United States District Court, E.D. Tennessee, Knoxville Division
M.C., a minor through her parents/guardians R.C. & J.C.; and C.L., a minor through her parents/guardians J.L & K.L., Plaintiffs,
KNOX COUNTY BOARD OF EDUCATION and KNOX COUNTY, TENNESSEE, Defendants.
REEVES, UNITED STATES DISTRICT JUDGE.
August 4, 2017, Plaintiffs filed this action pursuant to the
Individuals with Disabilities Education Act, Title II of the
American with Disabilities Act, and § 504 of the
Rehabilitation Act, seeking declaratory and injunctive relief
[D.1]. Defendants moved to dismiss the action under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted [D. 17]. Plaintiffs
responded in opposition [D. 20] and submitted materials that,
if considered by the Court, would convert Defendants'
motion to dismiss into one for summary judgment. Defendants
replied [D. 21] and urged the Court not to consider any
materials external to the pleadings. For the reasons that
follow, Defendants' motion will not be converted; the
motion to dismiss will be granted; and this case will be
Individuals with Disabilities Education Act
first allege a violation of the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§ 1400-1491o.
Congress enacted the IDEA in 1975 to ensure that children
with disabilities receive a free appropriate public education
(FAPE), which must be provided “in conformity with the
individualized education program [IEP] required under section
1414(d) of this title.” Id. § 1401(9)(D).
The IEP has been called “the centerpiece of the
statute's education delivery system for disabled
children.” Honig v. Doe, 484 U.S. 305, 311
is a detailed, often lengthy document that is developed and
implemented for each student with a disability, in
consultation with the student's parents. It sets forth
“the child's functionality, her current academic
performance, her academic goals, how to measure academic
progress, and what accommodations she needs.” I.L.
through Taylor v. Knox Cty. Bd. of Educ., 257 F.Supp.3d
946, 953 (E.D. Tenn. 2017) (discussing 20 U.S.C. §
1414(d)(1)(A)(i)). An IEP must also include:
a statement of the special education and related services and
supplementary aids and services, based on peer-reviewed
research to the extent practicable, to be provided to the
child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that
will be provided to enable the child
(aa) to advance appropriately toward attaining the annual
(bb) to be involved in and make progress in the general
education curriculum … and to participate in
extracurricular and other nonacademic activities; and
(cc) to be educated and participate with other children with
disabilities and nondisabled children in the activities
described in this subparagraph.
20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. §
300.320(a)(4). Additionally, the IEP must specify
“[t]he projected date for the beginning of the services
and modifications described in subclause (IV), and the
anticipated frequency, location, and duration of those
services and modifications.” 20 U.S.C. §
1414(d)(1)(A)(i)(VII); 34 C.F.R. § 300.320(a)(7). But
Congress has been clear that the statute is not to
be construed to require any additional information in a
child's IEP “beyond what is explicitly required in
this section.” 20 U.S.C. § 1414(d)(1)(a)(ii).
team must review a student's IEP at least once each year
to assess whether the goals are being achieved. 34 C.F.R.
§ 300.324(b). Before the school proposes (or refuses) to
amend certain aspects of an IEP, it must provide the
student's parents with:
(1) prior written notice [PWN] that explains what the school
district proposes to do and why, the factors that are
relevant to the proposal, a description of the evaluative
methods and results the school district used as a basis for
the proposed action, and a description of other options that
were considered and the reasons why they were rejected; (2)
an opportunity to review all records pertaining to their
child; and (3) a full explanation of their rights, including
their rights to participate, object, and appeal.
K.A. ex rel. F.A. v. Fulton Cty. Sch. Dist., 741
F.3d 1195, 1203-04 (11th Cir. 2013) (footnotes omitted); 20
U.S.C. §§ 1415(b)-(c); 30 C.F.R. § 300.324(b).
The IDEA's procedural safeguards “guarantee parents
both an opportunity for meaningful input into all decisions
affecting their child's education and the right to seek
review of any decisions they think inappropriate.”
Honig v. Doe, 484 U.S. 305, 311-12 (1988).
parents object to a proposed change, they may request a due
process hearing before an Administrative Law Judge.
See 20 U.S.C. § 1415. The party challenging the
IEP bears the burden of persuasion regarding its inadequacy.
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62
(2005). Parents that are dissatisfied with the outcome of the
administrative process may seek judicial review by filing a
civil action in state or federal court. 20 U.S.C. §
1415(i)(2). During the pendency of the proceedings,
“the child shall remain in the then-current educational
placement, ” and the IEP shall not be changed.
