L.L. L. v. Tenn. Dep't of Educ. & Tenn. State Bd. of Educ.
| Decision Date | 15 February 2019 |
| Docket Number | Case No. 3:18-cv-00754 |
| Parties | L.L. a minor student, by and through his parents, B.L. and R.L and Br.R. & Be.R., minor students, by and through their parents, Chr. R. and Cha. R., and all persons similarly situated, Plaintiffs, v. TENNESSEE DEPARTMENT OF EDUCATION and TENNESSEE STATE BOARD OF EDUCATION, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Pending before the court is a Motion to Dismiss filed by the Tennessee Department of Education ("TDOE") and Tennessee State Board of Education ("State Board"). (Docket No. 10.) L.L., by and through his parents, and Br.R. and Be.R., by and through their parents, have filed a Response (Docket No. 22), and the defendants have filed a Reply (Docket No. 27). For the reasons stated herein, the defendants' motion will be granted in part and denied in part.
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., 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 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). Br.R., Be.R., and L.L. are all children entitled to services under the IDEA. Specifically, Br.R. and Be.R., who are brothers, have disabilities related to autism spectrum disorder. (Docket No. 1 ¶ 10.) L.L. has disabilities related to developmental delay and Hirschsprung's disease. He has substantial limitations related to speaking, learning, and motor skills, as well as difficulties related to digestion and having bowel movements. (Id. ¶ 7.)
"[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 parentsor 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)); see 20 U.S.C. § 1415(b)(6), (f)-(g), (k). "[A]ny party," including the child (typically by and through his parent), is entitled to present an administrative complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6)(A). The state is required to provide an impartial administrative due process hearing related to that complaint, which may be performed by either the local education agency ("LEA") or the state educational agency ("SEA").2 If the hearing is performed by the LEA, however, the LEA's determination can be appealed to the SEA. 20 U.S.C. § 1415(f)(1), (g)(1). "Any party aggrieved by the findings and decision made under" the administrative complaint process "shall have the right to bring a civil action with respect to the complaint presented" in either state or federal court. 20 U.S.C. § 1415(i)(2)(A); see also S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 642-43 (6th Cir. 2008).
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 his 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] educated with children who are not disabled, and special classes, separate schooling, or other removal ofchildren 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). The practice of placing a disabled child in a general education setting alongside non-disabled peers, while supplementing that placement with special education and related services, is known in the special education field as "mainstreaming" or "inclusion." See L.H. v. Hamilton Cty. Dep't of Educ., 900 F.3d 779, 794 (6th Cir. 2018). In some cases, a child will be capable of mainstreaming, but only if the school furnishes an aide or staff member to assist the child in the classroom. See, e.g., K.S. v. Strongsville City Sch. Dist., No. 1:13 CV 91, 2014 WL 2442193, at *5 (N.D. Ohio May 30, 2014).
For children in grades K through 12, mainstreaming can be accomplished by placing a disabled child in a general education classroom as part of the state's system of public schools. See Tenn. Code Ann. § 49-6-201(c) (); Tenn. Code Ann. § 49-6-302(a), -402 (requiring LEAs to establish elementary schools); ); Tenn. Code Ann. § 49-6-301(b) (); Tenn. Code Ann. § 49-6-403(a) (). Under the IDEA, however, 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). Like many states, 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. CodeAnn. § 49-6-103(c). Accordingly, a preschool-aged, IDEA-eligible child in Tennessee may find himself in a school district or zone where there is no public general education preschool in which he can participate in mainstreaming by being placed in a general education classroom alongside same-aged disabled peers. Other options, however, may be available, such as placement in a private preschool, the Head Start program, community-based care, or simply a public school classroom with slightly older non-disabled children. (Docket No. 1 ¶ 30.)
Tennessee law calls on the state's counties to establish school districts—that is, LEAs—for the purpose of providing public education to the children within the counties' boundaries. Tenn.Code Ann. § 49-2-101. The state's laws, however, also permit the creation of smaller "special school districts" ("SSDs") operating within a county but independently of the county's school system (insofar as the county school system continues to exist, rather than having been replaced by a patchwork of SSDs). See Tenn. Code Ann. §§ 49-2-106, -127. West Carroll Special School District and Hollow Rock-Bruceton Special School District are SSDs located within Carroll County. For the 2016-17 and 2017-18 school years, the SSDs entered into contracts with the Carroll County Board of Education ("CCBE"), pursuant to which the CCBE would provide special education services to disabled students from within the SSDs' respective jurisdictions. The SSDs' contracts with the CCBE were reviewed and approved by TDOE. In order to provide services under the contract, the CCBE created a school known as the "Carroll County Special Learning Center" ("CCSLC"). CCSLC was operated out of a building attached the CCBE's own administrative building and included two preschool classrooms, one kindergarten through fifth-grade classroom, and one sixth- through twelfth-grade classroom. The plaintiffs believe that CCSLC served between forty and seventy students. (Docket No. 1 ¶¶ 23-27.)
The plaintiffs allege that the SSDs used CCSLC as a "sending-ground" for disabled students who required an aide or staff assistance during the day, in order to keep those students out of general education classrooms as an "administrative convenience." (Id. ¶ 37.) Specifically, the plaintiffs allege that the SSDs "conditioned" IEP teams to recommend that any student who would require an in-class aide be sent to CCSLC, even if the child's appropriate LRE would have been in a general education school. (Id. ¶ 38.) L.L. and Br.R. were among the students allegedly placed in CCSLC to avoid having a special education aide in a general education classroom. L.L. requires an aide to assist him with bathroom breaks. (Id. ¶ 33.) Br.R. needs a full-time classroom aide, known as an "ancillary aide" or "paraprofessional." (Id. ¶ 36.) Br.R. and L.L. were placed in CCSLC's K-5 classroom for the 2016-17 school year, and Br. R. continued in the classroom for the 2017-18 year, while L.L. was permitted to attend another school in the West...
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