Johnston et al v. New Miami Local School District Board of Education et al

Filing 96

ORDER denying 58 Motion for Summary Judgment; denying 73 Motion for Partial Summary Judgment; granting 74 Motion to Strike ; granting 62 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 9/20/16. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Thomas Johnston, et al.,

Case No. 1:14cv973

Plaintiffs,

Judge Michael R. Barrett

v.
New Miami Local School District
Board of Education, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Plaintiffs’ Motion for Partial Summary
Judgment as to Count IX against Defendant Ohio Department of Education (Doc. 58);
Defendant Ohio Department of Health’s Motion for Summary Judgment (Doc. 62); and
Plaintiffs’ Motion for Partial Summary Judgment as to Count X against Defendant Ohio
Department of Education (Doc.73). These motions have been fully briefed (Docs. 72,
73, 81, 83, 91); and the Court has also considered the brief by Amicus Disability Rights
Ohio (Doc. 92). Also before the Court is Plaintiffs’ Motion to Strike the Affidavit of Susan
Zake. (Doc. 74).
I.

BACKGROUND
There is very little disagreement between the parties about the facts of this case.

By way of background, this case arose out of a state administrative complaint Plaintiffs
filed with Defendant Ohio Department of Education (“ODE”). Plaintiffs are the parents of
B.J., who is 15-year old student with disabilities. B.J. has been diagnosed with Attention
Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, anxiety, and learning

disabilities in reading and math. Since the third grade, B.J. has been provided education
through an Individualized Education Program (“IEP”). The IEP must “contain a specific
statement of the child's current performance levels, the child's short-term and long-term
goals, the educational and other services to be provided, and criteria for evaluating the
child's progress.”

Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 853 (6th Cir. 2004),

aff'd sub nom. Deal v. Hamilton Cty. Dep't of Educ., 258 F. App'x 863 (6th Cir. 2008)
(quoting Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 763 (6th Cir.
2001)); see also 20 U.S.C. § 1401(a)(20)). School districts receiving funds under the
Individuals with Disabilities Education Act (“IDEA”) are required to establish an IEP for
each child with a disability. Deal, 392 F.3d at 853. The IDEA was enacted to ensure
that all children with disabilities receive a Free Appropriate Public Education (“FAPE”).
As part of providing FAPE, school districts are required to establish an IEP for each child
with a disability. Id. (citing 20 U.S.C. § 1414(a)(5)).
It was agreed that during the 2014-15 school year, B.J. would attend the high
school operated by Defendant New Miami Local School District Board of Education (“the
District”). At the open house on August 12, 2014, B.J. introduced himself to the principal
and allegedly stated that he was going to terrorize the school. Two days later, the
District advised the parents that it was suspending B.J. for ten days. The parties met for
a manifestation determination, which determines whether the child’s behavior that is the
subject of the discipline is related to the child’s disability. The District determined that
B.J.’s behavior was not related to his disabilities. After another similar incident which
allegedly occurred on August 28, 2014, the District expelled B.J. However, an IEP
meeting was not convened to determine what services B.J. needed while he was out of

2

school.
After Plaintiffs filed their administrative complaint with ODE on September 25,
2014, ODE conducted an investigation and issued its findings on November 10, 2014.
(Doc. 31-1). ODE found that because the District excluded B.J. from school without any
services, the District was in violation of the IDEA. 1 ODE ordered the District to conduct a
new manifestation determination, develop a new IEP for B.J., and provide B.J. with
compensatory education. ODE gave the District a deadline of December 5, 2014. The
District did not comply with ODE’s orders by that date, and instead asked for an extension
to December 19, 2014.
On December 12, 2014, Plaintiffs filed a due process complaint pursuant to the
provisions of the IDEA allowing the filing of an expedited hearing request in matters
pertaining to student discipline. Through the month of December, the ODE hearing
officer attempted to set up a conference call between Plaintiffs and the District to set a
schedule for the proceedings.
On December 19, 2014, Plaintiffs filed their original complaint in this Court, naming
ODE as a Defendant and seeking a temporary restraining order (“TRO”). On December
26, 2014, Plaintiffs and counsel for the District came to an agreement to resolve the
issues necessitating the TRO motion and it was withdrawn. This written agreement
stated that the District would convene a meeting no later than January 6, 2015, and would
begin home instruction for B.J. no later than January 7, 2015.
On December 31, 2014, ODE issued a notice of non-compliance and threatened to
1

