HOUSTON – A federal court in Houston has ordered that a lawsuit from a nonprofit organization advocating for the rights of the disabled against Klein Independent School District’s superintendent and the former president of its board of trustees may proceed in its entirety.
In a judicial order dated Aug. 6, U.S. District Court for the Southern District of Texas Judge Alfred H. Bennett gave the green-light for Disability Rights Texas’s claims brought under the Developmental Disabilities Assistance and Bill of Rights of 2000 Act, the Protection and Advocacy for Individuals with Mental Illness Act and the Protection and Advocacy of Individual Rights Act (the P&A Acts) to proceed, versus Klein Independent School District Superintendent Jenny McGown and former Board of Trustees President Rob Ellis.
(Prior claims made against the District itself were voluntarily dismissed in an amended complaint filed Sept. 25, 2023, and per Bennett, current Board of Trustees President Cathy Arellano will be substituted for Ellis, for consideration of the claims at issue.)
The P&A Acts seek to protect and advocate for people with disabilities and mental illnesses. In order to accomplish this objective, the P&A Acts offer states funding to assist with establishing a protection and advocacy system for individuals with mental illnesses and disabilities. But to receive funding, states are required to establish a protection and advocacy organization, like [plaintiff] DRTx, which is independent from state agencies that provide treatment or services to individuals with disabilities or mental illnesses.
“Here, DRTx contends that pursuant to its authority under the P&A Acts, it sought to access schools in the Klein Independent School District (KISD), but KISD has used ‘unnecessary and unreasonable delay tactics’ to thwart DRTx’s access. DRTx asserts that KISD has segregated campuses, such as the Therapeutic and Readiness Center (TRC), which serve students with disabilities. DRTx received information and complaints alleging that these KISD campuses are ‘overly restrictive environments’ that pose a ‘substantial risk’ of physical and emotional abuse or mistreatment to children with disabilities. DRTx also claims that students receive inadequate services from special education behavior programs on KISD’s campuses,” Bennett said.
“Concerned that these complaints had merit, DRTx emailed the attorneys representing KISD and Jenny McGown, KISD’s Superintendent, on March 16, 2023, to schedule a tour of the TRC campus, in accordance with its authority under the P&A Acts. After not receiving a response, DRTx once again emailed opposing counsel on March 21 to schedule a campus visit. KISD and McGown’s attorneys replied, denying DRTx access to the campus based on their belief that DRTx sought to monitor the campus to bolster discovery in a pending, separate litigation between the parties. Throughout April and early May, DRTx sent additional notices attempting to schedule a visit to the TRC campus, as well as visits to six other KISD schools that have special education behavior programs that serve students with disabilities and behavioral difficulties. On May 5, 2023, opposing counsel stated that DRTx did not have federal authority to monitor ‘traditional schools,’ seemingly in reference to the six additional schools that DRTx mentioned. KISD and McGown’s attorneys also reiterated their concern that DRTx would improperly use information obtained from its visit to the campuses in the parties’ other litigation. In subsequent emails regarding the campus visits, KISD and McGown’s attorneys allegedly stated that KISD ‘has policies regarding who can access and when and as things stand right now, DRTx does not have that permission.’
On May 15, 2023, the parties conferred telephonically and seemed to reach an oral agreement that would allow DRTx to monitor the campuses so long as those DRTx attorneys who were engaged in the other litigation against KISD did not participate in the visit, and information obtained during the monitoring would remain confidential. However, that agreement fell through.
In early June 2023, the parties were still communicating about an appropriate time to visit the campuses. Because it was now the summer, DRTx sought to determine which KISD campuses would be serving students with ‘extended school year services.’ In mid-June, DRTx learned that the TRC campus would offer extended school year services in July, so DRTx requested July 18, 2023, as the date to monitor the campus. July 18 did not work, so the parties continued to confer throughout the month of July on a possible date.
“On Aug. 11, 2023, DRTx filed this lawsuit against KISD and McGown. KISD and McGown jointly moved to dismiss DRTx’s complaint, arguing that only the KISD Board of Trustees can adopt policies regarding access to school campuses. Meanwhile, DRTx continued to confer with Mr. Eric Nichols, opposing counsel, about the visits. Mr. Nichols asserted that he also represents the Board of Trustees. As such, DRTx asked that he notify the Board of Trustees of its plan to access and monitor the campuses. Then, days later, Mr. Nichols allegedly retracted his statement regarding his representation of the Board of Trustees and stated that if DRTx wanted to correspond directly with the Board, it could. As such, DRTx notified the KISD Board of Trustees about its six-month interaction with KISD and McGown’s counsel regarding the campus visits and the delay tactics used, which DRTx alleges violated the P&A Acts,” Bennett continued.
