillo personally liable under § 1983 for violations of A.W.'s rights under the IDEA and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794.

Following the completion of all discovery other than expert depositions, defendants moved for summary judgment on numerous grounds, including qualified immunity and a challenge to the use of § 1983 to remedy the alleged violations of the IDEA and Section 504. On April 21, 2005, the District Court struck A.W.'s claim for declaratory relief and denied summary judgment to the defendants on all other bases. The Court found that the IDEA could be enforced through an action under § 1983 based on our decision in W.B. v. Matula, 67 F.3d 484, 494 (3d Cir.1995), wherein we specifically reasoned that § 1983 was available to redress a violation of a student's rights secured by the IDEA. The District Court also rejected defendants' argument that individuals could not be sued under § 1983 for alleged violations of the IDEA and Section 504 because these statutes impose liability only on entities that receive federal funding. Finally, the Court denied defendants qualified immunity because A.W. adduced sufficient proof that defendants had violated A.W.'s clearly established rights under the IDEA and the Rehabilitation Act. Gantwerk and Zangrillo now appeal.

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343. Its order denying qualified immunity comes to us as a "final" order for review under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (holding denial of claim of qualified immunity is appealable as a "final decision").

We will engage in plenary review of a district court's summary judgment ruling on qualified immunity, Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.), cert. denied, 543 U.S. 956, 125 S.Ct. 453, 160 L.Ed.2d 317 (2004), and apply the same summary judgment standard that guided the district court, Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir.2004). A party is entitled to summary judgment when it demonstrates that there is no genuine issue of material fact and that the evidence establishes its entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, we consider all evidence in the light most favorable to the party opposing the motion. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995).

A. Qualified Immunity for Statutory Violations

The first issue we confront is whether we should decide the availability of § 1983 relief for the alleged violations of A.W.'s statutory rights as part of the qualified immunity inquiry that is the basis for the appeal before us. We conclude we can, and should.

We have jurisdiction to decide this question because it arises in the course of our analysis of defendants' request for qualified immunity. Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), a court analyzing a claim of qualified immunity must first ask the "threshold" question: whether the facts alleged show that the official's conduct violated a constitutional right. Id. at 201, 121 S.Ct. 2151. If the plaintiff's allegations establish the violation of a constitutional right, the violation is necessarily actionable and the court can then proceed to the second inquiry in the Saucier analysis: whether the right was "clearly established."3 Id.

Violations of federal statutes, however, are not always actionable. See Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ("[O]fficials sued for violations of rights conferred by a statute or regulation . . . become liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages." (emphasis added)). Thus, the availability of § 1983 to remedy the alleged violations of A.W.'s statutory rights is part and parcel of our "threshold" inquiry into defendants' qualified immunity defense.4 This inquiry parallels the constitutional or "threshold" inquiry in the Saucier two-part qualified immunity analysis applied to constitutional claims.5 See Brosseau v. Haugen, 543 U.S. 194, 198 n. 3, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (labeling the first inquiry in Saucier two-step analysis as the "constitutional question").

In fact, we cannot imagine a qualified immunity inquiry involving statutory rights that does not include an inquiry into the availability of relief and the existence of a cause of action along with an inquiry into the existence of the violation itself. This would be a useless act. We cannot conceive of why we should subject the state actors here to a trial when the right of the plaintiff to sue is questionable. It makes little or no sense.6 The privilege of qualified immunity is "effectively lost if a case is erroneously permitted to go to trial." Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

Here, the District Court followed our decision in Matula, where we held that violations of IDEA-created rights are actionable under § 1983.7 Matula, 67 F.3d at 494. Concluding that it was bound by Matula to so rule, the District Court noted that "only one judicial body is able to overrule Third Circuit precedent, and this Court is not it." A.W. v. Jersey City Pub. Schs., No. 01-140, slip op. at 14 (D.N.J. Apr.21, 2005). In light of the recent, clear guidance provided by the Supreme Court in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005), regarding the availability of § 1983 to remedy statutory violations, and the well-reasoned opinions of the Courts of Appeals for the Fourth and Tenth Circuits in Sellers v. School Board of Manassas, Virginia, 141 F.3d 524 (4th Cir.1998), and Padilla v. School District No. 1, 233 F.3d 1268, 1273 (10th Cir.2000), rejecting our holding in Matula, we now conclude that we should not continue to adhere to the principle we established in Matula.

Matula involved the precise issue before us: can school officials be sued pursuant to § 1983 based on alleged violations of a child's rights secured by the IDEA. In addressing this question, we strove to determine Congress' intent, noting the distinction regarding the use of § 1983 to redress statutory, rather than constitutional, violations:

When the rights at issue are statutory, however, a § 1983 action is impermissible when "Congress intended to foreclose such private enforcement." Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). Such an intent is generally found either in the express language of a statute or where a statutory remedial scheme is so comprehensive that an intent to prohibit enforcement other than by the statute's own means may be inferred. Id.

