Rachel Vandergriff v. Knox County Board of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

BROOKLYN T., the student, by and

through her parent, RACHEL

VANDERGRIFF, Case No. 3:20-CV-0005

Honorable Laurie J. Michelson

Plaintiffs,

v.

KNOX COUNTY,

Defendant.

OPINION AND ORDER DENYING MOTION TO DISMISS [12]

Brooklyn T. is a minor with a number of disabilities that substantially limit her ability

to communicate, see, hear, and learn. Throughout her education, Brooklyn has received

support from an aide, along with some form of assistive communication device. For a number

of years, Brooklyn used an assistive communication device called DynaVox, a voice-output,

touch-based device. Beginning in fifth grade, Brooklyn’s school switched the device that it

provided. Plaintiffs (Brooklyn T. and her mother, Rachel Vandergriff) claim that the new

device was much less effective and caused Brooklyn so much frustration that she began

harming herself by punching herself in the eye. Eventually, Brooklyn’s punches detached her

retina and caused complete blindness in her right eye. Plaintiffs sued both Knox County,

Tennessee, and the county’s board of education, alleging that the county is liable for

Brooklyn’s blindness and disfigurement because Brooklyn’s school refused to put in place

proper behavioral and speech supports to allow her equal and meaningful access to education.

(The board of education has been dismissed from the case (ECF No. 18).) Plaintiffs bring their

suit under the Americans with Disabilities Act and the Rehabilitation Act. Knox County now

moves to dismiss the suit, arguing that Plaintiffs are required to exhaust administrative

remedies under the Individuals with Disabilities Education Act (IDEA).

For the reasons that follow, the Court finds that although the IDEA’s exhaustion

requirement applies to Plaintiffs’ claim, exhaustion is not required because it would be futile.

I.

Brooklyn has been a student in Knox County public schools since 2014. (ECF No. 12,

PageID.32.) From a young age, Brooklyn has been challenged by a number of medical

impairments, including an intellectual disability, autism, hearing loss, sight limitations, and

cerebral palsy. (Id. at PageID.3.) Throughout her childhood she has been mostly non-verbal

and used an assistive communication device to communicate. (Id.) During elementary school,

Brooklyn began using a DynaVox, which is a voice-output, touch-based device that provides

the user with “the opportunity for literacy, communication, and greater independence.” (Id.)

Brooklyn also worked with an aide to help with “speech-language services.” (Id.)

In fifth grade, Brooklyn’s school, Northshore Elementary, switched her from the

DynaVox to another device called the “GoTalk.” (Id. at PageID.4.) Plaintiffs describe the

GoTalk as a “more rudimentary speech generating device” and argue that “it proved ineffective

for Brooklyn in comparison to the more robust speech device to which she had been

accustomed.” (Id.) Plaintiffs state that Brooklyn had a one percent accuracy rate with the

GoTalk and that she experienced technical problems when using it. (Id.)

After the problems with the GoTalk, the school apparently began using a picture-

exchange communication system (PECs), in which Brooklyn pointed to pictures of items to

communicate her wishes. (Id. at PageID.5.) Plaintiffs refer to these cards as a “low tech”

system and state that they cannot capture most types of communication, including “social

interactions, giving an opinion, expressing feelings, asking questions, telling a story, or

showing affection.” (Id.)

Throughout Brooklyn’s time at West Valley Middle School, the school utilized the

GoTalk and PECs with her. (Id.) According to Plaintiffs, Brooklyn grew frustrated by her

difficulties communicating and began punching herself in her right eye. (Id. at PageID.6.)

Brooklyn’s punches were so frequent and violent that she eventually detached her retina and

blinded herself completely in her right eye. (Id.)

According to Plaintiffs, when Brooklyn’s punching first began, the Defendants “did not

undertake a Functional Behavior Assessment to determine the function behind Brooklyn’s

self-injurious behavior.” (Id. at PageID.7.) Nor did the school create a Behavior Intervention

Plan. (Id.)

Plaintiffs argue that the Defendants’ failure to intervene in Brooklyn’s self-injurious

behavior and to provide appropriate behavioral supports and an effective communication

device amount to discrimination against Brooklyn on account of her disability, a denial of

equal access to education, and a failure to accommodate her disability, in violation of the

Americans with Disabilities Act and the Rehabilitation Act. (Id.)