“On Sept. 15, 2023, two DRTx staff members monitored the TRC campus. At the conclusion of their visit, they stated that they were going to go monitor special education classrooms at Benfer Elementary School, but when they arrived, a KISD police officer allegedly refused to let them access the campus. The officer also allegedly issued the DRTx staff members verbal criminal trespass warnings, which banned them from accessing any KISD premises under a threat of arrest and criminal prosecution. DRTx once again reached out directly to the Board of Trustees regarding its attempts to visit the campuses, but DRTx was allegedly told by another attorney representing KISD and McGown that DRTx could not communicate directly with the Board of Trustees. The attorney stated that the same attorneys who represent KISD and McGown also represent the Board of Trustees.”
Bennett added that on Sept. 25, 2023, DRTx amended its complaint, which is the operative pleading before the Court. In its amended complaint, DRTx sued (1) McGown in her individual and official capacity for violating the P&A Acts; (2) McGown in her official capacity for violating 42 U.S.C. Section 1983; and (3) then-president of the Board of Trustees Rob Ellis, in his official capacity for violating Section 1983.
Notably, the plaintiff dropped its claims directly against KISD in its amended complaint, but still seeks injunctive and declaratory relief against the defendants. The defendants then jointly moved to dismiss the amended complaint on Oct. 9, 2023, for failure to state a claim upon which relief could be granted.
“Quoting the Fifth Circuit, Defendants concede that the board of trustees has the final policymaking authority in an independent school district. As such, defendants assert that plaintiff’s Section 1983 claim fails because McGown, as KISD’s Superintendent, is simply a decision-maker and is not a policy-maker as required for municipal liability. But defendants misinterpret plaintiff’s arguments. Plaintiff does not assert that McGown created a policy that prohibited DRTx from accessing the KISD campuses. Instead, plaintiff alleges that the KISD Board of Trustees has a policy, presumably the ‘GKA – Community Relations: Conduct on School Premises,’ that allows district officials and school resource officers to refuse a person access to KISD property. As such, plaintiff has properly identified the policy-maker as the Board of Trustees, not McGown. Further, defendants completely ignore plaintiff’s Section 1983 claim against Arellano in her official capacity as President of the Board of Trustees. Plaintiff’s official capacity claim against Arellano is the same as plaintiff suing the Board of Trustees directly,” Bennett stated.
“Against Arellano, plaintiff similarly asserts that the Board of Trustees ‘has official policies regarding who can access KISD campuses’ and again names ‘GKA – Community Relations: Conduct on School Premises’ as the policy that ‘directly violates the P&A Acts by permitting defendant McGown to refuse DRTx reasonable unaccompanied access to KISD campuses.’ Moreover, in its recitation of the factual background of this case, plaintiff alleges that opposing counsel stated in an email that KISD ‘has policies regarding who can access and when and as things stand right now, DRTx does not have that permission.’ This further supports plaintiff’s claim that an official policy was the moving force behind the violations alleged here. Thus, plaintiff has properly alleged that the KISD Board of Trustees has an official policy that was the moving force behind defendants prohibiting DRTx from accessing and monitoring the KISD campuses, in violation of the P&A Acts. Accordingly, defendants’ motion to dismiss is denied as to this claim.”
As to official capacity claims against McGown and Arellano, and McGown’s individual liability for injunctive or declaratory relief, Bennett found that they too would survive the motion to dismiss.
“Next, defendants assert that plaintiff’s official capacity claims against McGown and Arellano should be dismissed because KISD is already a party to this suit, thus the official capacity claims are redundant. However, this argument fails because plaintiff does not assert any claims directly against KISD in its amended complaint. While plaintiff did assert claims against KISD in its original complaint, in its amended complaint, it abandoned those claims against KISD and instead asserted claims against McGown in her official and individual capacities and against Arellano in her official capacity. As such, defendants’ motion to dismiss is denied as to this claim,” Bennett said.
“Finally, defendants seek to dismiss plaintiff’s claim against McGown in her individual capacity, seemingly on the basis that Section 1983 does not permit injunctive relief against state officials in their individual capacity. Interestingly, however, plaintiff does not assert a Section 1983 claim against McGown in her individual capacity. The only claim that plaintiff brings against McGown in her individual capacity is for allegedly violating the P&A Acts. Because defendants seek to dismiss a claim that plaintiff did not even assert, defendants’ motion to dismiss is denied as to this claim.”
Bennett then denied the dismissal motion in its entirety.
“In conclusion, defendants’ motion to dismiss is hereby denied because plaintiff asserted sufficient factual allegations to support a municipal liability claim under Section 1983, plaintiff’s official capacity claims against McGown and Arellano are not redundant because KISD is no longer a party to this lawsuit, and plaintiff does not assert a Section 1983 claim against McGown in her individual capacity,” Bennett stated.
The plaintiff is represented by L. Kym Rogers, Shiloh Saint Edwards Carter and Beth L. Mitchell of Disability Rights Texas, in Dallas, Houston and Austin, respectively.
The defendants are represented by Charles Cory Rush and Jon Erik Nichols of Spalding Nichols Lamp Langlois, also in Houston.
U.S. District Court for the Southern District of Texas case 4:23-cv-02973
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com