Specifically, the ODE found the District failed to conduct an appropriate manifestation
determination; failed to convene an IEP meeting to determine what services B.J. would need
while out of school; failed to update the Student’s IEP to reflect the change in placement; failed to
implement an IEP by not providing any services at all; and failed to provide prior written notices
when the District failed to convene an IEP meeting or determine necessary services.
3

withhold funds from the District. (Doc. 31-2). ODE gave the District until January 15,
2015 to address its noncompliance.
The District failed to provide home instruction on January 7, 2015, and on January
9, 2014, the ODE hearing officer ordered the District to provide home instruction on
January 12, 2015. However, on January 12th, the teacher assigned to work with B.J. did
not show up for instruction.
On January 15, 2015, ODE again notified the District in writing that it would
withhold funds if the District failed to comply. (Doc. 31-3). ODE gave the District thirty
days to make corrections. On February 12, 2015, ODE began to withhold funds from the
District. On March 5, 2015, Plaintiffs signed a settlement agreement with the District and
released their claims up to and including the date of the Agreement. B.J.’s first day of
instruction was March 13, 2015. The District was also supposed to provide B.J. with
remedial services over the summer of 2015, however, the District did not provide these
services.
On August 21, 2015, this Court ordered the District to provide special education
services to B.J for a period of eight weeks. (Doc. 56). On October 5, 2015, this Court
extended this order until the case resolved or until further order of the Court. (Doc. 60).
In their Second Amended Complaint, Plaintiffs brought the following claims against
ODE: violation of the IDEA (Count IX); violation of Section 504 of the Rehabilitation Act,
29 U.S.C. §794, based on ODE’s knowing refusal to accommodate B.J.’s educational
needs (Count X); and 42 U.S.C. § 1983 based on a Fourteenth Amendment Due Process
violation (Count XI). Plaintiffs and ODE have stipulated to the dismissal of Plaintiffs’
claim under Section 1983. (Doc. 75). In addition, Plaintiffs’ claims against the District

4

have been settled and dismissed. (Doc. 69).
II.

ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if

the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving party has the burden of showing
an absence of evidence to support the non-moving party’s case.
Catrett, 477 U.S. 317, 325 (1986).

Celotex Corp. v.

Once the moving party has met its burden of

production, the non-moving party cannot rest on his pleadings, but must present
significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
These standards upon which the court evaluates motions for summary judgment do not
change simply because the parties present cross-motions. Taft Broad. Co. v. United
States, 929 F.2d 240, 248 (6th Cir. 1991).
B. Motion to Strike
In their Motion to Strike the Affidavit of Susan Zake (Doc. 74), Plaintiffs seek to
strike Paragraph 5 which states: “I am aware of no other instance in which the relevant
district has not complied with corrective action required by complaint findings within the
time set in the initial letter or shortly thereafter.” Plaintiffs also seek to strike the sentence
in Paragraph 6 stating: “The district’s failure to serve this student and to respond to ODE’s
efforts to ensure compliance all occurred within her tenure.”

ODE was given an

extension of time to respond to Plaintiffs’ Motion, but instead filed a Second Affidavit or
Susan Zake Under Seal. (Doc. 88). Accordingly, Motion to Strike the Affidavit of Susan

5

Zake (Doc. 74) is GRANTED.
C. IDEA
In Court IX of the Second Amended Complaint, Plaintiffs bring a claim for a
violation of the IDEA. The parties have both filed for summary judgment on this claim.
The IDEA was enacted “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for employment and
independent living.” 20 U.S.C. § 1400(d)(1)(A). As one court has explained:
To effectuate this goal, Congress established a three-tiered funding,
administration, and implementation scheme, under which the state must
submit a plan of compliance to the Secretary of Education which provides
federal IDEA funds to the state. See 20 U.S.C. §§ 1412-1414. The state
is then responsible for administering the funds on the state level, including
the distribution of federal funds to local education agencies (LEAs) and the
implementation of policies and procedures to ensure that each LEA
expends the funds in a manner consistent with the purpose and substantive
provisions of IDEA. See id. §§ 1413(a), 1414(b). In order to qualify for
IDEA funds, each LEA must apply to the state education agency (SEA) and
provide certain assurances of compliance with IDEA. See id. § 1414(a).
The LEA then provides services directly to children with disabilities using
the funds obtained from the SEA. See id.
Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 942-43 (4th Cir. 1997).
Plaintiffs explain that from the time Plaintiffs filed their complaint with ODE at the
end of September of 2014, ODE was aware B.J. was not in school or receiving services.
Plaintiffs explain further that at no time did ODE step in to provide services directly to B.J.
Plaintiffs maintain that ODE was required to provide direct services pursuant to IDEA and
the regulations implementing the IDEA, which mandate that the SEA use funds otherwise
available to local school districts to provide FAPE when the school district itself fails to
provide FAPE.

