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N.S. v. Tennessee Department of Education

United States District Court, M.D. Tennessee, Nashville Division

April 12, 2017

N.S., by and through his Parent J.S., and S.T., by and through his Parents M.T. and M.T., Plaintiffs,


          ALETA A. TRAUGER, United States District Judge

         Pending before the court are two motions. The first is a Motion to Strike (Docket No. 69), filed by defendants Knox County and Knox County Board of Education (collectively “the Knox Defendants”), to which the plaintiffs have filed a Response in opposition (Docket No. 75). The second is a Motion to Dismiss for Lack of Rule 12(b)(1) Subject Matter Jurisdiction filed by the Knox Defendants (Docket No. 78), to which the plaintiffs have filed a Response in opposition (Docket No. 79), the Knox Defendants have filed a Reply (Docket No. 81), and both sides have filed Memoranda of supplemental authority (Docket Nos. 84, 90). For the reasons discussed herein, both motions will be denied.


         This education discrimination action was initially filed on March 16, 2016 against the Knox Defendants and the Tennessee Department of Education (the “TDOE”), bringing claims under 1) Tile II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“Title II”); 2) the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(e)(2) (the “IDEA”); and 3)

         Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). The action is based on allegations that the minor plaintiffs, who are developmentally disabled and in need of special education services, have suffered injuries while enrolled in Knox County schools, which are overseen by the TDOE, due to the Knox Defendants' policy and practice of allowing and promoting the misuse and overuse of isolation and restraint techniques on students with disabilities. (Docket No. 1.) On July 14, 2016, the court issued an Order denying motions by the Knox Defendants and the TDOE to change venue and to dismiss the action for failure to exhaust state administrative remedies. (Docket No. 39.) In the accompanying Memorandum (Docket No. 38 (the “Prior Opinion”)), familiarity with which is presumed, the court outlined the details of the allegations in this action, as well as the procedural history up to that point in time. Therefore, a full recitation of this information will not be repeated herein.

         I. The Prior Opinion and the Amended Complaint

         Briefly, the Prior Opinion explained that administrative exhaustion is generally required prior to bringing suit in federal court for claims that arise from the alleged denial of the free appropriate public education (“FAPE”) guaranteed by the IDEA. In discussing this general administrative exhaustion requirement, the Prior Opinion cited the Sixth Circuit case Fry v. Napoleon County Schools, 788 F.3d 622 (6th Cir. 2015) (the “Sixth Circuit Fry Opinion”). As noted in the Prior Opinion, the Sixth Circuit Fry Opinion explains that the exhaustion requirement stems from the efficacy of having a student's individualized education plan (“IEP”) reviewed first at the local level. (Docket No. 38, pp. 17-18.) The Prior Opinion then held that the instant action meets the narrow exception to the exhaustion requirement - outlined in Donoho ex rel. Kemp v. Smith County Board of Education, 21 F. App'x 293 (6th Cir. 2001) - made for cases where such exhaustion would be futile. The Prior Opinion also cited the Second Circuit case J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 114-15 (2d Cir. 2004), which held that administrative exhaustion is futile and should not be required where an action challenges systemic practices by the defendant that relate to the provision of a FAPE to all special education students, rather than challenging the content or implementation of any one student's IEP. The Prior Opinion did not, however, cite to the Sixth Circuit Fry Opinion with respect to the futility exception to the exhaustion requirement (nor is that exception discussed in the Sixth Circuit Fry Opinion (see 788 F.3d 622)).

         The Prior Opinion ultimately held that exhaustion would be futile in this action because the plaintiffs have sufficiently alleged a systemic problem that reverberates throughout the Knox County school system and has been un-mitigated - if not encouraged - by the TDOE. The Prior Opinion further noted three primary factors that cut against requiring administrative exhaustion here: 1) it would be inefficient to address the issues in this action by looking at individual instances of isolation and restraint on a piecemeal basis, 2) requiring administrative exhaustion through the TDOE would overlook the allegations of misconduct by the TDOE itself, and 3) the purpose of the administrative exhaustion requirement - to allow local level review of IEPs by the parties most familiar with a student's needs - is not relevant here, where the dispute is not about the IEPs of the individual plaintiffs, but about system-wide practices.

         Finally, the Prior Opinion directed the plaintiffs to file an amended complaint for the sole purpose of adding the Tennessee State Board of Education (the “TN Board”) and the Tennessee Advisory Council for the Education of Students with Disabilities (the “Council”) as defendants to the action. This was in response to some questions raised in the TDOE's briefing about which state educational agencies are liable for the misconduct alleged here, and the plaintiffs' express request to add these additional entities as parties.

         On July, 15, 2016, in keeping with the Prior Opinion, the plaintiffs filed the Amended Complaint, adding as defendants the TN Board and the Council. (Docket No. 41.) Other than adding a description of these additional defendants and adding the names of these defendants to some of the specific factual allegations that had previously named only the TDOE, the Amended Complaint is nearly identical to the initial Complaint filed in this action and considered in the Prior Opinion.

         On July 27, 2016, the Knox Defendants filed an answer to the Amended Complaint. (Docket No. 44.)

         On December 15, 2016, the parties collectively filed a proposed Order of Dismissal to dismiss with prejudice all claims against the Council, on the grounds that it is not a true party in interest to this action (Docket No. 68), and this proposed Order was entered by the court the following day (Docket No. 71).