Plaintiffs seek money damages for Brooklyn’s blindness and disfigurement. (Id.) The

relief requested does not include educational programming changes. (Id.) In the spring of 2018,

when Brooklyn was in the ninth grade, Defendants again began using the DynaVox with

Brooklyn and put in place a Behavior Intervention Plan. (Id. at PageID.7–8.) Plaintiffs state

that these changes ended Brooklyn’s self-injurious behavior. (Id.)

The remaining defendant, Knox County, filed a motion to dismiss for failure to state a

claim upon which relief can be granted. (ECF No. 12.) Knox County argues that Plaintiffs

were required to exhaust administrative remedies under the IDEA before filing this complaint.

Plaintiffs argue that administrative exhaustion is not required, saying it would be futile since

the Plaintiffs seek only money damages for Brooklyn’s physical injuries. (ECF No. 13.)

II.

In deciding a motion to dismiss under Federal Rule of Procedure 12(b)(6), the Court

“construes the complaint in the light most favorable to the plaintiff, accepts the plaintiff’s

factual allegations as true, and determines whether the complaint ‘contain[s] sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.’” Heinrich v.

Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012) (alteration in original)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Failure to exhaust can be a ground for

dismissal under Rule 12(b)(6) when it is apparent from the face of the complaint that a plaintiff

has failed to exhaust and that failure creates a bar to relief. See Feathers v. McFaul, 274 F.

App’x 467, 469 (6th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199, 200, 215 (2007)); Hykes

v. Lew, No. 16-5509, 2017 WL 4863108, at *2 (6th Cir. Mar. 1, 2017) (citing Steiner v.

Henderson, 354 F.3d 432, 434 (6th Cir. 2003)) (“[F]ailure to exhaust is an appropriate basis

for dismissal under Rule 12(b)(6).”).

III.

The IDEA requires states that receive federal funds to guarantee all students receive a

“free appropriate public education” (or FAPE) by providing needed special education services

to children with disabilities. 20 U.S.C. § 1412(a)(1)(A). The IDEA works in concert with Title

II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and § 504 of the

Rehabilitation Act, 29 U.S.C. § 794, which prohibit discrimination against both adults and

children with disabilities, in public schools and other settings.

Section 1415(l) of the IDEA requires that a plaintiff exhaust the IDEA’s administrative

dispute resolution procedures before filing an action under the IDEA, or under the ADA, the

Rehabilitation Act, or similar laws when her suit seeks relief for the denial of a “free

appropriate public education.” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 752 (2017).

The Court must first determine if the IDEA’s exhaustion requirement applies, and if it

does, whether Plaintiffs’ failure to exhaust may be excused.

A.

Knox County argues that, even though Plaintiffs have brought claims under only the

ADA and the Rehabilitation Act, they must still exhaust administrative remedies required by

the IDEA.

The language of the IDEA makes clear that “a plaintiff bringing suit under the ADA,

the Rehabilitation Act, or similar laws ‘seeking relief that is also available under [the IDEA]’

must first exhaust the IDEA’s administrative procedures.” Fry, 137 S. Ct. at 746 (quoting 20

U.S.C. § 1415(l)). So a plaintiff cannot escape the IDEA’s exhaustion requirement simply by

bringing her suit under another statute. The Supreme Court has interpreted “relief that is also

available under the IDEA” to mean a denial of a “free appropriate public education.” Id. at

752. To determine whether a suit seeks such relief, the Court looks to the “substance, or

gravamen, of the plaintiff’s complaint.” Id. So the key inquiry to determine whether Plaintiffs

are required to exhaust is to ask whether the gravamen of their case is a denial of a FAPE.

Determining the gravamen of a complaint is often a challenging task. But the Supreme

Court has provided a pair of hypothetical questions for courts to consider to assist with the

task: “First, could the plaintiff have brought essentially the same claim if the alleged conduct

had occurred at a public facility that was not a school? And second, could an adult at the

school—say, an employee or visitor—have pressed essentially the same grievance?” Fry, 137

S. Ct. at 756. When the answer to those questions is yes, the complaint is unlikely to be about

the denial of a FAPE; but when the answer is, the complaint probably does concern a FAPE.

Id.

In this case, the answer to both hypothetical questions is “no.”

Plaintiffs try to argue that the answer to the first question is “yes” because a public

library or theater would have to provide effective communication aids to persons with a

disability. It is true that public entities and places of public accommodation are required to

provide “appropriate auxiliary aids and services where necessary to afford individuals with

disabilities” equal access. 28 C.F.R. § 35.160(b)(1) (part of the ADA regulations for public

entities); see also 28 C.F.R. § 36.303 (ADA regulations for places of public accommodation).

