L.D. et al v. Sumner County Schools

Filing 30

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 3/5/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
L.D., the Student, and C.K. and A.K.,
the Student’s Parents/Guardians,
Plaintiffs,
v.
SUMNER COUNTY SCHOOLS,
Defendant.

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Case No. 3:17-cv-01377
Chief Judge Crenshaw

MEMORANDUM OPINION
This is an action for judicial review under the Individuals With Disabilities Act (“IDEA”),
20 U.S.C. §§ 1400 et seq., brought by the parents of L.D., an eight year old boy with autism, against
the Sumner County Schools (“SCS”). Now before the Court is a Motion to Dismiss (Doc. No. 16)
filed by SCS.
I. Factual Allegations
The allegations in the Complaint are as follows:
L.D. is a student in need of specialized instruction and is eligible to receive special
education services under the IDEA. On March 30, 2017, Plaintiffs filed a due process complaint
with the Tennessee Department of Education that challenged SCS’s proposal to move L.D. into a
therapeutic behavioral comprehensive development classroom (“TBCDC”) at R. T. Fisher School.
At the time, L.D. was in a Comprehensive Development Classroom (“CDC”) at Watt Hardison
Elementary School. As a result of the filing of the complaint, SCS was required to maintain L.D.’s
“stay-put” placement at his present school throughout the duration of the due process hearing.
On June 23, 2017, SCS filed its own due process complaint seeking to eliminate the
“stay-put” requirement. It also sought permission to place L.D. at the TBCDC school (which by

then had been relocated to Guild Elementary School) for forty-five days.
On July 31, 2017, a due process hearing was held before an Administrative Law Judge
(“ALJ”). After the hearing, but prior to the hearing officer’s decision, L.D. was accepted as a
student at Illuminate Academy, a private, non-SCS school. Accordingly, on August 11, 2017, his
parents withdrew L.D. from the SCS district. That same day, Plaintiffs filed a motion asking the
ALJ to dismiss the pending due process complaint.
On August 18, 2017, the ALJ denied the Plaintiffs’ Motion to Dismiss and issued a Final
Order permitting SCS to alter L.D.’s placement to the TBCDC at Guild Elementary School for
forty-five days. In doing so, the ALJ found that SCS had “proven by more than a preponderance
of the evidence that maintaining L.D.’s current ‘stay-put’ placement is substantially likely to result
in serious injury to L.D. or others.” (Doc. No. 17-1 at 10). The ALJ then concluded:
[I]t is ORDERED that SCS is relieved of its obligation to maintain L.D.’s current
‘stay-put placement’ at Watt Hardison Elementary School during the pendency of the
companion due process hearing, . . . and that L.D.’s SCS placement be changed to
the therapeutic behavioral CDC program at Guild Elementary School for forty-five
school days. Under the circumstances, it is also ORDERED that L.D. shall not be
required to enroll in school with SCS if he has secured a suitable private placement.
The remaining issues will be resolved at the full hearing, which is currently set to
begin November 3, 2017.
(Id. at 9-10).
By way of background for the ALJ’s Final Order, Plaintiffs admit that, at some point while
at Watt Hardison, “L.D. exhibited aggressive behaviors which resulted in injury to himself, his
classmates, and teachers.” (Doc. No. 1, Complaint ¶ 15). Nevertheless, they insist that L.D.’s
placement in the CDC at Watt Hardison Elementary was appropriate. While there, he was under a
behavior intervention plan that allowed him to have an individualized area in the classroom where
he could receive one-on-one intervention, and “L.D. was able to be successful when he was given
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appropriate direct instruction.” (Id. ¶17). Even though “[t]he classroom staff did not consistently
implement L.D.’s behavior plan,” his teacher reported on February 10, 2017, that she was
“incredibly proud of [L.D.’s] progress.” (Id. ¶ 22).
Shortly after the progress report was issued, SCS claimed that “L.D.’s aggressive behavior
began to increase in intensity.” (Id. ¶ 23). L.D.’s case management team met, and it was determined
that he would be sent to the TBCDC school. His parents were notified of this decision on March
29, 2017, and their due process complaint followed.
In this lawsuit, filed less than two months after the Final Order, Plaintiffs contend the ALJ
erred in several ways. Specifically, they contend the “ALJ committed reversible errors of both law
and fact, including, without limitation, determining” that (a) “L.D.’s withdrawal from SCS did not
moot the due process complaint since the Complaint sought an injunction against a student not
enrolled in the SCS school district”; (b) “SCS did all it reasonably could within the current ‘stay-put’
placement to reduce the risk of injury to L.D. and others”; and © “SCS demonstrated that the
TBCDC program at Guild was an appropriate placement for L.D.” (Doc. No. 1 Complaint at 5).
II. Legal Discussion
The IDEA “offers federal funds to States in exchange for a commitment: to furnish a ‘free
appropriate public education’—more commonly known as a FAPE—to all children with certain
physical or intellectual disabilities.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748 (2017). An
eligible child “acquires a ‘substantive right’ to such an education once a State accepts the IDEA’s
financial assistance,” id. at 749, and “school districts receiving funds under the IDEA must establish
an IEP [Individual Education Program] for each child with a disability,” Knable ex rel. Knable v.
Bexley City Sch. Dist., 238 F.3d 755, 762 (6th Cir. 2001)

