DR et al v. Michigan Department of Education et al
ORDER granting in part and denying in part 22 Motion to Dismiss; denying 23 Motion to Dismiss; denying 25 Motion for Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
D.R. ET AL.,
Case No. 16-13694
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
MICHIGAN DEPT. OF ED., ET AL.,
U.S. MAGISTRATE JUDGE
ANTHONY P. PATTI
ORDER DENYING DEFENDANT MDE’S MOTION TO DISMISS ; DENYING
DEFENDANT GISD’S MOTION FOR JUDGMENT ; GRANTING IN PART AND
DENYING IN PART DEFENDANT FCS’S MOTION TO DISMISS 
Plaintiffs filed a class action civil rights action against Defendants Flint
Community Schools (FCS), Genesee Intermediate School District (GISD), and
Defendant Michigan Dept. of Ed. (MDE) on October 18, 2016. They alleged
systemic violations of the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq.; discrimination based on disability in violation of § 504 of
the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794; Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq.; and violations
of M.C.L. § 380.1701.
Defendants FCS and MDE filed Motions to Dismiss on December 8, 2016
[22, 23], and Defendant GISD filed a Motion for Judgment  on December 15,
2016. Defendants FCS and MDE filed replies [32, 33] on January 3, 2017.
Page 1 of 26
Plaintiff responded  to these Motions on January 13, 2017. Defendant GISD
filed a reply  on January 27, 2017. A hearing was held on these Motions on
August 23, 2017.
For the reasons stated below, Defendant MDE’s Motion to Dismiss  and
Defendant GISD’s Motion for Judgment  are DENIED without prejudice.
Defendant FCS’s Motion to Dismiss  is GRANTED in part as to Defendant’s
request to dismiss the claim for universal preschool, and DENIED in part as to the
remainder of Defendant FCS’s Motion to Dismiss.
The proposed class is made up of the approximately 30,000 school-age
children in Flint, Michigan at risk of developing a disability as a result of the
elevated levels of lead in the drinking water. Against all Defendants, Plaintiffs
bring claims of systemic violations of the Individuals with Disabilities Education
Act (IDEA), specifically alleging: failure to develop and implement child find
procedures; failure to provide free appropriate public education that confers a
meaningful educational benefit in the least restrictive environment; failure to
protect students’ due process procedural safeguards in the disciplinary process;
discrimination on the basis of disability and denial of access to educational
services. Plaintiffs also allege that all Defendants have discriminated based upon
disability in violation of § 504 of the Rehabilitation Act (§ 504) and in violation of
Page 2 of 26
Title II of the Americans with Disabilities Act (ADA). As to Defendants FCS and
GISC only, Plaintiffs allege violation of MCL § 380.1701 as a result of a failure to
provide programs and services designed to develop each disabled child to their
maximum potential. The individual facts pertaining to the representative Plaintiffs
are found in the complaint at ¶¶ 90-348.
Plaintiffs’ claims are all focused around requirements established by the
IDEA. The IDEA provides federal money to help states educate children with
disabilities. To qualify for this assistance, a state education agency (SEA) must
demonstrate that it has policies and procedures in place that assure all children with
disabilities in the state have access to a free appropriate public education (FAPE)
in the least restrictive environment (LRE), tailored to the unique needs of each
child through an individualized education program (IEP). See 20 U.S.C. §
1412(a)(1), (2), (4). The LRE is defined as follows: “[t]o the maximum extent
appropriate, children with disabilities, including children in public or private
institutions or other care facilities, are educated with children who are not disabled,
and special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs 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)(A).
Page 3 of 26
The IDEA also provides that “[a] State funding mechanism shall not result
in placements that violate the [LRE requirements], and a State shall not use a
funding mechanism by which the State distributes funds on the basis of the type of
setting in which a child is served that will result in the failure to provide a child
with a disability a free appropriate public education according to the unique needs
of the child as described in the child’s IEP.” 20 U.S.C. § 1412(a)(5)(B).
Defendants MDE and FCS move to dismiss the complaint under Rules
12(b)(6) and 12(b)(1). On a Rule 12(b)(6) motion to dismiss, the Court must
“assume the veracity of [the plaintiff’s] well-pleaded factual allegations and
determine whether the plaintiff is entitled to legal relief as a matter of law.”
McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.
1993)). To survive a motion to dismiss under Rule 12(b)(6) for failure to state a
claim, the complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to
provide fair notice to the defendant of what the claim is and the grounds upon
which it rests. The Court must construe the complaint in the light most favorable
to the Plaintiff and draw all reasonable inferences in the plaintiff’s favor. Ohio
Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829,
Page 4 of 26
835 (6th Cir. 2012). The complaint must plead factual content that allows the court
to draw a reasonable inference that the defendant is liable for the misconduct
alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
It is currently unsettled in the Sixth Circuit whether a failure to exhaust
administrative remedies is properly considered under Rule 12(b)(6) or Rule
12(b)(1). Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App’x 423,
431 (6th Cir. 2016). However, the Sixth Circuit has indicated that the distinction
makes no difference in cases where there is no dispute as to the exhaustion-related
factual findings. See id. Since it is undisputed that Plaintiffs did not exhaust, the
Court will use the 12(b)(6) standard to resolve the exhaustion claims.
Rule 12(b)(1) mandates dismissal for “lack of jurisdiction over the subject
matter.” Damnjanovic v. United States Dep’t of Air Force, 135 F. Supp. 3d 601,
603 (E.D. Mich. 2015). Whether Article III’s case or controversy requirement is
satisfied is a jurisdictional issue to be considered under Rule 12(b)(1).
Defendant GISD brings its Motion to Dismiss under Rule 12(c). “Motions
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c)
are analyzed under the same de novo standard as motions to dismiss pursuant to
Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th
Page 5 of 26
Defendant FCS brings a Motion to Dismiss  on the basis of failure to
exhaust, asserting there is no case or controversy regarding hearing, vision, or lead
blood screenings that are already provided through the public health department;
and that there is not a valid claim for universal preschool. Defendant GISD brings
a Motion for Judgment , based upon a failure to exhaust, and further claims
that Plaintiffs’ state law cause of action is barred because Michigan does not
recognize claims that sound in medical malpractice. Finally, Defendant MDE
brings a Motion to Dismiss , based upon a failure to exhaust, 11th Amendment
immunity for the ADA claim, lack of standing, and a failure to state a claim for
which relief may be granted.
1. FAILURE TO EXHAUST [22, 23, 25]
All Defendants argue that Plaintiffs’ claims must be dismissed for failure to
exhaust administrative remedies as required under the IDEA. Plaintiffs respond
that exhaustion is not required because it would be futile in this case since the
alleged systemic violations of IDEA cannot be remedied through the
administrative process. As an initial point, these arguments were made prior to the
United States Supreme Court’s decision in Fry v. Napoleon Cmty. Sch., 137 S. Ct.
743, 197 L. Ed. 2d 46 (2017), which held that plaintiffs must exhaust in suits
brought under statutes other than the IDEA if the remedy sought addresses the
Page 6 of 26
denial of a FAPE. While no supplemental briefs have been submitted that address
the relevance of this decision on the exhaustion argument, the complaint
unequivocally concerns the alleged failure to provide a FAPE, and therefore the
exhaustion requirement of § 1415(l) still applies to all claims, as originally argued
It is clear from the plain language of the IDEA that exhaustion of
administrative remedies is required before a party may file a suit under the act in
federal court. Covington v. Knox County Sch. Sys., 205 F.3d 912, 915 (6th Cir.
2000). The two principle exceptions to this requirement of exhaustion of
administrative remedies are where the administrative procedures “would be futile
or inadequate to protect the plaintiff’s rights,” or where “plaintiffs were not given
full notice of their procedural rights under the IDEA.” Id. at 917. Courts have
applied the futile or inadequate exceptions to exhaustion when plaintiffs seek relief
that is not otherwise available through the administrative process, i.e. allegations of
“structural or systemic failure.” Jackie S. v. Connelly, 442 F. Supp. 2d 503, 518
(S.D. Ohio 2006) (citations omitted).
