Liva v. Northside Indep Sch

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2001
• Docket: 00-50908
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50908 Summary Calendar

DEBRA LIVA, as next friend of her minor son, Jeremy Pedro Liva,

Plaintiff-Appellant,

versus

NORTHSIDE INDEPENDENT SCHOOL DISTRICT; ET AL.,

Defendants,

NORTHSIDE INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-972 -------------------- June 15, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Debra Liva (“Liva”) appeals the grant of summary judgment

for the Northside Independent School District (NISD) in her

action brought pursuant to the Individuals with Disabilities

Education Act (IDEA), on behalf of her son Jeremy Liva

(“Jeremy”). Liva raises numerous issues for appeal, which are

addressed in turn.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50908 -2-

Liva contends that NISD violated the IDEA by failing to

provide her with records related to Jeremy’s education and by

failing to provide her with five school days’ notice of an

admission, review, and dismissal board (ARD) meeting. A

plaintiff may receive nominal damages for a violation of the

IDEA’s procedural requirements, even if no prejudice resulted

from the violation. See Salley v. St. Tammany Parish Sch. Bd.,

57 F.3d 458, 466 (5th Cir. 1995)(affirming award of nominal

damages for procedural noncompliance). The IDEA provides that

parents be given the opportunity “to examine all records relating

to such child[.]” 20 U.S.C. § 1415(b)(1).

The administrative record indicated, and the parties do not

dispute, that Liva was not given some of Jeremy’s records until

the due process hearing was underway. The state hearing officer

found that Liva was not prejudiced by the nondisclosure of

records relevant to Jeremy. Because Liva may be entitled to

nominal damages for NISD’s failure to comply with the IDEA’s

disclosure requirement, the judgment is VACATED and the case is

REMANDED as to Liva’s nondisclosure contention.

Neither the IDEA nor the regulations implementing it

requires five school days’ notice before an individualized

educational program (IEP) conference, though the IDEA does

require five business days’ notice before a due process hearing.

20 U.S.C. § 1414(f)(2)(A); see § 1415(b)(3)(requiring prior

written notice; providing no specific period); 34 CFR

§ 300.345(a)(1)(requiring notice to parents early enough to give

them an opportunity to attend; providing no specific period). No. 00-50908 -3-

Nor does the Texas Education Code require five school days’

notice before an IEP conference. TEX. EDUC. CODE ANN.

§ 29.005 (Vernon supp. 2001). Liva’s contention that NISD

violated the IDEA by failing to give her five school days’ notice

therefore is unavailing.

diagnose Jeremy as emotionally disturbed (ED) in 1999. Jeremy

was diagnosed as ED in 1996 by a private physician. The 1999

comprehensive individual assessment (CIA) performed by an

interdisciplinary team was thorough, and a witness at Liva’s due

process hearing testified that it was acceptable. Liva has

failed to present evidence calling the 1999 CIA into question.

NISD was entitled to judgment as a matter of law on Liva’s ED

contention.

Liva contends that the NISD failed to provide Jeremy an

adequate education or comply with the IEP by dropping grades of

zero to establish a passing grade in science; by sending him to

the behavioral intervention center (BIC) for missing a pencil or

paper; by sending him to the content mastery center (CMC) instead

of providing the appropriate assistance in a regular classroom;

by employing an inadequate dyslexia reading program; by failing

to modify Jeremy’s work requirements as required by the IEP; by

failing to completely eliminate any problems Jeremy is not

required to do rather than mark through them; and by not lowering

standards for Jeremy so he may participate in extracurricular

activities. Liva argues that use of the CMC violated the IDEA’s No. 00-50908 -4-

requirement that students be educated in the least restrictive

environment (LRE).

Liva offers no legal arguments to support any of her

contentions other than her contention that use of the CMC

violated the LRE requirement. She has failed to brief those

contentions for appeal. Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Liva did not raise her CMC/LRE contention in her state

administrative proceedings. She has failed to exhaust her

administrative remedies, and her contention was subject to

dismissal on that ground. Gardner v. Sch. Bd. Caddo Parish, 958

F.2d 108, 111 (5th Cir. 1992); 20 U.S.C. § 1415(l). Moreover,

the IDEA and its accompanying regulations indicate that use of

the CMC, a supplemental service, in conjunction with regular

classroom placement did not violate the LRE requirement as a

matter of law. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R.

§ 300.551(b)(2). Finally, regarding Liva’s CMC/LRE contention,

the administrative record established that Jeremy needed

assistance that could not be given in a general education

classroom. The record established that NISD was entitled to

judgment as a matter of law on Liva’s CMC/LRE contention.

Finally, Liva contends that the state hearing officer should

have recused herself because she was tired when conducting the

hearing. Liva makes no legal argument to support her contention;

she has failed to brief the contention for appeal. Brinkmann,

813 F.2d at 748.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.