A.W. v. Loudon Cnty. Sch. Dist.
| Decision Date | 28 September 2022 |
| Docket Number | 3:20-cv-76,3:21-cv-57 |
| Parties | A.W. and M.W., Plaintiffs, v. LOUDON COUNTY SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
MEMORANDUM OPINION
Before the Court is Plaintiffs' motion for judgment on the administrative record (Doc. 102). For the following reasons the motion will be GRANTED IN PART and DENIED IN PART.
Under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. schools receiving federal funding must provide children with disabilities a “free and appropriate public education” (“FAPE”). Hupp v. Switz. of Ohio Loc. Sch. Dist., 912 F.Supp.2d 572, 588 (S.D. Ohio 2012) (citing Burilovich v. Bd. of Educ. of Lincoln Consol. Schs., 208 F.3d 560, 565 (6th Cir. 2000)). To provide a FAPE, school districts subject to the IDEA must create an individualized education program (“IEP”) for each child with a disability that is designed to meet the eligible student's unique needs. Id.; 20 U.S.C. § 1414(a)(5).
M.W. is a fifteen-year-old girl who has attended schools in Defendant Loudon County School District (“LCSD”) since kindergarten. (Doc. 67-3, at 727.) M.W. has been diagnosed with attention-deficit-hyperactivity disorder (“ADHD”), oppositional-defiance disorder (“ODD”), and intellectual disability. (Id. at 558.) In January 2013, when M.W. was in kindergarten, her IQ was evaluated using the General Intellectual Ability subtest of the Woodcock-Johnson IV Tests of Cognitive Abilities, and she received a score of 87. (Id. at 764.) By September 2016, M.W.'s IQ was again evaluated using the same test, but on this evaluation, she received a score of only 70. (Id. at 552.)
M.W. began her fifth-grade year in fall 2017, and she attended North Middle School, a school within LCSD. (Id. at 727.) During her fifth-grade year, M.W. was eligible for specialeducation services pursuant to the IDEA under the classification “intellectual disability” and “otherwise health impaired.” (Id.)
On September 27, 2017, several LCSD employees met for M.W.'s annual IEP review and to generate an IEP for her fifth-grade year (“Fifth-Grade IEP”). (Id. at 743.) A.W., M.W.'s mother, is listed as a participant in the September 27, 2017 IEP review, but she testified that she does not believe she attended this meeting. (Id.; Doc. 67-2, at 1114-15.) In a sworn affidavit, A.W. averred that, while she received the invitation to the September 27, 2017 IEP meeting initially, M.W.'s fifth-grade special-education teacher told A.W. that, due to “some kind of personal situation,” there was not going to be an IEP meeting on September 27, 2017. (Doc. 672, at 385.) Nonetheless, an IEP for M.W. was created after the September 27, 2017 meeting. (Doc. 67-3, at 727-43.) The Fifth-Grade IEP includes descriptions and data of M.W.'s “present levels of performance” in six assessment areas: (1) academic readiness, (2) adaptive behavior, (3) fine motor, (4) gross motor, (5) pre-vocational, and (6) social/emotional behavior. (Doc. 673, at 729-32.) Based on the data presented under the “present levels of performance,” the Fifth- Grade IEP identifies M.W.'s areas of need, sets an annual goal for M.W. to meet in each area, lists the LCSD personnel/position responsible for meeting the need, lists “benchmarks/short-term instructional objectives,” notes the anticipated beginning date for working toward the benchmarks, and specifies the methods of evaluation for each benchmark. (Id. at 733-36.)
The IEP team copied the annual goals for four out of M.W.'s five areas of need (all but fine motor) verbatim from her previous IEP, which was created in January 2017. (Compare Id. at 733-36, with id. at 710-713.) On November 16, 2017, LCSD held another IEP meeting-less than two months after the September 27, 2017 meeting. (Doc. 97, at 37.) A.W. participated in the November 16, 2017 meeting. (Doc. 97, at 37-38.) The only difference between the IEP generated on November 16, 2017 (“Fifth-Grade IEP Addendum”), and the Fifth-Grade IEP is the specification of certain additional accommodations to be provided to M.W. in her classes. (Id. at 30-32.) The goals in the Fifth-Grade IEP Addendum are exactly the same as the goals in the Fifth-Grade IEP. (Id. at 26-29; Doc. 67-3, at 733-36.) Therefore, the academic readiness, social/emotional behavior, pre-vocational and adaptive-behavior goals in M.W.'s IEPs remained the same from January 2017, through all of M.W.'s fifth-grade year, and until September 2018- a period of twenty months. (Doc. 67-3, at 710-13, 733-36; Doc. 97, at 26-29.) The IEP progress reports for M.W.'s fifth-grade year indicate that M.W. did not meet any of her goals during this period, though she made progress. (Doc. 67-3, at 919-44.)
