# B.S. v. Carter County Board of Education

> District Court, E.D. Tennessee · December 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10435641

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** December 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

B.S. AND K.S., )
)
Plaintiffs, )
)
v. ) No.: 2:21-CV-171-KAC-CRW
)
CARTER COUNTY BOARD )
OF EDUCATION, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS

This case is before the Court on the “Renewed Motion to Dismiss” filed by Defendant
Carter County Board of Education (CCBOE) [Doc. 33]. Because the Complaint fails to state a
claim to relief that is plausible, the Court GRANTS Defendant’s Motion and
DISMISSES this action.
I. Background1
Plaintiff B.S. attends Happy Valley High School, a public school in the Carter County
School System [Doc. 1 ¶¶ 9, 11]. B.S. has CLN3 Batten Disease and has “highly significant
mobility issues related to her disability” [Id. ¶¶ 11-12]. B.S. “receives special education services”
at Happy Valley through an Individualized Education Plan (IEP)2 [Id. ¶ 14; see also Doc. 9-1].

1 At this stage in the litigation, the Court construes the Complaint in the light most favorable to
Plaintiffs, accepts all well-pled factual allegations as true, and draws all reasonable inferences in
Plaintiffs’ favor. See Hogan v. Jacobson, 823 F.3d 872, 884 (6th Cir. 2016).
2 The Complaint does not expressly state that B.S. has an IEP. However, the Complaint references
B.S.’s receipt of “special education services” due to her medical condition [Doc. 1 ¶¶ 11, 12, 14].
CCBOE filed B.S.’s IEP [Doc. 9-1]. And no Party disputes that this IEP was operative during the
time relevant to this case. “Sixth Circuit case law is very clear that courts may consider documents
that are referenced in the . . . complaint and that are central to [a] plaintiff’s claims.” Gulfside
Casino P’ship v. Churchill Downs Inc., 861 F. App’x 39, 42 (6th Cir. 2021) (citing Rondigo, L.L.C.
On or about August 24, 2021, B.S.’s IEP team, comprised of B.S.’s parents, teachers, and
medical providers (among others), developed B.S.’s IEP for the 2021-2022 school year
[See Doc. 9-1 at 1]. The IEP stated that B.S. required “specialized instruction and related services
in a CDC [Comprehensive Development Class] program” [Id. at 2, 23]. Under the IEP, school

officials were required to work to improve B.S.’s independence, “endurance [,] and use of assistive
devices to allow her to fully participate in indoor and outdoor classes . . . in order to have a more
productive day” [Id. at 16]. The IEP stated that B.S. could, and should, use a gait belt, rollator, or
cane “for participation in school related activities” [Id. at 4, 17]. The IEP noted that B.S. requires
“significant assistance boarding/disembarking vehicles” [Id. at 6]. But the IEP did not require use
of a wheelchair, [see id.], or identify the need for a wheelchair-accessible bus or other special
transportation provided by the school, [id. at 23 (noting “Special Transportation” to be “Provided
by Parents”)].
Prior to October 2021, school officials accommodated B.S.’s limited mobility on field trips
by using a “transfer chair” [Doc. 1 ¶ 22]. However, on October 10, 2021, B.S. suffered a seizure

that further limited her mobility [Id. ¶ 17]. This made “past accommodations” “not applicable”
[Id. ¶¶ 17, 22-23].
On October 20, 2021, B.S. went on a school field trip to Cades Cove with her
CDC [Id. ¶ 18]. K.S., B.S.’s mother, “was told just two days prior [to the field trip] that no
wheelchair accessible buses were available for the field trip” [Id.]. “B.S.’s teacher” and a “bus
driver” “implied that there is only one accessible bus for B.S.’s part of the county” [Id. ¶ 20]. “But
the bus was needed to make the regular morning and afternoon runs for both the high school and

v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011)). Accordingly, the Court may consider
B.S.’s operative and undisputed IEP in assessing Defendant’s Motion.
CDC class(es) at another school” [Id.]. During the field trip, “school staff” worked to get B.S.
onto and off of the bus using a gait belt and folding wheelchair, as they had for previous field trips
[Id. ¶¶ 21-22; Doc. 9-1 at 4]. B.S. had to “embark and disembark the bus multiple times for their
various activities and was prevented from being able to nap comfortably [in the personal

