J.M. By & Through Mata v. Tn Dept. Of Educ.

• Decision Date: 12 December 2018
• Docket Number: Case No. 3:17-cv-00405
• Citation: 358 F.Supp.3d 736
• Parties: In the Matter of J.M., BY AND THROUGH His Parent, Promise MATA, Plaintiff, v. TENNESSEE DEPARTMENT OF EDUCATION, Tennessee State Board of Education, and Dickson County School District, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

358 F.Supp.3d 736

In the Matter of J.M., BY AND THROUGH His Parent, Promise MATA, Plaintiff,

v.TENNESSEE DEPARTMENT OF EDUCATION, Tennessee State Board of Education, and Dickson County School District, Defendants.

Case No. 3:17-cv-00405

United States District Court, M.D. Tennessee, Nashville Division.

Signed December 12, 2018

Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC, Chattanooga, TN, for Plaintiff.

Colleen E. Mallea, Matthew D. Janssen, Michael Markham, Tennessee Attorney General's Office, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Pending before the court is a Motion for Summary Judgment (Docket No. 64) filed by the Tennessee Department of Education ("TDOE") and Tennessee State Board of Education ("Board") (collectively, "State Defendants"), to which J.M., by and through his parent, Promise Mata, has filed a Response (Docket No. 78), and the State Defendants have filed a Reply (Docket No. 81), to which J.M. has filed a Surreply (Docket No. 86). For the reasons stated herein, the State Defendants' motion will be granted in part and denied in part.

I. BACKGROUND

A. Tennessee's Acceptance of IDEA Funds and Enactment of SEBSA

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. ,"offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education’—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Sch. , ––– U.S. ––––, 137 S.Ct. 743, 748, 197 L.Ed.2d 46 (2017) (citing 20 U.S.C. §§ 1401(3)(A)(i), 1412(a)(1)(A) ). Tennessee has participated in the IDEA since its early years. See Clevenger v. Oak Ridge Sch. Bd. , 573 F.Supp. 349, 349 (E.D. Tenn. 1983) (applying Act's predecessor in Tennessee), rev'd on other grounds , 744 F.2d 514 (6th Cir. 1984).

On July 2, 2007, TDOE then-Commissioner Lana Seivers received a letter from Acting Director Patricia J. Guard of the U.S. Department of Education's Office of Special Education Programs ("OSEP"), giving Commissioner Seivers the presumably welcome news that the OSEP had approved the State of Tennessee's request for IDEA funding for the upcoming federal fiscal year. Letter from Patricia J. Guard, Acting Director, OSEP, to Lana Seivers, Director, TBOE (July 2, 2007) ("2007 Award Letter").¹ Commissioner Seivers and her predecessors had received similar letters each year for many years. See 2002 Award Letter–2006 Award Letter. Enclosure A of the 2007 Award Letter included a list of thirty "Assurances" to which Tennessee agreed in exchange for federal funds. 2007 Award Letter, encl. A ("2007 Assurances"). Assurance 1, unsurprisingly, was that a FAPE "is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled." 2007 Assurances at II-2.

As of the date of the 2007 Assurances, a FAPE was defined as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency ;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9) (2007) (emphasis added). It was, by then, well settled in the Sixth Circuit that, pursuant to § 1401(9)(B), the IDEA "incorporates state law pertaining to educational rights of [disabled] children," and, therefore, "a school district [that] complies with federal law...may still violate the Act if it fails to satisfy more extensive state protections that may also be in place." Thomas v. Cincinnati Bd. of Educ. , 918 F.2d 618, 620 (6th Cir. 1990) ; see also Doe ex rel. Doe v. Bd. of Educ. of Tullahoma City Sch. , 9 F.3d 455, 457 (6th Cir. 1993) (acknowledging rule in Tennessee case but holding that the particular provision at issue did not impose a more stringent standard than the IDEA).

Against this backdrop, the Tennessee General Assembly, in May of 2008, enacted the Special Education Isolation and Restraint Modernization and Positive Behavioral Supports Act ("SEIRMPBSA"), 2008 Tenn. Pub. Acts, ch. 1063. SEIRMPBSA set forth rules for the use of isolation, restraint, and positive behavioral supports in Tennessee schools, in particular with regard to special education. Among its stated purposes were "[t]o ensure that every student receiving special education services is free from the unreasonable, unsafe and unwarranted uses of isolation and restraint practices" and "[t]o ensure that teachers of students receiving special education services are properly trained to protect the student, teacher and others from physical harm, if isolation or restraint is necessary." Id. § 2(1), (4).