6

ODE argues that Plaintiffs cannot bring their IDEA claim against ODE because
Plaintiffs are subject to the Consent Decree entered by this Court in Doe v. State of Ohio,
2:91-cv-464 (S.D. Ohio). 2 ODE explains that Plaintiffs have not complied with the
consent decree’s notice and negotiation requirements. However, as Plaintiffs point out,
by its own terms, the consent decree only applies to the claims “in existence at the date
that this Consent Order is approved by the district court.” (Doc. 19-1, PAGEID # 303).
Based on this language, the Court concludes that Plaintiffs’ claims are not subject to the
notice and negotiation requirements of the Consent Decree.
Next, ODE maintains that Plaintiffs do not have standing to bring their IDEA claim
because the claim is moot. ODE explains that the underlying due process claim was
resolved and Plaintiffs obtained the relief they were seeking at the administrative level.
ODE also argues that this Court cannot order systematic changes absent evidence of
systemic violations of federal rights.
Plaintiffs respond that their IDEA claim does not seek the services which were
sought in the administrative proceedings. Plaintiffs also explain that they are not seeking
system-wide relief. Instead, Plaintiffs state that they are seeking declaratory relief in the
form of a declaration that ODE failed to comply with its obligations and must provide direct
services to B.J when the District is unable or unwilling to do so. This type of equitable
relief is available under IDEA. See 20 U.S.C. § 1415(i)(2)(C)(iii) (in a civil action brought
under IDEA, the court “shall grant relief as the court determines is appropriate”).
Courts have interpreted the language, structure and legislative history of the IDEA
to permit a SEA to be held financially responsible when the LEA fails to provide FAPE to a
2

In 2009, the State of Ohio entered into a Consent Order in this Court as the result of a
class action lawsuit filed against it on behalf of all children with disabilities in the State.
7

child with a disability. See, e.g., Gadsby v. Grasmick, 109 F.3d 940, 953 (4th Cir. 1997)
(concluding “an SEA may be held liable under IDEA where the state fails to provide a free
appropriate public education to a child with a disability”); St. Tammany Par. Sch. Bd. v.
State of La., 142 F.3d 776, 784 (5th Cir. 1998) (concluding that “the district court did not
err by interpreting IDEA to allow it to impose liability upon the Department, rather than the
School Board, for the costs pending a merits-decision”); Pachl v. Seagren, 453 F.3d
1064, 1070 (8th Cir. 2006) (explaining that state educational agencies 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.’”) (quoting John T. v. Iowa Dep't of Educ., 258 F.3d 860, 864-65 (8th Cir.
2001)); Charlene R. v. Solomon Charter Sch., 63 F. Supp. 3d 510, 516 (E.D. Pa. 2014)
(provisions of IDEA as well as legislative history “clearly signal that the SEA is to bear
primary responsibility for ensuring that every child receives the FAPE that he or she is
entitled to under the IDEA. While the SEA ordinarily delegates actual provision of this
education to LEAs, the SEA by statute must step in where a LEA cannot or will not provide
a child with a FAPE.”).
The question here is not whether the SEA is financially responsible for providing
services, but whether this Court can order the SEA to provide services directly when the
LEA fails to provide FAPE to a child with a disability. When presented with this specific
issue, the Supreme Court was “equally divided on the question.” Honig v. Doe, 484 U.S.
305, 329, 108 S. Ct. 592, 607, 98 L. Ed. 2d 686 (1988). While the Supreme Court
affirmed the Ninth Circuit's decision to hold the SEA responsible for provision of a FAPE,
it did not specifically adopt the Ninth Circuit’s conclusion regarding the duty to provide