wheelchair she had but did not bring on the trip]” throughout the day [Doc. 1 ¶ 26]. As a result,
“B.S. was very fatigued for days following the field trip,” putting her “at risk for tonic
clonic seizures” [Id.].
The “CDC classes” were scheduled to go on another field trip on December 10,
2021 [Id. ¶ 29]. K.S. verbally informed “B.S.’s staff that B.S. would need a wheelchair accessible
bus” to attend the December 10 field trip [Id.]. Following this discussion, K.S. “was left with the
impression that it was doubtful one would be available” [Id.]. Ultimately, however, “a new bus
was brought in” that was “sufficient to accommodate B.S.’s needs” [Doc. 16 (rough transcript on
file with the Court)].3 And B.S.’s IEP team revised her IEP “to provide for a . . . complete change
of goals to address . . . [B.S.’s] physical needs and to provide for special transportation going

forward” [Id.].
At issue here are Counts One and Two of the Complaint [Doc. 1].4 Count One alleges that
CCBOE discriminated against B.S. based on her disability, in violation of Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, when it failed to provide a wheelchair-accessible bus

3 “A district court should generally consider only the pleadings when ruling on a motion to
dismiss.” Davis v. Chorak, No. 22-1839, 2023 WL 2487339, *1 (6th Cir. Mar. 14, 2023) (citing
Rondigo, L.L.C., 641 F.3d at 680). But “[a]t the motion-to-dismiss stage, a district court may also
consider exhibits attached to the complaint, public records, items appearing in the record of the
case and materials appropriate for the taking of judicial notice” Id. (cleaned up) The Court need
not ignore Plaintiffs’ admissions on the record in adjudicating this Motion. See EHPLabs Rsch.,
LLC v. Smith, No. 5:22-CV-0653, 2022 WL 3139604, *1, *3 (N.D. Ohio Aug. 5, 2022).
4 The Court previously dismissed Count Three [See Doc. 28].
for the October 20 field trip [Doc. 1 at ¶¶ 35-58]. Count One also alleges that “[b]ecause B.S. will
continue receiving education and related services at Defendant, she will face discrimination . . .
again” [Id. at ¶ 57]. Count Two alleges that CCBOE discriminated against B.S. based on her
disability, in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12312, based on the October 20 field trip [See id. ¶¶ 59-75]. And Count Two alleges that “[t]o
date, the Defendant’s discriminating actions continue and B.S. suffers harm because of these
actions” [Id. ¶ 74]. The Complaint did not assert claims under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400, et seq., [see id.], and it is undisputed that Plaintiffs did
not exhaust the IDEA’s administrative procedures before filing suit, [see Docs. 8 at 2; 12 at 1].
The Complaint seeks declaratory relief and to “permanently enjoin Defendant . . . from its
discriminatory practices and procedures against B.S.” [Doc. 1 at 9, 12]. Further, the Complaint
asks the Court to require Defendant to “modify its policies and procedures to ensure that other
persons are not so discriminated against” and “develop a clear policy, practice and procedure as it
relates to students with mobility issues” [Id. at 9-10]. And Plaintiffs ask the Court to “enter an

Order directing Defendant to evaluate and neutralize its policies, practices, and procedures towards
persons with disabilities for such reasonable time so as to allow them to undertake and complete
corrective procedures” [Id. at 12]. The Complaint also seeks “compensatory damages,”
“reasonable attorneys’ fees and costs,” and “such other, further, and different relief” as the Court
“deems necessary, just, and proper” [Id. at 9-10, 12].
On May 12, 2023, Defendant filed the instant Motion to Dismiss [Doc. 33]. Defendant
asserts that Counts One and Two fail to state a claim upon which relief can be
granted [See Doc. 34 at 6]. In the alternative, Defendant argues that the Court must dismiss the
entire action because Plaintiffs failed to exhaust their administrative remedies under the
IDEA [Id. at 8].
II. Analysis
The Complaint must contain “enough facts to state a claim to relief that is plausible on its