At the end of the hearing, Defendant FCS argued that the Fry decision mandated exhaustion if
the complaint concerned a FAPE, seemingly arguing that because of this decision, Plaintiffs
must exhaust and cannot be excused. There is nothing to suggest that the Supreme Court in Fry
did away with exceptions to exhaustion in cases concerning a FAPE. The issue decided in that
case considered artful pleading of claims concerning a FAPE under statutes other than IDEA, in
order to avoid the exhaustion requirement. There was no discussion of exceptions to exhaustion,
and certainly no indication that the case had any impact on existing and established case law
surrounding exceptions to exhaustion under IDEA.
Page 7 of 26
It is undisputed that Plaintiffs have not properly exhausted, and that they
were given actual notice of the procedural rights. However, Plaintiffs argue that the
systemic exception applies to excuse their lack of exhaustion.2 While the Sixth
Circuit has not expressly adopted this exception, nor explicitly defined the futility
exception for systemic claims, courts around the country have accepted this excuse
with varying parameters. See Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 682
(9th Cir. 1997) (systemic claim involves allegations concerning system-wide issues
requiring wholesale structural reform); see also J.S. v. Attica Cent. Schs., 386 F.3d
107 (2d Cir. 2004) (plaintiffs alleged system-wide problems when the “framework
and procedures for assessing and placing students in appropriate educational
programs were at issue, or because the nature and volume of complaints were
incapable of correction by the administrative hearing process.”).
Plaintiffs direct the Court to three cases they believe support the conclusion
that they should be excused from exhaustion for alleging systemic violations. In
the first case, J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Cir.
Plaintiffs also rely upon an emergency exception. This exception has never been recognized by
the Sixth Circuit, or any district courts within the circuit. Further, the interpretations of such an
exception by other courts suggest that the facts of this case would not justify a finding of an
emergency exception because of the evidence before the Court. See, e.g., Rose v. Yeaw, 214 F.3d
206, 212 (1st Cir. 2000) (citation omitted) (requiring plaintiffs to provide evidence that the child
faces irreversible damage if the relief is not granted). Plaintiffs merely state that the ongoing
water crisis is an emergency that is “certain to cause Plaintiffs severe and irreparable harm if
they are not able to seek relief now.” [29 at 25]. While the Court acknowledges and appreciates
the severity of the situation in Flint, the conclusory nature of this pleading and argument does not
support an emergency exception.
Page 8 of 26
2004), the plaintiffs were found to have alleged systemic violations under the
IDEA. In that case, the Court surveyed applicable precedent and concluded that the
common element in systemic cases was that:
[T]he plaintiffs’ problems could not have been remedied by
administrative bodies because the framework and procedures for
assessing and placing students in appropriate educational programs
were at issue, or because the nature and volume of complaints were
incapable of correction by the administrative hearing process.
Id. at 114. Importantly, “[i]f each plaintiff had been forced to take his or her claim
before a hearing officer and appeal to another local or state official, there would
have been a high probability of inconsistent results,” and the administrative record
would not have been of “substantial benefit” to the Court. Id. Therefore, the
Second Circuit panel found that the plaintiffs’ challenges to the School District’s
failures to: prepare and implement IEPs, provide appropriate training to staff,
perform timely evaluations and reevaluations, provide parents with procedural
safeguards related to identification and evaluation of children with disabilities, and
perform legally mandated responsibilities in a timely matter, represented systemic
allegation because the challenge was not to the individual IEPs of the various
plaintiffs, but rather to the School District’s “total failure to prepare and implement
[IEPs].” Id. at 115.
This case was factually similar to the pending matter. Here, Plaintiffs are
seeking systemic relief in the form of injunctive relief on behalf of a large class.
Page 9 of 26
The challenge is to the very framework and processes that the school district
undertakes for every child, rather than individuals contesting their IEPs. The Court
agrees with the logic in J.S. that challenges such as these are incapable of
correction in the individual administrative exhaustion procedure, and instead, are
of a systemic nature that is properly addressed by the Court.
The remaining two cases proffered by Plaintiffs to support their position are
recent decisions by district courts in this circuit: W.H. by & through M.H. D.R. v.
Tennessee Dep’t of Educ., No. 3:15-1014, 2016 WL 236996 (M.D. Tenn. Jan. 20,
2016); and N.S. v. Tennessee Dep’t of Educ., Knox Cty. Bd. of Educ., No. 3:16-CV0610, 2016 WL 3763264 (M.D. Tenn. July 14, 2016). Motions to dismiss were
denied in both because the Court found that the plaintiffs had alleged systemic
violations rendering exhaustion futile.
