# B. v. Wilson County Board of Education

> District Court, M.D. Tennessee · February 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10437660

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** February 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10437660

## How later opinions describe it (automated extraction)

- holding that school district did not violate IDEA’s child find obligation where student was not identified as having a disability during his first and second grade years, but school provided specialized instruction and behavior- management strategies during that time

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

Ja.B., the student; and M.B. and Jo.B., the
student’s parents,
Case No. 3:20-cv-00955
Plaintiffs,
Judge William L. Campbell, Jr.
v. Magistrate Judge Alistair E. Newbern

WILSON COUNTY BOARD OF
EDUCATION d/b/a Wilson County Schools,

Defendant.

To: The Honorable William L. Campbell, Jr., District Judge

REPORT AND RECOMMENDATION
Ja.B., by and through his mother, M.B., and his father, Jo.B., brings this action under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482, appealing a state
administrative law judge’s (ALJ) decision finding that Defendant Wilson County Board of
Education, doing business as Wilson County Schools (WCS), did not deny Ja.B. a free and
appropriate public education (FAPE) as required by the IDEA during or after his enrollment at
Mount Juliet Middle School (MJMS) and denying Ja.B., M.B., and Jo.B.’s request for
compensatory education and reimbursement for Ja.B.’s private school tuition at CATES Academy
and Meridell Achievement Center. (Doc. Nos. 1, 16-2.) Before the Court is Ja.B., Jo.B., and M.B.’s
motion for judgment on the administrative record. (Doc. No. 23.) WCS has responded in
opposition (Doc. No. 28), and Ja.B., Jo.B., and M.B. have filed a reply (Doc. No. 29). Considering
the parties’ arguments and the administrative record as a whole, and for the reasons that follow,
the Magistrate Judge will recommend that Ja.B., M.B., and Jo.B.’s motion for judgment on the
administrative record be denied and the ALJ’s decision be affirmed.
I. Background
A. The IDEA
Congress enacted the IDEA “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 further education, employment, and
independent living[.]” 20 U.S.C. § 1400(d)(1)(A).1 The IDEA defines a FAPE as:
special education and related services that—
(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 1414(d) of this title.
Id. § 1401(9)(A)–(D). To be considered a “child with a disability” under the IDEA, a child must
have (1) “intellectual disabilities, hearing impairments (including deafness), speech or language
impairments, visual impairments (including blindness), serious emotional disturbance . . . ,
orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific
learning disabilities; and” (2) must, “by reason thereof, need[ ] special education and related
services.” Id. § 1401(3)(A).

1 All citations to the U.S. Code and Code of Federal Regulations refer to their current
versions. The relevant federal statutes and regulations have not substantively changed since the
events at issue in this action occurred.
In exchange for federal funding, the IDEA requires states to identify, locate, and evaluate
“[a]ll children with disabilities residing in the State . . . who are in need of special education and
related services[.]” Id. § 1412(a)(3)(A). This mandate is known as the child find requirement, an
affirmative obligation of every local educational agency (LEA) to identify students who are

reasonably suspected of having disabilities and to evaluate those students to determine whether
they are eligible for special education services. Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d
307, 313 (6th Cir. 2007). The child find requirement is not limited to children enrolled in the public
school system; it extends to “[a]ll children with disabilities residing in the State, including . . .
children with disabilities attending private schools . . . .” 20 U.S.C. § 1412(a)(3)(A); see also Doe
v. Metro. Nashville Pub. Schs., 9 F. App’x 453, 455 (6th Cir. 2001).
Before a child may receive special education services, an LEA “shall conduct a full and
individual initial evaluation” “to determine whether [the] child is a child with a disability” as
defined in 20 U.S.C. § 1401 and “to determine the educational needs of such child.” 20 U.S.C.
§ 1414(a)(1)(A), (C)(i)(I)–(II). If a student is found to be a child with a disability who is in need

of special education or related services, the LEA is “required to establish an [individualized
education program (IEP)] for each child with a disability.” Deal v. Hamilton Cnty. Bd. of Educ.,
392 F.3d 840, 853 (6th Cir. 2004). “[T]he 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.” Knable ex rel. Knable v.
Bexley City Sch. Dist., 238 F.3d 755, 763 (6th Cir. 2001); see also 20 U.S.C. § 1414(d)(1)(A)
(defining requirements for IEPs).
The IDEA requires that students are to be educated “in the ‘least restrictive environment’
(LRE) possible[.]” L.H. v. Hamilton Cnty. Dep’t of Educ., 900 F.3d 779, 788 (6th Cir. 2018)
(quoting 20 U.S.C. § 1412(a)(5)). This means that, “[t]o the maximum extent appropriate, children
with disabilities . . . [must be] educated with children who are not disabled” and may be educated
separately “only when the nature or severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

20 U.S.C. § 1412(a)(5)(A). IDEA regulations further provide that, “[u]nless the IEP of a child with
a disability requires some other arrangement, the child is educated in the school that he or she
would attend if nondisabled[.]” 34 C.F.R. § 300.116(c). The Sixth Circuit has recognized that there
are exceptions to the IDEA’s preference for mainstreaming children with disabilities “when:
(1) the student would not benefit from regular education; (2) any regular-class benefits would be
far outweighed by the benefits of special education; or (3) the student would be a disruptive force
in the regular class.” L.H., 900 F.3d at 789; see also 34 C.F.R. § 300.116(d) (“In selecting the LRE,
consideration is given to any potential harmful effect on the child or on the quality of services that
he or she needs[.]”).
An LEA must provide a student’s parents with prior written notice within a reasonable time

before it proposes to initiate or change, or refuses to initiate or change, the identification,
evaluation, educational placement or provision of a FAPE to a child with a disability. 20 U.S.C.
§ 1415(b)(3); 34 C.F.R. § 300.503(a). If a change in placement is considered for disciplinary
reasons, the student is entitled to a manifestation determination review, in which the LEA, the
student’s parents, and members of the student’s IEP team must determine whether the student’s
conduct was a manifestation of his or her disability. 20 U.S.C. § 1415(k)(1); 34 C.F.R. § 300.530.
A parent with concerns about “any matter relating to” the child’s identification, evaluation,
and educational placement may file a complaint to the school district and is entitled to an
administrative due process hearing on the complaint. 20 U.S.C. § 1415(b)(6), (f), (g). Any party
aggrieved by the state educational agency’s final decision may file a civil action in federal district
court. Id. § 1415(i)(2)(A). The IDEA empowers courts to “grant such relief as the court determines
is appropriate.” Id. § 1415(i)(2)(C)(iii).
B. Section 504 of the Rehabilitation Act of 19732
Students with disabilities may also receive services under § 504 of the Rehabilitation Act

of 1973, which provides:
No otherwise qualified individual with a disability in the United States, as defined
in section 705(20) of this title, shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance
. . . .
29 U.S.C. § 794(a). Section 504’s implementing regulations require that students with disabilities
have equal access to public schools and that they receive a FAPE regardless of the nature or
severity of their disabilities. 34 C.F.R. § 104.33. Section 504 applies to all students who have
mental or physical impairments, who have a record of physical or mental impairments, or who are
regarded as having a mental or physical impairment, if the impairment substantially limits one or
more major life activities. Id. § 104.3(j). Like the IDEA, § 504’s implementing regulations contain
a child find obligation, requiring school districts to identify, locate, and evaluate children with
disabilities. Id. §§ 104.32, 104.35.
While “both statutes require the states to provide disabled children with a FAPE and
impose child find obligations,” “[a] principal difference between section 504 and the IDEA relates
to the specific students covered by the statutes.” B.H. v. Portage Pub. Sch. Bd. of Educ., No. 1:08-
cv-293, 2009 WL 277051, at *6 (W.D. Mich. Feb. 2, 2009). Section 504 prohibits discrimination