Matula, 67 F.3d at 493.

In Matula, we concerned ourselves with the jurisprudential and legislative directives regarding the availability of relief for IDEA violations. We noted that in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court held that the IDEA8 provided the exclusive means by which parents and children could remedy violations of the rights guaranteed therein, and that no constitutional claim would be therefore allowed. Id. at 1012-13, 104 S.Ct. 3457. In Smith, the plaintiff sought to bring a § 1983 claim for violation of his constitutional rights and a claim under Section 504 of the Rehabilitation Act, both based on conduct that also allegedly violated the plaintiff's rights under the IDEA. Id. at 1003, 104 S.Ct. 3457. The Court held that, although the plaintiff could have brought a § 1983 or Section 504 claim to remedy injuries not cognizable under the IDEA, an action under the IDEA was the exclusive means to seek redress for injuries actionable thereunder. Id. at 1009, 104 S.Ct. 3457. However, in response to this decision, Congress enacted § 1415(l) of the IDEA, to countermand Smith and make clear that actions can be maintained under the Constitution or under federal laws protecting the rights of children with disabilities notwithstanding the fact that the IDEA also protects these rights. This provision reads:

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, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except 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) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

In an attempt to ascertain the significance of Congress' addition of this provision, we reviewed its legislative history in some detail:

The Senate Report [on § 1415(l)] discussed Smith at length, including quoting favorably from the Smith dissent, see S.Rep. No. 99-112, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1799 ("Senate Report"). The House Conference Report stated "[i]t is the conferees' intent that actions brought under 42 U.S.C.1983 are governed by [§ 1415(l)]." H.R.Conf.Rep. No. 99-687, 99th Cong., 2d Sess. (1986); 1986 U.S.C.C.A.N. 1807, 1809. In addition, the House Report made explicit that "since 1978, it has been Congress' intent to permit parents or guardians to pursue the rights of handicapped children through EHA, section 504, and section 1983 . . . . Congressional intent was ignored by the U.S. Supreme Court when . . . it handed down its decision in Smith v. Robinson." H.R.Rep. No. 99-296, 99th Cong., 1st Sess. 4 (1985) ("House Report") (first emphasis added). Section 1415(l)] was thus enacted to "reaffirm, in light of [Smith], the viability of section 504, 42 U.S.C 1983, and other statutes as separate vehicles for ensuring the rights of handicapped children." Id.

Id. at 494. In Matula, we concluded that "[f]ar from inferring a congressional intent to prevent § 1983 actions predicated on IDEA then, we conclude that Congress explicitly approved such actions." Id.

Also underlying our ruling in Matula was the Supreme Court's statement in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), that "we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise." Given this presumption, we searched for some "clear direction" in the text or history of the IDEA indicating that we were to limit the relief available and, finding none, we held that:

the traditional presumption in favor of all appropriate relief is not rebutted as to § 1983 actions to enforce IDEA. Defendants have identified no "clear direction" in the text or history of IDEA indicating such a limitation, and indeed there is strong suggestion that Congress intended no such restriction. Certainly the plain language of § 1983 authorizes actions at law or equity, and our prior holding in Diamond compels the conclusion that, as a matter of law, an aggrieved parent or disabled child is not barred from seeking monetary damages in such an action.

Id. at 495. We should note that we were not alone in this view at the time, as we cited to numerous other courts' opinions that approved § 1983 actions to enforce IDEA rights. See id. (collecting cases).

However, following Matula, reasonable minds have differed as to the correctness of our interpretation of the congressional reaction to Smith v. Robinson embodied in § 1415(l). In addition, over the past decade, the Supreme Court has further refined its guidance as to how we should decide whether § 1983 relief is available for violations of statutory rights, most recently in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). All of these developments since Matula have informed our analysis in a way that requires us to reconsider our view.

The Courts of Appeals for the Fourth and Tenth Circuits have taken issue with our reading of § 1415(l) and discernment of Congress' intent in enacting it. They note that the provision does not refer to § 1983; rather, it focuses on substantive rights.10 In Sellers v. School Board of Manassas, Virginia, 141 F.3d 524 (4th Cir.1998), and Padilla v. School District No. 1, 233 F.3d 1268, 1273 (10th Cir.2000), the Courts of Appeals for the Fourth and Tenth Circuits, respectively, challenged our analysis of the congressional enactment of § 1415(l) in reaction to Smith. In Sellers, the Fourth Circuit Court of Appeals concluded that a "closer reading" of the new provision "reveals no intent that parties be able to bypass the remedies provided in IDEA by suing instead under Section 1983 for an IDEA violation." 141 F.3d at 530. Deciphering § 1415(l), the court noted that it specifically refers to the preservation of remedies available under the Constitution, the Rehabilitation Act, and "other statutes protecting the rights of disabled children." Section 1983 "speaks generally and mentions neither disability nor youth." Id. The court concluded:

By preserving rights and remedies "under the Constitution," section 1415[(l)] does permit plaintiffs to resort to section 1983 for constitutional violations, notwithstanding the similarity of such claims to those stated directly under IDEA. But section 1415[(l)] does not permit plaintiffs to sue under section 1983 for an IDEA violation, which is statutory in nature. Nothing in section 1415 [(l)] overrules the Court's decision in Smith to the extent it held that Congress intended IDEA to provide the sole remedies for violations of that same statute.