Id. § 1415(j). This so-called
“stay-put” provision maintains the status quo
while the parents seek review. 546 U.S. at 60.
Americans with Disabilities Act and Rehabilitation
also allege a violation of Title II of the Americans with
Disabilities Act (ADA) and § 504 of the Rehabilitation
Act. While the IDEA guarantees individually tailored
educational services, Title II and § 504 focus on
non-discriminatory access to public facilities and federally
funded programs more generally. See Fry v. Napoleon Cmty.
Sch., 137 S.Ct. 743, 756 (2017). Public schools that
receive federal funds are covered by all three statutes, and
conduct by school staff can violate the IDEA, Title II, and
§ 504 all at once. Id. at 755-56. Even so,
“nothing in the IDEA shall be construed to restrict or
limit the rights, procedures, and remedies available under
the Constitution, the ADA, the Rehabilitation Act, or other
Federal laws protecting the rights of children with
disabilities.” 20 U.S.C. § 1415(1) (cleaned up).
The only exception is when the lawsuit seeks relief for
denial of a FAPE. Id. In those instances, a
plaintiff is required to go through the IDEA's grievance
procedure before seeking review in court. Cf. Fry,
137 S.Ct. at 752-55 (“[I]f, in a suit brought under a
different statute [other than the IDEA], the remedy sought is
not for the denial of a FAPE, then exhaustion of the
IDEA's procedures is not required.”).
under the ADA and the Rehabilitation Act are largely the
same.” Kaltenberger v. Ohio Coll. of Podiatric
Med., 162 F.3d 432, 436 n.4 (6th Cir. 1998). Title II of
the ADA bars public entities from discriminating against
people “by reason of” their disabilities. 42
U.S.C. § 12132. To comply with Title II, covered
entities must make “reasonable modifications in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the
service, program, or activity.” 28 C.F.R. §
35.130(b)(7). Similarly, Section 504 of the Rehabilitation
Act provides that no one may be excluded from a program
receiving federal funds “solely by reason” of her
disability. 29 U.S.C. § 794(a). Both acts require a
public entity to administer its services, programs, and
benefits in “the most integrated setting
appropriate” to the needs of qualified individuals with
disabilities. 28 C.F.R. § 35.130(d); 45 C.F.R. §
a nineteen-year-old woman with Down syndrome who attends
school in the Knox County School (“KCS”) system
in Knoxville, Tennessee. During the 2013-2014 school year,
her IEP allotted 30 minutes each day for staff to modify the
regular education materials for her benefit. This time was
listed on the “Special Education and Related
Services” page. The following school year, the IEP was
updated, and the material preparation time was doubled.
April 2015, without issuing a Prior Written Notice to
M.C.'s parents, KCS removed the duration and frequency of
planning time from M.C.'s IEP. In August 2016, M.C.'s
parents requested that this time be added back into the IEP.
In response, KCS issued a belated PWN explaining that the
planning time had been removed because “[c]urriculum
preparation is a teacher responsibility as part of case
management, ” and was not an additional
service being provided pursuant to the IEP [D. 1, at 6].
M.C.'s parents repeatedly expressed their concerns that
without dedicated staff time for material preparation, the
modifications were being done “on the fly.” KCS
agreed that staff time was necessary to modify the
curriculum, but refused to specifically document this time in
April 2017, M.C.'s parents requested a due process
hearing on the issue. In their amended complaint, they argued
that preparation of materials should be considered a
“service” that must be documented in the IEP. KCS
moved to dismiss the hearing request for failure to state a
claim. On June 29, 2017, the ALJ granted KCS's motion
after finding that “the petitioners have provided no
legal authority to bolster [their] claim.” [D. 17, at
20]. To date, M.C.'s IEP does not document any time for
materials modification, although she is still being educated
within the general education classroom.
a thirteen-year-old student with Down syndrome who also
attends school in Knox County. During the 2016-2017 school
year, C.L.'s IEP included two hours per week for staff to
modify materials, listed under the “Special Education
and Related Services” section. Later that school year,
the material preparation time was increased to two and a half
hours per week.
April 2017, C.L.'s parents requested that this time be
increased to five hours per week. In response, KCS issued a
PWN in which it proposed removing all allotted
curriculum modification time from C.L.'s IEP. Again, KCS
explained that because staff are expected to do this work
anyway, it does not need to be specifically documented in the
IEP. C.L.'s parents timely objected, triggering the
“stay-put” provision. They filed a due process
complaint, which KCS moved to dismiss. On June 6, 2017, the
ALJ granted KCS's motion to dismiss after finding that
the parents had provided “no legal authority” to
bolster their claim, ...