8

services directly, which was:
The state is not obliged to intervene directly in an individual case whenever
the local agency falls short of its responsibilities in some small regard. The
breach must be significant (as in this case), the child's parents or guardian
must give the responsible state officials adequate notice of the local
agency's noncompliance, and the state must be afforded a reasonable
opportunity to compel local compliance.
Doe by Gonzales v. Maher, 793 F.2d 1470, 1492 (9th Cir. 1986). In Maher, the Ninth
Circuit was addressing the plaintiffs’ claims under the Education of All Handicapped
Children Act, a predecessor to IDEA. The statutory language analyzed by the court in
Maher largely remains unchanged in a provision of IDEA entitled “Direct services by the
State educational agency,” which provides:
(1) In general
A State educational agency shall use the payments that would otherwise
have been available to a local educational agency or to a State agency to
provide special education and related services directly to children with
disabilities residing in the area served by that local educational agency, or
for whom that State agency is responsible, if the State educational agency
determines that the local educational agency or State agency, as the case
may be—
(A) has not provided the information needed to establish the eligibility of
such local educational agency or State agency under this section;
(B) is unable to establish and maintain programs of free appropriate public
education that meet the requirements of subsection (a);
(C) is unable or unwilling to be consolidated with 1 or more local educational
agencies in order to establish and maintain such programs; or
(D) has 1 or more children with disabilities who can best be served by a
regional or State program or service delivery system designed to meet the
needs of such children.
(2) Manner and location of education and services
The State educational agency may provide special education and related
services under paragraph (1) in such manner and at such locations
9

(including regional or State centers) as the State educational agency
considers appropriate. Such education and services shall be provided in
accordance with this subchapter.
20 U.S.C § 1413(g). The implementing regulations track the language of the statute.
Plaintiffs rely on these specific provisions:
(a) General
(1) An SEA must use the payments that would otherwise have been
available to an LEA or to a State agency to provide special education and
related services directly to children with disabilities residing in the area
served by that LEA, or for whom that State agency is responsible, if the
SEA determines that the LEA or State agency—
...
(ii) Is unable to establish and maintain programs of FAPE that meet the
requirements of this part;
...
(iv) Has one or more children with disabilities who can best be served by
a regional or State program or service delivery system designed to meet
the needs of these children.
...
(b) Manner and location of education and services. The SEA may provide
special education and related services under paragraph (a) of this section in
the manner and at the locations (including regional or State centers) as the
SEA considers appropriate. The education and services must be provided
in accordance with this part.
34 C.F.R. § 300.227.
In Chavez ex rel. M.C. v. New Mexico Pub. Educ. Dep't, 621 F.3d 1275, 1289 (10th
Cir. 2010), the Tenth Circuit interpreted these same provisions and found that the New
Mexico Public Education Department (“NMPED”) was not required to provide services
directly where the LEA failed to do so. 3 However, the court explained that the provisions
were not applicable to the facts of the case. Id. at 1286. The case was brought by the
3

However, at that time, the language was found at 20 U.S.C. § 1413(h)(1)(2000) and 34
C.F.R. § 300.360 (2002).
10

parents of M.C., a six-grader with autism who was enrolled in a classroom with
non-disabled students because the school district did not have self-contained classroom
to serve M.C. Id. at 1277. In the early part of the school year, M.C. began to refuse to
go to school. Id. In an IEP meeting, M.C.’s parents asked for the school district to send
someone to their home to help them. Id. at 1277-78. The school district refused. Id. at
1278. The school sent homework home until late September of 2003, but then dropped
M.C. from the rolls. Id. M.C.’s parents had him evaluated and met with the IEP team
again in March of 2004.

Id.

The IEP team declined to offer M.C. the residential

placement the parents requested. Id. In May 2004, the parents filed a due process
complaint. Id. The administrative proceedings concluded in March of 2005 with finding
by the administrative appeal officer that (1) the school district failed to provide M.C. with
FAPE since October of 2003; and (2) it appeared that the school district could implement
the remedy ordered by the administrative appeal officer. Id. at 1279.
The Tenth Circuit assumed without deciding that “determining” in 20 U.S.C. § 1413
means “finding out.” Id. at 1285. The court explained that subsections (A) and (C) of 20
U.S.C. § 1413 were clearly not applicable and, under subsections (B) and (D), NMPED
did not either formally determine that a regional or state delivery system was necessary or
that one or more students could best be served by a state or regional program. Id.
Instead, the administrative appeal officer held that the school district had failed to provide
M.C. a FAPE but that it would be able to directly provide education to him with some extra
assistance.