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Central to this case is the IDEA’s “stay put” provision, which mandates that, “[d]uring the
pendency of any proceedings conducted pursuant to [the IDEA], unless the State or local educational
agency and the parents or guardian otherwise agree, the child shall remain in the then current
educational placement of such child[.]” See 20 U.S.C. § 1415(j). “The “stay-put” rule is a
two-edged sword, however. While it protects students against unwanted removal from their
classroom by schools, it does not protect against consequences of improvident unilateral removal
by their parents.” Eddins v. Excelsior Indep. Sch. Dist., 88 F. Supp. 2d 695, 701–02 (E.D. Tex.
2000) (citing Sch. Comm. of Burlington v. Dept. of Ed., 471 U.S. 359, 373)). Thus, for example,
“parents who unilaterally change their child’s placement during the pendency of review proceedings,
without the consent of state or local school officials, do so at their own financial risk.” Sch. Comm.
of Burlington, Mass. v. Dep’t of Educ., 471 U.S. 359, 373–74 (1985).
Against this backdrop, SCS moves to dismiss on two ground. It argues that there is no live
case or controversy for purposes of Article III, Section 2 of the United States Constitution because
L.D. was removed from the SCS system. It also argues that, pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), the Complaint fails
to state a claim upon which relief can be granted as required by Rule 12b(6) of the Federal Rules
of Civil Procedure. The Court considers the arguments in reverse order.
A. Failure to State a Claim Under Rule 12(b)(6)
In moving to dismiss for failure to state a claim, SCS argues that “Plaintiffs submitted a less
than a bare bone complaint (about five pages in length) . . . without any sufficient factual allegations
to support their claims for relief, and to request attorney’s fees and costs.” (Doc. No. 17 at 3). The
Court finds the Complaint sufficient.

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Although the Supreme Court in Iqbal and Towmbly “raised the bar for pleading requirements
beyond the old ‘no-set-of-facts’ standard of Conley v. Gibson, 355 U.S. 41, (1957),” Courie v. Alcoa
Wheel & Forged Prod., 577 F.3d 625, 629 (6th Cir. 2009), it “did not significantly alter notice
pleading or impose heightened pleading requirements for all federal claims,” Weisbarth v. Geauga
Park Dist., 499 F.3d 538, 542 (6th Cir. 2007). Instead, notice pleading is alive and well; “Rule
8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’
statement of the plaintiff’s claim, not an exposition of his legal argument.” Skinner v. Switzer, 562
U.S. 521, 530 (2011). Thus, “under contemporary federal pleading standards, a 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), and ‘sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Bandy v. Fifth Third Bank, 519 F. App’x 900, 902 (6th Cir. 2013) (citation
omitted).
When the factual allegations in this case are accepted as true, they are more than sufficient
to place SCS on notice of Plaintiffs’ claims, and those allegations plausibly state a claim (assuming,
of course, there exists a live dispute between the parties). Simply put, Plaintiffs allege that, not
withstanding some bumps in the road, L.D. was performing well in the CDC setting and that the ALJ
erred by (1) deciding the due process complaint after L.D. had been removed from the school
system, and (2) determining the “stay put” provision should be rescinded.