W.H. concerned allegations that the school district and the SEA “denied
LRE placements and placed [plaintiffs] in more segregated settings than
necessary.” W.H., 2016 WL 236996, at *2. N.S. challenged the misuse and overuse
of isolation and restraint techniques on children with disabilities. N.S., 2016 WL
3763264 at *1.
In these cases, the courts considered the allegations to be systemic because
the plaintiffs were not requesting that the court individually determine the
plaintiffs’ educational needs, the very subject of an administrative review; but
Page 10 of 26
rather, were raising the question of whether the School District, in meeting the
plaintiffs’ educational needs, employed practices that caused the plaintiffs to be
placed in more restrictive environments than necessary. Id. at *10. These claims
were distinct from the local-level evaluation of the plaintiffs’ individual needs, as
demonstrated by the fact that the plaintiffs were not seeking individual relief, but
rather, injunctions mandating systemic reforms to the school district policies and
Thus, in N.S., the Court held that the plaintiffs were challenging systemic
violations because the complaint contained:
. . . specific examples of actions taken by the defendants (the use of
“time out” terminology to replace “isolation” at the local level,
instructions not to collect certain types of data at the state level),
specific incidents that should have made the defendants aware of a
problem (publicized events involving the use of “timeouts,” a
disproportionate number of incidents of isolation and restraint in KCS
as compared to other school districts), evidence that the problem is
widespread (although there are only two plaintiffs, they attended a
number of schools throughout KCS), and specific state statutory
mandates that the defendants have allegedly failed to uphold . . . .
Id. This established the systemic nature of the claims, and further placed
Defendants on notice that systemic problems were on-going within the School
District and subject to broad-based legal challenge. Id.
In this case, Plaintiffs seek systemic change within the School District’s
policies to ensure compliance with state and federal law. The complaint alleges
four systemic violations: failure to develop and implement child find procedures;
Page 11 of 26
failure to provide a free appropriate public education that confers a meaningful
educational benefit in the least restrictive environment; failure to protect students’
procedural due process protections in the disciplinary process; and discrimination
on the basis of disability with accompanying denial of access to educational
Similar to N.S., Plaintiffs here have alleged specific facts relating to
incidents and publicized statistics showing disproportionate incidents of
suspension of students with IEPs, thus providing the proof of similar allegations in
the complaint. For example, the complaint states, “[i]n 2014-2015, 13.59% of
special education students in FCS were suspended or expelled for more than ten
days- more than five times the statewide suspension/expulsion rate of 2.48%.”
Compl. at ¶ 80. Additionally, Plaintiffs identify specific incidents that have
occurred broadly across FCS, also lending credence to the application of the
systemic exception here.
Defendants argue that they should have a chance to address these problems
in the context of administrative proceedings. However, they do not explain how
these allegations concerning the very core of the manner that the School District
functions on a daily basis, implementing state and federal law could successfully
be resolved in an administrative context. Further, because the class contains all
Page 12 of 26
children in the School District, the time required for all of those affected to seek
and obtain administrative consideration would be prohibitive and punitive.
Defendants also fail to demonstrate how the record of the administrative
proceedings would benefit the Court in this case, yet another factor favoring a
decision that these claims fall under the systemic exception to the exhaustion
requirement. At the hearing, Defendant FCS conferred with individuals that were
in the Courtroom, including the distributor of learning support services, and
indicated that there have been two students who taken up administrative appeals.
This does not support an argument that exhaustion is readily available, or that the
system is functioning properly, and instead points to systematic problems given the
facts alleged in the complaint surrounding the representative Plaintiffs and the high
percentage of children in FCS qualifying under IDEA for IEPs.
Defendants also argue that because the complaint only alleges violations by
FCS, and does not concern purported state-wide violations, the claims cannot be
characterized as systemic in nature. See Hoeft v. Tucson Unified Sch. Dist., 967
F.2d 1298, 1305 (9th Cir. 1992). However, the decision is not as persuasive as
decisions from the 3rd Circuit, 2nd Circuit, and 10th Circuit. See M.A. v. State
Operated Sch. Dist. of Newark, 344 F.3d 335, 343 (3d Cir. 2003); Jose P. v.