2 Jo.B., M.B., and Ja.B. do not bring claims under § 504 in this action. Some background on
that statute is useful in understanding their allegation that WCS denied Ja.B. a FAPE by providing
him with a § 504 plan but not an IEP.
against students with disabilities as defined in 34 C.F.R. § 104.3(j), while the IDEA protects the
“subsection” of those students who also “need special education and related services as a result of
that disability.” B.H., 2009 WL 277051, at *6; see also 20 U.S.C. § 1401(3)(A). Accordingly, all
students who qualify for special education under the IDEA are also protected by § 504, but not all

students with disabilities under § 504 are eligible for special education under the IDEA. B.H., 2009
WL 277051, at *6.
C. Factual Background
1. Pre-Enrollment Background
Ja.B. was born in July 2004 and was adopted at birth by M.B. and Jo.B. (Doc. No. 16-3,
PageID# 868; Doc. No. 16-5, PageID# 2029.) Until 2017, Ja.B. and his family lived in
Bourbonnais, Illinois, where Ja.B. was enrolled in Bourbonnais Elementary School District
Number 53 from kindergarten through seventh grade. (Doc. No. 16-3, PageID# 868, 1407.) Ja.B.
began having difficulty regulating his emotions at age two, which led to “rages” involving “verbal
abuse, property destruction, throwing things, [and] kicking things” until his parents would “have
to physically restrain him” or take him to the emergency room. (Id. at PageID# 882–83, 1409–

1410.)
Beginning in elementary school, Ja.B. saw several therapists and psychiatrists who tested
him but did not make a formal diagnosis.3 (Id. at PageID# 869, 1149–52, 1241, 1243, 1411.) He
did not have an IEP, § 504 plan, or school safety plan in Illinois, but Jo.B. and M.B. communicated
regularly with Ja.B.’s teachers and a school social worker. (Id. at PageID# 871, 1242, 1340.) At

3 M.B. testified that one therapist believed that Ja.B. had attention deficit hyperactivity
disorder, but M.B. and Jo.B. “really didn’t feel he met the criteria for” that diagnosis and found a
different therapist. (Doc. No. 16-3, PageID# 1241.) She also testified that another therapist in
Illinois believed that Ja.B. had anxiety “but it was not a medical diagnosis from a psychiatrist or a
doctor.” (Id. at PageID# 1243.)
the beginning of each school year, they also sent a letter to Ja.B.’s teachers to inform them of his
background and behavioral challenges. (Id. at PageID# 871–72, 878–79.) Ja.B. engaged in some
disruptive behavior at school, but his parents’ testimony and his school records reflect that any
school behavioral issues were minor and that he was meeting academic standards. (Id. at

PageID# 869–71, 1147–49, 1241–42, 1408–09, 1478, 1673–78, 1755–56, 1824–26; Doc. No. 16-
10, PageID# 2472–74.)
2. Move to Tennessee and Enrollment in WCS
a. Summer 2017
Ja.B.’s family moved from Bourbonnais, Illinois, to Mount Juliet, Tennessee, in July 2017.
(Doc. No. 16-3, PageID# 868.) In the spring of 2017, Jo.B. and M.B. contacted MJMS to ask if
Ja.B. could tour the school before the 2017–2018 school year began so that he could get
comfortable with the building. (Id. at PageID# 879–81.) Although they were initially told that the
school could not accommodate a tour during the summer, Ja.B. and M.B. were able to visit MJMS
in person before school started. (Id. at PageID# 881, 1243–45.) When M.B. visited MJMS in July
2017 to register Ja.B. for eighth grade, she spoke with Jade Yow Bowman, the school counselor

assigned to Ja.B.’s grade. (Id. at PageID# 879–80, 1246–49, 1491–96.) M.B. told Bowman that a
social worker in Illinois had provided support when Ja.B.’s behavior became difficult and asked
for the name of a social worker at MJMS. (Id. at PageID# 1247.) Bowman told M.B. that MJMS
did not have a school social worker but that she would serve as Ja.B.’s school counselor that year.
(Id. at PageID# 1247–48, 1495.)
b. August 2017
Ja.B.’s first day at MJMS was August 1, 2017. (Id. at PageID# 1493.) On August 16, 2017,
he received a discipline referral and one day of in-school suspension for arguing with other
students, refusing to do his schoolwork, and defying his teacher’s instructions to re-enter the
classroom. (Id. at PageID# 1019, 1346, 157476; Doc. No. 16-5, PageID# 2085.) After school
ended that day, M.B. and Jo.B. sent a letter to Ja.B.’s MJMS teachers, Bowman, and MJMS
assistant principal Chareda Sims. (Doc. No. 16-3, PageID# 886–91, 893–94, 1248–50, 1569–70;
Doc. No. 16-4, PageID# 1920–25.) Like the yearly letters M.B. and Jo.B. sent to Ja.B.’s teachers

in Illinois, the letter explained Ja.B.’s background, including his adoption, history of behavior
problems at home, and the fact that he had been in therapy for years, suffered from anxiety, and
had threatened self-harm in the past. (Doc. No. 16-4, PageID# 1920–25.) The letter also explained
that Ja.B. “d[id] not have a diagnosis, IEP, or receive school services[;]” that he engaged in
“shenanigans” at school; and that M.B. and Jo.B. hoped to foster a partnership with Ja.B.’s teachers
and share strategies for managing his behavior. (Id. at PageID# 1921–22.) Jo.B. testified that this
letter was not intended to serve as a § 504 or IEP request. (Doc. No. 16-3, PageID# 1156–57.)
At home, Ja.B.’s rage behaviors began to escalate, and he threatened to harm himself and
his family. (Id. at PageID# 882–83, 1008–09.) On August 24, 2017, M.B. told MJMS staff about
these rages. (Id. at PageID# 1272–73, 1472.) Four days later, M.B. told Ja.B.’s teachers that Ja.B.