         II. The Motion to Strike

         Also on December 15, 2016, the Knox Defendants filed a Motion to Strike (Docket No. 69), along with a Memorandum in support (Docket No. 70), seeking to strike paragraphs 22 through 24 from the Amended Complaint on the grounds that the allegations therein are untrue and are offered only for inflammatory purposes. Paragraphs 22 through 24 of the Amended Complaint read as follows:

In the last two years, S.T. has suffered numerous unnecessary isolations, restraints, or abuses. In the 2014-2015 school year, while at Amherst Elementary School in Knox County for third grade, S.T. was placed in a “contained” classroom with other children with disabilities. There, an aggressive teacher engaged in numerous inappropriate restraints and isolations and abuse and did cause S.T. injury. Although notice was not given to S.T.'s parents, they heard from S.T. himself. By looking at Facebook, they discovered the teacher to have publicly written: “Another f***ed up day in special ed.” The parents reported this to Knox County Schools but no disciplinary action was taken or made known to the parents. Nor was additional training about de-escalation techniques or proper positive behavior interventions undertaken.

(Docket No. 41 ¶¶ 22-24.) This exact language was also present in the initial Complaint filed in this action. (Docket No. 1, ¶¶ 20-22.)

         To support their Motion to Strike, the Knox Defendants attach the Affidavit of Micah Hagood, who was plaintiff S.T.'s third grade teacher and is apparently the teacher referenced in the Amended Complaint as having posted the comment on Facebook quoted above. (Docket No. 70-3.) In his affidavit, Mr. Hagood denies having personally restrained or isolated S.T. but acknowledges that other teachers who were members of a Crisis Team at S.T.'s school did so during the time that S.T. was in Mr. Hagood's class. Mr. Hagood also generally denies abusing S.T., causing him injury, or making any social media postings that expressly named or concerned S.T. Mr. Hagood admits, however, that he did post the language quoted above, though he states that the post was made on Twitter rather than Facebook. Also, while Mr. Hagood admits that this post was made during the school year when S.T. was a student in his class, he states that the post referenced a September 2014 incident involving another student that did not concern S.T. in any way and that the post was intended to be viewed only by Mr. Hagood's family and friends, not publicly. Mr. Hagood also recounts that S.T.'s parents brought this posting to the attention of the school where Mr. Hagood was employed in March of 2015 and that, as a result, Mr. Hagood was disciplined for inappropriate use of social media, and his contract was not renewed for the following school year.

         Documentation of disciplinary action by S.T.'s school against Mr. Hagood is attached to the Motion to Strike as well, and it shows that Mr. Hagood was admonished about the proper use of social media (though there is nothing in this documentation about any other disciplinary action taken, nor does this documentation explain or reference Mr. Hagood's non-renewal for the following school year). (Docket No. 70-7.) The Knox Defendants also attach to the Motion to Strike another document that purports to confirm that the social media post in question was made on a day when S.T. did not have any recorded behavioral issues at school. (Docket Nos. 70-5.) Also attached is an entirely separate social media posting that the Knox Defendants claim was also discussed by the parties in connection with Mr. Hagoood's use of social media, but which is not referenced in the Amended Complaint. (Docket No. 70-4.) Finally, the Knox Defendants attach an email exchange between their counsel and counsel for the plaintiffs, in which the plaintiffs' counsel admits that the posting quoted in the Amended Complaint was made on Twitter rather than Facebook.[1]

         On December 22, 2016, the plaintiffs filed a Response in opposition to the Motion to Strike. (Docket No. 75.)

         III. The Rule 12(b)(1) Motion to Dismiss the Amended Complaint

         On January 3, 2017, the Knox Defendants filed a Motion to Dismiss for Lack of Rule 12(b)(1) Subject Matter Jurisdiction (Docket No. 78), along with a Memorandum in support (Docket No. 77), once again arguing - among other things - that the plaintiffs should have been required to administratively exhaust their claims. This argument was already rejected in the Prior Opinion denying the Knox Defendants' earlier 12(b)(6) motion on the same grounds but, this time, the Knox Defendants frame the argument as a basis to challenge the court's subject matter jurisdiction over this action under Rule 12(b)(1). Attached to the Motion to Dismiss is the Affidavit of Honorable Ann Johnson (Retired), a former Administrative Law Judge for the Tennessee Department of State, which discusses the qualifications and training of administrative law judges in Tennessee, provides some details about the types of cases they handle, and expresses the opinion that they are equipped to handle, and regularly do handle, claims brought under the IDEA, including those that pose large-scale systemic challenges. (Docket No. 77-1.) On January 30, 2017, the plaintiffs filed a Response in opposition to the Motion to Dismiss (Docket No. 79) and, on February 14, 2017, the Knox Defendants filed a Reply (Docket No. 81).

         On February 22, 2017, the United States Supreme Court vacated and remanded the Sixth Circuit Fry Opinion that was cited by the court in the Prior Opinion to illustrate the basic exhaustion requirement for FAPE-related claims. Fry v. Napoleon Cty. Schs., 137 S.Ct. 743 (2017) (“Supreme Court Fry Opinion”). On February 28, 2017, with leave of court, the plaintiffs ...

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