Id. (internal citations omitted). The court further disagreed with the notion that the legislative history reveals the requisite intent to permit § 1983 suits merely because § 1983 is referred to in the House Reports. Id. at 531. The court concluded that insofar as one of the specific substantive provisions preserved in § 1415(l) is the Constitution, it was not surprising that the legislative history referenced § 1983, which provides a vehicle for redressing violations of constitutional rights. Id. "When construed in their most natural form, the excerpts demonstrate the unremarkable proposition that Congress intended section 1415[(l)] to restore the ability of disabled children and their parents or guardians to utilize section 1983 to protect constitutional rights." Id.11

In Padilla, the Court of Appeals for the Tenth Circuit noted that the issue had created a circuit split. Padilla, 233 F.3d at 1273 (comparing Sellers with Matula and Marie O. v. Edgar, 131 F.3d 610, 620-22 (7th Cir.1997)). The court agreed with the reasoning in Sellers that subsequent amendments to the IDEA "left intact Smith's implication that the [IDEA] may not provide the basis for § 1983 claims." Id. The court also noted that the Supreme Court had twice since the passage of § 1415(l) referenced the IDEA as an example of a legislative enforcement scheme that precludes a § 1983 remedy. Id. (citing Blessing v. Freestone, 520 U.S. 329, 347-48, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423-24, 427, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). Thus, the court in Padilla not only disagreed with our view of § 1415(l), but also our view that there was no apparent limitation on the availability of relief for violations of the IDEA by way of § 1983.

Were we deciding this case in the year 2001, after these courts had voiced their disagreement with Matula, we might be conflicted as to whether to revisit the issue. On the one hand, the Courts of Appeals for the Fourth and Tenth Circuits offered the convincing arguments, noted above, as to how Congress' enactment of § 1415(l) did not provide for § 1983 as a remedial tool here, and as to how our analysis with respect to the availability of relief in Matula was incomplete in light of other Supreme Court cases. On the other hand, several other courts had expressed views similar to ours in Matula, or had assumed § 1983 to be available.12 While the former may have tipped the scales somewhat towards rethinking Matula even then, the Supreme Court's discussion of the availability of § 1983 as a vehicle for redressing violations of federal statutory rights in Rancho Palos Verdes, 544 U.S. 113, 125 S.Ct. 1453, has tipped them definitively, and we are now convinced that our ruling in Matula is no longer sound.

Rancho Palos Verdes, 544 U.S. 113, 125 S.Ct. 1453, is the most recent Supreme Court pronouncement on the availability of § 1983 to redress violations of federal statutes, and it provides the best guidance in this area. It is interesting to note what had, and had not, been said by the Supreme Court about the use of § 1983 prior to Rancho Palos Verdes, and prior to Matula. It is also interesting to note that Franklin, the case we relied upon so heavily in Matula, was not a § 1983 case at all; rather, it focused on whether damages could be recovered in an action to enforce Title IX. Thus, the idea that "we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise," Franklin, 503 U.S. at 66, 112 S.Ct. 1028, was not a concept developed in the Supreme Court's § 1983 jurisprudence.

The Supreme Court held many years before Matula that violations of certain federal statutory rights are actionable under § 1983. See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Then, in 1987, the Supreme Court decided in Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), that the administrative enforcement scheme of the Housing Act did not demonstrate that Congress had specifically foreclosed a remedy under § 1983 for the alleged violations of that statute. In so doing, the Court rejected the notion that the Department of Housing and Urban Development had the exclusive power to enforce the benefits due housing project tenants. It noted that in two cases the Court had found "an intent to foreclose resort to § 1983" where there was a "comprehensive remedial scheme provided by Congress, a scheme that itself provided for private actions and left no room for additional private remedies under § 1983":

In [Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)], an intent to foreclose resort to § 1983 was found in the comprehensive remedial scheme provided by Congress, a scheme that itself provided for private actions and left no room for additional private remedies under § 1983. Similarly, Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3469, 82 L.Ed.2d 746 (1984), held that allowing a plaintiff to circumvent the Education of the Handicapped Act's administrative remedies would be inconsistent with Congress' carefully tailored scheme, which itself allowed private parties to seek remedies for violating federal law.

479 U.S. at 423,