United States District Court, E.D. Kentucky, Central Division at Lexington
ANGELA F. SOUTHERN, on behalf of minor child, N.S., Plaintiff,
FAYETTE COUNTY PUBLIC SCHOOLS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
On May 29, 2014, pro se Plaintiff Angela Southern submitted materials which were docketed as a Complaint, naming the Fayette County Public Schools, Tom Shelton, Superintendent of the Fayette County Public Schools, Kathy Dykes, the Special Education Director with the Fayette County Public Schools, and the Kentucky Department of Education as defendants. Southern asserts that her minor child (referred to as "N.S.") has been diagnosed with autism, epilepsy, and moderate mental retardation. Through the materials filed with the Court, Southern seeks to assert a claim for monetary damages based on allegations that the school system denied certain educational benefits to N.S. [Record No. 1] More specifically, Southern's hand-written Complaint asserts that the school system: (i) denied N.S. a free appropriate public education ("FAPE"); (ii) failed to implement the child's Individual Educational Plan ("IEP"); (iii) failed to educate N.S. for six years; and (iv) failed to provide special transportation to N.S. In addition to these claims, Southern alleges that "the privacy act was also violated with the Lexington Herald-Leader on the internet when a news article was published about special transportation regarding child and mother."
On June 23, 2014, the defendants jointly moved the Court to dismiss the Complaint filed on behalf of N.S. [Record No. 5] Although the defendants have not been served, they claim that their motion will protect the interests of the minor child under the Individuals with Disabilities Education Act ("IDEA") and in light of the three-year statute of limitations provided by KRS § 157.224(6). The defendants assert that, "immediate action by the Court is necessary to consider the arguments raised [in their motion] and to take such action as is deemed appropriate to protect the interests of N.S., including by dismissing this action so that Southern can initiate whatever administrative claim is deemed appropriate to assert claims on behalf of N.S. in the appropriate forum." [ Id., p. 3] The defendants also argue that the Complaint should be dismissed because Southern may not proceed pro se on behalf of her daughter, FERPA does not provide a private cause of action, and the administrative remedies provided under IDEA have not been exhausted. [ See Record No. 5-1]
A. The IDEA
As an initial matter, the defendants assert that dismissal of claims asserted under the IDEA is mandated either by Rule 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. Statutory language of the act relevant to the defendants' argument provides:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(l). The defendants contend that, regardless of whether this language is viewed as setting out a jurisdictional prerequisite, dismissal is appropriate. They argue that even under a Rule 12(b)(6) analysis, the plaintiff's claims should be dismissed because: (i) Southern may not proceed in a pro se capacity on behalf of N.S. because no claims under the IDEA are asserted on behalf of Southern and (ii) Southern may not proceed pro se on behalf of N.S. to prosecute other claims.
As a general rule, individuals who are not attorneys may not represent others in a pro se capacity. But as an exception to this rule, parents may proceed pro se on behalf of themselves and their child under the IDEA. Winkelman v. Parma City School District, 550 U.S. 516 (2007). In Winkleman, the Court held that parents who had proceeded without counsel during an administrative proceeding should not be barred from continuing to assert rights in federal court under the IDEA once the administrative proceeding has ended. Id. at 526. This is because the IDEA creates rights for parents which are intertwined with the substantive rights of the child. Id. at 531.
Unlike the facts presented in Winkleman, Southern does not attempt to assert claims on her own behalf. Instead, she attempts to assert claims only on behalf of N.S. Thus, the limited exception to the general rule regarding pro se litigants is inapplicable here. Accordingly, the Court concludes that Southern may not proceed in a pro se capacity in which she seeks solely to vindicate the rights of N.S. under the IDEA.
B. The Family Educational Rights and Privacy Act
While the Family Educational Rights and Privacy Act ("FERPA") imposes privacy requirements on educational agencies and institutions as a condition for those entities to receive federal funding, the act does not create private causes of action. Gonzaga University v. Doe, 536 U.S. 273 (2002). Further, the non-disclosure protections under FERPA are limited to institutional policies or practices that violate rather than "individual instances of disclosure." Id. at 288 (citing 20 U.S.C. §§ 1232g(b)(1)-(2)). The applicable sections of FERPA only contemplate denying funding to educational agencies that "ha[ve] a policy or practice of permitting the release of education records" or identifying information from education records. Id. (quoting 20 U.S.C. §§ 1232g(b)(1)-(2)).
Here, Southern asserts that certain individuals at her child's school violated privacy rights by posting comments in response to an article on the website of the Lexington Herald-Leader newspaper. She does not allege that the defendants promoted any type of online commenting policy or practice that violated N.S.'s privacy, as would be required under Gonzaga University. Id. Further, the Complaint does not allege that the online article or comments disclosed any education documents or any identifying information from such documents. Because the Complaint alleges violations only on the basis of individual instances of online comments and not institutional policies or practices, Southern does not state a viable cause of action under FERPA. Therefore, her claims under FERPA will be dismissed.
C. Exhaustion of Administrative Remedies
The IDEA allows a party to bring civil action but not until the administrative procedures set out in §1415(f) and §1415(g) are exhausted. 20 U.S.C. § 1415(l). These procedures include an impartial due process hearing and an appeal of the decisions arising from that hearing. Id. § 1415(f), (g). If the alleged injury is of the type that could be redressed by these administrative procedures, a plaintiff is required to exhaust these procedures under these sections of the IDEA. S.E. v. Grant County Bd. Of Educ., 544 F.3d 633, 642-43 (6th Cir. 2008) (citation omitted). Kentucky has similar provisions for an administrative hearing and appeal set out in KRS 157.224 and 707 KAR 1:340 §§ 8-12. However, the state complaint process does not afford a plaintiff all of the protections outlined in 20 U.S.C. § 1415, including the right to confront and cross-examine witnesses or the compilation of a comprehensive administrative record. ...