was refusing to do homework and otherwise having “very difficult days” at home, which his
parents attributed to anger about the move from Illinois to Tennessee. (Doc. No. 16-4,
PageID# 1960.) M.B. followed up on August 31, 2017, to let Ja.B.’s school team know that “there
ha[d] been a significant, positive shift” in Ja.B.’s behavior and that he had started seeing a new
counselor. (Id. at PageID# 1959.)
c. September 2017
Ja.B.’s at-home rage behaviors escalated again during the first week of September, leading
M.B. and Jo.B. to take him to the emergency room on September 4, 2017. (Doc. No. 16-3,
PageID# 883–84, 1018.) After that hospital visit, Ja.B. told his parents “that he felt like a lot of
[his behavior] was coming from th[e] move” from Illinois to Tennessee. (Id. at PageID# 1021.)
M.B. emailed Bowman on September 8, 2017, to let her know that Ja.B. continued to struggle with
rage and refusing to do homework. (Doc. No. 16-4, PageID# 1961.) She said that she did not know
how to sign up for the parent-teacher conferences scheduled to be held the following week, did not
know about support resources and activities available at MJMS, and wondered whether “it [wa]s

time to set up a meeting with [Ja.B.]’s team[.]” (Doc. No. 16-3, PageID# 1023–24, 1472; Doc.
No. 16-4, PageID# 1961.)
On September 11, 2017, Alaina Hatfield, Ja.B.’s math teacher, emailed M.B. and Jo.B.
that, after she moved Ja.B.’s seat because he was “antagonizing . . . another student[,]” Ja.B.
disrupted class with a flashlight and other items in his backpack, refused to complete the day’s
assignment, and continued to act defiantly despite redirection. (Doc. No. 16-3, PageID# 1019,
1387; Doc. No. 16-4, PageID# 1962.) She also told them that Ja.B.’s refusal to do homework or
cooperate with class work and assessments was causing his grades to suffer, and that continued
misbehavior could result in a disciplinary referral. (Doc. No. 16-3, PageID# 1387; Doc. No. 16-4,
PageID# 1962.) Hatfield forwarded these concerns to Bowman, who recommended that Jo.B. and

M.B. attend MJMS’s upcoming parent-teacher conferences, where they could speak individually
with all of Ja.B.’s teachers. (Doc. No. 16-3, PageID# 1024–25; Doc. No. 16-4, PageID# 1963.)
Bowman also encouraged M.B. and Jo.B. to schedule conferences with her and with Ja.B.’s
teachers, look into after-school homework support services, and remind Ja.B. of the consequences
he could face under the school’s discipline policy. (Doc. No. 16-3, PageID# 1028–29; Doc.
No. 16-4, PageID# 1963.)
Instead of attending parent-teacher conferences, M.B. and Jo.B. requested a single meeting
with all of Ja.B.’s teachers. (Doc. No. 16-3, PageID# 1421.) On September 19, 2017, M.B. and
Jo.B. met with Ja.B.’s teachers, Sims, and Bowman. (Id. at PageID# 1034, 1347, 1421–22, 1473.)
Jo.B., M.B. and Ja.B.’s teachers shared their observations about Ja.B.’s behavior and discussed
strategies to address Ja.B.’s work refusal, including tutoring and using an agenda to track
assignments. (Id. at PageID# 1033–35, 1347–48; Doc. No. 16-4, PageID# 1966–67.) Bowman
suggested that Ja.B. begin participating in small-group counseling sessions, gave the family a list

of tutoring resources to support homework completion, and met with Ja.B. separately to discuss
how he would be expected to use his agenda. (Doc. No. 16-3, PageID# 1167; Doc. No. 16-4,
PageID# 1966–67, Doc. No. 16-10, PageID# 2477–78.)
On September 20, 2017, Ja.B. received two days of in-school suspension for disrupting
class. (Doc. No. 16-3, PageID# 1019, 1039, 1041, 1347, 1560–62; Doc. No. 16-5, PageID# 2084.)
At home that evening, Ja.B. “flew into a rage, damage[ed] things . . . ,” and threatened to kill
himself and his family. (Doc. No. 16-3, PageID# 1039–40.) His parents took him to the emergency
room, and he was admitted to Vanderbilt Psychiatric Hospital for inpatient treatment. (Id. at
PageID# 883–84, 1026, 1039–40, 1473.) The next day, M.B. emailed Ja.B.’s teachers, Sims, and
Bowman to inform them that Ja.B. had been hospitalized. (Id. at PageID# 1041–42; Doc. No. 16-

4, PageID# 1968.) Jo.B. later sent an update stating that Ja.B. would likely be hospitalized for five
to seven days and asking his teachers to send schoolwork for him to complete in the hospital. (Doc.
No. 16-3, PageID# 1042–43; Doc. No. 16-4, PageID# 1972.) Bowman responded that M.B.
should “communicate with [her] if there are any limitations for when [Ja.B.] returns to school that
the doctor suggests.” (Doc. No. 16-4, PageID# 1977.) M.B. then told Bowman that she believed
that Ja.B. would “leave [the hospital] with a diagnosis and treatment plan, including steps towards
a 504 for him for school . . . .” (Id.) Bowman asked the family to meet with her to discuss Ja.B.’s
return to school, including “any safety plans [and] updates on medication[.]” (Id. at PageID# 1984–
85.)
Ja.B. was discharged from Vanderbilt on September 27, 2017, and was cleared to return to
school on the following Monday, October 2, 2017. (Id. at PageID# 1983, 1986–89.) Jo.B. and M.B.
met with Bowman on September 28, 2017, to discuss Ja.B.’s transition back to school, diagnoses,
medication, and the possibility of developing a § 504 plan or IEP. (Doc. No. 16-3, PageID# 1044–

45, 1048, 1052–54, 1473, 1580; Doc. No. 16-10, PageID# 2448, 2477–78.) They gave Bowman a
copy of Ja.B.’s discharge paperwork, which stated that Dr. Edwin Williamson, a Vanderbilt
psychiatrist, had given Ja.B. a diagnosis of “[u]nspecified disruptive, impulse control, and conduct
disorder, Generalized Anxiety Disorder” and recommended that the school implement a § 504
plan. (Doc. No. 16-3, PageID# 1044–45, 1053–54, 1473, 1484–85, 1632; Doc. No. 16-4,
PageID# 1986–89.) Ja.B.’s teaching team planned to reconvene on October 30, 2017, to review
data, give Ja.B. the chance to adapt to newly-prescribed medications, and begin the § 504 process.
(Doc. No. 16-3, PageID# 1057, 1474; Doc. No. 16-4, PageID# 1997–99.)
d. October 2017
MJMS students went on fall break for the first two weeks of October. (Doc. No. 16-3,
PageID# 1348, 1473–74.) On October 19, 2017, shortly after he returned from fall break, Ja.B.