face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim “has facial plausibility”
when the Complaint contains “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). At the motion to dismiss stage, the Court construes the Complaint in the light
most favorable to Plaintiffs, accepts all well-pled factual allegations as true, and draws all
reasonable inferences in their favor. See Hogan, 823 F.3d at 884. But a “legal conclusion couched
as a factual allegation” is not entitled to the same treatment. Papasan v. Allain, 478 U.S. 265,
286 (1986). And “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12312. Section 504 of the Rehabilitation Act generally applies that same prohibition
to any federally funded “program or activity” but the causation standard is higher—any
discrimination must occur “solely by reason of” the plaintiff’s disability. See 29 U.S.C. § 794(a).
“Apart from § 504’s limitation to denials of benefits ‘solely’ by reason of disability and its reach
of only federally funded—as opposed to ‘public’—entities, the reach and requirements of . . . [Title
II and Section 504] are precisely the same.” S.S. v. E. Ky. Univ., 532 F.3d 445, 452-53 (6th Cir.
2008) (cleaned up). Accordingly, analysis of Title II claims generally “applies to claims made
pursuant to . . . the Rehabilitation Act.” See Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201
(6th Cir. 2010) (citations omitted). And there is no reason to distinguish Counts One and Two here.
A plaintiff may raise two types of disability discrimination claims: “claims for intentional

discrimination” and claims for failure to provide “a reasonable accommodation.” Roell v.
Hamilton Cnty., 870 F.3d 471, 488 (6th Cir. 2017) (citation omitted). It is unclear what precise
theory or theories Plaintiffs intend to proceed under in Counts One and Two. So, the Court
analyzes the Counts under both theories.
Generally, to plead a prima facie case of intentional discrimination, the Complaint must
plead facts sufficient to infer that (1) plaintiff “has a disability; (2) she is otherwise qualified [to
participate in the program]; and (3) she was being excluded from participation in, denied the
benefits of, or subjected to discrimination under the program because of her disability.” See
Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015) (citation omitted). Plaintiffs must
allege facts sufficient to establish that “animus against the protected group was a significant factor

in the position taken” by Defendant. See id. (citations and quotations omitted). “Further, the
plaintiff must show that the discrimination was intentionally directed toward him or her in
particular.” Id. (citation and quotation omitted).
In contrast, a failure to accommodate claim requires Plaintiffs to show that Defendant
refused to make a reasonable accommodation for B.S.’s disability. See Johnson v. Cleveland City
Sch. Dist., 443 F. App’x 974, 983 (6th Cir. 2011). The plaintiff bears the initial burden of
requesting an accommodation. Id. A defendant “is generally not liable for failing to make
reasonable accommodation if the plaintiff did not request accommodation or otherwise alert the
covered entity to the need for” the accommodation. See Marble v. Tennessee, 767 F. App’x 647,
652 (6th Cir. 2019) (citing Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir.
1998)). Further, the plaintiff must “show that the defendant reasonably could have accommodated
. . . [her] disability but refused to do so, and that this failure to accommodate impeded . . . [her]
ability to participate in, or benefit from, the subject program.” See Knox Cnty. v. M.Q., 62 F.4th

978, 1000 (6th Cir. 2023) (cleaned up) (citations and quotations omitted). “The plaintiff must
establish both that . . . [her] preferred accommodation was reasonable, and that the
accommodation provided to . . . [her] was unreasonable.” See id. (citing Doe ex rel. K.M. v. Knox
Cnty. Bd. of Educ., 56 F.4th 1076, 1088 (6th Cir. 2023)).
A. The Complaint fails to state a claim for intentional discrimination.

As an initial matter, the Complaint fails to state a claim for intentional discrimination. The
Complaint does not allege facts suggesting that any animus toward B.S.’s disability played a
significant factor in CCBOE’s failure to provide a wheelchair-accessible bus for the October 20
field trip, or any future field trip.5 See Anderson, 798 F.3d at 357. In other words, the Complaint
does not suggest that CCBOE intentionally deprived B.S. of a wheelchair-accessible bus because
of her disability. See id. Rather, the Complaint attributes Defendant’s failure to provide a
wheelchair-accessible bus for the October 20 field trip to a general lack of resources to handle the
needs of all disabled students, rather than any discriminatory animus [See Doc. 1 ¶¶ 18, 20
(individuals “implied that there is only one accessible bus for B.S.’s part of the county” but “that
bus was needed to make the regular morning and afternoon runs for both the high school and CDC
class(es) at another school”)]. And there are no allegations that CCBOE had a

5 To the extent that Plaintiffs still intend to proceed with a claim based on the December 10 field
trip, or any future field trip, they would lack standing to raise that claim because the Complaint
does not allege facts sufficient to show that they suffered an “injury in fact” that is “actual or
imminent, not conjectural or hypothetical.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (cleaned up). And the Court dismisses any intended claim on that basis.
“discriminatory motive.” See M.Q., 62 F.4th at 1000 (“[P]roof of discriminatory motive is critical”
(cleaned up)). Accordingly, the Court dismisses any claims for intentional discrimination.
B. The Complaint fails to state a claim for failure to provide a reasonable
accommodation.