Ambach, 669 F.2d 865, 869-70 (2d Cir. 1982); New Mexico Ass’n for Retarded
Citizens v. N.M., 678 F.2d 847, 851 (10th Cir. 1982). Moreover, the violations
Page 13 of 26
challenged here pose a unique risk to children in FCS, requiring IEPs addressing
prolonged lead exposure. Therefore, the Court concludes that these claims are
unique to the FCS, and that it is difficult to understand how a statewide systemic
violation could exist, since the dangerously polluted water exists as a systematic
threat only to the children of the Flint community.
It is clear from Plaintiffs’ complaint that the remedy they are seeking is a
systemic change in the very way that Defendants identify, place, and educate all
children in the Flint School District. The relief they are seeking is plainly not
individual and could not be remedied by individual exhaustion since Plaintiffs are
challenging the very efficacy of the system employed within the Flint District.
Further, the representative Plaintiffs have emphatically illustrated that the alleged
violations are widespread across the Flint schools and repetitive in nature. Thus,
these systemic violations cannot be adequately exhausted through the
administrative procedure and the systemic violation exception applies.
2. STANDING TO BRING CASE AGAINST MDE UNDER IDEA, TITLE II AND §
Defendant MDE argues that, as against MDE, Plaintiffs cannot establish an
injury in fact, causation, or redressability. First, Defendant MDE argues that the
claims asserted against it, i.e. that they failed to provide the appropriate
monitoring, oversight, resources, and expertise required to help the local
Defendants comply with the IDEA, are merely procedural and therefore not
Page 14 of 26
actionable under the IDEA. See D.S. v Bayonne Bd. of Educ., 602 F.3d 553, 565
(3d Cir. 2010) (citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26
(2007)). A procedural violation of the IDEA is actionable “if it results in a loss of
educational opportunity…or causes a deprivation of educational benefits.” D.S. v
Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010). Plaintiffs’ complaint
contains many specific allegations that MDE’s failure to monitor and ensure that
adequate remedial services are timely provided has caused a loss of educational
opportunity and deprivation of educational benefits. Therefore, the court finds
Defendant’s argument unpersuasive.
Defendant also cites authority purportedly establishing that there is no
standing here because they were never placed on notice that each child was not
receiving a FAPE. However, the cases that Defendant cites are not binding and
deal with a failure to exhaust. Since the failure to exhaust has been excused, these
cases are inapposite.
Defendant further argues that Plaintiffs have merely raised generalized
complaints, has failed to establish causation, and does not state a separate,
redressable injury, since redressability is dependent on other actors, including the
local Defendants and parents. To the contrary, the complaint contains many
specific alleged violations of IDEA, § 504, and the ADA. These allegations also
demonstrate injuries in fact occurring as a result of these violations. Specifically, it
Page 15 of 26
is alleged that MDE failed to provide the local Defendants with sufficient funding
and support to enable it to meet the requirements of the IDEA. It is also alleged
that their monitoring was inadequate.
As to the asserted causation requirement, there is no need to allege direct
causation to establish standing. Rather, a plaintiff’s injuries must be “fairly
traceable” to the defendant’s actions. Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 103 (1998). An indirect injury does not destroy standing. Parsons v. U.S.