received two discipline referrals in one day. (Id. at PageID# 1348–49; Doc. No. 16-5,
PageID# 2084.) First, he received two class periods of in-school suspension for disrupting class
and disobeying a teacher’s instructions. (Doc. No. 16-3, PageID# 1576–77; Doc. No. 16-5,
PageID# 2084.) He received a second referral for cursing at a librarian. (Doc. No. 16-3,
PageID# 1577; Doc. No. 16-5, PageID# 2084.)
At the end of the school day on Friday, October 27, 2017, a teacher asked Ja.B. to step
away from a fight that was occurring in the gym; “[h]e refused and began cursing her out.” (Doc.
No. 16-3, PageID# 1058–59; Doc. No. 16-5, PageID# 2084.) He headed toward his bus,
disregarding the teacher’s and the seventh-grade assistant principal’s instructions to stop. (Doc.
No. 16-3, PageID# 1058–59; Doc. No. 16-5, PageID# 2084.) He cursed at the assistant principal
and refused to exit the bus, which resulted in the school resource officer (SRO) being called. (Doc.
No. 16-3, PageID# 1059; Doc. No. 16-5, PageID# 2084.) Ja.B., who “continued to yell
profanities” at the SRO, was handcuffed, arrested, and charged with disorderly conduct and
resisting arrest.4 (Doc. No. 16-3, PageID# 1059, Doc. No. 16-5, PageID# 2084.) Ja.B. received an

out-of-school suspension pending a School Disciplinary Hearing Authority (SDHA) hearing to
determine if he would be placed at M.A.P. Academy, an alternative school in WCS. (Doc. No. 16-
3, PageID# 1061, 1067–69, 1257–58, 1264, 1310–11, 1327–28; Doc. No. 16-5, PageID# 2084;
Doc. No. 16-10, PageID# 2430–47.)
Ja.B.’s teaching team conducted a § 504 meeting with Jo.B. and M.B. as scheduled on
Monday, October 30, 2017. (Doc. No. 16-3, PageID# 1062, 135455.) The team discussed the
necessary steps to develop a § 504 plan for Ja.B. and the ramifications of Ja.B.’s arrest, including
the SDHA hearing. (Doc. No. 16-3, PageID# 1064, 1067–71, 1257–58, 1327–28.) M.B. and Jo.B.
testified that they asked MJMS principal Lee Anne Rainey to conduct neuropsychological testing,

but Rainey testified that she did not recall that request being made. (Id. at PageID# 1076, 1255,
1336, 1400.)
3. Withdrawal from WCS
On November 6, 2017, concerned that private schools would not admit Ja.B. if he were
placed at M.A.P. Academy, Jo.B. and M.B. withdrew Ja.B. from WCS. (Id. at PageID# 1069–72,
1257.) As a result of this withdrawal, the SDHA hearing did not take place. (Id. at PageID# 1264.)
When Ja.B. withdrew from WCS, his grade report showed that he had one A, one B, three C’s,
and one incomplete. (Id. at PageID# 1489, 1587; Doc. No. 16-10, PageID# 2446.)

4 These charges against Ja.B. were later dropped. (Doc. No. 16-3, PageID# 1073.)
On November 21, 2017, M.B. and Jo.B. met with Ja.B.’s teaching team to finalize Ja.B.’s
§ 504 plan. (Doc. No. 16-3, PageID# 1075, 1265, 1357–59; Doc. No. 16-5, PageID# 2095.) The
§ 504 plan identified Ja.B.’s impairments as Generalized Anxiety Disorder and “Other – Conduct
Disorder[.]” (Doc. No. 16-5, PageID# 2093.) The accommodations in the plan were based on input

from Ja.B.’s teachers, parents, and administrators and included preferential seating, a classroom
behavior log, small-group testing, access to a calming space, student opportunities, reinforcement,
and cues to stay on task. (Doc. No. 16-3, PageID# 1359; Doc. No. 16-5, PageID# 2089–96.)
After Ja.B. was rejected from two private schools, M.B. homeschooled him for the
remainder of the 2017–2018 school year. (Doc. No. 16-3, PageID# 1071–75.) Ja.B. also
participated in weekly classes at a homeschool tutorial center. (Id. at PageID# 1074.) Meanwhile,
M.B. and Jo.B. continued to search for a private placement for Ja.B. (Id. at PageID# 1085–87.)
In February 2018, Ja.B.’s parents requested a meeting with Rainey in which they asked her
to modify Ja.B.’s disciplinary records because they were having difficulty enrolling him in a
private school. (Id. at PageID# 1360, 1481–82.) Rainey told them that WCS’s practice was not to

expunge disciplinary records. (Id. at PageID# 1360–61.) During that meeting, Jo.B. also told
Rainey that the family had obtained a private neuropsychological evaluation from Dr. Jackie
Klaver, who diagnosed Ja.B. with bipolar disorder, oppositional defiance disorder, and disruptive
mood dysregulation disorder (DMDD). (Id. at PageID# 895–96, 1078, 1262–63.)
In June 2018, Jo.B. and M.B. met with WCS § 504 coordinator Tammy Crane to explain
their experience in the district and to tell her that WCS needed to “do better.” (Id. at PageID# 1083–
84, 1644, 1657.) They told Crane about Klaver’s evaluation and discussed whether a SDHA
hearing would be needed if Ja.B. ever returned to WCS, but did not express any intention to
reenroll Ja.B. in WCS at that time. (Id. at PageID# 1083–84.) After the meeting, M.B. sent Crane
a follow-up email stating that she and Jo.B. “came into the meeting with the goal of expressing
how [they] believe [WCS] can and should do better for students with mental health challenges
. . . .” (Doc. No. 16-10, PageID# 2425–26.) M.B. did not request an IEP evaluation for Ja.B. or
identify any immediate next steps in the email. (Id.) She stated that the family “d[id] not feel re-

enrolling [Ja.B.] in the district is what is best[,]” but that they “may revisit re-enrolling him”
“should [their] current education plan be unsuccessful[.]” (Id.)
4. 2018–2019 School Year
Jo.B. and M.B. found a private placement for Ja.B. at CATES Academy for the 2018–2019
school year. (Doc. No. 16-3, PageID# 1087.) Ja.B.’s rage behaviors continued at CATES
Academy and at home, and he was admitted to Vanderbilt Psychiatric Hospital for inpatient
treatment in November 2018 and January 2019. (Id. at PageID# 1094, 1175–76.) After Ja.B. was
discharged from Vanderbilt in January 2019, his parents placed him in Meridell Achievement
Center, a residential mental health treatment facility in Texas, from January through March 2019.
(Id. at PageID# 896, 1094–96.) A psychiatrist at Meridell diagnosed Ja.B. with attention deficit
hyperactivity disorder, DMDD, and anxiety. (Id. at PageID# 896.) M.B. testified that the

