J.A. v. Smith Cnty. Sch. Dist.

• Decision Date: 06 March 2019
• Docket Number: NO. 2:18-cv-00043,2:18-cv-00043
• Citation: 364 F.Supp.3d 803
• Court: U.S. District Court — Middle District of Tennessee
• Parties: J.A., et al., Plaintiffs, v. SMITH COUNTY SCHOOL DISTRICT, Defendants.

364 F.Supp.3d 803

J.A., et al., Plaintiffs,

v.SMITH COUNTY SCHOOL DISTRICT, Defendants.

NO. 2:18-cv-00043

United States District Court, M.D. Tennessee, Northeastern Division, COOKEVILLE DIVISION.

Filed March 6, 2019

MEMORANDUM OPINION AND ORDER

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court is the Magistrate Judge's Report and Recommendation ("R & R") (Doc. No. 38), Smith County School District's ("Smith County") objections to the R & R (Doc. No. 43), and Plaintiffs' response in support of the R & R (Doc. No. 44). For the reasons stated below, Smith County's objections to the R & R will be overruled, and the Magistrate Judge's R & R will be approved and adopted.

I. Factual Background ¹

This is an action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. , brought by B.P., and on behalf of J.A., her 6-year-old son. J.A. has been diagnosed with Down Syndrome

and is eligible for special education with Smith County under the category of Developmental Delay. (Doc. No. 7-2 at 1.) J.A. entered the Smith County School System in 2017-2018 calendar year, and discussions between B.P. and Smith County regarding an individualized education program ("IEP") began in April 2017. (Doc. No. 6 at 202.) J.A.'s formal IEP meeting was conducted on May 19, 2017, and, at that meeting, the parties agreed that the IEP would be revisited after the first nine weeks of the school year to determine if adjustment was necessary. (Doc. No. 38 at 2.) Thereafter, J.A. was placed in a regular education classroom at New Middleton Elementary School ("New Middleton") and began preschool there on August 7, 2017. (Id. )

On October 25, 2017, the parties held a follow-up IEP meeting. (Id. at 5.) J.A.'s difficulties with his placement were discussed at this meeting. (Id. ) For example, it was reported that J.A. had difficulty with the overwhelming stimuli of the classroom, would roam the school, lick furniture and other students, and was generally unable to control his behavior. (Id. ) Smith County proposed moving J.A. to a comprehensive development class ("CDC"), a special education class comprised of both disabled and non-disabled students, located at Carthrage Elementary School ("Carthage"). (Id. ) B.P., J.A.'s mother, did not agree with the proposed change in placement and requested that J.A. be provided with a one-on-one aide in the New Middleton classroom so that his behavior could be monitored and improved. (Id. ) Smith County declined to offer J.A. a one-on-one aide in the regular classroom environment, determining that it would be too restrictive. (Id. at 6.)

J.A. continued his placement in the regular classroom at New Middleton, and another IEP meeting was held on November 20, 2017, during which Smith County again recommended J.A. be moved to the CDC class at Carthage. (Id. ) B.P. reiterated her objection to such a placement because New Middleton was closer and would offer an opportunity for J.A. to imitate the other, non-disabled students. (Id. ) B.P. again requested that Smith County provide a one-on-one aide, but Smith County resisted, contending that the aide would only help in preventing J.A.'s bad behaviors rather than facilitate his learning. (Id. ) At this meeting, Alecia Talbott, the parents' advocate, recommended that J.A. (1) receive a functional behavior assessment ("FBA"); and (2) the school implement a Behavior Intervention Plan ("BIP"), with reevaluation in February or March. (Id. at 7.)