Dep’t of Justice, 801 F.3d 701, 713 (6th Cir. 2015). In this case, the complaint
presents allegations of injury caused by the failure of MDE to fulfill its critical
statutory obligations under IDEA, § 504, and the ADA, to the children it is
responsible for. Considering its direct role in monitoring and ensuring compliance
with the IDEA, the alleged injuries are unquestionably the result of Defendant
MDE’s actions. See Pachl v. Seagren, 453 F.3d 1064, 1070 (8th Cir. 2006) (SEA
“may be responsible for violations of the IDEA when the state agency in some way
fail[s] to comply with its duty to assure that the IDEA’s substantive requirements
are implemented,” including “systemic violation” of the state’s IDEA
Finally, as to the argument that the injuries are not redressable because the
relief depends on other actors to establish standing, Plaintiffs are not required to
show that a favorable decision will correct all of the injuries alleged, but rather,
Page 16 of 26
that a favorable decision is likely to establish at least a partial redress. See Parsons,
801 F. 3d at 716. The requested relief seeks an order requiring MDE to fulfill its
obligations to identify and evaluate all children requiring special education through
enhanced screening processes, and to provide them with a FAPE, ensuring that
IEPs are implemented, and developing effective training and systems to ensure
proper disciplinary procedures. It is clear that a favorable ruling on these claims
would provide at least a partial redress to the injuries alleged. Moreover, since the
local Defendants are parties to this case, there is no argument that other actors, not
before the Court, would affect redressability. As for the parents, they have joined
in the lawsuit, and there is no reason to believe that their presence would hinder
Defendants also argue that Plaintiffs lack standing for the § 504 and ADA
claims because they have failed to allege an injury under these acts, as not every
proposed member of the class is necessarily disabled and eligible for services
under the ADA or § 504. It is asserted that this “hypothetical” injury is not
sufficient to establish standing. See Whitmore v Arkansas, 495 U.S 149, 155
(1990). However, this argument ignores the many class members who are
currently disabled. There is no argument requiring a finding of a lack of standing
for these Plaintiffs, and Defendant does not address this argument in its reply.
Page 17 of 26
Considering the above, Plaintiffs have standing to bring the IDEA, ADA, and §
504 claims against Defendant MDE.
3. 11TH AMENDMENT IMMUNITY BARS ADA CLAIM AGAINST DEFENDANT
Defendant MDE argues that it has Eleventh Amendment immunity as to the
ADA claim. “Congress has expressed an unequivocal desire to abrogate Eleventh
Amendment immunity for violations of the ADA.” Babcock v. Michigan, 812 F.3d
531, 534 (6th Cir. 2016). When determining whether the 11th Amendment applies
for violations of the ADA, Courts are instructed to:
[D]etermine . . . on a claim-by-claim basis, (1) which aspects of the
State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar
as such misconduct violated Title II but did not violate the Fourteenth
Amendment, whether Congress's purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.
United States v. Georgia, 546 U.S. 151, 159 (2006).
Defendant focuses on the first part of this test that requires the Court to
determine “which aspects, if any, of the Defendants’ alleged conduct violated Title
II.” Id. at 535. It contends that Plaintiffs have failed to state a claim under Title II
of the ADA, and thus immunity must apply.
As Plaintiffs point out, the Sixth Circuit has not yet ruled on whether the
11th Amendment is abrogated in the context of public education. However,
Plaintiffs correctly point to many other circuits that have found state immunity was
Page 18 of 26
abrogated in the context of higher public education. See, e.g., Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 555 (3d Cir. 2007); Toledo v. Sanchez,
454 F.3d 24, 40 (1st Cir. 2006); Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474 (4th Cir. 2005); W.H., 2016 WL 236996. In these
cases, courts have abrogated 11th Amendment immunity in the context of public
education, and applied their reasoning to a claim concerning primary education,
seeing no reason why the reasoning in higher education cases should not equally
apply to the primary education context.
Defendants have offered no binding or persuasive authority in which a court
has held that state immunity is not abrogated in the context of public education.
Rather, they proffer a case in which the Court found that there was not a valid
ADA claim stated, and ended its analysis there. Babcock, 812 F.3d at 534-35. As a
result, the court did not rule on the issue of whether the Eleventh Amendment
barred Title II claims. Therefore, the Court is not persuaded to disregard the
significant case law abrogating 11th Amendment immunity in the cases concerning
public education. Accordingly, 11th Amendment immunity does not apply to
Plaintiffs’ ADA claim.
Page 19 of 26
4. FAILURE TO STATE A CLAIM
Defendants MDE and GISD first argue that Plaintiffs have not stated a valid
IDEA claim, asserting first that they have failed to exhaust their claims (an
argument resolved above), while also arguing that the claims are too vague, merely
containing broad, conclusory allegations. However, Plaintiffs have pled valid
claims in their detailed challenges to the policies and practices of the Defendants in
a complaint that runs over 130 pages, and have included specific examples
illustrating these allegations through the representative Plaintiffs.
