Ga. Advocacy Office v. Georgia

• Decision Date: 19 March 2020
• Docket Number: Case No. 1:17-cv-03999
• Citation: 447 F.Supp.3d 1311
• Parties: The GEORGIA ADVOCACY OFFICE, et al., Plaintiffs, v. State of GEORGIA, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

447 F.Supp.3d 1311

The GEORGIA ADVOCACY OFFICE, et al., Plaintiffs,

v.State of GEORGIA, et al., Defendants.

Case No. 1:17-cv-03999

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 19, 2020

Anna Krieger, Pro Hac Vice, Center for Public Representation, Northampton, MA, Craig Lewis Goodmark, Goodmark Law Firm, Christopher G. Campbell, DLA Piper US LLP, Atlanta, GA, Jessica C. Wilson, Matthew Iverson, DLA Piper LLP (US), Boston, MA, Mark J. Murphy, Maura M. Klugman, Ira A. Burnim, Pro Hac Vice, Bazelon Center for Mental Health Law, Alison N. Barkoff, Pro Hac Vice, Center for Public Representation, Shira Tamar Wakschlag, Pro Hac Vice, The Arc of the United States, Washington, DC, Ryan S. MacPherson, Pro Hac Vice, DLA Piper LLP, San Diego, CA, Devon Orland, Leslie K. Lipson, Georgia Advocacy Office, Inc., Decatur, GA, for Plaintiffs.

Alexa Roberta Ross, Joseph Harris Saul, Joshua Barrett Belinfante, Kimberly K. Anderson, Robbins Ross Alloy Belinfante Littlefield, LLC, Atlanta, GA, for Defendants.

ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

Advocacy organizations for individuals with disabilities sued the State of Georgia and public officials in Georgia for violating Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ; and the Equal Protection Clause of the Fourteenth Amendment. (Dkt. 1.) Defendants moved to dismiss. (Dkt. 46.) The Court denies Defendants' motion.

I. Background

Georgia sends some students with learning disabilities to classrooms specifically designed for their needs. This program is called the Georgia Network for Education and Therapeutic Support ("GNETS") Program. Plaintiffs allege GNETS unnecessarily removes students from general education classrooms, leading to stigmatization and a poor education. Plaintiffs seek relief under the ADA, Section 504 of the Rehabilitation Act of 1973, and the 14th Amendment of the U.S. Constitution.¹

A. Overview and Selection into GNETS

GNETS is a state program designed for students between ages three and twenty-one with behavioral needs. (Dkt. 1 ¶ 2.) Through this program, students attend separate classrooms and schools designed to meet their needs. (Id. ¶ 5); Ga. Comp. R. & Regs. § 160-4-7-.15(1). The State of Georgia establishes the criteria for placing students in GNETS. (Dkt. 1 ¶ 4.) Originally designed for students with Emotional Behavioral Disorder, the program now extends to students unable to succeed in the traditional classroom because of their behavior. See Ga. Comp. R. & Regs. § 160-4-7-.15(2)(a) (stating GNETS includes "students with disabilities" who "exhibit intense social, emotional and/or behavioral challenges with a severity, frequency, or duration such that the provision of education and related services in the general education environment has not enabled him or her to benefit educationally based on the IEP"); (Dkt. 1 ¶ 86.)

Individual Education Plan ("IEP") Teams determine a student's eligibility for GNETS. Ga. Comp. R. & Regs. §§ 160-4-7-.15(3)(a), 4(a), 5(b). An IEP Team is a group including the child's parents, a regular education teacher, a special education teacher, and a representative of the Local Education Association. Id. §§ 160-4-7-.06(5)(a)–(g). Before the IEP team places a student in GNETS, the IEP team must show the school has tried intermediate steps — called Less Restrictive Placements — and those steps did not work. Id. § 160-4-7.15(3); Ga. SBOE R. 160. The IEP team then determines what the student needs to meet the federal baseline standard for the student's education, called a Free and Appropriate Public Education ("FAPE"). Ga. SBOE R. 160-4-7.06. The IEP team next determines where the child can get a FAPE. For instance, the student may succeed with more support (like particularized teaching strategies or constant personal adult supervision) in the classroom or with part of the day in a different classroom. The most restrictive setting is residential placement, which places students in a residential program. See Ga. Comp R. & Regs. 160-4-7.15(2)(a). GNETS, essentially a separate school, is an intermediate option before residential placement and after traditional classroom options. Id.