Besides, this is

an appeal from an administrative proceeding under the IDEA, and any merit determination is based
upon the administrative record, not the Complaint. In such circumstances, the court reviews the
record “under a modified de novo standard, meaning that it may set aside administrative findings
in an IDEA case ‘only if the evidence before the court is more likely than not to preclude the

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administrative decision from being justified based on the agency’s presumed educational expertise,
a fair estimate of the worth of the testimony, or both.’” N.W. ex rel. J.W. v. Boone Cty. Bd. of
Educ., 763 F.3d 611, 614 (6th Cir. 2014) (quoting Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d
307, 312–13 (6th Cir. 2007)). Dismissal for failure to state a claim is therefore unwarranted.
B. Case or Controversy Under Article III
“Article III of the Constitution confines the judicial power of federal courts to deciding
actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). “If a
dispute is not a proper case or controversy, the courts have no business deciding it, or expounding
the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). In
the absence of a live dispute under Article III, dismissal for lack of jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure is appropriate. Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir.
2017); KNC Investments, LLC v. Lane’s End Stallions, Inc., 579 F. App’x 381, 383 (6th Cir. 2014).
The Supreme Court has “repeatedly held that an ‘actual controversy’ must exist not only ‘at
the time the complaint is filed,’ but through ‘all stages’ of the litigation.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 90-91 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009). “A case
becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article
III—‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest
in the outcome.’” Id. at 91 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). “No matter how
vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the
lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual controversy about the
plaintiffs’ particular legal rights.’” Id. (quoting Alvarez, 588 U.S. at 93).
Plaintiffs argue that their voluntary withdrawal of L.D. from the SCS system mooted the

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administrative proceedings rendering the ALJ’s decision a nullity. They also argue that their present
Complaint is not moot and that the ALJ erred in removing the “stay put” requirement. Plaintiffs
cannot have it both ways.
The IDEA permits any party that is dissatisfied with the outcome of the due process hearing
to bring suit in state or federal court. 20 U.S.C. § 1415(i)(2). However, “that right of action is
carefully circumscribed. As a condition precedent to its exercise, an aggrieved party must satisfy
the IDEA’s exhaustion provision, § 1415(l), except when exhaustion would be futile or inadequate.”
M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003) (citing Honig v. Doe,
484 U.S. 305, 327 (1988)). Under the IDEA, a claim is exhausted upon the issuance of “a ‘final’
decision of either an impartial due process hearing officer, if the state does not have an appeals
process, or the state educational agency, if it does.” Coleman v. Newburgh Enlarged City Sch. Dist.,
503 F.3d 198, 203 (2d Cir. 2007) (citing in 20 U.S.C. § 1415(i)(2)(A)); see D.B. ex rel. Elizabeth
B. v. Esposito, 675 F.3d 26, 35 (1st Cir. 2012) (noting that, upon the exhaustion of administrative
remedies, “[e]ither side may then appeal from the hearing officer’s final decision to either a federal
or state court of competent jurisdiction”); Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th
Cir. 2012) (“After parents have exhausted the available administrative procedures, any involved
party aggrieved by the final decision of the state education agency that conducted the hearing may
bring a civil action with respect to the complaint presented pursuant to this section in state or federal
court.”).
Here, Plaintiffs sought to circumvent the exhaustion requirement by withdrawing L.D. from
SCS, and requesting that the ALJ not enter a decision. In so doing, they effectively abandoned their
due process complaint, rendering their present claims moot, even if their intent was to avoid an