In 2008, with SEIRMPBSA on the books, Tennessee again sought and received federal funding under the IDEA. Assurance 1 remained the same, and, indeed, it has remained the same every year since, with Tennessee assuring OSEP, each year, that it would ensure that every Tennessee child from ages 3 to 21 would receive a FAPE, as defined by the IDEA. 2018 Assurances at II-1; 2017 Assurance at II-1; 2016 Assurance at II-1; 2015 Assurance at II-1; 2014 Assurance at II-1; 2013 Assurance at II-2; 2012 Assurance at II-2; 2011 Assurance at II-2; 2010 Assurance at II-2; 2009 Assurance at II-2; 2008 Assurance at II-2. Throughout that time, the statutory definition of "FAPE" has continued to include the requirement that, to qualify as a FAPE, a student's special education and related services must comply with both the minimum standards set forth by federal law and any supplemental state special education standards. 20 U.S.C. § 1401(9).

In 2011, SEIRMPBSA was modified and superseded by the Special Education Behavior Supports Act ("SEBSA"), which retained SEIRMPBSA's purposes but replaced several provisions and added others. 2011 Tenn. Pub. Acts, ch. 457, codified at Tenn. Code Ann. § 49-10-1301 to -1307. Tennessee has continued to accept federal funds and assure the federal government that every qualifying child receives a FAPE. 2018 Assurances at II-1.

B. Dickson County School District's Treatment of J.M.

J.M. is a student in the Dickson County School District ("DCSD"). It is undisputed that J.M. has multiple disabilities—including autism

, intellectual disability, obsessive compulsive disorder, anxiety, and attention deficit hyperactivity disorder—which entitle him to a FAPE under the IDEA. (Docket No. 12 ¶ 9.) In 2010, J.M. began attending DCSD's White Bluff Elementary School as a kindergartener. (Docket No. 67-2 (Promise Mata Deposition) at 79.) By the end of J.M.'s third grade year, he had begun exhibiting what White Bluff personnel described as "aggressive behavior towards staff and peer[s]" and "elopement issues." (Id. ex. 19.) At the time, teachers identified J.M.'s aggressive behaviors as occurring, on average, twelve times per day and sometimes as many as over eighty times in a single day. (Id. ) He was referred for a functional behavioral assessment, and, by fifth grade, he was receiving speech/language therapy, occupational therapy, and applied behavior analysis therapy. (Id. ) He continued to exhibit aggressive behaviors, including screaming, kicking, throwing objects, spitting, and head butting. (Id. )

White Bluff made a number of efforts to address J.M.'s behavior, including referring him to a behavior interventionist, who sought to develop coping strategies for him. (Id. at 13–14, ex. 19.) Although J.M. experienced some improvement, Ms. Mata and the other members of J.M.'s individualized education program ("IEP") team² agreed, in February 2016, that White Bluff could not provide the resources, environment, and services necessary for J.M.'s needs. (Id. at 14, ex. 22.) They decided to transfer him to New Directions Academy ("NDA"), a school within the DCSD characterized as having a "behavior first" approach. (Id. ) The purpose of transferring J.M. to NDA was to put him in an environment with more behavioral supports, including a one-on-one aide to work with him throughout the day. (Id. at 187–90.) Once J.M. was at NDA, his IEP team formulated a new IEP that took his new environment into account for the remainder of the fifth grade year and carrying into his sixth grade year. (Id. at 186–87.)

J.M., however, continued to exhibit aggressive and disruptive behavior. His teachers attempted, when possible, to respond to those behaviors with de-escalation techniques, such as offering him sensory toys or giving him the opportunity for a break from the other children. (Docket Nos. 65 at 6, 67-3 (Jeremy Howell Deposition) at 24.) Sometimes, however, de-escalation was ineffective, or J.M's behavior was so dangerous or disruptive that it required an immediate, more decisive response to ensure the safety of all involved. NDA has documented a number of instances during the 2016-17 school year when school personnel used restraint on J.M. in response to his most dangerous behaviors. (Docket No. 67-19.) NDA's reports on the incidents describe J.M.'s being restrained after slapping, pinching, kicking, biting, and scratching NDA staff. (Id. at 4, 6, 8, 10, 12.) The uses of restraint that were documented mostly lasted only a few minutes, and the reports show that Ms. Mata was informed of the use of the restraint after school for each of the uses documented. (Id. at 3, 5, 7, 9, 11.) The Complaint filed in this case does not take issue with any of these uses of restraint.

However, J.M., through Ms. Mata, alleges that, in addition to the properly documented uses of restraint, NDA also repeatedly, during the 2016–17 school year, subjected J.M. to undocumented isolations in a manner that violated both the substantive and procedural guarantees of SEBSA. The State Defendants concede that, in at...