“medication and psychiatric help” Ja.B. received at Meridell “revolutionized our world” and has
made a “night and day differen[ce]” for Ja.B. (Id. at PageID# 1099.) Ja.B. was discharged from
Meridell in March 2019 and returned to CATES Academy for the remainder of the 2018–2019
school year. (Id. at PageID# 1100.)
D. Procedural Background
1. Due Process Hearing
On May 1, 2019, M.B., Jo.B., and Ja.B. filed a due process complaint alleging that WCS
denied Ja.B. a FAPE for the 2017–2018 and 2018–2019 school years by failing to evaluate him
for special education services under the IDEA’s child find mandate. (Doc. No. 16, PageID# 71–
81.) They requested reimbursement for the costs of Ja.B.’s placement at CATES Academy and
Meridell. (Id.) After the parties engaged in a resolution session as required by 34 C.F.R. § 300.510,
the school district agreed to conduct an initial evaluation for special education eligibility. (Id. at
PageID# 94.) School psychologist Josh Couts completed a comprehensive psychoeducational

evaluation of Ja.B. in August 2019 and found that he was eligible for special education services as
a child with an emotional disturbance. (Doc. No. 16-5, PageID# 2029–2054.)
M.B., Jo.B., and Ja.B. amended their due process complaint on November 27, 2019, adding
claims that WCS took actions related to Ja.B.’s 2019 eligibility determination that denied Ja.B. a
FAPE for the 2019–2020 school year and retaliated against Ja.B. for asserting his rights under the
IDEA. (Doc. No. 16, PageID# 122–134.) An ALJ in the Tennessee Department of Education
Division of Special Education presided over a due process hearing on June 16–19, 2020. (Doc.
No. 16-3.) Jo.B. and M.B. testified at the hearing, as did Cates, Rainey, Bowman, Sims, and Crane.
Id.) Additional witnesses testifying for Ja.B. included Dr. Eboni N. Webb, Julie Spies, Ava Cozart,
Kent Robson, Dawn Bradley, and Jeremy Willis; additional witnesses testifying for WCS included

Angela Barnes, Nicole Kanew, and Dr. Clovis Stair. (Id.)
During the administrative hearing, counsel for Jo.B., M.B., and Ja.B. attempted to
introduce evidence or refer to arguments that were not raised in the original or amended
complaints, including whether the school was required to hold a manifestation determination
review after the October 27, 2017 disciplinary incident and whether WCS violated the IDEA’s
prior written notice requirements. (Id. at PageID# 1310–13, 1332–35, 1854–55.) The ALJ
informed the parties that arguments not raised in the complaint were “not before [her].” (Id. at
PageID# 1333, 1854–55.) Jo.B., M.B., and Ja.B. dropped their retaliation claims at the hearing,
and the parties opted not to present testimony related to the 2019 evaluation and eligibility
determination. (Id. at PageID# 1364–70.)
The ALJ’s final order, issued on September 21, 2020, did not address the 2019 evaluation
and eligibility determination or any allegations related to the IDEA’s prior written notice or

manifestation determination review requirements. (Doc. No. 16-2, PageID# 779–798.) The ALJ
found that:
• In light of the information from [Ja.B.]’s prior school, the additional
information provided by his parents, the absence of an official diagnosis,
and their own observations, MJMS had no reason to evaluate [Ja.B.] for
Special Education services. Nothing in [Ja.B.]’s records from Illinois or the
information provided by his parents suggested that [Ja.B.] had a disability
which warranted an evaluation for Special Education Services. (Id. at
PageID# 793, ¶ 10.)
• Based on the 3 months available to MJMS and the information about [Ja.B.]
that had already been provided, MJMS did not deny [Ja.B.] a FAPE or
otherwise violate the IDEA by failing to evaluate [Ja.B.] for Special
Education services prior to his disenrollment. (Id. at PageID# 795, ¶ 22.)
• Neither did MJMS violate the IDEA by choosing not to evaluate [Ja.B.] for
Special Education services following his disenrollment. The record does not
show any additional information about Ja.B. provided to MJMS following
his disenrollment that would have suggested the need for specialized
instruction through an IEP in order to access his education and receive a
FAPE. (Id. at ¶ 23.)
• The facts alleged by the Petitioners have not shown a violation of the IDEA.
For this reason, and because [Ja.B.] had not “previously received special
education and related services under the authority of a public agency,” he is
not eligible for reimbursement of his private school tuition.” (Id. at ¶ 24
(citation omitted).)
• Neither does a claim pursuant to Section 504 entitle the Petitioners to any
relief. . . . The evidence in the record does not substantiate any negligence
by MJMS in undertaking the evaluation for a 504 Plan, much less any bad
faith or gross misjudgment that is required to recover under Section 504.
(Id. at PageID# 796, ¶¶ 25, 27.)
2. Federal District Court Proceedings
Jo.B., M.B., and Ja.B. initiated this action by filing a complaint under 20 U.S.C.
§ 1415(i)(2), alleging that (1) WCS denied Ja.B. a FAPE during the 2017–2018, 2018–2019, and
2019–2020 school years by failing to identify and evaluate him for special education services,
failing to design and implement an IEP for those school years, and not holding a manifestation

determination review after Ja.B.’s October 27, 2017 disciplinary incident; (2) CATES Academy
was an appropriate private placement for Ja.B.; (3) Ja.B. is entitled to compensatory education for
the time period of August 2017 through the date of decision; and (4) Ja.B.’s parents are entitled to
reimbursement for the cost of Ja.B.’s private educational placement. (Doc. No. 1.) WCS filed an
answer to the complaint, in which they argue that the district court has no jurisdiction to hear any
claims that were not raised and decided in the underlying due process hearing, including any claims
related to a manifestation determination review. (Doc. No. 11.)
Jo.B., M.B., and Ja.B. filed a motion for judgment on the administrative record (Doc.
No. 23), WCS responded (Doc. No. 28), and Jo.B., M.B., and Ja.B. filed a reply (Doc. No. 29.)
Jo.B., M.B., and Ja.B. argue that (1) WCS violated the IDEA’s child find mandate and denied Ja.B.

a FAPE by failing to identify and evaluate him for special education services; (2) WCS denied a
request for an evaluation by Jo.B. and M.B. without providing prior written notice; (3) Jo.B. and
M.B. are entitled to reimbursement for the cost of Ja.B.’s private placements at CATES Academy
and Meridell; and (4) Ja.B. is entitled to compensatory education for WCS’s denial of FAPE for
the 2017–2018 school year. (Doc. No. 24.) WCS responds that (1) it did not violate its child find
mandate or deny Ja.B. a FAPE because it did not overlook clear signs of disability and provided
him with interventions and supports; (2) Jo.B., M.B., and Ja.B. did not exhaust their claims that
WCS refused a parent request for a special education evaluation, failed to provide prior written
notice, or failed to hold a manifestation determination review; and (3) Jo.B., M.B., and Ja.B. are
not entitled to tuition reimbursement or compensatory education because CATES Academy and
Meridell are not appropriate placements under the IDEA. (Doc. No. 28.) Jo.B., M.B., and Ja.B.
reply that (1) they exhausted their claims regarding parental requests for evaluation, prior written
notice, and the lack of a manifestation determination review because those claims are part of their

properly exhausted Child Find claim; and (2) CATES Academy is an appropriate placement for
Ja.B. (Doc. No. 29.)
II. Legal Standard
The IDEA provides that a court reviewing an administrative determination “(i) shall
receive the records of the administrative proceedings; (ii) shall hear additional evidence at the
request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(i)–(iii). “The
Supreme Court has construed this provision to mean that an initial reviewing court should make
an independent decision based on the preponderance of the evidence, but also should give ‘due
weight’ to the determinations made during the state administrative process.” McLaughlin v. Holt
Pub. Schs. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003) (quoting Bd. of Educ. of Hendrick

Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)).
The amount of weight due to a state agency’s findings “will vary, depending on whether
the court is reviewing procedural or substantive matters and whether educational expertise is
essential to the administrative findings.” Burilovich v. Bd. of Educ. of Lincoln Consol. Schs., 208
F.3d 560, 566 (6th Cir. 2000). When reviewing procedural issues, “a court should ‘strictly review’”
whether the school complied with the IDEA’s procedural requirements. Id. (quoting Dong v. Bd.
of Educ. of Rochester Cmty. Schs., 197 F.3d 793, 800 (6th Cir. 1999)); see also Deal, 392 F.3d at
854 (same). However, a finding that a school district violated the procedural requirements of the
IDEA will entitle a child or parent to relief only where the violation caused substantive harm.
Knable, 238 F.3d at 764. To establish a procedural violation of the IDEA’s child find mandate,
“the claimant ‘must show that school officials overlooked clear signs of disability and were
negligent in failing to order testing, or that there was no rational justification for not deciding to
evaluate.’” L.M., 478 F.3d at 313 (quoting Clay T. v. Walton Cnty. Sch. Dist., 952 F. Supp. 817,

823 (M.D. Ga. 1997)). With respect to substantive issues, courts “must keep in mind that the state
and local educational agencies are deemed to possess expertise in education policy and practice.”
Burilovich, 208 F.3d at 567; see also Rowley, 458 U.S. at 207 (“The primary responsibility for
formulating the education to be accorded a handicapped child, and for choosing the educational
method most suitable to the child’s needs, was left by the [IDEA] to state and local educational
agencies in cooperation with the parents or guardian of the child.”). “As a result, less weight is due
to an agency’s determinations on matters for which educational expertise is not relevant, so that a
federal court would be just as well suited to evaluate the situation[,]” while “[m]ore weight is due
to an agency’s determinations on matters for which educational expertise would be relevant.”
Burilovich, 208 F.3d at 567.

III. Analysis
A. Administrative Exhaustion
The IDEA’s statutory framework requires that claimants administratively exhaust their
claims before filing suit. Perez v. Sturgis Pub. Schs., 3 F.4th 236, 239–40 (6th Cir. 2021); 20
U.S.C. § 1415(i)(2), (l). The exhaustion requirement “enables the agency to develop a factual
record, to apply its expertise to the problem, to exercise its discretion, and to correct its own
mistakes, and is credited with promoting accuracy, efficiency, agency autonomy, and judicial
economy.” Donoho ex rel. Kemp v. Smith Cnty. Bd. of Educ., 21 F. App’x 293, 296 (6th Cir. 2001)
(quoting Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989)).
Through it, “[f]ederal courts—generalists with no expertise in the educational needs of
handicapped students—are given the benefit of expert factfinding by a state agency devoted to this
very purpose.” Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989).
The Sixth Circuit has held that full development of the administrative record provided by the
exhaustion requirement is necessary because, “[w]ere federal courts to set themselves up as the

initial arbiters of handicapped children’s educational needs before the administrative process is
used, they would endanger not only the procedural but also the substantive purposes of the Act.”
Id. An exception to the exhaustion requirement applies if the administrative process “‘would be
futile or inadequate to protect the plaintiff’s rights’” or “‘if the plaintiffs were not given full notice
of their procedural rights under the IDEA.’” Donoho, 21 F. App’x at 297 (quoting Covington v.
Knox Cnty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000)). The burden of demonstrating that either
of these exceptions applies “rests on the party seeking to bypass the administrative procedures.”
Covington, 205 F.3d at 917 (citing Honig v. Doe, 484 U.S. 305, 327 (1988)).
Jo.B., M.B., and Ja.B.’s original and amended due process complaints do not allege that
they made a formal request for a special education evaluation during the 2017–2018, 2018–2019,

or 2019–2020 school years; that WCS failed to comply with the IDEA’s prior written notice
requirements; or that WCS failed to hold a manifestation determination review after the October
27, 2018 disciplinary incident. The IDEA provides that a claimant “shall not be allowed to raise
issues at the due process hearing that were not raised in the [due process complaint], unless the
other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B); see also 34 C.F.R. § 300.511(d). During
the administrative hearing, WCS objected to attempts by the plaintiffs’ counsel to raise issues
outside the pleadings. (Doc. No. 16-3, PageID# 1310–13, 1332–35, 1854–55.) The ALJ found that
arguments not raised in the pleadings were “not before [her]” (Doc. No. 16-3, PageID# 1333,
1854–55), and noted in her final order that, “[a]s clearly specified in the IDEA and its
implementing regulations, no issues shall be addressed in this Order that were not properly alleged
in either due process complaint or at any time during the hearing[,]” specifically identifying the
manifestation determination review as one such issue (Doc. No. 16-2, PageID# 797, 798 n.10.)
Jo.B., M.B., and Ja.B. do not invoke any exception to the administrative exhaustion

requirement in this action. Instead, they argue that any issues related to denial of a formal request
for evaluation, prior written notice, and the manifestation determination were fully exhausted
because those issues are “part of the Complaint’s allegation that [WCS] failed in its Child Find
obligations.” (Doc. No. 29, PageID# 2561.) That argument fails to recognize the distinct nature of
those procedural claims under the IDEA.
The IDEA imposes procedural requirements that LEAs must follow when they “refuse[ ]
to initiate or change” “the identification, evaluation, or educational placement of the child, or the
provision of a [FAPE] to the child[,]” 20 U.S.C. § 1415(b)(3), which include the provision of prior
written notice, id. § 1415(c)(1). The statute imposes a separate requirement that school personnel
determine whether a behavioral problem was a manifestation of a child’s disability before taking

disciplinary action that would amount to a change in educational placement for that child. Id.
§ 1415(k). Although an LEA carrying out its child find obligation must follow these provisions of
the IDEA, these requirements are set out in different parts of the statute than the IDEA’s child find
requirements. Id. § 1412(a)(3). Claims involving the IDEA’s prior written notice and manifestation
determination requirements require specific factual inquiries that are distinct from the factual
inquiry involved in a child find claim. See M.G. ex rel. C.G. v. Williamson Cnty. Schs., 720 F.
App’x 280, 284–85 (6th Cir. 2018) (considering child find claims separately from prior written
notice claims); Zdrowski v. Rieck, 119 F. Supp. 3d 643, 663–64 (E.D. Mich. Aug. 11, 2015)
(separately considering whether plaintiff had exhausted his child find and manifestation
determination claims).
Jo.B., M.B., and Ja.B. did not claim in their original or amended due process complaints
that WCS denied a request for evaluation without providing prior written notice5 or that WCS

violated the IDEA’s manifestation determination requirements. The factual basis for prior written
notice or manifestation determination claims was not developed at the administrative hearing; nor
were any such claims decided in the ALJ’s final order. The same is true for any claims based on
WCS’s 2019 special education evaluation of Ja.B. Without the benefit of full administrative
exhaustion of those claims, this Court will not consider them. See Crocker, 873 F.2d at 935–36.
B. WCS’s Child Find Obligation
Jo.B., M.B., and Ja.B. argue that Ja.B. should have been evaluated for special education
while enrolled at MJMS in 2017 or after his disenrollment for the 2017–2018, 2018–2019, and
2019–2020 school years. The IDEA’s child find provision requires that “schools must have
policies and procedures in place to identify, locate, and evaluate children with disabilities who
need special education and related services.” L.M., 478 F.3d at 313 (citing 34 C.F.R.

