A.H. v. Clarksville-Montgomery Cnty. Sch. Sys.
| Decision Date | 07 February 2019 |
| Docket Number | Case No. 3:18-cv-00812 |
| Parties | A.H., a minor student, by and through her parents, A.H. and D.H., Plaintiff, v. CLARKSVILLE-MONTGOMERY COUNTY SCHOOL SYSTEM; TENNESSEE DEPARTMENT OF; EDUCATION and TENNESSEE STATE BOARD OF EDUCATION, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
The Clarksville/Montgomery County School System ("CMCSS") has filed a Motion to Dismiss (Docket No. 9), to which A.H., by and through her parents A.H. and D.H., has filed a Response (Docket No. 18), and CMCSS has filed a Reply (Docket No. 26). The Tennessee Department of Education ("TDOE") and Tennessee State Board of Education (collectively, "State Defendants") have also filed a Motion to Dismiss (Docket No. 13), to which A.H. has filed a Response (Docket No. 21), and the State Defendants have filed a Reply (Docket No. 28). For the reasons stated herein, both motions will be denied.
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 publiceducation'—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748 (2017) (citing 20 U.S.C. §§ 1401(3)(A)(i), 1412(a)(1)(A)). Tennessee has participated in the IDEA or its similar predecessor program for decades. See, e.g., 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).
"[T]he IDEA gives the 'primary responsibility . . . for choosing the educational method most suitable to the child's needs . . . to state and local educational agencies in cooperation with the parents or guardian of the child." Long v. Dawson Springs Indep. Sch. Dist., 197 F. App'x 427, 433-34 (6th Cir. 2006) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982)). At the heart of this collaborative process is the child's individualized education program, or "IEP." "The IDEA establishes procedures by which school officials, parents, and the student can collaborate to create an IEP" that takes into account the unique needs of the child, the special education expertise of the educators, and the voice of the child's parents or guardians as advocates for the child's best interests and educational needs. Id. at 432 (citing 20 U.S.C. §§ 1401(11), 1414(d); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 368 (1985)). "The IDEA also provides for administrative procedures to resolve disputes when the people involved in the creation of an IEP are not able to agree on its substance." Id. (citing 20 U.S.C. § 1415(b)).
One of the issues typically addressed in an IEP is how to provide the child special education and related services in the least restrictive environment, or "LRE," appropriate to her needs. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV)(cc), (V) (). The IDEA requires that, "[t]o the maximum extent appropriate, children with disabilities . . . [be] educatedwith children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occur[] only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5). Broadly speaking, this requirement results in a policy of educating disabled students, whenever possible and appropriate, alongside non-disabled students in the state's system of general education public schools,2 although there are also IDEA students who receive their special education and related services in private and home settings. See L.H. v. Hamilton Cty. Dep't of Educ., 900 F.3d 779, 799 (6th Cir. 2018) ().
Under the IDEA, the State of Tennessee's obligation to provide a FAPE extends to "all children with disabilities residing in the State between the ages of 3 and 21, inclusive." 20 U.S.C. § 1412(a). In its documentation requesting federal IDEA funds, Tennessee has assured federal authorities that it would comply with that obligation, including the identified age range. See, e.g., Letter from Ruth E. Ryder, Acting Director, Office of Special Education Programs, to Candice McQueen, Commissioner, TDOE (July 1, 2018), encl. A at II-13 (providing assurance that a FAPE will be provided to all children with disabilities from age 3 to age 21). Like many states, however, Tennessee does not provide universal public education for pre-kindergarten-aged children. Instead, Tennessee permits, but does not require, local education agencies ("LEAs") to operate preschools for "at-risk" four-year-olds. Tenn. Code Ann §§ 49-6-103, -104. Although "LEAs may apply to the [TDOE] for funding" for an authorized pre-kindergarten program, Tenn. Code Ann. § 49-6-105(a), the state's statutes emphasize that "[i]mplementation of these programs by LEAs shall be voluntary," Tenn. Code Ann. § 49-6-103(c). Accordingly, a preschool-aged, IDEA-eligible child in Tennessee may find herself in a school district or zone where there is no public general education preschool in which she can participate alongside non-disabled peers.