Plaintiffs allege that Defendant MDE: “failed to provide necessary resources
(Compl. at ¶¶ 4, 16, 365); failed to ensure its public schools complied with IDEA,
as required of Defendant by the statute (¶¶ 35, 42, 50, 381); failed to monitor and
enforce child-find procedures, as required of Defendant by the IDEA (¶¶ 41, 350);
failed to correct FCS and GISD’s ongoing pattern of not providing procedural
safeguards nor the expertise and resources required for FCS / GISD to do so
themselves (¶ 381); and failed to ensure districts provide a FAPE for Plaintiffs and
all similarly situated students with disabilities” (¶ 388). [29 at 52-53]. These
allegations are detailed and address claims specific to each Plaintiff, showing that
this is a common occurrence across the school district, impacting many children.
Page 20 of 26
Plaintiffs further assert that: “GSID failed to address sensory and behavioral
needs of students in GISD-run schools (¶ 129); failed to provide special education
services and evaluation for students with disabilities even when frequently
prompted by concerned parents (¶¶ 278, 328, 333, 334, 370); failed to apprise
parents of contemplated behavior controlling techniques nor sought their
permission for such actions (¶130); failed to assess the extent of lead exposure
when conducting reevaluations (¶ 134); failed to screen and issue timely referrals
pursuant to IDEA’s child-find requirements (¶ 364); failed to provide procedural
safeguards for students with disabilities (¶ 381); engaged in a pattern of unduly
harsh disciplinary measures, including physical restraints and seclusion techniques
in violation of IDEA (¶ 381); failed to provide students with disabilities the same
variety of programs and services offered to non-disabled students (¶ 384); and
failed to provide a FAPE to Plaintiffs and similarly situated students with
disabilities” (¶ 394). [29 at 53-54]. These specific allegations put Defendants on
notice as to the factual basis for the complaint and satisfies the 12(b)(6) standard.
b. TITLE II ADA AND § 504 CLAIMS
Defendant MDE argues that Plaintiffs have not alleged Title II ADA and §
504 claims because: some of the class members are not disabled; there is only a
disagreement over the level of services provided, not a denial of access; and there
Page 21 of 26
is no discriminatory animus plead, which is fatal under Title II. Defendant MDE
further alleges that the claims are too vague and conclusory to be sustained.
The sufficiency of Plaintiffs’ ADA and § 504 claims will be evaluated
together. S.S. v. E. Kentucky Univ., 532 F.3d 445, 452-53 (6th Cir.2008). To state a
valid claim under both statutes, Plaintiff must demonstrate that:
(1) The plaintiff is a ‘handicapped person’ under the Act; (2) The
plaintiff is ‘otherwise qualified’ for participation in the program; (3)
The plaintiff is being excluded from participation in, or being denied
the benefits of, or being subjected to discrimination under the program
solely by reason of his handicap; and (4) The relevant program or
activity is receiving Federal financial assistance.
Campbell v. Bd. of Educ. of the Centerline Sch. Dist., 58 Fed. Appx. 162, 165 (6th
In this Circuit, in the context of FAPE claims, a mere disagreement in FAPE
is not sufficient to show discrimination; rather, discriminatory intent must be
established by “bad faith or gross misjudgment” in the context of disabled children.
Campbell, 58 F. App’x at 167; see also G.C. v. Owensboro Pub. Sch., 711 F.3d
623, 635 (6th Cir. 2013).
Plaintiffs have alleged that: “they are not entitled to receive the same variety
of programs made available to nondisabled children, (Compl. at ¶¶ 108, 110, 112,
123, 125-26, 184, 209, 259, 261, 301, 384, 387, 391); lack of disability
identification repeatedly causes unnecessary segregation and seclusion from the
general education environment, (¶¶ 108-10, 144, 148-49, 151, 177, 184, 209, 243,
Page 22 of 26
273, 290, 301-02); children with disabilities are repeatedly sent home and/or
suspended, without the proper documentation required when suspending or
sending home Plaintiffs’ nondisabled peers,” (¶¶ 110, 143, 254). [29 at 57].
It is undisputed that there are disabled Plaintiffs. Plaintiffs also allege that
children are not being properly assessed and evaluated, so they may well be able to
establish that even more are disabled. Again, Defendants fail to show why the fact
that some of the class members may not be disabled should cause the entire claim
to be dismissed.