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adverse determination. See Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200 v. Illinois
State Bd. of Educ., 79 F.3d 654, 659 (7th Cir. 1996) (observing that “[a] desire for a favorable
precedent will not prevent a case from becoming moot”); Eddins v. Excelsior Indep. Sch. Dist., 88
F. Supp. 2d 695, 702 (E.D. Tex. 2000) (noting that “abandonment of a claim renders it moot,” and
stating that some claims are mooted when an IDEA student it voluntarily withdrawn from the school
district).
Even though the ALJ provided that L.D.’s placement could be changed to the TBCDC
program at Guild Elementary School for forty-five school days from August 18, 2017, and even
though this did not occur because L.D. enrolled in a private school, Plaintiffs’ “fear that the ALJ’s
order, if left to stand, would allow the Defendant to place L.D. at Guild if he re-enrolls in the school
district while the associated due process complaints are pending.” (Doc. No. 18 at 5). They invoke
the “capable of repetition, yet evading review” exception to the mootness doctrine, and argue:
Because L.D. is only 8 years old and special education eligibility may apply until his
22nd birthday, there exists a strong probability that he may return to the Defendant’s
school district before his eligibility for special education expires, Defendant’s
injunction of an unenrolled student “in hand makes their action of facility to provide
appropriate supports for L.D. and then unilaterally changing his placement to a more
restrictive environment an action that Plaintiffs could reasonably expect to occur
again.
(Id.). Other than Weinstein v. Bradford, 423 U.S. 147 (1975), a prisoner case involving eligibility
for parole that sets forth the general standards for the exception to mootness, Plaintiffs cite no cases
to support their position.
“The rule that a claim does not become moot where it is capable of repetition, yet evades
review, . . . applies only in exceptional situations, and generally only where the named plaintiff can
make a reasonable showing that he will again be subjected to the alleged illegality.” City of Los

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Angeles v. Lyons, 461 U.S. 95, 109 (1983) (citing Defun is v. Odegaard, 416 U.S. 312, 319 (1974)).
It is limited to situations “where the following two circumstances [are] simultaneously present: ‘ (1)
the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the
same action again.’” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (citing Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 481 (1990)). “The party asserting the exception bears the burden of proof.” Barry
v. Lyon, 834 F.3d 706, 715 (6th Cir. 2016) (citing Lawrence v. Blackwell, 430 F.3d 368, 371 (6th
Cir. 2005)).
In the context of an appeal from a decision under the IDEA or a matter involving an IEP, the
first circumstance will almost always be present because of the amount of time it takes for a claim
to wend its way through the administrative process and the courts. As the Supreme Court noted in
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 186 n.9
(1982), a case involving the Education of Handicap Act (“EHA”), 20 U.S.C. § 1401– the
predecessor to the IDEA–“[j]udicial review invariably takes more than nine months to complete, not
to mention the time consumed during the preceding state administrative hearings.” That “reasoning
has prompted a number of circuits to conclude that IEP disputes likely satisfy the first factor for
avoiding mootness dismissals.” Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397
F.3d 77, 85 (2d Cir. 2005) (collecting cases).
The second circumstance is fact-driven. For example, in Hoenig, another EHA case, the
Supreme Court found one student’s challenge moot because he was by then 24 years old and no
longer entitled to the protections and benefits of the EHA. Another student’s challenge was not
moot, however, because (1) he was still entitled to benefits under the EHA; (2) his “very inability

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to conform his conduct to socially acceptable norms . . . render[ed] him “handicapped”; (3) “the
record [wa]s replete with evidence that [he was] unable to govern his aggressive, impulsive
behavior”; and (4) it was “certainly reasonable to expect, based on his prior history of behavioral
problems, that he will again engage in classroom misconduct.” Honig, 484 U.S. at 319-320. Even
so, the Supreme Court made it a point to note that its “cases reveal that, for purposes of assessing
the likelihood that state authorities will reinflict a given injury, we generally have been unwilling
to assume that the party seeking relief will repeat the type of misconduct that would once again place
him or her at risk of that injury.” Id. at 319.
L.D.’s circumstances lie somewhere between those presented in Honig. On the one hand,
he is an eight years old boy with autism, and therefore eligible for protection of the IDEA for many
more years, if warranted. On the other hand, there is no suggestion that his “very inability to
conform his conduct to socially acceptable norms” is his disability, nor do Plaintiffs suggest that
L.D. is consistently unable to govern his aggressive and impulsive behavior. Quite the contrary,
while the Complaint states that, even though L.D. “exhibited aggressive behaviors” that resulted in
injury to himself and others, it also alleges that he “was able to be successful when he was given
appropriate direct instructions.” (Doc. No. 1, Complaint ¶¶ 15, 17).
The situation presented here is not unlike that presented in Brown v. Bartholomew Consol.
Sch. Corp., 442 F.3d 588 (7th Cir. 2006). There, the parents of a young boy named Bobby were
dissatisfied with an IEP proposed by the school district for the 2002-2003 school year and filed an
administrative complaint. After the hearing officer entered an order in favor of the school district,
and both the State Board of Special Education Appeals and the district court affirmed that decision,
the parents enrolled Bobby, who was then nine years old, in a different school district and agreed