In addition, the Complaint fails to state a facially plausible claim against CCBOE for failure
to provide a reasonable accommodation. First, the Complaint does not assert that before the
October 20 field trip, Defendant CCBOE had knowledge of B.S.’s October 10 seizure or the
resulting desire to provide a different accommodation to B.S., including the wheelchair-accessible
bus.6 The Complaint asserts that “[a]ll of the school administrators and relevant personnel are
aware of B.S.’s limitations relating to her impairment” [Doc. 1 ¶ 15 (emphasis added)]. But that
conclusory assertion does not permit the Court to infer that appropriate representatives of CCBOE
were aware of B.S.’s increased limitations between her October 10 seizure and the October 20
field trip and that Plaintiffs requested a wheelchair-accessible bus or otherwise alerted CCBOE of
the need at the relevant time. Further, the Complaint alleges that K.S. “was told just two days
prior that no wheelchair accessible buses were available for the field trip,” [Doc. 1 ¶ 18], but the
Complaint does not allege, or provide facts sufficient to infer, that Plaintiffs requested a
wheelchair-accessible bus or “otherwise alert[ed]” CCBOE of the need for this accommodation in
advance of the field trip. See Marble, 767 F. App’x at 652. In fact, the Complaint asserts only that
K.S. requested an accommodation for B.S. after the October 20 field trip, [see id. ¶ 29], a request

that CCBOE ultimately honored, [see Doc. 16]. Accordingly, the Complaint fails to state a

6 To the extent that Plaintiffs intend to move forward with a claim based on the December 10 field
trip, or a future field trip, they would lack standing to raise that claim because the Complaint does
not allege that they suffered an “injury in fact” that is “actual or imminent, not conjectural or
hypothetical.” See Lujan, 504 U.S. at 560 (cleaned up). And the Court dismisses any intended
claim on that basis.
plausible claim for failure to provide a reasonable accommodation under either Title II
or Section 504.
Second, even presuming that the Complaint allowed the Court to infer that before the
October 20 field trip Plaintiffs asked CCBOE to provide a wheelchair-accessible bus, instead of

the accommodations outlined in B.S.’s IEP, the Complaint would fail to state a claim. Plaintiffs’
filings fail to “grapple with existing law establishing that . . . [CCBOE] must provide reasonable
accommodations . . . not the best accommodations or . . . [Plaintiffs’] preferred accommodations.”
See M.Q., 62 F.4th at 1001 (citing Alexander v. Choate, 469 U.S. 287, 300 (1985) (citations
omitted)). The Complaint does not allege that the accommodations CCBOE provided to B.S.
during the October 20 field trip failed to comply with her then-operative IEP. Instead, the
Complaint asserts that these accommodations were “not applicable” and therefore presumably
unreasonable [Doc. 1 ¶ 23]. But the Complaint does not include facts that would allow the Court
to infer that the accommodations CCBOE provided were unreasonable and that Plaintiffs’
preferred accommodation is a reasonable accommodation.7 See M.Q., 62 F.4th at 1000 (requiring

plaintiff to establish “both that his preferred accommodation was reasonable, and that the
accommodation provided to him was unreasonable” (citation omitted)). Accordingly, the Court
dismisses Plaintiffs’ claims for failure to provide a reasonable accommodation under Title II and
the ADA.
III. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s “Renewed Motion to
Dismiss” [Doc. 33] and DISMISSES this action. Because the Court grants Defendant’s Motion

7 To be sure, a wheelchair-accessible bus may be a reasonable accommodation, but the Complaint
does not include sufficient facts to permit the Court to make that inference here.
based on failure to state a claim, the Court need not address Defendant’s IDEA exhaustion
argument.8 An appropriate judgment shall enter.
SO ORDERED.
s/ Katherine A Crytzer
KATHERINE A. CRYTZER
United States District Judge

8 The Sixth Circuit has suggested, without deciding, that the failure to exhaust administrative
procedures under the IDEA is not jurisdictional. See Doe ex rel. K.M., 56 F.4th at 1084.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10435641. Public record. Not legal advice.