United States District Court, W.D. Michigan, Southern Division
Paul L. Maloney Judge.
REPORT AND RECOMMENDATION
Kent United States Magistrate Judge.
matter is now before the Court on a motion for summary
judgment and to dismiss filed by defendants (ECF No. 17).
plaintiffs in this case are Robert Lang, Susan Lang, and
Anastasia Lang. Plaintiffs Robert Lang and Susan Lang
(sometimes referred to as the “Parents”) are the
father and mother of Anastasia Lang (sometimes referred to as
the “Student”). Compl. (ECF No. 1, PageID.1). The
defendants are the Oakridge Public Schools (sometimes
referred to as the “District”), the Oakridge
Public Schools Board of Education, James McVoy (an
administrator of the District's education programs and
services), and Kurt Kiesgen (a teacher and athletic coach at
the District). Compl. at PageID.4-5.
Anastasia Lang was 19 years old when the complaint was filed.
Id. at PageID.3. She “has been diagnosed with
an autism spectrum disorder and other mental and emotional
health issues which significantly limit her ability to
communicate, learn, concentrate and self-advocate, and/or is
regarded as having such impairments.” Id.
While Anastasia attend school in the District, plaintiffs
engaged in “protected activity, ” seeking
educational planning, supports, accommodations, and
modifications to help her achieve equal access to the
education environment. Id. at PageID.5. The
“recommended supports and modifications needed”
for Anastasia included sensory integration tools and
accommodations, such as a “safe space” accessible
to her at all times to reduce stimuli in order to prevent or
manage anxiety and sensory overload. Id. Plaintiffs
allege that defendants discriminated against Anastasia by:
denying her the opportunity to participate in or benefit from
educational opportunities and services; providing her with an
opportunity to participate or benefit that was unequal to
that provided to others who did not suffer from sensory
integration dysfunction, autism spectrum disorder, and
emotional impairments; providing a benefit or service that is
not as effective as that provided to other students;
providing lower quality benefits, services or programs than
those provided to others; and/or providing different or
separate benefits or services than those provided to others.
Id. at PageID.5-6.
claim that defendants did not comply with their
responsibilities under Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §12203
and 28 C.F.R. §35.134 and Section 504 of the
Rehabilitation Act of 1973 (“Section 504”), 29
U.S.C. § 794(a) and 29 C.F.R. § 33.13, “to
make accommodations and modifications to address the needs of
the Student and other students with disabilities.”
Id. at PageID.6. In addition, “[t]he benefits
or services provided to [Anastasia] were not equally
effective as those provided to other students as they did not
afford [her] an equal opportunity to obtain the same result,
gain the same benefit, or reach the same level of achievement
as other students.” Id. Defendants also used
discriminatory policies, practices and procedures which
discriminated against students with disabilities or had the
effect of “defeating or impairing accomplishment of the
objectives of the education program in regard to students
with disabilities.” Id. Defendants also
discriminated against Anastasia with policies, practices and
procedures “regarding [her] movement in the building
and access to accommodations and modifications, as well as
regarding discipline for alleged violations of rules resulted
in discrimination against [her] and other students with
disabilities, subjecting her to punishment for attempting to
access accommodations and modifications and then prohibiting
access to needed accommodations and modifications during the
disciplinary process.” Id. at PageID.6-7.
also “engaged in prohibited retaliation and
discrimination by mocking, harassing, and punishing
[Anastasia] when she attempted to access the agreed upon
sensory tools and accommodations and by preventing her from
accessing a ‘safe space' when needed and as agreed
upon.” Id. at PageID.7. In this regard,
Anastasia “was formally disciplined on at least two
occasions for attempting to access accommodations and
alleged that defendants' retaliatory action was
sufficient to deter a person of ordinary firmness from
exercising his or rights. Id. In this regard,
Anastasia “struggled to be present in the school
environment, ” “often ended up having to leave or
not attending school at all, ” and “experienced
extreme anxiety, fear, and depression as a result of the
hostile environment at Oakridge, leading to increased
self-injurious behaviors and suicidal thoughts, ideations,
and behaviors.” Id. Plaintiffs alleged that a
causal connection existed between the protected activity and
the retaliatory action “based on an unusually
suggestive temporal proximity between the protected activity
and the retaliatory action, and/or a pattern of antagonism
contemporaneous to the actions which the Langs [the Parents]
were taking to secure and enforce [Anastasia's] rights
under state and federal law.” Id.
¶¶ 33-37 of their complaint, plaintiffs set forth
the actions which they took with respect to defendants:
33. Because of the severity of the harassment and
discrimination, Plaintiffs removed Student from Oakridge
schools during the 2015-16 school years. During that time,
Student attended a virtual academy and failed to earn credits
needed to advance from grade to grade and toward obtaining a
high school diploma.
34. Plaintiff Student returned to Oakridge schools in the
fall of 2016, but continued to experience discrimination and
harassment. Plaintiffs filed a civil rights complaint on or
about January 17, 2017.
35. That OCR complaint was resolved on or about October 2,
2017 through a voluntary Resolution Agreement with the
District. Plaintiffs did not agree to this resolution, which
required the District to convene an IEP team meeting no later
than December 15, 2017 to review provision of services and
supports and to consider and provide compensatory education
not later than February 16, 2018.
36. Oakridge convened an IEPT meeting as agreed, but did not
provide real consideration to services, supports or
compensatory education and determined that no compensatory
education was due to Student.
37. As a result of the continued hostility, harassment,
denial of access and opportunity, Student left Oakridge in
fall of 2017 and enrolled in an adult education program in a
neighboring district where she continues to be enrolled and
receive education services.
Id. at PageID.8.
complaint consists of two counts. In Count I, plaintiff
Anastasia Lang claims damages for discrimination “Based
on disability and denial of equal opportunity and access to
appropriate educational services, as guaranteed by Title II
of the Americans with Disabilities Act, 42 U.S.C. §
12132 and 28 C.F.R. § 35.130 (ADA) and Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) and
34 C.F.R. § 104 (Section 504).” Id.
PageID.9 (emphasis omitted). Specifically, plaintiffs allege
that defendants discriminated against Anastasia:
a. By failing to fully acknowledge and provide appropriate
accommodations for Student's sensory and emotional needs;
b. By failing to implement the agreed upon educational plan
or to provide services and supports needed; [and]
c. By failing to provide needed accommodations and
modifications and preventing Student's equal access and
opportunity to benefit from educational benefits and
services, including her ability ...