An appropriate auxiliary aid or service in the context of communication is one that “is

necessary to ensure effective communication.” Id. § 35.160(b)(2). So Plaintiffs could bring a

claim for denial of an effective means of communication against a public facility other than a

school.

But Plaintiffs’ claim in this case is not simply a claim of failure to accommodate

Brooklyn’s disability by providing an effective means of communication. Instead, Plaintiffs

claim that Knox County schools are responsible for Brooklyn’s self-inflicted injuries because

they did not provide her chosen communication device and because they failed to implement

a Behavior Intervention Plan as required under Brooklyn’s individual education program (IEP)

after school employees began to observe Brooklyn’s self-injurious behavior. Plaintiffs

emphasize that their claim is only to recover for Brooklyn’s physical injuries. So Plaintiffs’

claim is inherently tied to Brooklyn’s interactions with school employees over an extended

time horizon: first, Plaintiffs claim that Brooklyn began hurting herself after school employees

made a decision to switch her communication device from one she had been using for years,

and second, the alleged duty for the school employees to intervene to stop Brooklyn’s self-

injurious behavior only arose after the employees observed this behavior a number of times.

Further, school officials have a unique relationship with their students that a librarian or theater

usher simply does not have. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655

(1995) (“for many purposes school authorities act in loco parentis”) (internal citations and

alterations omitted). So Brooklyn’s claim is unique to the school setting and could not be

brought against another public entity.

The same logic applies to the second question. It is clear that an adult, such as a school

employee or visitor, could not bring a similar claim. Although a school might be required to

provide a device to allow for effective communication for an adult, an adult could not bring a

claim for an injury allegedly caused by the school’s decision to switch devices or for the

school’s failure to intervene in the adult’s self-injurious behavior caused by that decision.

Since Brooklyn’s grievance is so tied to her IEP and the decisions made by her aides, teachers,

and other school employees, only a student in an educational setting could bring a similar

claim.

At bottom, Plaintiffs allege that Knox County is responsible for Brooklyn’s injuries

because her school denied her an appropriate and effective assistive communication device

and failed to put in place a behavioral intervention plan, as required by her IEP. Although

Plaintiffs’ complaint asks only for damages related to Brooklyn’s personal injuries, their claim

is inextricably tied with the denial of a FAPE and thus the IDEA’s exhaustion requirement

applies to this lawsuit.

B.

But the finding that the IDEA’s exhaustion requirement applies does not end the

Court’s inquiry. Plaintiffs argue that administrative exhaustion would be futile since they seek

only money damages to remedy Brooklyn’s physical injuries. (ECF No. 13, PageID.119.)

Although Plaintiffs conflate this argument with the threshold question of the applicability of

the IDEA, the Court separately analyzes whether the futility exception to the exhaustion

requirement applies.

The Supreme Court in Fry left open the possibility that exhaustion is not required when

“the specific remedy [the student] requests . . . is not one that an IDEA hearing officer may

award[.]” 137 S. Ct. at 752 n.4. Although the Sixth Circuit has not yet addressed this open

question, the court’s pre-Fry treatment of this issue still stands. Under Sixth Circuit law, even

when the IDEA might otherwise apply, exhaustion is not required “if it would be futile or

inadequate to protect the plaintiff’s rights.” Covington v. Knox Cty. Sch. Sys., 205 F.3d 912,

917 (6th Cir. 2000), amended on denial of reh’g (May 2, 2000). This approach is also supported

by a recent First Circuit case, Doucette v. Georgetown Pub. Sch., 936 F.3d 16 (1st Cir. 2019).

In Doucette, the court found that even when the IDEA applies under the Fry analysis, it is

unnecessary to enforce the exhaustion requirement when administrative proceedings would be

futile. Id. at 31.

The Sixth Circuit has not clearly delineated the bounds of the futility exception. But

Covington and subsequent cases make clear that the exception is a narrow one; it applies only

in unique circumstances when the harm is “wholly in the past” and money damages are the

only remedy that can make the student whole. See Covington, 205 F.3d at 917; see also F.H.

ex rel. Hall v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir. 2014) (finding futility where the

“administrative process cannot provide either the type of relief [plaintiff] seeks or any other

type of remedy to redress wholly retrospective injuries”); B.H. v. Portage Pub. Sch. Bd. of

Educ., No. 08-293, 2009 WL 277051, at *10 (W.D. Mich. Feb. 2, 2009) (suggesting that claims

excused from exhaustion include those that “arise from improper discipline, acts of physical

abuse by school officials, or other discrete events lying solely in the past and only tangentially

related to core educational concerns”).