A.H. is a child with Down syndrome who lives within the territorial bounds of CMCSS. As of May 2018, she was two years old. (Docket No. 1 ¶¶ 17-18.) With their daughter's third birthday quickly approaching, A.H.'s parents met with CMCSS officials to begin work on her initial IEP. A.H.'s IEP team determined that, if possible, her LRE would be in a general education preschool alongside non-disabled peers, with A.H. being pulled out of the general education environment only to the extent necessary for her to receive direct language services in a special education setting. (Docket No. 1 ¶ 18 & n.1.)
The elementary school for which A.H. was zoned, Oakland Elementary, had no general education preschool classrooms. Consistently with the state's IDEA obligations, Oakland Elementary did have a special education classroom for children ages three to five, funded, presumably, through the IDEA's preschool grant program. See 20 U.S.C. § 1419. A.H.'s parents objected, however, to A.H.'s being instructed in a special education-only classroom, noting the IEP team's recommendation. CMCSS proposed enrolling A.H. in a "Pilot Program" being operated at another school in the district, East Montgomery Elementary. (Id. ¶¶ 19-20.) The Pilot Program, like the classes at Oakland Elementary, was structured around a classroom consisting only of special education students and staffed only by a special education teacher. Two days per week, however, four non-disabled students—children of CMCSS staff—would join the class. (Id. ¶¶ 20-23.) A.H.'s parents objected to A.H.'s inclusion in the Pilot Program on the ground that itwas an insufficient substitute for inclusion in a true general education preschool. CMCSS, however, did not offer any alternative option, such as A.H.'s being included in a private general education preschool via IDEA funds. (Id. ¶ 26.)
A.H.'s mother contacted Dolly Gerregano, the TDOE's "IDEA 619 Consultant"—"IDEA 619" referring to U.S. Public Law 91-230, Title VI, § 619 (codified as 20 U.S.C. § 1419), the portion of the IDEA involving children ages three to five. A.H.'s mother relayed her concerns about the Pilot Program to Gerregano, and Gerregano responded by agreeing that the Pilot Program was "not legally sufficient." (Id. ¶ 28.) Gerregano allegedly told A.H.'s mother that CMCSS had been warned "for years" that it was not compliant with the IDEA's requirements for children in A.H.'s age range, and it was "only a matter of time" before CMCSS would face legal ramifications for its shortcomings. (Id.) According to Gerregano, for CMCSS's Pilot Program to satisfy the LRE requirement for students such as A.H., it would need, at a minimum, to be based out of a general education classroom and taught by a general education teacher, and it would need to maintain a ratio of at least one non-disabled child to each disabled child. (Id. ¶ 29.)
On June 4, 2018, A.H.'s parents informed CMCSS, in writing, that they considered the Pilot Program an unacceptable option and that A.H. would not be attending. (Id. ¶ 31.) In August of 2018, CMCSS responded to A.H.'s parents that, despite the parents' requests, the school district would not be hiring a general education teacher to work with three-year-olds, for budgetary reasons—namely that, because that teacher would not be a special education teacher, CMCSS would be unable to fund the position with federal IDEA dollars. (Id. ¶ 33.)
The IEP team met again on August 15, 2018, at which time CMCSS announced "Pilot Program 2" to A.H.'s mother. Pilot Program 2 was based out of St. Bethlehem Elementary School. Like East Montgomery Elementary, St. Bethlehem Elementary provided special educationpreschool classes for disabled children ages three to five. St. Bethlehem, however, had also instituted general education preschool for at-risk four-year-olds, as permitted by Tennessee's voluntary public preschool statutes. (Id. ¶¶ 34-35.) Under Pilot Program 2, A.H. would be placed in one of the special education classrooms, but CMCSS would select some non-disabled four-year-olds from the general education classroom to spend limited amounts of time in the special education classroom. (Id. ¶¶ 38-39.) CMCSS officials proposed an IEP in which A.H. would experience "reverse mainstreaming" via Pilot Program 2. (Id. ¶ 40.) "Mainstreaming" is the term used, in the special...
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