Id.

The Tenth Circuit explained that in concluding that NMPED was

responsible for providing direct services, the district court merely assumed that, applying
Maher, “whenever the local agency refuses or wrongfully neglects to provide a

11

handicapped child with a free appropriate education, that child ‘can best be served’ on the
regional or state level.” Id. (quoting Maher, 793 F.2d at 1492).
The Tenth Circuit found that the Ninth Circuit’s decision in Maher was not
applicable because the only notice the NMPED received “was an informal letter, advising
the state that the parents were keeping their dispute at the local level and a brief phone
call about complying with the due process hearing procedures to challenge [the school
district’s] IEP.” Id. at 1289. The court explained: “We believe that the SEA was not on
notice of non-compliance such that it should have attempted to take over education for
the LEA without allowing the structured evidentiary hearings provided by the Act to run
their course.” Id. The court explained further:
We certainly agree that there might be a different case where the
administrative procedure extends, without interference by the parents, until
it becomes apparent that the child is languishing due to unnecessary and
excessive delay, so that the state must act, especially when faced with a
straightforward parental demand for SEA intervention combined with an
obvious failure of the system.
Id. at 1290.
This Court concludes that this is a “different case” but nevertheless it is not a case
which fits squarely within 20 U.S.C § 1413(g). While ODE ordered the District to take
corrective action, ODE did not “determine[ ]” that the District was “unable to establish and
maintain programs of free appropriate public education” or “has 1 or more children with
disabilities who can best be served by a regional or State program or service delivery
system designed to meet the needs of such children.”
This case is also not one which fits within the Ninth Circuit’s decision in Maher.
There is no doubt that the District’s breach was significant. ODE found that because the
District excluded B.J. from school without any services, the District violated the IDEA.
12

Plaintiffs gave ODE adequate notice of the District’s noncompliance. After the District
failed to comply with ODE’s orders, Plaintiffs filed a due process complaint and the
complaint in this case. However, as the Ninth Circuit explained, the state must be
afforded a reasonable opportunity to compel local compliance. 793 F.2d at 1492.
Here, on December 31, 2014, ODE issued a notice of non-compliance and
threatened to withhold funds from the District. ODE gave the District until January 15,
2015 to address its noncompliance. The District attempted to provide home instruction
on January 12, 2015, but the teacher assigned to work with B.J. did not show up for
instruction.

On January 15, 2015, ODE again notified the District that it would withhold

funds if the District failed to comply.

ODE gave the District thirty days to make

corrections. On February 12, 2015, ODE began to withhold funds to the District. On
March 5, 2015, Plaintiffs settled their claims with the District, and B.J.’s first day of
instruction was March 13, 2015.

While this passage of time was unacceptable to

Plaintiffs, “for these procedures to work, they must be given time: the IDEA does not
provide ‘immediate’ relief.” Chavez, 621 F.3d at 1287. As the Tenth Circuit explained
further in Chavez:
The “dispositive question generally is whether the plaintiff has alleged
injuries that could be redressed to any degree by the IDEA's administrative
procedures and remedies.” ... We do not determine the availability of the
relief based on the immediate ability of a plaintiff to attain it, recognizing that
“a child may have to go through several procedural steps to take advantage
of that remedy.”
Id. (quoting Ellenberg v. New Mexico Military Inst., 478 F.3d 1262, 1276 (10th Cir. 2007)
(internal citations omitted)). Moreover, ODE was required under the IDEA to give the
District “reasonable notice and an opportunity for a hearing” before withholding funds.
20 U.S.C. § 1413(d)(1) (“If the State educational agency, after reasonable notice and an
13

opportunity for a hearing, finds that a local educational agency or State agency that has
been determined to be eligible under this section is failing to comply with any requirement
described in subsection (a), the State educational agency shall reduce or shall not
provide any further payments to the local educational agency or State agency until the
State educational agency is satisfied that the local educational agency or State agency,
as the case may be, is complying with that requirement.”).
Because ODE was permitted a reasonable opportunity to compel compliance
through setting deadlines, threatening to withhold funding, and ultimately withholding
funding, this Court concludes that based on the facts of this case, ODE was not required
to provide services directly.