During the 2018-2019 school year, M.W. was in the sixth grade and continued to attend North Middle School in LCSD. (Id. at 558.) The teacher assigned to provide M.W. with specialeducation services was Zachary Buchanan. (Id. at 577.)
On September 21, 2018, the IEP team once again met for M.W.'s annual IEP review. (Id.) A.W. was present for this meeting and was accompanied by an advocate, Jennifer Nagel. (Id.) The IEP generated at this meeting (the “Sixth-Grade IEP”) follows the same structure as the Fifth-Grade IEP: it sets out present levels of performance, identifies areas of need, sets goals for each area, and includes details on how each goal will be measured. (See id. at 558-77.) The “present levels of performance” section of the Sixth-Grade IEP indicated that on September 13, 2018, LCSD administered the Woodcock-Johnson III Normative Update Tests of Achievement (“WJ-III NU Ach”) subtest for Math Computation (Calculation) to M.W. (Id. at 561.) M.W.'s score on this subtest placed her at a grade equivalent of 1.9-meaning her math-calculation skills were equivalent to the expected skills of students in the ninth month of first grade. (Id.)
The Sixth-Grade IEP specified that M.W. should continue to receive 240 minutes per day of services from a special-education teacher in a special-education setting. (Id. at 573-74.) Buchanan signed the Sixth-Grade IEP as the special-education teacher, leading A.W. to believe that he was properly licensed to teach special education. (Id. at 577.)
However, Buchanan was not licensed to teach special education at the time he taught M.W. (Doc. 67-2, at 549-53.) In Tennessee, a licensed teacher may obtain a provisional special-education endorsement by submitting a recommendation from a State Board-approved educator-preparation provider verifying the teacher's enrollment in a program of study for additional endorsement in special education and assuring that the teacher will be assigned a mentor who is endorsed in special education. Tenn. Comp. R. & Regs. 0520-02-03-.11. At the time LCSD Special-Education Supervisor Melanie Amburn interviewed and hired Buchanan to teach special education at North Middle School, he was licensed to teach kindergarten through fifth grade in Tennessee and was enrolled in a master's degree program in special education at Tusculum University. (Doc. 67-2, at 550-51.) He advised Amburn that he was working on obtaining his provisional endorsement in special education. (Id.) Amburn assumed, because he was enrolled in an appropriate program of study for the additional endorsement, that Buchanan would complete the necessary steps once hired to obtain his provisional endorsement in special education, but she did not follow up with the Tennessee Department of Education (“TDOE”) or with Buchanan to ensure that he obtained the endorsement. (Id. at 552.) It is undisputed that Buchanan failed to submit the required recommendation from Tusculum University, his educator-preparation provider, verifying his enrollment and assuring that he would be assigned a mentor. (Id. at 549-53, 650-51.) However, LCSD assigned Buchanan another teacher, Tracy Fritts, to mentor Buchanan. (Id. at 628.) In late February 2019, Buchanan resigned from his position with LCSD. (Id. at 618-20.) After Buchanan resigned, Lesly Brown replaced him as special-education teacher for M.W.'s classroom. (Id. at 567.) Brown is a certified special education teacher and had served as a paraprofessional in M.W.'s classroom before she was promoted to full-time special-education teacher after Buchanan left. (Id.)
The Sixth-Grade IEP also provided that M.W.'s math-calculation and math-problem solving goals were to be measured by “data collection, work samples, and monthly progress monitoring.” (Doc. 67-3, at 566-67.) Her reading-comprehension goal was to be measured by “data collection, teacher observation, and monthly progress monitoring.” (Id. at 567.)
AIMSweb tests, or “probes,” are short, timed tests, which last from one to eight minutes at the sixth-grade level depending on the subject area. (Doc. 67-2, at 748-79.) Buchanan and Brown administered these probes to M.W. as part of her goal monitoring during her sixth-grade year. (Id. at 1290-91.) Sandy Stewart, another special-education teacher at North Middle School, trained Buchanan and Brown to administer AIMSweb probes and instructed them to perform them monthly. (Id. at 984, 1247, 1253-54.) Stewart also administered some of the AIMSweb probes and other testing to M.W. to assist Buchanan and Brown. (Id. at 701, 994.) LCSD's education expert, Dr. John McCook, Ed.D., testified that and “typically . . . it would not be best...
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