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to a new IEP for the upcoming school year.
On appeal, the Seventh Circuit addressed the “capable of repetition yet evading review”
prong of the mootness doctrine. Noting that the parents relied heavily on Honig, the court pointed
out that, in Honig, “there was an inextricable link between the student's violent behavior and the
challenged policy of exclusion.” Id. at 599. The court then observed:
Precisely because of the child’s “inability to conform his conduct to socially
acceptable norms,” the Supreme Court was willing “to assume that the party seeking
relief will repeat the type of misconduct that would once again place him or her at
risk of injury.” . . . Here, Bobby’s autism presents an evolving set of challenges for
educators, one that requires his IEP to be periodically revised. What was right for
Bobby in kindergarten may not be the proper educational program when he enters
the third grade. The dispute over the 2002–2003 IEP turned on whether Bobby was
ready for full-time mainstream class. Now, as a nine-year old, Bobby's readiness for
mainstream education presents a different question calling for reassessment of his
educational development. Were we to decide, at this later date, whether
mainstreaming was right for Bobby back in 2002–2003, we would be issuing, in
effect, an advisory opinion. Our decision would merely tell the parties who was
correct about Bobby’s outdated IEP. It would do nothing to define the contours of
the parties’ continuing legal relationship under the IDEA such that future repetitions
of the injury could be avoided. The case therefore must be dismissed as moot.
Id. at 599-600 (citation to Honig omitted).
Similarly in this case, L.D. is a young child who suffers from autism who was removed from
the school district where his needs were allegedly not met. The fact that he has unilaterally changed
schools does not, by itself, make the case moot, Hughes v. Dist. Sch. Bd. of Collier Cty., No.
206CV629FTM-29DNF, 2008 WL 4709325, at *6 (M.D. Fla. Sept. 22, 2008), particularly because
his parents challenge to SCS’s decision was made prior to the move. Indep. Sch. Dist. No. 284 v.
A.C., 258 F.3d 769 (8th Cir.2001). What makes the case moot is any allegation or evidence from
Plaintiffs that, if, and when, L.D. returns to an SCS school, he will be the same boy as when he left,
as opposed to an autistic child who presents “an evolving set of challenges for educators[.]” Brown,

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442 F.3d at 599. Logic dictates that L.D. will be different if and when he is readmitted and it would
be pure speculation to say how.
Further, and more importantly, Plaintiffs’ challenge is to the ALJ’s Final Order that merely
addressed the “stay-put” requirement. To the extent that Plaintiffs claim the ALJ procedurally erred
by deciding the matter after being informed that L.D. had changed schools, this certainly is unlikely
ever to repeat itself. Insofar as the ALJ is alleged to have substantively erred by relieving SCS of
its obligation to maintain L.D.’s then-current placement, this, too, does not suggest a live case or
controversy, or circumstances that are bound to recur. The only thing the ALJ has ruled thus far is
that, during the pendency of the due process proceedings, SCS was authorized to place L.D. in the
TBCDC program at Guild Elementary School for a period of forty-five school days. There is no
suggestion that L.D. is likely to return to SCS prior to the completion of these proceedings, which
the ALJ stated was to occur in November 2017 and Plaintiffs state in their briefing has now been
scheduled for the first week in May 2018. (Doc. No. 18 at 4 n.2). Plaintiffs’ fear that the ALJ’s
order would be followed or reimplemented at some unknown point down the road simply does not
suffice to establish a case or controversy. See, Preiser v. Newkirk, 422 U.S. 395, 403 (1975)
(observing that “subjective fear” that is “remote and speculative . . . hardly casts that ‘continuing
and brooding presence,’” which is necessary for a continuing case and controversy); Hange v. City
of Mansfield, 257 F. App’x 887, 891 (6th Cir. 2007) (“stating that the “mere subjective fear that a
plaintiff will be subjected again to an allegedly illegal action is not sufficient to confer standing”).
III. Conclusion
On the basis of the foregoing, SCS’s Motion to Dismiss will be granted and this case will
be dismissed pursuant to Rule 12(b)(3) for lack of a present case or controversy within the meaning

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of Article III.
An appropriate Order will enter.

__________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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