Accordingly, ODE’s Motion for Summary Judgment on

Count IX is GRANTED and Plaintiffs’ Motion for Partial Summary on Count X is DENIED.
D. Rehabilitation Act
In Count X of the Second Amended Complaint, Plaintiffs bring a claim for a
violation of Section 504 of the Rehabilitation Act.

The parties have both filed for

summary judgment on this claim. However, Plaintiffs’ motion is based on liability only.
Plaintiffs explain discovery is necessary to determine damages.
ODE maintains that Plaintiffs’ claim under the Rehabilitation Act fails because
Plaintiffs cannot show that ODE was deliberately indifferent to Plaintiffs’ concerns. ODE
explains that it took action in response to Plaintiffs’ concerns, and while their concerns
may not have been addressed in the way they wanted them to be, Plaintiffs do not have a
right to a particular remedial outcome.
Plaintiffs respond that the deliberate indifference standard does not apply because
Plaintiffs allege a direct failure to accommodate, and not a claim based upon an injury

14

caused by a third party. However, Plaintiffs rely on the Ninth Circuit’s decision in Mark H.
v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010), which used the deliberate indifference
standard in its analysis. Moreover, a majority of courts have held that a showing of
deliberate indifference may satisfy a claim for compensatory damages under § 504 of the
Rehabilitation Act. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d
Cir. 2013). While the Sixth Circuit has not decided the issue, it has acknowledged that to
“prove discrimination in the education context, courts have held that something more than
a simple failure to provide a free appropriate public education must be shown.” N.L. ex
rel. Mrs. C. v. Knox Cty. Sch., 315 F.3d 688, 695 (6th Cir. 2003) (citing Monahan v.
Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982) and Lunceford v. D.C. Bd. of Educ., 745
F.2d 1577, 1580 (D.C.Cir. 1984)); see also Hill v. Bradley Cty. Bd. of Educ., 295 F. App'x
740, 742 & n.2 (6th Cir. 2008) (accepting the parties agreed position that deliberate
indifference standard applies without deciding the issue); R.K. ex rel. J.K. v. Bd. of Educ.
of Scott Cty., Ky., 637 F. App'x 922, 925 (6th Cir. 2016) (same). Under this standard, the
Sixth Circuit has explained that a plaintiff:
must ultimately prove that the defendant's failure to provide [the student]
with a “free appropriate public education” was discriminatory.
Surmounting that evidentiary hurdle requires that “either bad faith or gross
misjudgment must be shown before a § 504 violation can be made out, at
least in the context of education of handicapped children.” Monahan v.
State of Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982). cert. denied, 460
U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983); see N.L. ex rel. Mrs. C.
v. Knox County Schools, 315 F.3d 688, 695 (6th Cir. 2003) (citing Monahan
with approval).
Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App'x 162, 167 (6th Cir. 2003).
Plaintiffs argue that even if the deliberate indifference standard applies, Plaintiffs
can meet that standard. Plaintiffs explain that ODE knew that none of the measures it

15

took resulted in services being provided to B.J. However, ODE maintains that between
December of 2014 and July of 2015, based on the information it received, it appeared that
the District was complying or moving towards compliance.
The Court concludes that there is nothing in the record which would support a
finding of bad faith or gross misjudgment on the part of ODE. As explained above, ODE
attempted to compel compliance through setting deadlines, threatening to withhold
funding, and ultimately withholding funding. Accordingly, ODE’s Motion for Summary
Judgment on Count IX is GRANTED and Plaintiffs’ Motion for Partial Summary on Count
X is DENIED.
III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. Plaintiffs’ Motion to Strike the Affidavit of Susan Zake (Doc. 74) is
GRANTED;
2. Plaintiffs’ Motion for Partial Summary Judgment as to Count IX against
Defendant Ohio Department of Education (Doc. 58) is DENIED;
3. Defendant Ohio Department of Health’s Motion for Summary Judgment
(Doc. 62) is GRANTED;
4. Plaintiffs’ Motion for Partial Summary Judgment as to Count X against
Defendant Ohio Department of Education (Doc. 73) is DENIED; and
5. There appearing to be no more matters for decision before this Court, this
matter is CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

16