The appropriate remedy for the plaintiff’s injuries is an important part of this inquiry

because the IDEA’s administrative procedures allow for only equitable relief. This relief is

limited to “(1) future special education and related services to ensure or remedy a past denial

of a FAPE; and (2) reimbursements to parents for education-related expenditures that the state

ought to have borne.” Doucette, 936 F.3d at 32. Monetary damages are not available under the

IDEA. See Covington, 205 F.3d at 916 (6th Cir. 2000).

But even though money damages are not available under the IDEA, a plaintiff cannot

circumvent IDEA exhaustion simply by asking for monetary relief. Id. So the most important

question is not whether the plaintiff seeks monetary damages, but “whether the plaintiff has

alleged injuries that could be redressed to any degree by the IDEA’s administrative procedures

and remedies.” Holden v. Jensen, No. 10-697, 2011 WL 4036665 (W.D. Mich. Sept. 12, 2011).

This question of redressability is often closely tied to whether a plaintiff’s injuries are

completely in the past or whether they can still, to some degree, be ameliorated through

educational supports. Covington makes clear that the relevant inquiry is whether the IDEA’s

remedies could provide sufficient relief, “even if it is not the specific relief that the plaintiff

requested.” 205 F.3d at 917 (internal citation omitted). There are a number of cases in this

Circuit in which the courts found that administrative exhaustion was required because the

IDEA could still provide some form of remedy when the plaintiff was seeking money damages

for personal injury. See, e.g., Holden v. Jensen, No. 10-697, 2011 WL 4036665, at *9 (W.D.

Mich. Sept. 12, 2011) (finding that remediation of plaintiff’s injuries and academic

deficiencies would be best addressed by educational professionals through administrative

process); D.M. v. Bd. of Educ. Toledo Pub. Sch., 359 F. Supp. 3d 537, 544 (N.D. Ohio 2019)

(finding futility not established where plaintiff’s harms were not “wholly in the past” because

he remained a student, far from graduation age); P.G. v. Rutherford Cty. Bd. of Educ., 313 F.

Supp. 3d 891, 905 (M.D. Tenn. 2018) (holding that plaintiff who sought both money damages

and changes to an education plan was required to exhaust).

But that is not the case here. Brooklyn’s grievances related to her current IEP have

already been fully remedied. As noted, in the spring of 2018, Defendants started using the

DynaVox with Brooklyn again and put in place a Behavior Intervention Plan. The only

remaining issue is compensation, in the form of money damages, for Brooklyn’s permanent

injuries and disfigurement. These injuries are “wholly in the past” and cannot be remedied by

any change in her IEP or remedial education. If the school is at fault, the only possible remedy

is money damages.

There is one additional factor that supports finding exhaustion futile in this case.

Although not explicitly addressed in the Sixth Circuit case law, the First Circuit’s futility

analysis also considers whether “the administrative process would provide negligible benefit

to the adjudicating court.” Doucette, 936 F.3d at 31. Here, Plaintiffs’ claims ultimately center

around the question of causation: did the actions or inactions of Knox County school staff

cause Brooklyn to physically injure herself? Questions of causation are not ones which

educational professionals involved in the administrative process are uniquely qualified to

address. In fact, “[m]edical causation questions are routinely considered by district courts and

juries, assisted by the testimony of medical experts, without the benefit of an administrative

record.” Id. at 33. Here, the traditional tools of civil litigation (discovery, expert witnesses,

etc.) will be able to provide the information necessary to adjudicate this case.

Because money damages are truly the only remedy for Brooklyn’s wholly retrospective

physical injuries, and the administrative process would provide negligible benefit to

adjudication, the Court finds that this is one of the rare cases where administrative exhaustion

would be futile and thus the failure to exhaust is excused.

IV.

For the foregoing reasons, the Court DENIES Knox County’s motion to dismiss. (ECF

No. 12.)

SO ORDERED.

Dated: June 25, 2020

s/Laurie J. Michelson

LAURIE J. MICHELSON

UNITED STATES DISTRICT JUDGE