B. Control of GNETS

Georgia's Constitution grants authority "to county and area boards of education to establish and maintain public schools within their limits." Ga. Const. Art. VIII, Sec. V. (1983). The State, however, has some control over GNETS through its duty to create regulations and fund the program. For instance, the Georgia Department of Education ("GDOE") passes regulations on GNETS' operation. See Ga. Comp. R. & Regs. 160-4-7.15. The GDOE also grants GNETS funding to local fiscal agents. See Ga. Comp. R. & Regs. 160-1-4.286. These fiscal agents are not state agencies. See Ga. Code Ann. § 20-2-270. The GDOE uses its discretion in evaluating each GNETS funding application. See Ga. Comp. R. & Regs. 160-1-4.286.

C. Alleged Problems with GNETS

Broadly, the complaint claims GNETS stigmatizes students and provides them an inadequate education. Plaintiffs allege GNETS classrooms lack access to libraries, cafeterias, gyms, science labs, music rooms, or playgrounds. (Dkt. 1 ¶ 94.) The instruction is not rigorous; much of it happens on computers, not through teachers. (Id. ¶¶ 100–105.) And electives are sparse. (Id. ¶ 105.) GNETS teachers and support staff often physically restrain students to control their behavior. (Id. ¶ 109.)

GNETS is also stigmatizing. (Id. ¶ 90.) GNETS students enter the building in separate entrances when their classroom is in a zoned school. (Id. ¶ 97.) Otherwise GNETS classrooms are in different buildings, separating GNETS students from other children. (Id. ¶ 5.) Families feel they must consent to these requirements because school officials tell them GNETS is the only way their children can get an education. (Id. ¶ 114.)

During the 2016 school year, GNETS served about 5,256 students from school districts across Georgia. (Id. ¶¶ 3, 77.) Only ten percent of the students graduate, two-thirds of which receive a special education diploma. (Id. ¶ 107.)

II. Standard of Review

A court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). At the motion to dismiss stage, "all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).

III. Discussion

A. GNETS' Administration

"Title II of the ADA and § 504 of the Rehabilitation Act forbid discrimination on the basis of disability in the provision of public services." J.S., III by & through J.S. Jr. v. Houston Cty. Bd. of Educ. , 877 F.3d 979, 985 (11th Cir. 2017). Under Title II, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Under § 504, "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. The same standards govern discrimination claims under the ADA and the Rehabilitation Act. See Cash v. Smith , 231 F.3d 1301, 1305 (11th Cir. 2000).

To prevail against the State under Title II of the ADA, Plaintiffs must show that they were qualified individuals who, as a result of their disabilities, were either excluded from participation in or denied the benefits of a program or activity offered by the State or subjected to discrimination by the State. Title II's implementing regulation, 28 C.F.R. § 35.130(d), provides that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities" (emphasis added). Defendants moved to dismiss Plaintiffs' Title II ADA claim in Count I on the grounds that the State does not "administer" the GNETS program. (Dkt. 46-1 at 7.)² Whether the State "administers" GNETS turns out to be a difficult question.

The Court starts by looking to Georgia's constitutional and statutory structure. Georgia's Constitution grants authority "to county and area boards of education to establish and maintain public schools within their limits." Ga. Const. Art. 8 § V ¶ 1. This provision "embodies the fundamental principle of exclusive local control of general primary and secondary (‘K–12’) public education." Gwinnett Cty. Sch. Dist. v. Cox , 289 Ga. 265, 710 S.E.2d 773, 775 (2011). The Georgia Supreme Court has explained this as a fundamental choice by the State to empower those closest to the children with the authority to control their education:

By providing for local boards of education to have exclusive control over general K–12 schools, our constitutions, past and present, have limited governmental authority over the public education of Georgia's children to that level of government closest and most responsive to the taxpayers and parents of the children being educated. The constitutional history of Georgia could not be more clear that, as to general K–12 public education, local boards of education have the exclusive authority to fulfill one of the "primary obligation[s] of the State of Georgia," namely, "[t]he provision of an adequate public

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