Defendants are correct that a mere failure to provide the FAPE as required
by the IDEA is insufficient to support a § 504 or Title II ADA claim. However,
Plaintiffs have challenged MDE’s professional judgment in oversight of the FCS,
and the allocation of necessary resources, and asserted that this has caused
discriminatory effects. Whether this judgment rises to the level of gross
misjudgment, to qualify as discriminatory, is a question of fact that needs to be
developed and brought before a trier of fact to determine. Therefore, as a threshold
matter, Plaintiffs have stated a valid claim under § 504 and the ADA.
5. PLAINTIFF’S STATE LAW CLAIM IS NOT FOR EDUCATIONAL MALPRACTICE
Defendant GISD argues that Plaintiffs’ state law claim is one for
“educational malpractice,” and as such, is barred, citing decisions that refuse to
accept state-law negligence claims “in which a public school is alleged to have
Page 23 of 26
failed to adequately instruct a student in basic academic skills.” Page v. Klein
Tools, Inc., 610 N.W. 2d 900, 903 (Mich. 2000). However, the cases cited by
Defendant GISD all alleged negligent instruction, and sought monetary damages.
Plaintiffs here bring a claim under M.C.L. § 380.1711(1)(h)m, which addresses the
responsibility to oversee and coordinate special education. In Woolcott v. State Bd.
of Educ., 351 N.W.2d 601 (Mich. App. 1984), the Court held that students may
have a cause of action under M.C.L. § 380.1701, et seq., for declaratory and
injunctive relief. Therefore, Defendant’s argument is not valid.
6. STANDING TO SUE FOR FCS FAILURE TO CONDUCT APPROPRIATE
Defendant FCS contends that Plaintiffs lack standing as to their declaratory
and injunctive request seeking hearing, vision, and lead blood testing, because the
screenings are currently offered by the county health department. Because these
tests are mandated by the Michigan Public Health Code, M.C.L. § 333.9301, which
meets the “full individual evaluation” requirements under the IDEA (20 U.S.C.
§1414; 34 C.F.R. § 300.304(c)(4); 34 C.F.R. § 300.301(a)), Defendant argues that
there is no case or controversy as to this claim, since there is no injury that would
be redressed in the case of a favorable outcome for that claim.
As explained at the hearing, these screenings are not presented in all of the
schools in the School District. Considering the fact that every child in the School
District is exposed to the dangers of lead in the water, the presence of these tests in
Page 24 of 26
a few schools is not equivalent to the relief Plaintiffs are requesting, that children
at all schools in FCS have access to these screenings. Therefore, this claim for
relief will not be dismissed.
7. UNIVERSAL PRESCHOOL CLAIM
Finally, Defendant FCS argues that the Court should dismiss under Fed. R.
Civ. P. 12(b)(6) the claim seeking universal preschool, because only the state
legislature can create such a program, and there is no legal requirement under any
of the statutes which Plaintiffs have invoked that provide for this relief. See
Michigan Constitution, Article 8, Section 2 (“[t]he legislature shall maintain and
support a system of free public elementary and secondary schools as defined by
Plaintiffs do not respond to any of the arguments presented by Defendant,
merely stating in a footnote that the “provision of early interventions including
universal preschool is an essential remedy to fulfill Defendants’ obligations
regarding child find and the provision of FAPE.” There is no showing that this
Court has the power to order the creation of public universal preschool. See, e.g.,
Leandro v. State, 346 N.C. 336, 357, 488 S.E.2d 249, 261 (1997) (“[T]he
administration of the public schools of the state is best left to the legislative and
executive branches of government.”). Therefore, this claim for relief is dismissed.
Page 25 of 26
IT IS ORDERED that Defendant MDE’s Motion to Dismiss  and
Defendant GISD’s Motion for Judgment  are DENIED.
IT IS FURTHER ORDERED that Defendant FCS’s Motion to Dismiss
 is GRANTED in part as to Defendant’s request to dismiss the claim for
universal preschool and DENIED in part as to the remainder of Defendant FCS’s
Motion to Dismiss.
Dated: September 29, 2017
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Page 26 of 26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?