§ 300.111(a)(1)). This obligation extends to “[c]hildren who are suspected of being a child with a
disability . . . and in need of special education, even though they are advancing from grade to
grade[.]” 34 C.F.R. § 300.111(c)(1); see also L.M., 478 F.3d at 313. The IDEA’s child find

5 Jo.B., M.B., and Ja.B. correctly assert that parental requests for evaluation may provide
notice of a child’s disability that triggers an LEA’s child find obligations. (Doc. No. 29 (citing 20
U.S.C. § 1412(a)(3)(A), 34 C.F.R. § 300.125(a)(1)(I) (2005).) However, an LEA does not per se
violate the IDEA by denying a parent’s request for a special education evaluation. After a parent
requests an evaluation under the IDEA, the LEA must perform the evaluation or provide the parent
with prior written notice explaining why it refuses to conduct the evaluation. 34 C.F.R. §§ 300.301,
300.503(a)(2), (b)(2). The LEA must also provide the parents with a copy of the procedural
safeguards when they request an evaluation. Id. § 300.504(a)(1). Neither the original nor the
amended due process complaint alleges that WCS failed to comply with these requirements.
provision does not, however, “demand that schools conduct a formal evaluation of every struggling
student.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012). “A school’s failure to
diagnose a disability at the earliest possible moment is not per se actionable, in part because some
disabilities ‘are notoriously difficult to diagnose . . . .’” Id. (quoting A.P. ex rel. Powers v.

Woodstock Bd. of Educ., 572 F. Supp. 2d 211, 226 (D. Conn. 2008)). To establish a violation of
the child find requirement, plaintiffs “must show that school officials overlooked clear signs of
disability and were negligent in failing to order testing, or that there was no rational justification
for not deciding to evaluate.” L.M., 478 F.3d at 313 (quoting Clay T., 952 F. Supp. at 823). Because
the IDEA and federal and state regulations set forth procedures for determining a child’s eligibility
for special education and related services, this Court “‘strictly review[s]’” compliance with those
procedures. Burilovich, 208 F.3d at 566 (quoting Dong, 197 F.3d at 800); Deal, 392 F.3d at 854
(same).
1. Ja.B.’s Enrollment at MJMS
The ALJ found that, “[b]ased on the 3 months available to MJMS and the information
about [Ja.B.] that had already been provided, MJMS did not deny [Ja.B.] a FAPE or otherwise

violate the IDEA by failing to evaluate [Ja.B.] for Special Education services prior to his
disenrollment.” (Doc. No. 16-2, PageID# 795, ¶ 222.) The evidence in the administrative record
supports this finding.
When Ja.B. enrolled at WCS, he did not have an IEP or a § 504 plan in place, and his
Illinois school records and the information provided by his parents did not address special
education services. Although his parents expressed concern about his behavior and requested
support from his teachers generally, they did not request a special education evaluation. See D.K.,
696 F.3d at 247 n.5 (“[W]e cannot conclude that general expressions of concern constitute a
“parental request for evaluation” under the plain terms of the [IDEA].” (quoting 20 U.S.C.
§ 1415(d)(1)(A)(i))). And the record evidence does not “‘show that [WCS] officials overlooked
clear signs of disability and were negligent in failing to order testing, or that there was no rational
justification for not deciding to evaluate.’” L.M., 478 F.3d at 313 (quoting Clay T., 952 F. Supp.
at 823).

Ja.B. was enrolled in WCS for just over three months. (Doc. No. 16-3, PageID# 1838; Doc.
No. 16-5, PageID# 2086.) He started school at WCS shortly after a cross-country move, which his
parents identified as a probable contributor to his behavioral issues. (Doc. No. 16-3,
PageID# 1021; Doc. No. 16-4, PageID# 1960.) WCS’s expert witness in special education
eligibility determinations, Dr. Stair, testified that, for a student like Ja.B., “whose long-term career
has been pre-special education, where the disruptions have been at home, [where] we see nothing
in the record that suggests that the behaviors are occurring at school,” and who has recently
experienced “a major move to another state[,]” school officials “need to give the child time to
settle into his environment” before identifying him as a child in need of special education services.
(Doc. No. 16-3, PageID# 1831–32.) As Ja.B. began to exhibit behavior problems at school, WCS

staff responded by communicating with Jo.B., M.B., and Ja.B. about interventions, including
tutoring and counseling services, reminders about consequences, and the use of support tools like
an agenda.
After Ja.B. was released from Vanderbilt Psychiatric Hospital at the end of September
2017, WCS staff responded to Ja.B.’s doctor’s recommendation and Jo.B. and M.B.’s request for
a § 504 plan by initiating the process of developing a § 504 plan for Ja.B. Rainey testified that the
process of determining whether a student is eligible for § 504 or special education services
involves a data collection regarding the student’s needs, making interventions, monitoring the
student’s response for two-to-four weeks, and adjusting interventions and responses “until you
find out what works for this child.” (Id. at PageID# 1344–45.) Rainey and Crane testified that
WCS uses a tiered “response to intervention” (RtI) approach to ensure that students are not “over
identif[ied]” for special education services (Id. at PageID# 1344, 1647–49.) Before Ja.B.’s October
30, 2017 § 504 meeting, WCS school psychologist Rachael Wrye met with Bowman and

“recommended that RtI B be followed in order to provide[ ] behavioral interventions prior to
determining [special education] certification. This is required to ensure LRE for the student.” (Doc.
No. 16-10, PageID# 2448.)
Utilizing this kind of RtI approach helps a school ensure that students are educated in the
least restrictive environment, as the IDEA requires See L.H., 900 F.3d at 789 (quoting 20 U.S.C.
§ 1412(a)(5)(A)). Tennessee’s special education regulations require school districts to use the RtI
model to identify students with disabilities. Tenn. Comp. R. & Regs. 0520-01-09-.05(1)(d) (“As a
component of child find activities, general education programs within each LEA shall provide and
document interventions implemented in the general education program.”). Although RtI “cannot
be used to delay or deny the provision of a full and individual evaluation . . . to a child suspected

of having a disability under 34 C.F.R. § 300.8[,]” an LEA may deny a parent request for an initial
evaluation if the LEA does not suspect that the child has a disability requiring special education
under the IDEA and can instead be accommodated outside the special education process.6 U.S.
Dep’t of Educ., Off. of Special Educ. & Rehab. Servs., OSEP 11-07, A Response to Intervention