Shortly thereafter, in early December 2017, B.P. viewed a Facebook video, showing J.A.'s classmates performing a dance routine while J.A., not being assisted by the teacher in participating, stood and watched. (Id. at 10.) As a result, B.P. withdrew J.A. from New Middleton. (Id. ) B.P then filed a due process complaint on J.A.'s behalf. (Id. at 8.) At the required resolution meeting, Smith County stated that they were willing to proceed with a FBA, BIP, and other training, but reiterated that: (1) the Carthage elementary staff was more highly trained and experienced; (2) J.A. would receive more attention at the Carthage CDC class; and (3) a one-on-one aide would be too restrictive. (Id. ) Smith County "drew a line" on placement and the request for a one-on-one aide. (Id. )

As a result, B.P. requested a due process hearing before an ALJ. (See generally Doc. No. 6.) At the conclusion of the hearing, the ALJ ruled in favor of Smith County, finding that the November IEP, recommending placement in the Carthage CDC, did not violate J.A.'s right to free and appropriate public education ("FAPE"). (Doc. No. 7-4 at 4-10.) The ALJ concluded that: (1) the one-to-one aide would help manage J.A.'s behavior but would not provide additional educational benefit or decrease the classroom stimuli; (2) placement at Carthage was a reasonable alternative; and (3) Smith County based its new placement on available information and was willing to conduct additional evaluations (the FBA) but was unable to because of J.A.'s withdrawal. (Id. at 10.) The ALJ also determined that, because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP was limited to completion of the FBA (agreed to by Smith County) so that a proper placement for J.A. could be determined for the upcoming school year. (Id. )

B.P., on behalf of J.A., appealed the ALJ's decision, and the Magistrate Judge held a supplemental hearing. (Doc. No. 38 at 17-23.) After the evidentiary hearing, the Magistrate Judge entered a 48-page R & R, recommending that J.A.'s previously filed Motion for a Preliminary Injunction (Doc. No. 7) be granted and that J.A. be placed in kindergarten at New Middleton with a paraprofessional properly trained in dealing with Down Syndrome

children. The Magistrate Judge also recommended that Smith County be required to conduct a FBA and implement a BIP for J.A. (Doc. No. 38 at 1.)

Smith County has filed objections to the R & R, which are detailed below. (See Doc. No. 42.) Having considered the matter de novo as required by Rule 72 of the Federal Rules of Civil Procedure, including the record before this Court and the one developed during the administrative proceedings, the Court finds that the R & R appropriately resolves the issues presented and, as such, it will be adopted. Because the R & R will be adopted, the objections thereto (Doc. No. 42) will be overruled, and J.A.'s Motion for Preliminary Injunction (Doc. No. 7) will be granted. Before discussing the specific objections to the Magistrate Judge's recommended resolution, however, a little background on the IDEA helps place Smith County's arguments in perspective.

II. Background of the IDEA

The IDEA "offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education’...to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Schs., ––– U.S. ––––, 137 S.Ct. 743, 748, 197 L.Ed.2d 46 (2017). An eligible child "acquires a ‘substantive right’ to such an education once a State accepts the IDEA's financial assistance," id. at 749, and "school districts receiving funds under the IDEA must establish an IEP for each child with a disability." Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 762 (6th Cir. 2001). A FAPE has two requirements: (1) the school must prepare an IEP for the disabled student; and (2) the IEP must provide the FAPE so as to educate the disabled student in the "least restrictive environment" ("LRE") possible. L.H. v. Hamilton Cty. Dep't. of Educ., 900 F.3d 779, 788 (6th Cir. 2018).

The IEP is "[t]he linchpin of the IDEA." Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App'x 423, 426 (6th Cir. 2016) (citing Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). "Every year, an ‘IEP Team’ comprising an eligible child's parents, his teachers, a representative of the local educational agency, and, whenever appropriate, the child himself, meets to discuss the child's progress and educational goals." This is formulated into the IEP, which is "a document that evaluates the child's academic achievement and functional performance, as well as his short-term and long-term goals." Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(II), (d)(3)(B) ). "The IEP also specifies the services that the school will provide to help the child to accomplish his goals and sets forth the criteria that the IEP Team will use to evaluate the child's progress over the course of the coming year." Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(III)-(IV) ). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

The requirement that an IEP be "reasonably calculated to enable the child to receive educational benefits," was addressed by the Supreme Court in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ––– U.S. ––––, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). There, the Court wrote:

The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. See §§ 1414(d)(1)(A)(i)(I)-(IV). This reflects the broad purpose of the IDEA, an "ambitious" piece of legislation enacted "in response to Congress' perception that a majority of handicapped children in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to drop out.’ " Rowley, 458 U.S. at 179, 102 S.Ct. 3034 (quoting H.R. Rep. No. 94-332, p. 2 (1975) ). A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.

[F]or most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve

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