6 An LEA that denies a request for an initial evaluation must provide written notice to parents
explaining why the public agency refuses to conduct an initial evaluation and the information that
was used as the basis for that decision. 34 C.F.R. § 300.503(a)(2). As explained above, Jo.B., M.B.,
and Ja.B. have not properly exhausted any prior written notice claims in this action.
(RTI) Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the Individuals
with Disabilities Education Act (IDEA) (2011).7
WCS’s approach of applying behavioral interventions and gathering data on Ja.B.’s
response is aligned with state guidance for providing interventions for students experiencing

behavioral issues. The Tennessee Department of Education has recognized that, where a student
exhibits behavioral issues, a student must be observed for an “extended period of time”—“often
considered to be two to nine months”—before a school evaluates that student for an emotional
disturbance because, while “[s]ome students engage in challenging behavior temporarily, when
life circumstances change or traumatic events occur, and behavior or emotional functioning may
resolve after initial reactions subside or interventions are in place[,] [s]tudents with emotional
disturbance will engage in these behaviors for an extended period of time.” Tenn. Dep’t of Educ.,
Emotional Disturbance Evaluation Guidance at 20–21 (revised 2018).8 That approach is
especially appropriate where, as here, a student who has not received special education services in
the past exhibits behavioral problems after a significant change in circumstances like a cross-

country move. When Ja.B. exhibited behavior problems at MJMS, WCS responded reasonably by
communicating with Ja.B.’s parents, implementing behavioral interventions, and gathering data to
determine whether additional interventions, including a later referral for special education services,
would be needed. See M.G., 720 F. App’x at 285 (finding that school district complied with child
find requirement by employing “general intervention strategies, such as RtI and [General

7 https://sites.ed.gov/idea/files/policy_speced_guid_idea_memosdcltrs_osep11-
07rtimemo.pdf (last visited Jan. 31, 2022).
8 https://www.tn.gov/content/dam/tn/education/special-
education/eligibility/se_emotional_disturbance_evaluation_guidance.pdf (last visited Jan. 31,
2022).
Education Intervention Team support], and later an individualized Section 504 plan, to ensure that
[student-plaintiff] was making adequate progress). WCS provided support designed to address
Ja.B.’s behavioral and academic needs, even though he had not been identified as being disabled
within the meaning of the IDEA. See L.M., 478 F.3d at 314 (holding that school district did not

violate IDEA’s child find obligation where student was not identified as having a disability during
his first and second grade years, but school provided specialized instruction and behavior-
management strategies during that time). Therefore, Jo.B., M.B., and Ja.B. have not shown that
WCS violated the IDEA’s child find requirements during Ja.B.’s enrollment at MJMS.
2. Ja.B.’s Disenrollment From MJMS
Nor have Jo.B., M.B., and Ja.B. shown that WCS overlooked clear signs of disability or
lacked rational justification in not evaluating Ja.B. for special education services after his
disenrollment from MJMS. After Ja.B.’s October 27, 2017 disciplinary incident and subsequent
withdrawal from MJMS, his teaching team met with Jo.B. and M.B. to finalize his § 504 plan,
which identified his impairments as Generalized Anxiety Disorder and “Other – Conduct
Disorder” and included behavioral accommodations based on input from Ja.B.’s teachers, parents,

and administrators. (Doc. No. 16-5, PageID# 2093–96.)
While a § 504 plan cannot be used as a substitute for an IEP where a student requires special
education services under the IDEA, see, e.g., Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1376
(8th Cir. 1996), a diagnosed disability and demonstrated behavior problems do not automatically
establish that a student needs special education services under the IDEA because of their disability,
see, e.g., Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 384 (5th Cir. 2007).
Ja.B.’s passing grades at the time of his disenrollment, the lack of prior opportunity for WCS to
develop and implement Ja.B.’s § 504 plan and observe his response to § 504 accommodations, the
short timeframe of his enrollment at MJMS, and the possibility that his increased behavior issues
were due to his recent cross-country move all show that it was reasonable for WCS to proceed
with the § 504 process instead of referring Ja.B. for special education services. See Doe v. Cape
Elizabeth Sch. Dep’t, 382 F. Supp. 3d 83, 102–03 (D. Me. 2019) (“[W]hile [the LEA] undoubtedly
could have referred [student plaintiff] to special education on the same day she received a referral

for a Section 504 plan, [the LEA] was not statutorily obligated to do so . . . . In effect, it was
reasonable for [the LEA] to conclude that [student plaintiff]’s particular circumstance did not
require special education services as much as modifications to her schedule, performance
deadlines, attendance requirements, designated public school setting, and the like, to accommodate
her anxiety triggered by a dysfunctional home life.”); see also J.S. v. Scarsdale Union Free Sch.
Dist., 826 F. Supp. 2d 635, 663 (S.D.N.Y. 2011) (“[E]ven if the District should have known at this
point that [the student] had [a disability]—as opposed to merely thinking she was merely going
through a difficult time in her life—the IDEA’s child find requirement only applies to children
who are disabled and in need of special education and related services.”).
After withdrawing Ja.B. from MJMS, Jo.B. and M.B. met with WCS staff in February and

June of 2018. As the ALJ concluded, there is no indication that they requested an IEP evaluation
at either meeting or provided any additional information “that would have suggested the need for
specialized instruction through an IEP in order to access his education and receive a FAPE.” (Doc.
No. 16-2, PageID# 795, ¶ 23.) Although Ja.B.’s parents testified that they told school personnel
about the results of a private neuropsychological evaluation conducted by Dr. Jackie Klaver after
Ja.B. withdrew from MJMS, nothing in the record indicates that Klaver’s findings would have
shown that Ja.B.’s diagnoses required special education services under the IDEA instead of his
existing § 504 plan. See 20 U.S.C. § 1412(a)(3)(A) (requiring states to identify, locate, and
evaluate “[a]ll children with disabilities residing in the State ... who are in need of special
education and related services” (emphasis added)).
The Court finds that Jo.B., M.B., and Ja.B. have not shown that WCS “overlooked clear
signs of disability” or “negligent[ly] [ ] fail[ed] to order testing” after Ja.B’s disenrollment, L.M.,
478 F.3d at 313 (quoting Clay T., 952 F. Supp. At 823); thus, they have not carried their burden of
showing that WCS denied Ja.B. a FAPE, and Ja.B. is not entitled to the equitable remedy of
compensatory education. The Court also does not need to consider whether CATES Academy and
Meridell were appropriate placements under the IDEA to find that Ja.B.’s parents are not entitled
to reimbursement for the costs of those private placements.
IV. Recommendation
For the foregoing reasons, the Magistrate Judge RECOMMENDS that Jo.B., M.B., and
Ja.B.’s motion or judgment on the administrative record (Doc. No. 23) be DENIED and that the
ALJ’s decision be AFFIRMED.
Any party has fourteen days after being served with this Report and Recommendation to
file specific written objections. Failure to file specific objections within fourteen days of receipt
of this report and recommendation can constitute a waiver of appeal of the matters decided.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
A party who opposes any objections that are filed may file a response within fourteen days after
being served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 2nd day of February, 2022.

abso noleorr
ALIS E. NEWBERN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10437660. Public record. Not legal advice.